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IN THE HIGH COURT OF SOUTH AFRICA,

GAUTENG DIVISION, PRETORIA

 

(1)           NOT REPORTABLE.

(2)           NOT OF INTEREST TO OTHER JUDGES.

(3)           REVISED

CASE NO: A652/2016

3/10/2017

 

In the matter between:

 

RIETSPRUIT CRUSHERS (PTY) LTD                                                                    APPELLANT

 

and

 

NORVAL BESTER                                                                                                     RESPONDENT

 

JUDGMENT

MIA AJ,

[1]       This is an appeal against the order granted in the Regional Court, Mbombela. The appellant sought an order evicting the respondent and those holding under him from the property Erf 970, White River Extension 5, situated at 8 Jacaranda Street, White River Mpumalanga. The complete record reflecting the magistrate's reasons was not available at the hearing of the appeal. The appeal came before this court on the basis that there were reasonable prospects that another court could come to a different decision where the magistrate found that there may have been a dispute of fact whether the respondent was an unlawful occupier. In view of the aforementioned, the magistrate found that it was not just and equitable to grant an order for eviction against the respondent.

 

CONDONATION

[2]        Before arguing the appeal Mr Spoor, appearing for the appellant, brought an application for condonation for the late prosecution of the appeal in terms of Rule 50 of the Uniform Rules of Court. The appeal was noted on 26 May 2016, the sixty days were set to expire on 24 August 2016. The appellant's attorneys sought to prosecute the appeal in the High Court in Mbombela and .were advised that the appeal should be prosecuted in Pretoria. All steps were taken to prosecute the appeal in Pretoria and notwithstanding that the appeal was out of time the Registrar permitted the lodging of the appeal so that it only came to appellant's attorney's attention that the prosecution of the appeal was late during the filing of the heads of argument. This resulted in the filing of the affidavit and the request for condonation explaining the delay. Having regard to the following facts:

•         that the delay was caused as a result of the appellant not being aware that Mbombela High Court was not dealing with appeals and these were to be prosecuted in Pretoria; and

•         that steps were taken to facilitate the prosecution thereof in Pretoria without delay; and

•         the respondent was aware of this appeal; and

•         respondent suffered no prejudice,

condonation for the late prosecution of the appeal was granted.

 

BACKGROUND

[3]        The background to the appeal is as follows. The appellant was the registered owner of the above premises at the time of the application, having purchased the property from Sardius, the previous owner. The property had been registered in the applicant's name on 27 March 2015. The respondent's occupation was terminated in June 2015 by way of correspondence. Prior to the letter of termination it appears from correspondence marked Annexure "A"[1] attached to the respondent's answering affidavit that the Sardius and the respondent agreed that the respondent would occupy the premises, 8 Jakaranda Street on 28 February 2010 on condition he raised the finance to purchase the house at a price of R1.4 million(plus vat) to be transferred on the 28 February 2010.

[4]       The agreement provided further, in the event the respondent did not secure the bond he was required to move into alternative accommodation and the house was to be sold on the open market with the first R1.4 million to go to Sardius and the next million to go to the respondent and any profit above that to be shared 60:40 between Sardius and the respondent.[2] This arrangement commenced from February 2010 subject to the payment of occupational rental. The respondent intended to purchase the property if he could secure a bank guarantee, alternately he had undertaken to improve the property with a view to selling it on the open market. The correspondence notes further that the appellant would loan the respondent two hundred thousand rands to complete the renovation to the property.

[5]       The respondent did not secure a bank guarantee and remained in occupation of the property and effected improvements to the property but did not pay occupational rental from 2010 until the present time. The respondent received two hundred thousand rand from the appellant which he utilised for improvements. The respondent contends that the improvements exceeded the amount of two hundred thousand rands advanced and even exceeded an amount of four hundred and fifty four thousand rands to date. The respondent submits further that rentals that ought to have been paid were utilised for the improvements and the respondent's own income was also used for improvements. The details of the business partnership between the respondent and Sardius was not reduced to writing and reference was made only to oral discussions and email communication to prove the terms of the agreement.

 

APPLICANT'S SUBMISSIONS

[6]       Mr Spoor submitted that the appellant was entitled to an order for eviction as the respondent was in unlawful occupation as the lease had been lawfully terminated. The appellant purchased the property after the respondent failed to secure a bank guarantee to purchase the property. The appellant terminated the respondent's occupation per correspondence dated 19 May 2015 and requested the respondent to vacate the premises. The respondent raised two defences namely that

1.         there was a contractual arrangement with the previous owner, which entitled the respondent to remain on the premises until the debt owed to the respondent was repaid.

