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IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISIO N, CAPE TOWN )
Appeal case number: A249/2024
Case number: 8199/2023
In the matter between:
NADIA ABRAHAMS First appellant
RALPH RICHARDS Second appellant
ALL OTHER OCCUPIERS OF 6 [...] P[...] A[...]
AVENUE, YSTERPLAAT, BROOKLYN, 7405 ( ERF 1[...]
CAPE TOWN) HOLDING OCCUPATION UNDER THE
FIRST AND SECOND APPELLANTS Third appellant
and
HAROLD MORNÉ DE WET First respondent
ALANA VIVIAN DE WET Second respondent
JUDGMENT DELIVERED ON 30 APRIL 2025
VAN ZYL AJ :
Introductio n
1. This is an appeal against the grant of an eviction order.
2. On 28 May 2024 the Cape Town Magistrates’ Court evicted the appellants
from the immovable property situated at 6[...] P[...] A[...] Avenue, Ysterplaat,
Brooklyn .1 The first respondent is the registered owner of the property.2 The
appellants were ordered to vacate the property by 31 August 2024 . The
eviction order was granted pursuant to the provisions of the Prevention of
Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (“PIE”).3
The points in limine
3. The respondents, apart from resisting the appeal on the merits, raised two
points in limine in their heads of argument. I deal with them briefly. While there
is merit in both, I am of the view that the interests of justice and finality are
better served by determining the appeal on its merits rather than delaying the
process on the basis of procedural issues.
4. The first point in limine was that the appellants had failed timeously to note
their appeal, and thus that they had failed to comply with the timelin es
prescribed by the rules governing appeals from the Magistrates' Court to the
High Court , in particular Rule 51(3) of the Magistrates’ Court Rules . It
appeared from a consideration of the papers as well as from the appellant’s
attorney’s submissions at t he hearing of the appeal that the appellants’
1 Also known as Erf 1 [...] Cape Town .
2 The first and second respondents are married to each other in community of property .
3 The first to third appellants were the first to third respondent s in the eviction application. The
City of Cape Town was the fourth respondent in th e application, but was not cited as a party
to the appeal.
attorney laboured under a misconception as to when the time period for the
noting of an appeal commenced. This is regrettable, as it resulted in a
substantial delay in the set -down of the appeal. The Court was nevertheless
of the view that the merits of the appeal had to be dealt with, and was willing
to proceed with the hearing despite the non -compliance with the relevant
rules.
5. The second point in limine was that the appellants’ attorney had not
demonstrated that he had been mandated to note and conduct the appeal on
behalf of the second and third appellants. All the notices delivered on the
appellants’ behalf lists the three appellants, with Dlova Attorneys Inc orporated
consistently indicat ed as represent ing all three. From the record it appears
that o nly the first appellant has however formally mandated Dlo va Attorneys to
act on her behalf in the appeal. This seems to me to be the result of shoddy
file administration ra ther than the absence of a mandate. It is common cause
that the first and second appellants are married. They make common cause in
relation to all of the facts and arguments upon which their appeal relies. It is
clearly their household as a unit that is th e subject of the eviction order. In the
circumstances, the Court did not regard the absence of written proof of
mandate in relation to the second and third appellants as standing in the way
of considering the appeal on its merits.
The r elevant factual bac kground
6. It is common cause that the f irst respondent is the registered owner of the
property . It is also not seriously in dispute that the appellants, who are
occupying the property, are currently indebted to the first respondent in
respect of rent and municipal charges . The appellants admit, in fact, that they
stopped paying anything to the firs t respondent in May 2022 when the dispute
between them reared its head. They have not since made any payment
towards rent in respect of the property
7. The f irst respondent and first appellant concluded a written lease agreement
in respect of the property for a lease period of six months on 27 June 2011 .
After the expiry of this period and the exercise of the first appell ant’s option to
renew (which added a further six months to the lease period) , the lease
agreement continued on a month -to-month basis . Ther e is a dispute between
the parties as to the intended future duration of the lease . As will appear from
what is set out below, the appellants argue that they were, and are, entitled to
remain in the premises indefinitely.
