De Aguiar v Real People Housing (Pty) Ltd

• Jurisdiction: South Africa
• Judge: Mthiyane JA, Van Heerden JA, Mlambo JA, Shongwe JA and Griesel AJA
• Judgment Date: 24 May 2010
• Citation: 2011 (1) SA 16 (SCA)
• Docket Number: 426/2009
• Hearing Date: 04 May 2010
• Counsel: G Kairinos for the appellant. D Vetten for the respondent.
• Court: Supreme Court of Appeal

Griesel AJA (Mthiyane JA, Van Heerden JA, Mlambo JA and Shongwe JA concurring): H

[1] The sole issue for determination in this appeal is whether or not leave should be granted to the appellant to adduce further evidence so as to enable him to rely on an alleged improvement lien as a defence to a claim for his eviction from certain premises. If leave is refused, it is common cause that the appeal should fail. I

[2] The present respondent (as applicant in the court below) obtained an order in the South Gauteng High Court, Johannesburg, for the eviction of the appellant (respondent in the court below) and all those who occupy the premises described as 90 Main Road, Walkerville, Meyerton (the property) by virtue of his occupation. J

Griesel AJA (Mthiyane JA, Van Heerden JA, Mlambo JA and Shongwe JA concurring)

A [3] Most of the relevant facts are uncontentious and can be briefly stated. The appellant's father acquired the property as vacant land in 1970, later erecting a family home and other improvements thereon during the early 1980s. The appellant and his family have been in occupation of the property ever since. During November 1997 the B property was sold in execution to First National Bank (FNB) after the appellant's father ran into financial difficulties. FNB subsequently sold the property to the respondent, who took transfer thereof during May 2001. On 14 May 2001 the respondent concluded a written lease with the appellant in respect of the property at a monthly rental of R9795,04. C In breach of the lease, however, the appellant failed regularly to pay the rental due and as at 15 April 2006 he was in arrears in a total amount in excess of R130 000. The respondent accordingly instituted action against the appellant in the Vereeniging Magistrates' Court for recovery of the arrears and cancellation of the lease. It simultaneously commenced eviction proceedings out of the same court. Both the action and D the application were opposed by the appellant.

[4] On 25 April 2006 the parties reached a settlement of their disputes and entered into a written 'settlement agreement' which was made an order of court. In terms of the settlement the lease was cancelled and the respondent agreed to sell the property to the appellant at a purchase E price of R1,5 million, which had to be paid, alternatively, secured by acceptable bank guarantees, on or before 31 May 2006. Clause 1.4 of the settlement agreement provides as follows:

'In the event that the defendant fails to meet the conditions mentioned in 1.3 above [ie payment or securing of the purchase price], the F defendant has agreed to vacate the premises on or before 30 June 2006.'

It was also recorded that the agreement constituted 'a full and final settlement of the disputes between the parties'.

[5] The appellant failed to pay or secure the purchase price by due date, with the result that he became obliged to vacate the property on 30 June G 2006. He refused to do so, which led to the launching of the application for eviction in the court below, based squarely on the undertaking contained in clause 1.4 of the settlement agreement.

[6] In his answering affidavit filed in opposition to the claim for eviction, the appellant raised numerous issues, none of which amounted to a valid H defence in law and none of which requires judicial attention at this stage. The learned judge in the court below rightly rejected the appellant's opposition to the order sought and found that the respondent's right to seek eviction arose out of the 'self-standing settlement agreement' entered into between the parties. He accordingly granted an eviction order, affording the appellant a further 120 days to vacate the premises.

I [7] The appellant filed a notice of application for leave to appeal against the eviction order, raising a number of grounds of appeal. Those grounds all fell away, however, and were overtaken by a notice styled 'Supplementary grounds for leave to appeal', supported by a supplementary affidavit in which the appellant - now represented by a new legal J team - claimed to be entitled to rely on an enrichment lien over the

Griesel AJA (Mthiyane JA, Van Heerden JA, Mlambo JA and Shongwe JA concurring)

premises, based on 'considerable amounts of money' allegedly expended A by him and his father in respect of 'necessary and useful improvements' to the property. This was an entirely new point that was neither foreshadowed in the evidence on record at that stage nor supported by such evidence. The appellant accordingly sought leave to appeal so as to enable him to apply to the court hearing the appeal for leave to lead further evidence relating to such expenses and improvements. B

[8] In the event the application for leave to appeal was dismissed by the court below, but was subsequently granted by this court on petition. Pursuant to that order, a substantive application for leave to adduce further C evidence was delivered on behalf of the appellant, which is what is before us at this stage. Should such leave be granted, the respondent wants the matter to be remitted to the High Court for that court to determine whether, having regard to the evidence adduced by the appellant, he is entitled to rely on...