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[1992] ZASCA 186
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Goudini Chrome (Pty) Ltd. v MCC Contracts (Pty) Ltd. (249/91) [1992] ZASCA 186; 1993 (1) SA 77 (AD); [1993] 1 All SA 259 (A) (28 September 1992)
Case No. 249/91
IN THE SUPREME COURT OF SOUTH AFRICA (APPELLATE DIVISION)
In the matter between:
GOUDINI CHROME (PTY) LIMITED Appellant
and
MCC CONTRACTS (PTY) LIMITED Respondent
CORAM
: HOEXTER, NESTADT, EKSTEEN, NIENABER JJA et NICHOLAS AJA
DATE HEARD
: 14 SEPTEMBER 1992
DATE DELIVERED
: 28 SEPTEMBER 1992
2
JUDGMENT
NIENABER JA
:
The appellant, applicant in the court below, sought an
urgent order evicting the respondent from a property on which the latter, by
agreement, had been excavating chrome ore. The respondent resisted the
application on a variety of grounds, one of which was that
it enjoyed a debtor
and creditor lien over "the works" for which it had not yet been paid in full.
This defence in turn gave rise
to a number of subsidiary disputes, some of which
were decided in favour of the one and some in favour of the other party. The
upshot
of the proceedings before Labuschagne J in the Witwatersrand Local
Division was that the application for eviction failed with costs.
Hence the
present appeal which is brought before this court with leave of the court
below.
More than half the shares in the appellant were owned by Canadian Gold SA
(Pty) Ltd (hereinafter referred
3
to as "Canadian Gold"), a company incorporated with limited liability
according to the laws of the Republic of South Africa. In 1989
Canadian Gold
decided to develop a mine for the extraction of chrome ore on a certain property
in the Zeerust area described as "Remaining
Extent of the farm Goudini 30,
Registration Division J P Transvaal measuring 2109,4681 hectares." At that stage
the property, to
the knowledge of the respondent, was still registered in the
name of a certain De Waal. Canadian Gold called for tenders from several
contractors to do the excavation work. The respondent was one of them. It was
eventually agreed between Canadian Gold, represented
by one of its directors, a
certain Doyle, and the respondent, represented by its managing director, Hayes,
that respondent would
move its equipment on to the property and would commence
operations, even though a formal contract had not yet been prepared and
signed.
The respondent did so in
4
January 1990. Thereafter the respondent was regularly paid for its work by
Canadian Gold in terms of payment certificates approved
by it.
In April 1990
the appellant, not Canadian Gold, entered into an agreement with a company based
in Luxembourg, one of the major commodity
dealers in Europe, to supply it with
at least 200,000 tons of chrome ore extracted from the mine on the property.
Negotiations with
a view to a formal comprehensive contract with the respondent
continued in the mean time. In June 1990 one McGrath, who had replaced
Doyle as
the managing director of the appellant (and who was also a director of Canadian
Gold), suggested to the respondent that
the appellant be substituted for
Canadian Gold as the contracting party as it was the actual operating company.
This was one of several
matters yet to be settled. On 9 July 1990 the property
was sold by De Waal to the appellant and transfer was eventually passed to
it on
14 August 1990.
5
Towards the middle of August 1990 McGrath instructed the respondent to submit
all draft payment certificates prepared by it to the
appellant and not to
Canadian Gold - which the respondent thereafter did. All payments to the
respondent continued to be made by
Canadian Gold. A formal written agreement was
never concluded. Disputes about a number of matters eventually led to the
respondent
discontinuing work in October 1990 and reducing its staff and
equipment on site. It had until then been paid in the region of R3,5
m for work
done. According to the respondent it was still owed a balance in excess of Rl,3
m. It was for the payment of that amount
that the respondent maintained a
presence on the property and claimed a lien over the works. The works at that
stage consisted in
the main of a stockpile of excavated material containing some
chrome ore and one or two open pits (depending on which version is
preferred)
which the respondent had excavated to reach a chrome reef
6
on the property. By remaining in occupation of certain portions of the
property the respondent effectively prevented the appellant
from continuing
mining operations on it through another contractor. It was that fact which
prompted the urgent application.