8. In 2015 the f irst respondent granted the appellants permission to make
changes to the property . It is common cause that various alterations to the
building were subsequently effected , but the nature, extent and value of the
work done are in dispute . The appellants say that t hey did work to the value of
about R600 000,00 on the property, and that the first respondent had agreed
to reimburse them for the building works they carried out . The respondent s
deny this. The appellants further say that they intended to purchase the
property, and that that was the reason why they proceeded to incur expenses
in respect thereof. The respondents deny that there was any agreement
between the parties as to the possible sale of the property.
9. The appellants were not diligent rent -payers. It appears that the first
respondent attempted to again conclude a written lease agreement with them,
with no success. He also demanded increased rental, which did not please
the appellants. On 13 December 2022 the first respondent sent the
appellants a letter of demand for outstanding rental, a notice of cancellation,
and a notice to vacate . The respondents subsequently sought the appellants’
eviction from the property by way of application, b ut the magistrates’ court
directed that oral evidence be presented on various aspects arising from the
papers . The court accordingly heard oral evidence fro m Gregory Exford from
the City of Cape Town, Khosi Mkize from the Department of Social
Development, Llewelyn James L ouw, a municipal valuator from the City of
Cape Town, as well as from the first and second appellants and the first
respondent.
10. The a ppellants continue to occupy the property. They sublet portions thereof ,
but refuse to disclose the remuneration received from the subletting.
11. In opposing the eviction proceedings the appellants essentially relied on the
argument that they intended to buy the property and that they have an
enrichment lien over the property, allowing them to remain in oc cupation of
the pr operty until such time as they are reimbursed for the expenses that they
incurred in effecting the building works and alterations. It seems from a
reading of the papers and a consideration of the evidence led at the hearing
that the appel lants claim the rights of a bona fide purchaser based on the
decision in Kommissaris van Binnelandse Inkomste v Anglo American (OFS)
Housing Co Ltd :4
“Although the respondent knew that it was building on the land of another, it
did so animo domini. In terms of the agreement those houses were erected
for the respondent's own use and were to become its property in due course.
In those circumstances as soon as its right of occupation was threatened the
respondent would be entitled to claim the r ights of a bona fide possessor. ”
12. They therefore claim to be entitled to recover necessary and useful expenses
and to exercise a lien over the property until paid. Their affidavits do not
distinguish between the two categories of expenses.
13. This appeal lie s against the magistrates’ court’s refusal to uphold th is defence,
and I accordingly turn to discuss the merits thereof .
The alleged enrichment lien
14. Did t he appellants establish a valid enrichment lien over the first respondent's
property , allowing them to remain in occupation until they are reimbursed ?
There are several aspects that require consideration in this regard.
The appellants’ reliance on the Placaeten
4 1960 (3) SA 642 (A) at 657 A.
15. The magistrates’ court held that the appellants, as tenant s under an urban
lease , have no right of retention unless they meet the requirements for an
enrichment lien. The appellant s say that they have such a lien arising f rom the
alterations they effected to the property.
16. The appellants submit that the magistrate erred in failing to hold that, as the
property is urban land, their alleged improvements entitle them to retain
possession until compensated . This, they say, is so because the property
does not fall within the category of properties to which the provisions of two
Placaeten that were promulgated by the Estates of Holland during the 17th
century5 apply. The Placaeten materially curtailed a le ssee’s entitlement to
compensation for improvements effected to rural properties. For example,
although lessees retained their right to claim compensation for improvements,
the claim was limited to improvements effected with the landlord's consent.
Moreove r, they lost their right of retention in the form of a lien. At the end of
the lease period, they first had to vacate the property before they could
institute their claim for compensation.6
17. The a ppellants contend , with reference to Business Aviation Corporation (Pty)
Ltd and another v Rand Airport Holdings (Pty) Ltd,7 that the magistrate erred
in failing to appreciate that the Placaeten apply only to rural land and,
therefore, they should not have been deprived of the right to raise a lien f or
necessary and useful improvements made to the property. They emphasise
the fact that the first respondent had given them permission to effect
alternations to the property.