2.         the respondent had an improvement lien.

 

[7]        On the first ground, the respondent appeared to be relying on a creditors lien as security for the amount of one million which the respondent believed was due to him flowing from the sale of the premises 22 Wally Scott Street as well as for improvements which exceeded the value of R200 000 loaned to him to effect improvements to the property. This appeared to be due as a result of a partnership in property projects which the respondent and Sardius envisaged but which partnership the respondent and Sardius did not reduce to writing. The result was that the respondent averred that he had monies due to him from a partnership with Sardius relating to his own property at Wally Scott Street and sought to recover his loss from his partnership relating to the Wally Scott property with Sardius in the property which is the subject of the present appeal.

[8]       Mr Spoor submitted further that this Court should have regard to the terms of the respondent's occupation which can be gleaned from the correspondence attached to the responden'st answering affidavit. It is evident from the correspondence attached marked Annexure A that Sardius and the respondent intended that the respondent would vacate his own property in Wally Scott Street and move into the property. The respondent would be permitted the option to secure a bank guarantee to purchase the property for R1.4 million, and the property was to be transferred by 28 February 2010. If finance was not secured, the respondent would find alternative accommodation and the house would be sold on the open market with R1.4 million going to Sardius and R1 million to the respondent and any additional profit thereafter split 60:40 between Sardius and the respondent. Further the appellant would loan two hundred thousand rands for the completion of the renovation of the property to be recovered from the sale of the property.[3]

[9]        On the second ground, the respondent alleged improvements in excess of R450 000 and sought to remain in occupation until his debt was satisfeid. The applicant terminated the respondent's occupation based on the respondent's failure to pay the rental due for a period of five years. On a conservative estimate the monthly rental of R6000 or R7000 per month, based on the lease attached to the answering affidavit placed the total amount due by the respondent in excess of the amount that he contends was due for the improvements. The improvements were alleged to be approximately R457 744. The amount of R200 000 loaned by the appellant has to be deducted which reduces this amount. The rental due over 60 months amounts to more than R360 000. The respondent thus still owes monies in rental.

[10]     Mr Spoor submitted that if the respondent indeed had a lien for improvement made to the property the appellant tendered security in lieu thereof if the court deemed same necessary. The appellant had made bold statements with regard to amounts without furnishing details of the amounts in their answering affidavit. He submitted further that if there were any monies due for improvement to the property, the appellant tendered to furnish security and requested that an order be made that this security was subject to the condition that the respondent institute proceedings to recover monies due for improvements to the property within 60 days of the date of the order and that the respondent be ordered to prosecute the matter to finalisation.

[11]      Mr Spoor submitted further that the respondent was a man of means and was involved in development in the area and owned fixed property in the community, thus there was no reason that he should remain in the property. Occupation had been terminated by breach of the agreement. The existence of the lien was denied by the appellant. The appellant tendered security with regard to improvements. He argued that the appellant was satisfied that a period of three months was reasonable to afford the respondent time to find alternative accommodation.

 

RESPONDENT'S SUBMISSIONS

[12]      Mr Van Aard submitted that it was not disputed by Mr. Wishart that there was an amount of one million due to the respondent. He argued further that it was an express alternately an implied term of the agreement that he would get one million from the property either if he purchased it for R1.4 million by furnishing a bank guarantee or if the property was sold for at least R2.4 million. The respondent did not agree to vacate the property without being paid the one million due to him. This was reflected in the respondent's correspondence to Mr. Wishart marked Annexure B.[4]

[13]      It was submitted further on behalf of the respondent that the two hundred thousand to be paid by the appellant was not paid upfront. The payment was delayed causing a delay in the renovation. He required the property to be in a suitable condition to secure a bank guarantee for the amount of R1.4million and was forced to use his own funds. The two hundred thousand rand was paid but he had already incurred losses. T e banks were at that stage reluctant to advance loans due to the decrease in the property market. The respondent was forced to use his own resources to effect improvements. The cost of improvements exceeded the amount of two hundred thousand rands and he utilised the money he would have used to pay monthly rentals to effect the improvements as well as further money of his own resources with the total amount in excess of R450 000 to date. In view of these improvements the respondent contends he has an improvement lien over the property.