What is to be extracted from this resume is the following:
(a)
The appellant claimed to be
the owner of the property.
(b)
The respondent
conducted mining operations on it.
(c)
It did
so in terms of an oral agreement with Canadian Gold. The understanding was that
a formal agreement was to be finalized, possibly
with the appellant instead of
with Canadian Gold.
(d)
The arrangement
between Canadian Gold and the appellant in terms of which the latter took over
control of the project was never explained
by the appellant on the
papers.
7
(e) The respondent nevertheless continued to be paid for
its work by
Canadian Gold and not by the appellant.
(f) Negotiations broke down and to
all intents and
purposes the respondent ceased its operations on
the
property.
(g) The respondent continued to maintain a presence on
the property
through one or two of its employees in order
to protect what it proclaimed to
be a common law lien
over the works.
In essence the appellant's cause of
action for the eviction of the respondent was the rei vindicatio. A number of
issues arose before
the court a quo. These were, in the main: (i) whether the
appellant had established its ownership of the property concerned - the
court a
quo found that it had; (ii) whether the respondent was entitled to rely on a
debtor and creditor lien against the appellant
on the basis that the latter was
substituted for Canadian Gold as the true contracting
8
party during the interim period while a formal contract was being negotiated
- the court a quo found that it was not so substituted;
(iii) whether the
respondent's admitted debtor and creditor lien against Canadian Gold extended to
the appellant, a non-contracting
party, on the ground that the appellant was
aware of, consented to and authorised the respondent to conduct its excavating
activities
cm the appellant's property - this was essentially the issue on which
the court a quo found in favour of the respondent; and (iv)
whether the
respondent had lost its debtor and creditor lien through the temporary absence
of its employees from the property - on
which issue the court found that it had
not. The respondent accordingly succeeded in the court below.
Some subsidiary
issues fell away before the matter reached this court. Others were abandoned in
the course of argument and need not
be mentioned. But on the other hand a
completely new issue emerged before this court, on
9
facts not ventilated in the court below, namely, whether a cession by the
respondent to the Standard Bank of South Africa Ltd of its
claim for payment for
the work done jeopardized any lien it may otherwise have had against the
appellant.
I deal with these issues in turn.
The first pertinent one is
whether the appellant had proved its title to the property. Since its claim was
vindicatory in its nature
ownership was an essential averment and had to be
adequately proved by it (Ruskin NO v Thiergen
1962 (3) SA 737(A)
at 744A-B).
Failure to adduce proper proof would result in the failure of vindicatory
proceedings irrespective of a detentor's own
entitlement to occupation (Van der
Merwe Sakereg 2nd ed 348). The best evidence of ownership of immovable property
is the title deed
to it (R v Nhlanhla
1960 (3) SA 568
(T) 570D-H;
Gemeenskapsontwikkelingsraad v Williams and Others (1)
1977 (2) SA 692
(W) at
696H;
10
Hoffmann and Zeffertt The South African Law of Evidence 4th ed 391-2). A
title deed conforms to the preconditions specified for a
public document (cf
Hoffmann and Zeffertt op cit 150; Schmidt Bewysreg 3rd ed 331). A public
document is admissible in evidence,
according to s 18 of the Civil Proceedings
Evidence Act 25 of 1965, if a copy thereof is produced which purports to be
signed and
certified as a true copy or an extract from the relevant register by
the officer to whom custody of the original is entrusted.
In the instant case
McGrath, in the appellant's founding affidavit, made the positive averment that
the appellant was the owner of
the property described and annexed "a copy of the
title deed ... marked 'BM.2'." Annexure BM.2 is a photocopy of the original
title
deed relating to the property, issued and signed by the registrar of
deeds. The copy was not, however, certified by him. In its answering
affidavit
to this allegation
11
the respondent denied knowledge of the appellant's averment and added: "It
will be submitted at the hearing that the applicant has
not produced admissible
evidence of the allegations herein." Notwithstanding this challenge McGrath, in
the replying affidavit, did
not seek to meet or remedy the point that the copy
was not certified. His reply was that the respondent's objection was not clear.