18. In the present matter, however, the Placaeten are irrelevant , and the
appellants’ reliance thereon is misplaced. Improvements, even made with the
approval of the landlord, do not automatically create a right of retention. While
the SCA in Business Aviation held that the Placaeten do not apply to urban
5 On 26 September 1658 and 24 February 1696, respectively.
6 See the discussion in Business Av iation Corporation (Pty) Ltd and another v Rand Airport
Holdings (Pty) Ltd 2006 (6) SA 605 (SCA) paras 6 -11.
7 2006 (6) SA 605 (SCA) para 37: “. . . the provisions of t he Placaeten relied upon by the
plaintiff never applied to urban leases .”
leases, this does not m ean that an enrichment lien automatically exists in the
case of urban properties . The SCA did not confirm the existence of such a lien
but merely ruled that the magistrate's initial dismissal of the defence, based
solely on the Placaeten, was incorrect on the particular facts of that case .
19. The key question is not whether the Placaeten apply but whether the
appellants have a valid enrichment lien. In principle, a lien holder does not
acquire an independent cause of action against the owner of the property o ver
which such lien is asserted. The lien is dependent on the existence of an
underlying enrichment claim.8
20. To rely on a lien, the appellants9 need to prove the following :
20.1. Lawful possession of the property .10
20.2. That the expenses incurred were necessary or useful for the
improvement of the property .11
20.3. The actual expenses incurred and the extent of the respondents’
enrichment .12
20.4. That there was no contractual arrangement between the parties in
respect of the expenses.13
21. I turn to discuss these requirements in the context of the present matter.
Lawful possession of the property
8 Crystal Ball Properties 27 (Pty) Ltd and another v Mbalati NO and others 2022 JDR 3516 (GJ)
para 32.
9 The onus rests upon the appellant s to prove that the first respondent has been enriched : see
Rhoode v De Kock and another 2013 (3) SA 123 (SCA) .
10 Roux v Van Rensburg 1996 (4) SA 271 (SCA).
11 See the discussion in Wynland Construction (Pty) Ltd v Ashley -Smith en andere 1985 (3) SA
798 (A).
12 Rhoode v De Kock and another 2013 (3) SA 123 (SCA).
13 See Buzzard Electrical (Pty) Ltd v 158 Jan Smuts Avenue Investments (Pty) Ltd 1996 (4) SA
19 (SCA). -·
22. The appellants contend, on this score, that they agreed with the first
respondent around 2015 to purchase the property. It was on the basis of this
understanding that they effected the alterations to the property over the
succeeding years. The respondents den y that there was ever any agreement
in relation to the sale of the property to the appellants.
23. The obvious problem with the appellants’ contention is that no written
agreem ent of sale exists – that is common cause. A mere interest in acquiring
a property does not justify refusing to vacate.
24. As a backstop, the appellants contend that they had orally concluded a l ong-
term lease with the first respondent. The latter denies this contention, and the
oral evidence led at the hearing of the application does not support th e
appellants’ assertion.
25. There is, in the circumstances, no evidence supporting the appellants’
contention that they are currently in lawful possession of the property.
The necessity and usefulness of the expenses incurred
26. The appellants’ answering affidavits (and for that matter, their oral evidence)
do not distinguish between necessary expenses, on the one hand, and useful
expenses , on the other. Ins ofar as the claim relates to necessary expenses,
the appellants would have a c laim for reimbursement for expenditure of
money or material on the preservation of the property. They have no claim for
their own labour. As regards useful expenses, the amount of compensation is
limited to the amount by which the value of the property ha s been increased
or the amount of the expenses incurred by the appellant, whichever is less;
and the court has a wide discretion.14
27. As indicated, it is common cause that the appellants effected alterations to the
14 Rhoode v De Kock supra paras 14 -15.
property. Whether those improvements were either necessary or useful is,
however, seriously disputed. The appellants claim that the respondents
approved useful and necessary improvements when they consented to the
building work in 2015. The argument seems to be that, since the first
respondent had agreed to the changes, they were inevitably of a useful and
necessary nature.
28. The argument has no merit, and is in any event contradict ed by the oral
evidence on record. I t is clear that the first respondent only agreed to the
alterations after some of the work had already been done. The approved
changes were n either necessary nor useful, a nd they provided no benefit to
him. In oral evidence h e described the house , as altered, as “a mess ”. The
second appellant admitted that the property as altered is convenient for him ,
but he did not wish to commit himself to stating that would be suitable for
anyone else.