 

UNLAWFUL OCCUPATION

[14]      The matter proceeded by way of motion in the court a quo. The record reflecting the magistrate's reasons for finding that the respondent could not be an unlawful occupier was not before us. The founding and answering affidavits placed before the Court a quo are before us. The submissions made have been reiterated and the magistrate's reason has been referred to us as being based on the finding that there was a dispute of fact whether the respondent was an unlawful occupier or not. There was no request to refer the dispute to oral evidence in the magistrates’ court. Further there was no request when the matter was argued before us to refer the matter back for consideration of evidence before the Court a quo.

[15]      The respondent's occupation of the premises stemmed from a partnership or business undertaking with Sardius. The history between the respondent and Sardius appears from the papers and is a convoluted business relationship involving property development projects. The respondent was permitted to occupy the property for a period of time subject to him obtaining a bank guarantee to purchase the premises, alternately he had undertaken to improve the property with a view to selling it on the open market to try to realise a profit of one million rand. The first R1.4 million of the proceeds of the sale was to be paid to Sardius, the next one million rand to the respondent and the balance to be split 60:40 percent to Sardius and the respondent. The correspondence attached to the respondent's answering affidavit indicates:

"" then Norval will move into other lodgings and the house sold on the open market"[5]

This is not indicative of an agreement where the respondent remains on the premises until the amount of one million is paid.

 

[16]      The correspondence marked annexure E[6] attached to the respondent's answering affidavit reflects Mr Wishart's communication to the respondent to pay the rental into an account and to find alternative accommodation if the accommodation at the property was not affordable. The respondent does not state in his answering affidavit that he paid rentals, instead he indicates that he used it for improvements to the premises. There is no communication on the papers suggesting this was the agreement and the communication in Annexure E clearly indicates what the rental amount was where it was to be paid and by when. There is no mention of the one million rand due to the respondent. The respondent had not purchased the property or secured a guarantee to purchase the property as indicated in the communication in Annexure A attached to the respondent's answering affidavit. Further, the respondent has not purchased the property, paid the rental due and the only alternative course of action directed in Annexure E is that the respondent finds more affordable accommodation[7].

[17]      The agreement the respondent relies on wherein there is acceptance that he will reside in the property as security for the one million is not attached to the papers. There was no indication of acceptance or agreement in this regard. The correspondence from Mr. Wishart marked annexure E requests the respondent to pay R8000 as rental into an account or to either purchase the property or move to more affordable accommodation. Further the respondent’s input is requested with regard to items for rectification, however nothing is mentioned regarding one million due to the respondent. Further there is no change to Mr. Wishart's earlier statement in Annexure A that " Norval has no call on 22 Wally Scott"[8]

[18]     The respondent was not able to raise the bank guarantee to purchase the premises and the property was then sold to the applicant. The respondent seeks to remain in the property to recover monies owed to him by Sardius relating to another property unrelated to the appellant and in which project the appellant appears not to have participated. He referred to two hundred thousand rands which was to be paid for the renovation and which was not paid timeously. This forced him to use his own funds and the rental which was due to Sardius. The respondent does not state the exact amounts used. The appellant calculates rental of the premises from February 2010 to date at R6000 per month which is less than the amount in the lease agreement attached to the answering affidavit. This is to the respondent's benefit.

[19]     The respondent does not indicate when and how he utilised the amounts on the premises to enrich the appellant since the appellant became the registered owner of the premises in March 2015 other than to make the bold statement that the amount of the improvement is in excess of R450 000. The rental based on annexure E is R8000 per month. The appellant calculates the rental at R6000 per month since February 201O to be a total of approximately R540 000 and submitted that the respondent is still in arrears and there are no monies due on the improvement lien.

[20]     The appellant submitted that the learned magistrate misconstrued section 4(7) of PIE which provides:

(1)    Notwithstanding anything to the contrary contained in any law or the common law, the provisions of this section apply to proceedings by an owner or person in charge of land for the eviction of an unlawful occupier.

(2)..

 

(3)..

 

(4)..

 

(5)..

 

(6)..

 

(7) If an unlawful occupier has occupied the land in question for more than six months at the time when the proceedings are initiated, a court may grant an order for eviction if it is of the opinion that it is just and equitable to do so, after considering all the relevant circumstances, including, except where the land is sold in a sale of execution pursuant to a mortgage, whether land has been made available or can reasonably be made available by a municipality or other organ of state or another land owner for the relocation of the unlawful occupier, and including the rights and needs of the elderly, children, disabled persons and households headed by women."