It is not, I think, unfair to infer from that response that the significance of
the point escaped the appellant.
The court a quo overruled the respondent's
objection. It held, on the strength of certain obiter dicta in
Gemeenskapsontwikkelingsraad
v Williams and Others (1) (supra 701C-F; 702D-E)
that there was "no reason to come to the conclusion that it is unsafe to accept
the uncertified copies of the title deed..." -firstly because the application
was brought as a matter of urgency; secondly because
the photocopy of the
title
12
deed, although not certified, quite evidently was a copy
of the document
"officially signed and registered by the
Registrar of Deeds" and
corresponded, in its details,
with its description in the notice of motion
and founding
affidavit; and lastly because McGrath asserted under oath
that the appellant was the registered owner of the
property. None of these
reasons is convincing and
counsel for the appellant advisedly did not seek to
rely
on any of them. Instead he referred to Commercial Union
Assurance Co of SA
Ltd v Van Zyl and Another 1971 (1) SA
100 (E) where Eksteen J at 105A-E remarked:
"Generally, in motion proceedings, the documents annexed to an affidavit are
tendered as evidence in support of certain allegations
contained in the
affidavit itself, or as evidence to prove that certain steps had been taken. In
any event such documents can only
be tendered as evidence, and as such are
subject to the same rules of evidence governing their admission in trial
proceedings. These
rules require that, in respect of the kind of documents we
are dealing with in the present case, only the original documents will
be
admissible in evidence unless reasons are advanced why secondary evidence of
their contents should be admitted. Therefore, although
it might not be necessary
to annex the original documentary evidence
to
13
affidavits filed in the office of the Registrar in motion proceedings, the
originals must be available for inspection in Court when
the matter is called,
not only at the request of the other side but also when required by the Court.
In certain cases it may even
be the duty of the Court to see the original
evidence before giving judgment in a matter. In the present case the original
documents,
although all were in applicant's possession, were not available in
Court when called for, and I considered it necessary and proper
that they should
be placed before the Court."
In the the court below, so counsel
assured this court, the original title deed was available but was not called
for; in this court
the original was called for but was not available. Counsel
for the appellant was eventually driven to apply from the bar that further
evidence in the form of the original title deed be received in evidence as part
of the record. The application was opposed. In order
to obviate delay, in the
event of the application being sucessful, a procedure similar to that sanctioned
in the Commercial Union
Assurance Co case (supra at 104G) was thereupon
suggested
14
from the bench, namely that judgment be withheld until the original document
was produced. The appellant was accordingly placed on
terms to present the
original title deed for inspection by the respondent and to report back to this
court. A report has now been
submitted to this court in which the respondent
expresses itself satisfied that annexure BM.2 is indeed a true copy of the
original
title deed. No cogent reason has been suggested why this fact should
not be received into the record: the application to do so is
a narrow one,
relating only to the production of a public document; the respondent's objection
to it is entirely technical; and the
delay resulting from the application caused
the respondent no prejudice at all. To the extent that it is necessary to do so,
an order
allowing the application is accordingly made. The problem of due proof
of ownership has thus been overcome; but it does have certain
cost implications
for the appellant to which I shall presently revert.
15
A further objection by the respondent to the application as such was that it
was fundamentally flawed because it omitted to mention,
as a prelude to the
recovery of possession from the respondent, that the appellant had terminated
its arrangement with Canadian Gold
in terms of which the latter occupied the
premises and permitted the respondent in turn to do so under colour of right.
According
to this argument the applicant was obliged to make out the case in its
founding affidavit that as between it and Canadian Gold it
was entitled to be
revested with possession of the property; and since it failed to do so that the
application should also fail.
To this contention there are several answers
both of fact and of law. On the facts the appellant never parted with possession
of the
premises in favour of Canadian Gold; Canadian Gold did not occupy the
property in terms of an arrangement with the appellant; and
its relation-
16
ship with Canadian Gold consequently could not constitute a bar which had to
be removed before the appellant could recover occupation
from the respondent. On
the contrary it was Canadian Gold and not the appellant which canvassed the
respondent and put it in possession
of the property in January 1990, at a time
when the respondent knew full well that Canadian Gold was not itself the owner
thereof.