29. The valuer Llewelyn James Louw's evidence showed that the work done
deviated from the ap proved building plan, remained unfinished, and reflected
poor craftsmanship . Inferior and second -hand materials were used. The
second appellant's evidence supported this. There is no evidence upon which
it can be found that the alterations were either useful or necessary so as to
support an enrichment lien. The magistrate ’s finding in this respect was
correct.
The actual expenses incurred and the extent of the respondents’ enrichment
30. The extent of the expense incurred by the appellants in effecting th e
alterations remains opaque despite the extensive time spent on the issue in
the course of the oral evidence led at the hearing. Having considered the
evidence as a whole, the situation reminds one of the SCA’s comment in
Rhoode v De Kock:15
15 Supra para 17.
“The appellant's case amounts to this: 'I have made alterations and additions
to the respondents' property. I have produced no acceptable evidence to
establish whether the property has been improved in value, nor have I
disclosed what I expended in money or materials. But I wish to resist an
application for ejectment until compensated for an amount that I have not
begun to quantify.' To enforce a lien in these circumstances would in my view
be to allow an abuse of the process of the court. ”
31. There are various un satisfactory aspects to the appellants’ evidence in this
regard. In their heads of argument, the appellants contend that the
improvements were completed in 2022 and that, despite the property still
being incomplete in 2021, the municipality valued it at R1 ,285 million at that
stage , allegedly correlating with the costs of the necessary improvements.
They rely on a muni cipal valuation of R600 000.00 done in 2019, before the
alleged necessary improvements were effected , to suggest a significant
increase in the property's value. This argument contradicts the answer ing
papers, wh ich state that the work was completed in 2021 .
32. In oral evidence, the first appellant initially testified that the building works
were completed in 2023 but, after being corrected by her legal representative,
changed her evidence to 2021. The second appellant stated that construction
began in 2019, a nd was completed late in 2022. Valuer Louw's evidence
contradicted both appellants' evidence, citing municipal records showing that
construction started on 19 August 2015 and was completed on 14 November
2019. The building inspector recorded the commenceme nt and completion
dates, as well as the subsequent valuation dates.
33. The first appellant could not explain what the building works entailed. The
second appellant relied solely on three invoices attached to the answering
papers, with vague descriptions such as "new boundary", "new store", and
"new maid's bedroom", and simply listing the alleged total square metre
measurements and costs. These invoices lack essential details, including
materials used, labour costs, timelines, and structural specifications. No
confirmatory affidavit or evidence from the contractor was provided to confirm
and clarify the work done , and the invoices accordingly constitute inadmissible
hearsay evidence .
34. To compound the uncertainly, the appellants clai med to have paid for the
building works in cash, but provided no supporting evidence , such as bank
statements, beyond the invoices. The onus of proving the amount of the lien is
on the appellants. The facts are peculiarly within their knowledge.16
35. The appellants rely on municipal valuations, respectively dated 27 February
2019 and 27 June 2021, in support of their claim that the buil ding works
increased the property's value. As indicated, h owever, their justification for the
scope of the works rests solely on three invoices, two of which post -date the
June 2021 valuation.17 The second appellant conceded that an invoice dated
13 Novemb er 2021 should be excluded from consideration, as it did not
correspond with the approved building plans. The appellants nevertheless
persisted in the argument that the increase in the property’s value occurred
despite the incomplete state of the building works , and that such increase was
equal to the expenses incurred in effecting the alterations .
36. Louw , however, testified that his desktop review of the property, based on
municipal records and aerial ph otographs, showed no correlation between the
building works and an increase in property value. While the approval of the
building plan triggered a desktop revaluation, municipal valuations occur
every three years and are based on market value and comparabl e sales, not
on building costs . The property's market value rose to R1.3 million after the
building plan approval, but decreased to R1.2 million upon a further municipal
valuation in 2022. He emphasised that the estimated construction costs of
R915 160,00 provided to the municipality did not automatically equate to an
equivalent property value increase.
