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[2011] ZAWCHC 375
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Trustees for the time being of the Body Corporate of the Sectional Title Scheme known as Tygerfalls Villas II and Others v JLK Projects and Construction (Pty) Ltd and Another (20387/10) [2011] ZAWCHC 375 (24 August 2011)
IN THE HIGH COURT OF
SOUTH AFRICA (WESTERN CAPE HIGH COURT, CAPE TOWN)
CASE NO: 20387/10
THE TRUSTEES FOR THE
TIME BEING OF
THE
BODY CORPORATE OF THE SECTIONAL
TITLE
SCHEME KNOWN AS TYGERFALLS VILLAS II
1
st
…................
APPLICANT
GERARD
CHRISTIAAN VAN ROOYEN
…............................................
2
nd
APPLICANT
SUNE
VAN ROOYEN
….......................................................................
.
3
rd
APPLICANT
JENNIFER
ANN KENNEDY
…...............................................................
4
th
APPLICANT
GLYNNE
FELICE DAVIDSON
…...........................................................
5
th
APPLICANT
ERICA
FRANCISCA ERASMUS
…........................................................
6
th
APPLICANT
WRIGHT
APPROACH INVESTMENTS 139 CC
…................................
7
th
APPLICANT
DIVINE
INSPIRATION TRADING 67 (PTY) LTD
…...............................
8
,h
APPLICANT
RORY
DUNCAN COLEMAN
….............................................................
9
th
APPLICANT
SUSANNA
DEKKER
….......................................................................
10
th
APPLICANT
and
JLK
PROJECTS AND CONSTRUCTION (PTY) LTD
…..................
1
st
RESPONDENT
CHARLES
POTGIETER INVESTMENT (PTY) LTD
…....................
2
nd
RESPONDENT
JUDGMENT
DELIVERED ON THIS 24
tn
DAY
OF AUGUST 2011
FORTUIN,
J:
A.
INTRODUCTION
[1] This is an
application for the eviction of First Respondent from the building
known as Tyger Falls Villas II ("the property"),
and more
specifically units 42, 47, 48, 52, 53, 57, 58, 60, 73, 77, 81 and the
foundations of the north eastern portion of the
building. Applicants
did not proceed against Second Respondent after no appearance to
defend was entered by Second Respondent.
B.
THE
PARTIES
[2] First Applicant is
the trustees for the time being of the Body Corporate of the
Sectional Title Scheme known as Tygerfalls Villas
II (hereinafter
referred to as "Tygerfalls") with registration number
SS465/2005 and with offices at Room B4, 1 Bridal
Close, Tyger
Waterfront, Bellville. The Body Corporate of First Applicant is
responsible for the control, management and administration
of the
common property of Tygerfalls.
[3] Second Applicant is
the chairman of the Body Corporate of the Sectional Title Scheme
known as Tygerfalls Villas II (hereinafter
"the Sectional Title
Scheme").
[4] Third to Tenth
Applicants are owners of units 53, 52, 57, 77, 47, 60 and 73
respectively.
[5] First Respondent is
JLK Projects and Construction (Pty) Ltd (hereinafter referred to as
"JLK"), a private company
with limited liability
incorporated as such in terms of the Companies Act, Act 61 of 1973
with registration number 2002/003602/07
and with registered address
at Kaplan Street, Paarl. At all relevant times First Respondents'
directors were Johannes Adriaan
Louw, an adult businessman with
identity number and Anton Louw, an adult businessman with identity
number .
[6] Second Respondent is
Charles Potgieter Investments (Pty) Ltd (CPI), a private company
with limited liability incorporated
as such in terms of the
Companies Act, 61 of 1973 with main place of business at Tyger
Chambers 1, Willie Van Schoor Drive, Bellville.
Second Respondent
was the developer of Tygerfalls, a residential apartment building
erected on Erf 31294, Bellville.
C.
FACTUAL
BACKGROUND
C.1
Common cause
[7] The property was
completed in or about August 2005 and the owners of the different
units took possession of their properties
on or about 1 September
2005.
[8]
The principal building contractor of Tygerfalls Villas II was
Johan
Louw Konstruksie (Pty) Ltd,
which,
in the meantime, changed its name to
Vecchio
Modo (Pty) Ltd.
[9] During 2006, cracks
started appearing in the relevant units which progressively worsened
during 2007 and 2008 as a result
of a major structural fault.