The appellant appeared on the scene some four months later and became
the registered owner of the property only in August 1990. The
appellant, in
short, did not create the situation in consequence of which Canadian Gold put
the respondent in possession; it inherited
it. And in any event it is common
cause that the respondent discontinued its operations during November 1990
leaving only a few of
its employees in attendance on the property in order to
protect its professed lien. Factually, therefore, the situation differs totally
from the prototype suggested by the
17
respondent's counsel in argument, where an owner enters into a hire purchase
or lease agreement with a second party who surrenders
occupation to a third
party from whom the owner seeks to recover possession by the rei vindicatio. If
an owner, in his particulars
of claim or founding affidavit alleges, in addition
to his ownership, the agreement in terms of which his counterpart is in
occupation,
it is incumbent on him to make the further allegation that the
agreement is invalid or has expired or has been terminated. Otherwise
his cause
of action is incomplete and excipiable. But that is a matter of pleading, not
substance. Meaning v Petra Meubels Beperk
1947 (2) SA 407
(T) on which counsel
for the respondent relied in support of this leg of their argument, was decided
on exception on a set of facts
which differed completely from the present case.
This is not, therefore, in the words of Jansen JA, in Chetty v Naidoo
1974 (3)
SA 13
(A) at 21G, a case where
"a plaintiff who claims possession by virtue of
his
18
ownership must ex facie his statement of claim prove the termination of any
right to hold which he concedes the defendant would have
had but for the
termination ...".
Henning v Petra Meubels Beperk (supra) which
has in
any event been overtaken by later decisions of this
court, does
not, as a matter of fact, support counsel's
contention. And as a matter of
law the position was
stated in the following terms, again by Jansen JA,
in
Hefer v Van Greuning
1979 (4) SA 952
(A) at 959E-H:
"So is daar al ten onregte gese dat ' n eienaar nie sy saak van 'n ander kan
opeis as hy reeds self besit aan enigiemand afgestaan
het nie, tensy 'he can
show that his reversionary right to possession is injured by the trespass'. Die
verweerder sou hiervolgens
hom op 'n jus tertii kan beroep al het hy self geen
oorspronklike of 'n van die derde afgeleide saaklike of persoonlike reg om te
besit wat hy teen die eienaar kan afdwing nie, omdat die eienaar horn van die
reg om te besit (soms die jus possidendi genoem - vgl
CP Joubert
1962 SALJ
130-1)
sou ontdoen het en nou daarsonder sit (Vgl bv Thomas v Guirguis
1953 (2)
SA 36
(W) te 38 - waar oa by E-F 'n verkeerde vertolking aan Voet 6.1.3 geheg
word; Morkels Transport (Pty) Ltd v Melrose Foods (Pty) Ltd
and Another
1972 (2)
SA 464
(W) te 480D-F; Jadwat and Moola v Seedat
1956 (4) SA 273
(N) te 276A.)
Maar die ware posisie is dat 'n eienaar op grond van sy eiendomsreg bevoeg is om
met die rei vindicatio sy saak van
enigeen op te eis wat horn
nie
19
op 'n reg, wat teen die eienaar geld, kan beroep om die saak te hou
nie."
The objection is without merit.
The real question in
this appeal is whether - to quote from the above dictum - the respondent is
invested with "'n reg wat teen die
eienaar geld ... om die saak te hou" - in
this case a right of retention. And with that question the focus shifts from
possible deficiencies
in the appellant's case to the merits of the respondent's
defence.
