Boikhutsong Business Undertakings (Pty) Ltd and Another v Grobler NO

• Jurisdiction: South Africa
• Judgment Date: 06 August 1987
• Citation: 1988 (2) SA 676 (BA)

Boikhutsong Business Undertakings (Pty) Ltd and Another v Grobler NO
1988 (2) SA 676 (BA)

1988 (2) SA p676

Citation	1988 (2) SA 676 (BA)
Court	Bophuthatswana Appellate Division
Judge	Stewart CJ, Kotzé JA and Galgut AJA
Heard	May 7, 1987
Judgment	August 6, 1987

Flynote : Sleutelwoorde

Land — Transfer — Black family of M relocated from White area and promised transfer of 400 morgen of farm W in 1950 — South African Development Trust agreeing to transfer land to family before Proc 347 of I 1977 promulgated — Proclamation making distinction between contract of sale of land, which had to be in writing, and an agreement to transfer land, which was not required to be in writing — Oral agreement to transfer land valid and land not vesting in Government but in South African Development Trust — Valid agreement existing and plaintiff, as J executor of estate, owner of property.

1988 (2) SA p677

Landlord and tenant — Lease — Validity of — Minister erroneously leasing a property registered in the name of the South African Development Trust to appellant — Neither Government nor Minister could deal with such land — No right to lease land — Lease accordingly invalid.

Lien — For improvements — Mala fide possessor erecting a trading store on land belonging to estate of M — Profits made by mala fide possessor exceeding alleged cost of the building or enhancement (if any) of the value of the property — Court a quo correct in rejecting possessor's claim for ius retentionis of the building.

Headnote : Kopnota

Plaintiff (now respondent) was the executor of the estate of the late C Priscilla Motsuenyane. The Motsuenyane family had been relocated to a certain property on the farm Wildebeestfontein, which had been offered to them by the South African Development Trust. The Trust had agreed to transfer this property to the family in 1950. The family had occupied the land since 1959 and had paid for it. The transfer had been delayed for various reasons and was finally achieved in April 1982. In March D 1982, the Bophuthatswana Government had mistakenly leased the property to the first defendant (now the first appellant) and second defendant (now second appellant) has caused a trading store to be erected thereon at a cost of R230 000, despite being aware of plaintiff's claim to the property. In terms of Proc 347 of 1977 (RSA), all land vested in the State unless it was the subject of a written lease, concession or contract. The defendants contended that the Government had the right to lease the land as the agreement between the South African Development E Trust and the Motsuenyane family was not in writing. The Court a quo had found that the land had not vested in the State as it was subject to the exclusion in schedule B of the proclamation in that there was an agreement which had been negotiated prior to the coming into operation of the proclamation, but that the land had not yet been transferred to the Motsuenyane family. An ejectment order had been granted and costs of suit were awarded against the appellants on an attorney - client basis F because of the way they had conducted the case. In an appeal, it was contended for the appellants that: (1) schedule B of Proc 347 of 1977 envisaged a written agreement and, as none such existed, the property had passed to the Government; (2) the Government had concluded a valid and binding lease with the first appellant; (3) the first appellant had a ius retentionis for the valuable building that had been erected until it was compensated therefor; (4) the award of costs against the appellants on an attorney - client basis was unjustified.

G Held, that, in regard to the ius retentionis, the Court a quo had found correctly on the evidence that it had not been proved that first defendant was a bona fide occupier of the property.

Held, further, that the evidence showed that the profits made by the first defendant exceeded by far the alleged cost of the building or enhancement (if any) of the value of the property.

H Held, further, that it could not be said that the Judge a quo, in the exercise of his discretion, had erred in rejecting the second appellant's claim for a ius retentionis.

Held, further, in regard to the contention that the agreement to transfer contemplated by schedule B of Proc 347 of 1977 had to be in writing, that the proclamation made a distinction between a contract of sale of land which had to be in writing, and an agreement to transfer land which was not required to be in writing.

Held, further, that, if an oral agreement to transfer land had come into I being before the coming into force of the proclamation, the property did not vest in the Government but remained with the South African Development Trust.

Held, further, on the facts, that it had been proved conclusively that there was an agreement to transfer the property as particularised in schedule B of the proclamation.

