Chetty v Naidoo

• Jurisdiction: South Africa
• Judge: van Blerk JA, Jansen JA, Muller JA, Corbett AJA and Hofmeyr AJA
• Judgment Date: 01 April 1974
• Hearing Date: 26 February 1974
• Court: Appellate Division

Jansen, J.A.:

This is an appeal against orders made, at the C instance of the respondent (hereinafter called the plaintiff), by the Durban and Coast Local Division (per VAN HEERDEN, J.), ejecting the appellant (hereinafter called the defendant) from premises known as 208 Sparks Road, Durban, and giving judgment to the plaintiff on the defendant's counterclaim (which was for D transfer of the said property, alternatively, repayment of moneys alleged to have been paid by the defendant in respect of the property). Both orders carried costs on the attorney and client basis.

As the main point which now falls to be decided relates to the incidence of the burden of proof, it is necessary to refer to E the pleadings in somewhat greater detail than would otherwise have been the case.

In the particulars of his claim for ejectment the plaintiff merely states that he is the registered owner of the property and that the defendant is

"in occupation of the said property against the will of the plaintiff".

The defendant admits in her plea that the plaintiff is the F registered owner and that she is in occupation of the property, but denies that the plaintiff is "entitled to the possession thereof". She claims that she has been in possession since 8 March 1958 (the date of an auction sale presently to be mentioned) in terms of an oral agreement between herself and G the plaintiff, concluded at 208 Sparks Road, some two or three weeks before that date, and that by virtue of that agreement she is entitled to continued possession. At the time of the agreement the plaintiff held a bond (in excess of R5 000) over the property, which was then registered in the name of the defendant's son. The son's estate had been sequestrated and the property was to be put up for public auction by the trustee on H 8 March 1958. The agreement was that the plaintiff should purchase the property at the auction, and take transfer, "as trustee or agent for and on her behalf". She was to have possession of the property and the plaintiff was to hold the property in that capacity

"until such time as it was transferred into the name of the defendant",

viz. upon payment of

"the full amount of the debt payable in terms of the said mortgage bond, and the plaintiff's other disbursements in connection with the sale and purchase of the said property... with interest at the rate of 10 per cent per annum...",

Jansen JA

which payment was to be effected

"by a first payment of R400 and instalments of R50 per month; the balance to be met out of compensation to be paid by the Durban Corporation for the portion of the property expropriated for road-widening purposes".

Pursuant to this agreement, she pleads, the plaintiff bought and took transfer of the property and she herself gained A possession. She paid the R400 on 11 April 1958; she kept up the monthly instalments until it was agreed in 1962 that she (then having paid R2 200 in all) need pay no further instalments, as the whole of what was still outstanding was to be paid out of the compensation to be received from the Corporation. She states that at the time of the plea this B compensation had not yet been received. Having so dealt with the plaintiff's claim for ejectment, she proceeds to counterclaim for transfer of the property in terms of the oral agreement,

"tendering to pay the balance of the liability under and in terms of the said mortgage bond and plaintiff's disbursements".

C In the alternative she adds a further claim,

"conditionally upon the defence in convention failing",

in respect of the monies paid under the agreement:

"in the event of the Court holding that the said oral agreement is unenforceable, the defendant is entitled by virtue of the fact that the plaintiff has elected no longer to be bound by the said oral agreement, to the repayment to her of the said sum of R2 200".

D In his replication the plaintiff admits that he bought the property at the public auction on 8 March 1958, for the sum of R5 600, and that he took transfer on 27 June 1958. He denies entering into any agreement whatsoever with the defendant before the auction. He concedes, however, that about two or E three weeks after the auction (on 8 March 1958), he sold the property to the defendant for R8 000, "payable by a deposit of R400 and monthly instalments". This was an oral agreement entered into at his house (101 Dunnottor Avenue, Asherville, Durban). It provided that interest be paid

"on the balance of the purchase price owing from time to time, calculated in advance at the rate of 10 per cent per annum",

F that the

"whole of the said purchase price, together with interest thereon, would be paid within five years of the conclusion of the said agreement",

and that during that period the defendant would pay

"any sums owing for municipal rates or other levies accruing in respect of the property".

He acknowledges receipt of R2 200 in terms of the agreement, G but alleges a breach of the agreement, viz. failure by the defendant to pay the balance owing within five years or to pay the municipal rates and other levies. As a result, he alleges, a further oral agreement was entered into during or about April 1963, again at his house, to the effect that the defendant H would remain in occupation as a monthly tenant ("a tenancy from month to month, terminable upon a calendar month's notice") at a rental of R50 a month, payable in advance on the first day of each and every month. The payments of R2 200 were to be retained in lieu of rent. On 30 July 1968, the plaintiff gave the defendant notice terminating the tenancy from 31 August 1968. As the premises were "controlled" in terms of the Rents Act, a copy was sent to the Rent Board. Defendant failed to pay rent for September, within

Jansen JA

seven days or at all, and has never since paid any rent. The replication then claims that

"by reason of the provisions of sec. 21 of the said Act, the plaintiff is entitled to eject the defendant from the said property to the plaintiff".

A The plaintiff denies the agreement alleged by the defendant, which he says is, in any event, unenforceable in terms of sec. 1 of Act 68 of 1957 and sec. 1 of Act 71 of 1969. On the counterclaim the plaintiff persists in the allegation that the payments were made in terms of the agreement alleged by him, B but adds that, in any event, if they were to be repaid, the defendant would be unjustly enriched at the expense of the plaintiff, inasmuch as the defendant has had occupation of the property since 8 March 1958, the value and benefit to the defendant of which exceeds R2 200.

The defendant's replication to the plea in reconvention is C combined with a rejoinder to the plaintiff's replication. She denies the plaintiff's version, but in respect of the municipal rates and other levies she states that, in terms of the original agreement alleged by her, the plaintiff had to pay them but that he would be reimbursed by her. During or about November 1962, however, they agreed that such moneys paid by him were to be added to the total indebtedness and also to be D paid out of the compensation to be received from the Corporation. She admits receiving the notice purporting to terminate, but cannot remember the effective date; she denies that a copy was sent to the Rent Board. She admits not paying any rent, but says she is not required to do so.

On these pleadings the matter went to trial. Counsel for the E defendant assumed the duty to begin and called three witnesses, including the defendant herself. After closing the defendant's case he conceded that the onus of proof was on the defendant. (The scope and effect of the concession has been debated before us, but as the appeal can be decided without F reliance on the concession, it is unnecessary to deal with the issues involved). Counsel for the...