Rights of retention are broadly classified as enrichment
(preservation or improvement) liens or as debtor and creditor liens. The
former
are real rights, the latter not. An enrichment lien is a form of security for
the payment of expenses which were necessarily
incurred by one party for the
preservation or protection of someone else's property (impensae necessariae) or
usefully incurred for
its improvement i.e. the enhancement of its market value
(impensae utiles) (United
20
Building Society v Smookler's Trustees and Golombick's Trustee
1906 T.S. 623
at 626-629; Brooklyn House Furnishers (Pty) Ltd v Knoetze and Sons
1970 (3) SA
264
(A) 270F-271D; Van der Merwe op cit 713). It is
immaterial whether the
work was done in terms of a contract and, if so, whether the contract was with
the owner of the property. The
party who did the work may retain possession of
the property in respect of which his work was done against the true owner,
against
his counterpart in contract (if there is one) or against anyone else who
claims it from him, until he has been reimbursed for his
expenditure or the
amount by which the owner has been enriched, whichever figure is the lesser.
(Van der Merwe op cit 717).
For expenditure in respect of improvements which
were neither necessary nor useful i.e. expenses classified as impensae
voluptuariae,
he will not enjoy a right of retention at all unless the expenses
were
21
incurred in terms of an agreement. In that event he may enjoy a debtor and
creditor lien against the other contracting party.
A debtor and creditor lien
is available to anyone who, in terms of an agreement, has performed work
pertaining to someone else's property,
irrespective of whether the work was
necessary, useful, enhanced the value of the property concerned or was trifling
(Van der Merwe
op cit at 716). A debtor and creditor lien, being a contractual
remedy and not a real right, is maintainable by the one party to
a contract
against the other who may or may not be the owner of the property. Unlike an
enrichment lien it is not limited in its
scope: it secures the full extent of
the agreed remuneration, regardless of his own actual expenditure or the other
side's actual
enrichment.
Where someone who has effected necessary or useful improvements to the
property of another by agreement is
22
sued for its return before being compensated for his work, he may defend his
possession by either means -against his contractual counterpart,
on the basis of
his debtor and creditor lien, for his agreed remuneration, regardless of the
extent of the latter's enrichment, if
owner; and against the owner who is not
the contracting party, on the basis of his enrichment lien, for his actual
expenses tempered
by the owner's enrichment (cf United Building Society v
Smookler's Trustees and Golombick's Trustee (supra at 631); Brooklyn House
Furnishers (Pty) Ltd v Knoetze and Sons (supra at 276C)).
The respondent was engaged by Canadian Gold to do excavation work for the
establishment of a chrome mine on what became the appellant's
property. It
excavated at least one open pit, exposing a chrome reef, which, so it appears
from the appellant's own averments, the
latter was able to utilise. As against
Canadian Gold the
23
respondent could have relied on a debtor and creditor lien for payment of the
contract price. But the respondent was not sued for
eviction by Canadian Gold;
it was sued by the appellant. As against the appellant the respondent might
conceivably have relied on
an improvement lien. But the respondent made no
attempt on the papers to prove either the fact or the extent of the appellant's
enrichment,
nor did it detail its own expenses. Its attempt, in argument before
this court, to invoke an improvement lien accordingly cannot
prevail (cf Wynland
Construction (Pty) Ltd v Ashley-Smith en Andere
1985 (3) SA 798
(A) at
812G-813B) . Its real defence throughout was a reliance on a debtor and creditor
lien.
The function of a debtor and creditor lien is to fortify the claim of a
creditor for his agreed remuneration for work done; it is
a shield which enables
the creditor to withhold return of the finished product
24
until his claim has been met. His claim accordingly is complemented by his
possession (Van der Merwe op cit 713). The loss of either,
surrender of detentio
by the claimant or surrender of the claim by the detentor, would disturb the
correlation and extinguish the
lien. One of the disputes before the court below
was whether the respondent vacated the premises and had thereby forfeited its
lien.
But it was never an issue that the respondent was the true creditor
entitled to claim payment for the work done by it. It was on
that basis that the
matter was disposed of in the court below and that heads of argument were
submitted by both sides in this court.