Applicants were forced to vacate their units for safety reasons. In
terms of an order granted by
this court on 26 January 2010 by
agreement, CPI's liability was confirmed. The terms of the order
were as follows:
"Respondents
(CPI) have given Applicant an undertaking that Respondents shall by
no later than 1 April 2010, resume the remedial
work in respect of
the structural defects in the building known as Tygerfalls Villas
II, in compliance with its statutory obligations
in terms of
provisions of sec 13(2) of the Housing Consumer Protection Measures
Act."
[10]
Second Respondent procured the services of First Respondent during
March 2009 for the purpose of completing the construction
and fixing
the cracks that had appeared. First Respondent stopped working on
the property during April 2010, claiming that Applicants
had not
paid for work done. In correspondence between the parties, First
Respondent refused to vacate the property and
inter
alia
alleged
that it had a lien over the property. Applicants' claim is for the
eviction of First Respondent to enable them to gain
access to their
property to complete the remedial work.
C.2 Disputed issues
[11] First Respondent
placed the following issues in dispute:
(i) Lack of urgency;
(ii)
Lack
of authority on the part of Mr van Rooyen (Second
Applicant) to
act on behalf of the Body Corporate;
(iii)
Agreement
between Applicants and First Respondent; and
(iv)
First
Respondent is exercising a valid lien against Applicants.
D.
THE
ISSUES
D.1
Urgency
[12] Although First
Respondent initially submitted that the matter should be struck from
the roll due to a lack of urgency, this
contention was not proceeded
with.
D.2 Lack of authority
on the part of Mr van Rooyen
[13]
On behalf of First Respondent, it is submitted that the Body
Corporate has no
locus
standi
and
that there was no authority given to Mr Van Rooyen to institute the
present proceedings. In terms of the resolution dated
28 October
2008, the following authorisation is clear:
In terms of the
requirements by Sub Section 6 of
Section 36
of the
Sectional Titles
Act 95 of 1986
, this resolution authorises and approves the
Tygerfalls Villas II Body Corporate and its duly appointed trustees
to institute/commence/conduct
any legal action/proceedings and/or
any other claim against the developer of said scheme, Charles
Potgieter Investments (Pty)
Ltd (CPI), any of its directors in their
capacities as directors of CPI or in their personal capacities (as
the case may be),
or their contractors, and their sub-contractors,
the NHBRC (National Home Builders Registration Council) or any other
party whom,
in the trustees' opinion, are liable for repairs or the
payment of damages or compensation relating to or arising out of any
damages, bad workmanship or subsequent/consequentual damages
suffered to the common property and/or the scheme. The trustees of
the Body Corporate are specifically authorised to appoint legal
representatives, consultants, engineers and expert witnesses,
and
generally to do whatever is reasonable, necessary and/or requisite
to give effect to the above resolutions."
[14] A special
resolution was passed by the Body Corporate on 27 October 2010,
which reads as follows:
"Special
Resolution No. 001-2010
Legal action
against JLK and Others/Regsaksie teen JLK en Ander
In terms of the
requirements of Sub
Section 36
of the
Sectional Titles Act 95 of
1986
, this resolution authorises and approves the Tygerfalls Villas
II Body Corporate and its duly appointed trustees to
institute/commence/conduct
any legal action, obtain any interdict or
submit any application and/or any other claim or restriction against
any or all of
the following parties:
JLK
Construction and Projects (Pty) Ltd (JLKPC),
Johan
Louw Konstruksie (Pty) Ltd (JLK),
Vecchio
Modo (Pty) Ltd (VM),
Mr.
Johan Louw (ID 6011135053081), in his capacity as Director of
JLKPC, JLKJ and VM as the case may be,
Mr.
Anton Louw (ID ), in his capacity as Director of JLKPC, JLKJ and VM
as the case may be,
Mr.
Johan Louw (ID ) in his personal capacity,
Mr.