Held, further, that there could be no doubt that plaintiff in his capacity as the executor of Priscilla Motsuenyane's estate was the owner J of the property.

1988 (2) SA p678

A Held, further, in regard to the validity of the lease, that neither the Government nor any Minister could deal with the property registered in the name of the South African Development Trust and it followed that the lease was not a valid lease and that the Government had no right to lease the property to the first defendant.

Held, accordingly, that the appeal should be dismissed with costs.

The decision of Grobler NO v Boikhutsong Business Undertakings (Pty) Ltd and Another 1987 (2) SA 547 (B) confirmed on appeal. B

Case Information

Appeal from a decision in the Bophuthatswana General Division (Smith J) reported at 1987 (2) SA 547. The facts appear from the judgment of Galgut AJA.

H Barolsky SC (with him D Marais) for appellants (defendants).

C W C Lazarus SC (with him D M Ettlinger) for respondent (plaintiff).

Cur adv vult.

Postea (August 6). D

Judgment

Galgut AJA:

The respondent in this appeal is the executor in the estate of the late Priscilla Motsuenyane (Priscilla), having been appointed as such in September 1976. He was the plaintiff in the Court a quo.

On 29 April 1982, by virtue of title deed T142/1982, portions 4 and 5 of the farm Wildebeestfontein 274, in the Bafokeng district (I shall refer to them as 'the property') were transferred from the South African E Development Trust (SADT) to the estate of the late Priscilla Motsuenyane, its heirs and successors in title, on 29 April 1982. The relevant portion of the title deed reflect that the SADT, as owner, is transferring the property and that the Minister concerned,

'erken dat die Suid-Afrikaanse Ontwikkelingstrust geheel en al van die F besit daarvan (the property) onthef is en nie meer daartoe geregtig is nie en dat uit krag van hierdie Akte, die genoemde boedel wyle Priscilla Motsuenyane, die se Erfgename, Opvolgers-in-Titel of Regsverkrygendes, nou en voortaan daartoe geregtig is en voortaan geregtig sal wees,... en ten slotte erken hy dat die eiendom op 7 Februarie 1969, verkoop is vir 'n bedrag van R6 400'.

The relevance of the description of the transferees and the date of the G sale will appear later.

The first appellant is a company. It carries on business, inter alia, as a general dealer. The second appellant is a shareholder and a director of first appellant. The evidence leaves one in no doubt that, as such, he was in fact in control of first appellant.

H In the summons commencing the trial in the Court a quo, first appellant was cited as first defendant. The second defendant, there cited, was the honourable Minister of Urban Affairs and Land Tenure of the Republic of Bophuthatswana. He was cited because of his possible interest in the relief claimed. I shall refer to the parties as was done in the Court a quo, viz as plaintiff, first defendant and third I defendant. The second defendant took no part in the proceedings and did not at any stage challenge the right of the transferees to the property. He abided by the decision of the trial Court.

During March 1982, that is a month before the above transfer, the Minister of Urban Affairs and Land Tenure in the Government of J Bophuthatswana, in the belief that the land in question was State land,

1988 (2) SA p679

Galgut AJA

A entered into a lease with the first defendant in respect of portion of the property for a period of nine years and eleven months with an option of renewal for a further similar period. The land leased to first defendant was on portion 4 of the property. The first defendant thereafter proceeded to build a store on the land leased to it. It thereafter traded in the store. When those building activities B commenced, an application to interdict first and third defendants from continuing them was launched. A rule nisi was issued. The defendants in their affidavits contended that, despite the fact that the estate was the registered owner of the property, it was not in fact the owner and they further contended that the aforementioned lease was a binding and valid lease. The Judge dealing with that application was unable, on the C affidavits filed, to decide where the balance of convenience lay. He accordingly discharged the rule and ordered that the costs of the application were to be costs in the cause at the trial.

Thereafter, the plaintiff launched the present proceedings in the Court a quo and the matter proceeded to trial.

D The issues before the trial Court can be summarised. The plaintiff sought firstly an order declaring that he, in his capacity as executor, was the owner of the land leased to first defendant and, secondly, an order ejecting first defendant from that land. Plaintiff also sought appropriate orders as to the costs of the action and the costs of the aforementioned application. The first defendant pleaded...