Some two months before the hearing in
this court, however, the appellant gave notice of an application to incorporate
fresh evidence
into the record. The gist of the proposed evidence was that the
appellant's attorney had discovered, more by chance, at least initially,
than by
design, that the respondent had executed two cessions
25
in favour of the Standard Bank of South Africa Limited (the "bank"). Both
cessions were intended to secure the bank for overdraft
facilities which it had
granted to the respondent. The one was a cession in respect of all its book
debts, the other a cession in
respect of "all contracts or other agreements
already entered into by the company and which may in the future be entered into
by
the company as well as any retention monies due or which may become due to
the company." The terms of each cession were broad enough
to encompass the
respondent's claim for payment for work done on the property in question. Both
cessions were executed in 1989, well
before the present application was launched
and the respondent filed its answering affidavit therein. The information which
was peculiarly
within the respondent's province only came to light after the
judgment of the court a guo had been delivered. The appellant's attorney
immediately wrote to his opponent on 30 June 1992,
26
calling attention to the cessions and inviting the respondent to abandon the
judgment in its favour and to vacate the property. This
suggestion elicited the
response that the respondent had "no intention of complying with your client's
demands." The respondent filed
an answering affidavit to the fresh application
in which Hayes, its managing director (who was a signatory to the cessions and
the
deponent to the respondent's answering affidavit in the main application),
admitted that the respondent had ceded its book debts
and claims against the
respondent to the bank in securitatem debiti. He further stated:
"The respondent, in any event, collected all its book debts itself and what it
collected was then deposited into its banking account
with the bank. For all
intents and purposes, the respondent regarded all debts that had been ceded as
aforesaid as being debts owing
to the respondent. Accordingly, it simply did not
occur to me to inform the respondent's attorneys of the cession. My failure to
do so was not motivated by any dishonesty or desire to conceal the true
facts."
27
In the event counsel for the respondent did not oppose the appellant's
application and made the concession that the appeal ought to
be dealt with on
the basis that the cessions had occurred. The concession was correctly made. The
exceptional circumstances which
are to exist before fresh evidence will be
permitted on appeal were clearly present in this case (Colman v Dunbar
1933 AD
141
, 161-2).
Counsel for the respondent who also appeared for the bank
conceded that they were unable to press an application by the bank to intervene
as a second respondent in the appeal. This was a transparent attempt to counter
the effect of the cession. The attempt was doomed,
for the elementary reason, to
mention but one, that the bank was never in possession of the subject property
and hence could not
have exercised a supposed lien. In its capacity as
cessionary the bank was the creditor of Canadian Gold for payment of the amounts
due
28
for the work done by the respondent; in its capacity as a money-lending
institution it was the creditor of the respondent for payment
of the amounts due
on overdraft. Neither capacity invested it with the kind of interest that would
qualify it to intervene as a new
party in the proceedings.
What counsel for
the respondent did not concede was that the cession non-suited the respondent.
The argument, if my understanding
of it is correct, was that a debtor and
creditor lien is not restricted in its operation to securing a claim for
remuneration for
work done; it extends, so it was submitted, to all the
respondent's rights which, in the instant case, included its reversionary
interest against the bank because the cession was one in securitatem debiti. (On
the latter point, see Incledon (Welkom) (Pty) Ltd
v Qwaqwa Development
Corporation Ltd
[1990] ZASCA 85
;
1990 (4) SA 798
(A) at 804G-J; Land- en Landboubank van
Suid-Afrika v Die Meester en
29
Andere
1991 (2) SA 761
(A) at 771C-G. ) The argument is not sound. In the
first place the purpose of a debtor and creditor lien is indeed a restricted
one,
namely to strengthen the creditor's right to remuneration for work done in
respect of the property in his possession; and in any
event, as far as its
reversionary interest is concerned, the respondent's debtor was the bank and not
Canadian Gold.
The true position is of course that the cessions divested the
respondent of the right to claim its contractual remuneration (Bank
of Lisbon
and South Africa Ltd v The Master and Others
1987 (1) SA 276
(A) at 294C-F).
Only the bank could thenceforth, and until the overdraft was repaid, recover
payment of any amounts due for work
done. That the respondent, as cedent,
continued to collect payment of its book debts made no difference: that is
frequently a particular
term of the arrangement between cedent and cessionary
especially where book debts
30
are ceded (Bank of Lisbon and South Africa Ltd v The
Master and Others (supra)). In short, having surrendered its claim for
payment to the bank the respondent surrendered any lien it
may have had against
Canadian Gold or, for that matter, the appellant.