Anton Louw (ID ) in his personal capacity,
The
developer, Charles Potgieter Investments (Pty) Ltd (CPI),
Any
of its directors in their capacities as directors of CPI,
Mr
Charles Cilliers Potgieter in his personal capacity,
Any
holding company, subsidiary or shareholder of Charles Potgieter
Investment (Pty) Ltd,
Any
liquidator of Charles Potgieter Investments (Pty) Ltd in
liquidation,
Any
of their contractors, and their subcontractors,
The
NHBRC (National Home Builders registration Council), or
Any
other party Whom in the trustees' opinion,
Are
liable for repairs or the payment of compensation because of any
damages, bad workmanship or subsequent damage suffered
to the
common property,
Are
unlawfully or illegally exercising any purported builder's lien or
retention,
Are
unlawfully or illegally occupying any part of the body corporate
common property,
Are
interfering with the legal or registered limited or real rights of
the body corporate or any owner of a unit in said property."
[15] The first question
is, therefore, whether the conduct by First Respondent caused damage
to the common property and/or the
scheme to such an extent that the
Body Corporate was authorised to institute these proceedings in
terms of the resolution of
28 October 2008. The second question is
whether the resolution envisaged future conduct on behalf of
contractors and subcontractors
of Second Respondent. The third
question is whether the conduct of the Body Corporate and its
trustees, in instituting legal
proceedings, was ratified in terms of
the special resolution of 27 October 2010.
[16]
A similar situation prevailed in the matter of
Smith
v Kwanonqulela Town Council
1
,
where
it was found that the institution of legal proceedings can indeed be
ratified when the intention of the principle is clear:
"... the
decision to continue with the case evinces a clear intention to
ratify whatever action was taken, irrespective of
the legal niceties
involved."
[17] I am of the view
that the resolution of 28 October 2008 authorised the Body Corporate
and Mr Van Rooyen, as its chairman,
to institute the proceedings and
that it also envisioned future conduct on behalf of contractors and
subcontractors of Second
Respondent. I am further of the view that
the special resolution of 27 October 2010 ratified the conduct of
both the Body Corporate
and Mr Van Rooyen on its behalf.
D.3 Agreement between
Applicants and First Respondent
D.3.1 Right to Occupy
[18] It is common cause
that Applicants allowed First Respondent to take control of the area
where the remedial work had to be
effected. The content of the
agreement to effect the remedial work is, however, in dispute.
Applicants submit that, on Second
Respondent's instructions, they
granted permission for a builder to complete the remedial work
within a reasonable time. First
Respondent submits that Applicants,
in addition, agreed not to interfere with the contractual
arrangement between it and the
developer (Second Respondent).
[19] First Respondent
further submits that these two versions constitute a dispute of
fact, and because Applicants should have
foreseen this dispute
before it decided to approach the court on application and not by
action, First Respondent's version should
be accepted.
[20] It is common cause
that First Respondent commenced the remedial work on the
instructions of Second Respondent, to whom he
looked to for payment.
No contractual relationship exists between Applicants and First
Respondent. First Respondent cannot artificially
create a dispute of
fact by alleging an implied condition that Applicants would not
interfere with his work. Applicants are innocent
third parties who
ought not to be prejudiced by the breach of the agreement between
First and Second Respondent, which may or
may not have included in
that dispute the issue of effective workmanship.
D.3.2. Dispute of
Fact
[21]
The law with regards to a dispute of fact was clearly laid down in
the matter of
Plascon-Evans
v Van Riebeeck Paints Ltd
2
.
The
relevant section of this judgment is as follows
3
:
"Secondly,
the affidavits reveal certain disputes of fact. The appellant
nevertheless sought a final interdict, together
with ancillary
relief, on the papers and without resort to oral evidence. In such a
case the general rule was stated by Van Wyk
J (with whom De Villiers
JP and Rosenow J concurred) in
Stellenbosch
Farmer's Winery Ltd v Stellenvale Winery (Pty) Ltd
1957
(4) SA 234
(C) at 235E-G, to be :
' ... where there is a
dispute as to the facts a final interdict should only be granted in
notice of motion proceedings if the
facts as stated by the
respondents together with the admitted facts in the applicant's
affidavits justify such an order ... Where
it is clear that facts,
though not formally admitted, cannot be denied, they must be
regarded as admitted.'
