De Aguiar v Real People Housing (Pty) Ltd

• Jurisdiction: South Africa
• Citation: 2011 (1) SA 16 (SCA)

De Aguiar v Real People Housing (Pty) Ltd
2011 (1) SA 16 (SCA)

2011 (1) SA p16

Citation	2011 (1) SA 16 (SCA)
Case No	426/2009
Court	Supreme Court of Appeal
Judge	Mthiyane JA, Van Heerden JA, Mlambo JA, Shongwe JA and Griesel AJA
Heard	May 4, 2010
Judgment	May 24, 2010
Counsel	G Kairinos for the appellant.; D Vetten for the respondent.

Flynote : Sleutelwoorde B

Appeal — Generally — Receiving further evidence on appeal — Application for leave to adduce further evidence — Requirements — Incumbent on applicant to show court that it was not due to any remissness on his/her part that evidence in question was not adduced at trial — Inadequate presentation of litigant's case at trial will only in rarest instances be remediable by C adduction of further evidence at appeal stage — Classic formulation of basic requirements for adducing further evidence on appeal reiterated.

Ejectment — Claim based on ownership — Defences — Defence based on alleged enrichment lien — Agreement between seller and puchaser (formerly landlord and tenant) providing purchaser would vacate property in D event of failure to pay purchase price or furnish bank guarantee — Application for eviction upon breach by purchaser — Allegation of enrichment lien arising from improvements to property effected during currency of lease incompatible with purchaser's undertaking to vacate property upon breach — Evidence of improvements not entitling purchaser to avoid consequences of undertaking to vacate property or affect application for E eviction.

Headnote : Kopnota

It is incumbent upon an applicant for leave to adduce further evidence to satisfy the court that it was not owing to any remissness or negligence on his or her part that the evidence in question was not adduced at the trial. Furthermore, inadequate presentation of the litigant's case at the trial will only in F the rarest instances be remediable by the adduction of further evidence at the appeal stage. It is thus clear that the test is a stringent one. The formulation of the basic requirements for an application to adduce further evidence that is perhaps the most often quoted is that of Holmes JA in S v De Jager 1965 (2) SA 612 (A) at 613B:

'(a)

G There should be some reasonably sufficient explanation, based on allegations which may be true, why the evidence which it is sought to lead was not led at the trial.

(b)

There should be a prima facie likelihood of the truth of the evidence.

(c)

The evidence should be materially relevant to the outcome of H the trial.' (Paragraphs [11] and [12] at 19H - 20D.)

Where certain previous eviction proceedings between the parties had been settled in terms of a written settlement agreement which had been made an order of court and which provided for the sale of the property concerned to the appellant for a stated purchase price which had either to be paid or secured I by an acceptable bank guarantee, subject to the condition that '(i)n the event that the defendant fails to meet the conditions mentioned in 1.3 above (ie payment or securing of the purchase price), the defendant has agreed to vacate the premises on or before 30 June 2006', reliance on an alleged enrichment lien in later eviction proceedings, pursuant to the failure to pay or secure the purchase price of the property in terms of the J settlement agreement, was incompatible with the undertaking to vacate the

2011 (1) SA p17

property. Thus the adduction of further evidence relating to improvements A to the property, entitling the appellant to rely on the alleged enrichment lien, could not avoid the consequences of the undertaking to vacate the property or affect the outcome of the application for eviction. (Paragraph [14] at 20E - 21A, paraphrased.)

Cases Considered

Annotations B

Reported cases

Business Aviation Corporation (Pty) Ltd and Another v Rand Airport Holdings (Pty) Ltd 2006 (6) SA 605 (SCA) ([2007] 1 All SA 421): discussed and distinguished

Colman v Dunbar 1933 AD 141: dictum at 161 applied C

Loomcraft Fabrics CC v Nedbank Ltd and Another 1996 (1) SA 812 (A) ([1996] 1 All SA 51): dictum at 824H - 825D applied

President of the Republic of South Africa and Others v Quagliani, and Two Similar Cases 2009 (2) SA 466 (CC) (2009 (4) BCLR 345): dictum in para [70] applied

Prophet v National Director of Public Prosecutions D 2007 (6) SA 169 (CC) (2006 (2) SACR 525; 2007 (2) BCLR 140): dictum in para [33] applied

R v Carr 1949 (2) SA 693 (A): dictum at 699 applied

Rail Commuters Action Group and Others v Transnet Ltd t/a Metrorail and Others 2005 (2) SA 359 (CC) (2005 (4) BCLR 301): dictum in para [43] applied

S v De Jager 1965 (2) SA 612 (A): dictum at 613B applied E

S v M 2003 (1) SA 341 (SCA) (2002 (2) SACR 411): dictum in para [16] applied

S v N 1988 (3) SA 450 (A): dictum at 458E applied

Simpson v Selfmed Medical Scheme and Another 1995 (3) SA 816 (A): dictum at 824J applied.

Case Information

Appeal from a decision in the South Gauteng High Court (Bhana AJ). F The facts appear from the judgment of Griesel AJA.

G Kairinos for the appellant.

D Vetten for the respondent.

Cur adv vult. G

Postea (May 24).

Judgment

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

2011 (1) SA p18

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...