[21]      The appellant was a registered owner as provided for in the Pie Act. The permission ·on the basis of which the respondent had to occupy the premises in terms of an agreement with Sardius had been terminated in June 2015. On the respondent's version referring to the emails attached to his answering affidavit he was to move into alternative accommodation if he could not secure the finance. This is evident having regard to Annexure A attached to the answering affidavit. There is nothing on the papers in the answering affidavit or viewed in totality which supports the respondent’s version that the respondent's occupation of the property served as security for monies due to him or which supports the submission made on his behalf that he had a creditor's lien or an improvement lien. The correspondence indicates that the respondent was to seek alternative accommodation if he could not obtain a bank guarantee to purchase the property or he could not afford the rent.

[22]      With regard to the claim for an improvement lien, this would apply to improvements to the property and the respondent does not indicate how he improved the property after the appellant became the registered owner or how he incurred expenses to maintain the property. It appears that he did not pay any rentals during this period. Regarding the creditor's lien there was no contractual relationship between the appellant and respondent. The project regarding Wally Scott was with Sardius and the appellant was not involved in the project relating to the one million rand which may have been due.

[23]     To find that an improvement lien may have existed requires that the respondent prove that he made the improvements. He gave a bare estimate that the amount exceeded R450 000 and alleged the applicant loaned him R200 000. This does not take into account the rentals on the conservative estimate of R6000 for the period February 2010 to date. On the respondent's own version he owes rentals. No order is made for security to be paid by the applicant in respect of a claim to be instituted by the respondent against the applicant for improvement to the property at some future date. On the basis that in as much as the respondent claims to have a claim for improvement to the property against the applicant, the applicant appears to have a claim for arrear rentals against the respondent. On the face of it the applicant's claim is for an amount in excess of the respondent’s claim for improvements. For this reason I do not deem it appropriate for the applicant to pay security.

[24]     The matter was to be decided on the basis of motion proceedings following the principle in Plascons -Evans Paints Ltd v Riebeeck Paints (Pty) Ltd [1984] ZASCA 51; 1984 (3) Sa 623(A)

"... 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."

Neither party alleged that there was a dispute of fact in the proceedings in the Court a quo, such that it was necessary to refer the matter to oral evidence, nor did counsel for either party request that the matter be referred for oral evidence during the hearing of this appeal. Having regard to the above the respondent does not dispute the ownership of the property. The appellant having, terminated the respondent's occupation of the premises, there is no lawful reason for the respondent to continue occupation of the premises. The amount of the improvement lien which the respondent relied on is less than the rental due for the period of occupation and the respondent has enjoyed more value during this period. There is insufficient proof on the respondent's papers regarding the respondent’s occupancy of the present property being linked to payment of one million rand. The Annexure E attached to the respondent’s answering affidavit suggests the contrary. In view hereof the appellant is entitled to the relief it seeks. The magistrate erred in finding that there was a dispute of fact that the respondent may have been an unlawful occupier. The facts which cannot be denied are the contents of the correspondence attached to the answering affidavit which all point to the respondent finding alternative accommodation if he could not secure a bond or pay the rent due. In the result I propose the following order.

 

ORDER

[25]            In view of the above the following order is made:

1.         The appeal is upheld with costs.

2.         The respondent and those holding under him are evicted from the property and buildings erected on the property better known as Erf 970, White River Extension 5, situated at 8 Jacaranda Street, White River Mpumalanga;

3.          The respondent and those holding under him are ordered to vacate the premises on or before 30th of November 2017.

4.         In the event that the respondent and those holding under him do not vacate the property on the above date, the Sheriff of the Court or his lawfully appointed deputy are authorised and directed to evict the respondent and those holding under him from the property.

5.         No order is made for security to be paid by the applicant in respect of a claim to be instituted by the respondent against the applicant for improvement to the property at some future date.

 

 

 

 

SC MIA

ACTING JUDGE OF THE HIGH COURT

GAUTENG DIVISION, JOHANNESBURG

 

 

I agree. It is so ordered.

 

 

 

T MAUMELA

JUDGE OF THE HIGH COURT

GAUTENG DIVISION, JOHANNESBURG

 

 

 

Appearances:

 

On behalf of the applicant                        :          Ricard Spoor Incorporated

Instructed by                                             :           Richard Spoor Incorporated

 

On behalf of the respondent                     :           JF Van Aardt Attorney

Instructed by                                             :           JF Van Aardt Attorney

 

Date of hearing                                         :           28 April 2017

Date of judgment                                       : October 2017

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