This
rule has been referred to several times by this Court (see
Burnkloof
Caterers (Pty) Ltd v Horseshoe Caterers (Green Point) (Pty) Ltd
1976
(2) SA 930
(A) at 938A-B;
Tamarillo
(Pty) Ltd v BN Aitkin (Pty) Ltd
1982
(1) SA 398
(A) at 430-1;
Associated
South African Bakeries (Pty) Ltd v Oryx & Vereinigte Backereien
(Pty) Ltd and Andere
1982 (3) SA
893
(A) at 923G-924D). It seems to me, however, that this formulation of
the general rule, and particularly the second sentence thereof,
requires some clarification and, perhaps, qualification. It is
correct that, where in proceedings on notice of motion disputes
of
fact have arisen on the affidavits, a final order, whether it be an
interdict or some other form of relief, may be granted
if those
facts averred in the applicant's affidavits which have been admitted
by the respondent, together with the facts alleged
by the
respondent, justify such and order. The power of the Court to give
such final relief on the papers before it is, however,
not confined
to such a situation. In certain instances the denial by respondent
of a fact alleged by the applicant may not be
such as to raise a
real, genuine or
bona
fide
dispute
of fact (see in this regard
Room
Hire CO (Pty) Ltd v
Jeppe
Street
Mansions (Pty) Ltd
1949
(3) SA1155 (T) at 1163-5; Da Mata v Otto NO
1972 (3) SA 858
(A) at
882D-H). If in such a case the respondent has not availed himself of
his right to apply for the deponents concerned to
be called for
cross-examination under Rule 6 (5) (g) of the Uniform Rules of Court
(cf
Petersen
v Cuthbert & Co Ltd
1945
AD 420
at 428;
Room
Hire
case
supra
at
1164) and the Court is satisfied as to the inherent credibility of
the applicant's factual averment, it may proceed on the
basis of the
correctness thereof and include this fact among those upon which it
determines whether the applicant is entitled
to the final relief
which he seeks (see eg
Rikhoto
v East Rand Administration Board and Another
1983
(4) SA 278
(W) at 283E-H). Moreover, there may be exceptions to this
general rule, as, for example, where the allegations or denials of
the respondent are so farfetched or clearly untenable that the
Court is justified in rejecting them merely on the papers (see
the
remarks of Botha AJA in the
Associated
South African Bakeries
case,
supra
at
924A)."
[22]
In
casu,
First
Respondent is in actual fact asking the court to apply the
Plascon-Evans
test
selectively. It is trite that the mere mention of a dispute of fact
will not suffice. The different versions should be tested
to
ascertain whether there is a genuine or
bona
fide
dispute
of fact and First Respondent's version can only be accepted where it
is not untenable. In this regard see
Room
Hire Co (Pty) Ltd v Jeppe Str Mansions (Pty) Ltd
4
.
Where
it is so far-fetched or untenable, Applicants' version should be
accepted on the papers.
[23]
On consideration of First Respondent's version, firstly that the
Applicants did give the necessary permission for them to
occupy
their property, I don't see any dispute of fact. Applicants admitted
that they gave permission to Second Respondent for
a builder to
enter their property to complete the remedial work. The second part
of First Respondent's version, i.e. that an
undertaking was given
not to interfere with the contractual arrangement between them and
the developer (Second Respondent), however
brings me to a different
conclusion. I am of the view that it is untenable that Applicants,
even if they did give the necessary
permission for First Respondent
to enter the property, would have given permission for the builder
to stay on their property
indefinitely and irrespective of what the
future relationship between the builder and the developer would be.
I am, therefore,
of the view that First Respondent's version in this
regard is so far-fetched and untenable that it should be rejected
and Applicants'
version accepted, merelyon the papers. In my view,
no genuine or
bona
fide
dispute
of fact was raised and Applicants' version that permission was
granted only for a reasonable time is therefore accepted.
[24] The question that
remains is whether this limited arrangement afforded a lien to First
Respondent.
E.
LIEN
BY FIRST RESPONDENT
5
[25] A lien is defined
as the right to retain physical control of another's property as a
means of securing payment of a claim
relating to the expenditure of
money on the property, until the claim has been satisfied.
[26] Where expenditure
was incurred on property because of a contractual obligation, a
debtor and creditor lien comes into existence.
Where there is no
such agreement, as contended by the Applicants, someone who has
effected work on another person's property
has a right of retention
on that property, operative against the entire world. This right may
be a real lien, salvage and improvement
lien or an enrichment lien.
A salvage lien will be used to ensure payment incurred for necessary
expenses, for example those
expenses necessary for the continued
existence of the property in its present form.
[27] On the Applicants'
own version, the expenses incurred by First Respondent were
necessary to stop the asset from further deteriorating,
i.e. they
were necessary expenses.