The cession in effect disposed of two issues which troubled the court a quo:
first, whether the three parties concerned, Canadian
Gold, the respondent and
the appellant, by tacit agreement substituted or co-opted the appellant as a
contracting party to whom the
debtor and creditor lien then applied; failing
which, second, whether a debtor and creditor lien also binds an owner who was
not
a contracting party, who was accordingly not liable for payment for the work
done, but who permitted the retentor to execute the
work on his property. I have
reservations about both matters, in the first case on the facts, in the second
case (in the absence
of estoppel or agency) on the law, but in view of the
cession it is no
31
longer necessary to debate these questions. Nor is it necessary, for the same
reason, to discuss another issue dealt with by the court
a quo (but not pressed
by counsel for the appellant in this court), namely whether the respondent,
assuming that it did enjoy a lien,
forfeited it when its token presence on the
premises was temporarily interrupted.
To summarize: The appellant, having
bolstered its case on appeal by the introduction of the original title deed, has
at last succeeded
in establishing its ownership of the property concerned. The
respondent, by contrast, has failed to establish that it was "vested
with some
right enforceable against the owner (e.g., a right of retention or a contractual
right)" which entitled it "... to continue
to hold against the owner" (Chetty v
Naidoo (supra at 20B-D)). As a result of the cession the respondent disqualified
itself from
relying on a debtor and creditor lien which it might otherwise have
enjoyed.
32
In the result the appellant is entitled to the relief it sought and the
appeal must accordingly succeed.
That leaves the question of costs. Strictly
speaking the appellant's cause of action was incomplete and it has only now, on
appeal,
remedied the deficiency. The respondent was entitled to take the
objection it did and, when the appellant failed to produce the original
title
deed or a certified copy thereof either in its replying affidavit or at the
hearing before the court a quo, to persist with
the objection until the
shortcoming had been rectified. The appellant cannot be faulted (on the
authority of the Commercial Union
Assurance Co case supra) for not annexing the
original title deed to its answering affidavit, but having elected not to do so
it
was obliged to produce it at the hearing in order to meet the respondent's
challenge. It follows that the appellant is only entitled
to its costs up to
that point but not thereafter, since it chose to prosecute its case
33
without admissible evidence relating to an essential element thereof viz.
ownership. But the respondent also cannot escape criticism.
It could and should
have called for the original title deed at the hearing when upon its production
it would have satisfied itself
that its first objection was without substance.
Not having done so it would be wrong to allow the respondent to shelter behind
this
narrow point in order to evade an order for costs. The respondent,
moreover, and as a result of the cession, in fact never had a
defence to the
appellant' s rei vindicatio. The information about the cession was pertinent: it
should have been disclosed and would
doubtless have led to a different result
before the court a quo if it had been. Even if one accepts the assurance of the
respondent's
managing director that the information was not wilfully withheld
from the court, it merits censure. In all the circumstances, and
balancing the
shortcomings on both sides, it seems to me that the
34
fairest order on costs, at least for the period which follows upon the filing
of the appellant's replying affidavit, is to make no
order at all.
The following order is accordingly made:
1. The application of the Standard Bank of South Africa Limited for joinder in
the appeal is refused with
costs.
2.
The
appeal succeeds.
3. The order of the court a quo is set aside and the following order is
substituted therefor:
An order ejecting the respondent and all persons claiming occupation by, through
or under the respondent from the Remaining Extent
of the farm Goudini 30,
Registration Division JP Transvaal measuring 2109,4681
hectares.
4. Subject to paragraph 5 hereof, the respondent is
ordered to pay the
appellant's costs up to and
including the filing of the appellant's
replying
35
affidavit. Thereafter each party is to pay its own costs. 5. Leave is granted
to the parties, if so advised, to lodge written submissions
to the registrar of
the Appellate Division within 14 days of the date of this judgment as to whether
the order of the court a quo
that certain reserved costs are to be paid by the
appellant, should be altered.
P M NIENABER Judge of Appeal
Hoexter JA ] Nestadt JA ] CONCUR Eksteen JA ] Nicholas AJA]