37. Louw identified discrepancies, noting that the anticipated works as indicated
16 See Wynland Construction supra .
17 The invoices relied upon are all dated 2021, despite Louw's evidence that according to the
municipality’s records the building works were completed in 2019.
on the building plan were costed at R12,500.00 per square metre, far
exceedin g the quantity surveyor's 2018 building cost rate of R6,300.00 per
square metre for a standard dwelling in Cape Town. Based on the appellants'
own photo graph s, he deemed the claimed replacement cost unjustified, citing
the use of second -hand materials and poor craftsmanship . In his view, the
increase in the 2021 municipal valuation did not justify the claimed costs of
the building works. This further weakens the appellants’ assertion that the
works improved the property's value.
38. Louw stressed that municipal valuations lack the detail required to determine
whether the building works improved the value of the property. A proper
assessment would have to be undertaken by an independent valuer or
quantity surveyor . The appellants provide d no such evidence .
39. In short, t he appellants failed to prove that the building works increased the
property's value. Their reliance on municipal valuations is misplaced, as these
are based on market trends and comparable sales of properties based on
approve d building plans. Louw's evidence exposed significant discrepancies
in what has in fact been built and the claimed costs, and indicated the use of
second -hand materials, and poor craftsmanship .
40. In the circumstances, the a ppellants failed to show to what e xtent the first
respondent was enriched by the alterations . The evidence suggests that the
works neither enhanced the property's value nor benefited the first
respondent. Without proof of actual enrichment, the appellants’ reliance on an
enrichment lien is unfounded. Their failure to call an independent valuer or
quantity surveyor left the claim unsubstantiated .
41. These discrepancies cast serious doubt on the reliability of the appellants'
version, and undermine their claim. The SCA has commented as follows in
similar circumstances:18
18 De Aguiar v Real People Housing (Pty) Ltd 2011 (1) SA 16 (SCA) para 19 (emphasis
supplied).
“[19] As to the details regarding exactly which improvements they were, when
they were effected and at what cost, the appellant is exceedingly vague . More
importantly, the appellant does not presently have the necessary evidence
available to establish the enrichment lien on which he wishes to rely; such
evidence must still be found. According to him, it has been 'very difficult . . . to
track down the builders' who carried out the improvements in question. He
has also experienced difficulty finding 'any records of such transactions and in
most instances payment took place in cash transactions the records of which
have been disposed of'. This court is t herefore quite unable to evaluate the
cogency of the evidence that the appellant proposes to place before the High
Court, should leave be granted. Such evidence as has been adduced by the
appellant, in the form of a report prepared by an architect, Mr John Cornish,
has persuasively been refuted on behalf of the respondent. On the basis of
information supplied by the appellant, Mr Cornish drew a schedule, illustrated
by an aerial photograph, of improvements the appellant claims to have made
after 1 August 20 01. With reference to building plans obtained from the local
authority, however, it was demonstrated by the respondent that most of the
improvements claimed by the appellant have in fact been in existence at least
since October 1985 and therefore could not have been improvements effected
by him after August 2001 .”
42. In these circumstances t he appellants' claim that the magistrate failed to
appreciate that they had presented undisputed proof of useful and necessary
improvements , and the extent and value of th e improvements, is unfounded.
Given the contradictions and inconsistencies in the affidavits and the oral
evidence , and the lack of credible evidence, the magistrate correctly rejected
the appellants' claim.
No contractual arrangement in respect of the expenses
43. The appellants’ argument that the first respondent undertook to compensate
them for the expenses incurred in effecting the alterations finds no support in
the evidence on record. The argument reared its head for the first time after
the first res pondent pressed the appellants to make payment of their
outstanding rental, and demanded a rental increase.
44. The appellants seem to argue that the fact that the first respondent had
agreed to their effecting the alterations means that he had agreed to
comp ensate them for the costs of such alterations. This argumen t is without
merit , and is simply unfounded on the evidence.
The appellants’ “contributions” towards rental and municipal charges
45. The appellants argue , as a last resort, that the magistrate failed to
“appreciate ” their “contributions ” toward rent and municipal charges. This is
clearly not a valid defence against eviction in the present case , and it was
sensibly not advanced in oral argument .