[28] It is common cause
that Second Respondent was legally obliged to effect remedial work
pursuant to the court order granted
by agreement on 26 January 2010.
It is further common cause that the repairs by First Respondent to
the property, on instruction
of Second Respondent, were indeed
necessary.
E.2 Unjustified
enrichment of Applicants
[29]
First Respondent claims that Applicants were enriched by the work
done by them to the Applicants' property. An underlying
enrichment
claim was also at the centre of the decision in
Buzzard
Electrical (Pty) Ltd v 158 Jan Smuts Ave Investments (Pty) Ltd &
Another
6
.
This
matter is on point. In this case the owners of a certain property
had contracted with a developer for the purposes of effecting
certain improvements to such property. The developer in turn
subcontracted such work to another company. The developer was later
placed in provisional liquidation and in turn did not pay for the
work done. The subcontractor retained possession of such property
relying on a supposed right of retention as a result of the alleged
unjustified enrichment of the owners. The parties entered
into an
agreement in terms of which the subcontractor would vacate the
property on the basis that the subcontractor would be
compensated,
should the owners be found to be liable. The subcontractors did
vacate the property and claimed against the owners
for unjustified
enrichment.
[30] The Appeal Court
emphasized that a lien cannot exist in isolation, but that it serves
to reinforce an underlying claim based
on unjustified enrichment. It
was held that only when the enrichment was unjustified, would the
possessor have a claim
against the owner. Where there was no agreement between the owner
and the possessor, but only between the
possessor and the developer
and the work done was also in the interest of the owner, the owner
was enriched. The next question
is, therefore, whether the
enrichment was unjustified. Where the owner received only what he
contracted for with the developer
and nothing more, his enrichment
was not unjustified.
[31]
In
casu,
it
is Applicants' case that the expenses incurred were to correct
and/or replace the uninhabitable units. Further, that, in the
event
that they were given back habitable and safe units, they would have
received only what they paid for and nothing more.
[32] It is further
Applicants' case that the value of their properties is negatively
affected by the structural defect and that
the work currently done
by First Respondent did not increase the value of their property. To
illustrate this, the following examples
were given:
Unit
14 was originally bought for R1 560 000.00 and later sold for R481
100.00;
Unit
16 was originally bought for R728 000.00 and sold for R237 000.00;
and
Unit
50 was originally bought for R938 000.00 and later sold for R351
000.00.
[33]
Applying the principles as laid down in the
Buzzard
matter
that the lien cannot exist in a vacuum and considering the above, I
do not find that any underlying claim exists.
[34] On the papers
before me, I am unable to determine whether there was any enrichment
at the expense of First Respondent, as
I am unable to determine what
the value of the limited remedial work is. The only evidence before
me is that Applicants received
a portion of what they paid for in
terms of the agreement entered into with Second Respondent, and
nothing more. First Respondent
does, therefore, not have an
underlying claim necessary for a valid lien against Applicants.
F.
THE
PROVISIONAL LIQUIDATION OF SECOND RESPONDENT
[35] The issue of the
insolvency of Second Respondent and whether it is indebted towards
First Respondent is not before me and
I am therefore not making any
ruling with regards thereto. The issue of whether First Respondent
has a claim against Applicants
and the quantum of that claim, is
similarly not before me.
G.
FINDINGS
[36]
I am in agreement with the
dictum
in
the
Buzzard
matter
and with the submissions by Applicants, and I am of the view that
there is no underlying claim by First Respondent and
that it
therefore does not have a valid lien against Applicants.
[37] In the
circumstances, I make the following order:
First
Respondent is evicted from the building known as Tyger Falls Villas
II;
First
Respondent is evicted from Units 42, 47, 48, 52, 53, 57, 58, 60,
73, 77 and 81 of Tyger Falls Villas II as well as the
foundations
on the north eastern portion of Tyger Falls Villas II;
First
Respondent is to pay the costs of this application, including the
costs of two counsel.
FORTUIN,
J
1
1999
(4) SA 947
SCA at par 952E
2
[1984] ZASCA 51
;
1984
(3) SA 623
(A)
3
Plascon-Evans
v Van Riebeeck Paints Ltd, supra at page 634D - 635C
4
1949
(3) SA 1155
(T)
5
Lawsa,
15, Part 2, para 49 - 84
6
1996
(4) SA 19
(A)