Business Aviation Corporation (Pty) Ltd and Another v Rand Airport Holdings (Pty) Ltd

• Jurisdiction: South Africa
• Judge: Goldstein J and Khampepe J
• Judgment Date: 11 March 2005
• Citation: 2006 (2) SA 95 (W)
• Docket Number: A3079/2003
• Hearing Date: 04 March 2005
• Counsel: J L Kaplan for the appellant. E L Theron for the respondent.
• Court: Witwatersrand Local Division

Business Aviation Corporation (Pty) Ltd and Another v Rand Airport Holdings (Pty) Ltd
2006 (2) SA 95 (W)

2006 (2) SA p95

Citation	2006 (2) SA 95 (W)
Case No	A3079/2003
Court	Witwatersrand Local Division
Judge	Goldstein J and Khampepe J
Heard	March 4, 2005
Judgment	March 11, 2005
Counsel	J L Kaplan for the appellant.; E L Theron for the respondent.

Flynote : Sleutelwoorde B

Landlord and tenant — Ejectment — Lessee of immovable property, whether rural or urban, having no lien or right of retention of property for improvements to property effected during currency of lease for which not compensated. C

Headnote : Kopnota

The appellant appealed against a magistrate's court order evicting it from premises leased in terms of an alleged verbal lease agreement, the existence of which appellant contended it had proved. In the alternative, appellant argued that it was entitled to remain as a result of a right of retention arising from improvements it had effected, which right had not been abolished by article 10 of the Placaaten of 1658 and 1659 since the latter only applied to rural D tenements.

Held, that the defendant had not discharged its onus of proving the lease. (Paragraph [10] at 97D.)

Held, further, that the inter-relationship of arts 10, 11 and 12 of the Placaaten of 1658 and 1659 meant that statements of law regarding one article applied equally to the other articles, and that it followed that the extension of the application of art 12 to both E urban and rural property in Van Wezel v Van Wezel's Trustee1924 AD 409 was binding on the present Court. (Paragraph [15] at 98H - 99A.)

Held, accordingly, that art 10 of the Placaaten applied to both rural and urban tenements. (Paragraphs [11] and [16] at 97E - F, 97H - I and 99B.) Appeal dismissed. F

Cases Considered

Annotations

Reported cases

Palabora Mining Co Ltd v Coetzer1993 (3) SA 306 (T): referred to

Syfrets Participation Bond Managers Ltd v Estate and Co-op Wine Distributors (Pty) Ltd1989 (1) SA 106 (W): referred to

Van Wezel v Van Wezel's Trustee1924 AD 409: discussed and applied. G

Statutes Considered

Statutes

The Placaaten of 1658 and 1659, arts 10, 11 and 12.

Case Information

Appeal against a decision of a magistrate's court. The facts appear from the reasons for the judgment. H

J L Kaplan for the appellant.

E L Theron for the respondent.

Cur adv vult.

Postea (March 11). I

Judgment

Goldstein J:

[1] This is an appeal against an order of a magistrate's court evicting the appellants, to whom I shall refer as the first and second defendants, from the immovable property (the property) of the respondent, to which I shall refer as the plaintiff. J

2006 (2) SA p96

Goldstein J

[2] The plaintiff's ownership of the property was not contested. The issue between the parties was whether the defendants A were entitled to continue their occupation in terms of a verbal lease alleged by them to have been concluded during May 2000 between the second defendant, acting on his own behalf and on behalf of the first defendant, and the plaintiff, represented by a Mr Alan John Craig. B

[3] Only the second defendant and Craig gave evidence. Of course, the defendants bore the onus of proving the lease of May 2000 and the court below decided that such onus was not discharged.

[4] It appears that the plaintiff had, with effect from 1 May 2000, acquired the property, in respect of which the defendants C were monthly tenants, and on which one or other, or both, had effected what appears to have been substantial improvements. The second defendant appears to have been controlled by the first defendant and indeed to have been his alter ego. D

[5] Counsel for the defendants advanced a number of grounds in support of the argument that the defendants had discharged their onus. He submitted that it was improbable that, after substantial sums have been expended on improving the property, the defendants would have been satisfied to continue with a monthly tenancy and that, on the contrary, it was probable that they would have E wanted the security of a long-term lease. This may arguably be so, but the plaintiff had no such need. Indeed, it...