46. The common cause facts support the magistrate ’s finding that the appellants
have short -paid the respondents in respect of rental . The appellants
themselves admitted ceasing rent payments in May 2022 due to their
dissatisfaction with the first respondent ’s proposed rent increase. They are
also in arrears with municipal charges. While some payments had previously
been made, their failure to meet ongoing obligations undermines any claim to
remain in occupation of the property .
47. It is obvious that i n eviction proceedings a tenant cannot rel y on partial or past
payments to justify possession once the lease has ended and they are in
arrears. The magistrate was accordingly correct in finding th at the appellants
had no lawful basis to resist eviction.
Conclusion
48. It is trite that a court of appeal should not lightly interfere with the judgment of
the court of first instance, particularly in the absence of a material misdirection
on the facts or law. A trial court's credibility and factual findings should not be
disturbed unless the recorded evidence shows them to be clearly wrong.19
49. In the present matter the magistrate assessed the evidence and correctly
applied the law. His ultimate finding was legally sound. The central issue was
whether the appellants had establ ished a valid enrichment lien, and the
magistrate found that they had not. This finding cannot be faulted. There is
accordingly no basis for this Court to interfere with the magistrates ’ court’s
order.
50. It follows that the appellants' claim , relying on sections 4(7) and 4(8) of PIE ,
that the grant of the eviction order is unjust and inequitable because the
appellants have a defence (that is, the existence of a lien) is misplaced . It is of
course so that under PIE a court may refuse an eviction order if i t would not
be just and equitable in the circumstances. In the present matter , however, the
magistrate properly exercised his discretion and correctly found the eviction to
be just and equitable. The appellants are not without recourse should they
insist t hat they have a claim against the respondents. They may pursue a
separate claim for compensation related to the building works if warranted .
The magistrate considered all relevant circumstances, including alternative
accommodation . The magistrates’ court h eard evidence from Gregory Exford
from the City of Cape Town in this respect. It also considered the evidence of
Khosi Mkize , a social worker, who assessed the second appellant under the
Older Persons Act 13 of 2006. This evidence, specifically requested b y the
magistrate, did not justify refusing the eviction order.
51. Given the lapse of time since the grant of the eviction order in the magistrates’
court, it is necessary to provide for a new timetable for the vacation of the
property by the appellants or, should they fail to vacate, for their eviction
therefrom. In my view a period of three months would be reasonable in the
circumstances , as that is the period that they were given to vacate under the
magistrates’ court’s order .
19 S v Hadebe and others 1997 (2) SACR 641 (SCA).
Costs
52. There is no reason why costs should not follow the event.20 Given that the
issues raised in the ma tter were not particularly complex, and in the exercise
of my discretion under Rule 67A,21 I am of the view that the appellants should
pay the respondents’ costs of the appeal on a party and party scale, with
counsel’s fees taxed on Scale A in relation to fees incurred from 12 April 2024
onwards.
Order
53. In the circumstances , I suggest that an order be granted as follows:
1. The appeal be dismissed, with costs, including counsel’s fees taxed
on Scale A .
2. The appellants are ordered to vacate the immovable property
situated 6[...] P[...] A[...] Avenue, Ysterplaat, Brooklyn (Erf 1[...] Cape
Town) by no later than Thursday, 31 July 2025.
3. Should the appellants fail to vacate the property by the date set out
in paragraph 2 of this order, the Sheriff of this Court or the Sheriff of
the Magistrates’ Court or their deputies are authorized and directed
to evict the appellants by Friday, 1 August 2025.
____________________
P. S. VAN ZYL
Acting judge of the High Court
I agree, and it is so ordered.
20 See Sackville West v Nourse and another 1925 AD 516.
21 See the discussion in Wanga v Road Accident Fund (case number 4503/2021, unreported
judgment of the Western Cape High Court (per Adams AJ) delivered on 19 November 2024)
paras [7] -[11].
____________________
R. ALLIE
Judge of the High Court
Appearances:
For the appellants : Mr B. Dlova , Dlova Attorneys Incorporated
For the respondents : Ms M. Wright , instructed b y Jardim Bekker
Incorporated