Earljay Holdings (Pty) Ltd v Moldenhauer

• Jurisdiction: South Africa
• Judgment Date: 12 January 1984
• Citation: 1984 (3) SA 354 (E)

Earljay Holdings (Pty) Ltd v Moldenhauer
1984 (3) SA 354 (E)

1984 (3) SA p354

Citation	1984 (3) SA 354 (E)
Court	Eastern Cape Division
Judge	Zietsman J and Mullins J
Heard	December 5, 1983
Judgment	January 12, 1984

Flynote : Sleutelwoorde C

Improvements — Useful improvements — Compensation for — Person bona fide entering into invalid lease of land with E someone who is not the owner thereof — Entitled to claim compensation from owner for useful improvements enhancing value of land — Not necessary for such person to allege that improvements were effected in the reasonable and bona fide belief that he was entitled to do so under an agreement of lease or that the lessor had consented thereto. F

Headnote : Kopnota

A person who bona fide enters into an invalid lease of land with someone who unbeknown to him is not the owner thereof is entitled to claim compensation from the owner of the land for useful improvements effected by him upon that land where such improvements have had the effect of enhancing the value of the land and enriching the owner. It is not necessary for a person making such a claim to allege that, as a bona fide occupier of G the land, he effected the improvements (a) in the reasonable and bona fide belief that he was entitled to do so under an agreement of lease, or (b) in the reasonable and bona fide belief that the lessor had consented thereto.

Rubin v Botha 1911 AD 568 and Fletcher and Fletcher v Bulawayo Waterworks Co Ltd; Bulawayo Waterworks Co Ltd v Fletcher and Fletcher 1915 AD 636 applied. H

Case Information

Exception to respondent's (plaintiff's) particulars of claim. The nature of the pleadings appears from the reasons for judgment.

J C Froneman for the excipient (defendant).

J J Nepgen SC for the respondent (plaintiff).

Cur adv vult. I

Postea (January 12).

Judgment

Zietsman J:

The plaintiff in its particulars of claim alleges that the defendant was at all material times the owner of certain immovable

1984 (3) SA p355

Zietsman J

property described as "remaining extent of portion 5 of the A farm No 297 division of East London". The plaintiff alleges further that since October 1979 it has occupied and still occupies a portion of this property known as Hunter Construction Blockyard. For the sake of convenience I shall refer to the said Hunter Construction Blockyard simply as "the B property".

The plaintiff alleges that its occupation of the property during the period October 1979 to May 1982 was in terms of an agreement of lease entered into by the plaintiff with a company known as Fluor Mining and Development Co (Pty) Ltd (hereinafter referred to as Fluor Mining). Its occupation of the property C after May 1982 is in terms of an agreement of lease entered into between the plaintiff and the defendant.

The plaintiff alleges that unbeknown to it Fluor Mining was not the owner of the property when it concluded the lease in respect thereof with the plaintiff. The owner of the property at all relevant times was the defendant. The plaintiff alleges D however that its occupation of the property from October 1979 to May 1982 was bona fide and in accordance with its belief that it was a lessee of the property.

The plaintiff alleges further that during the period October 1979 to January 1980 it effected certain useful improvements to the property, consisting of the erection of a precast concrete E works at a cost of R31 397 and the plaintiff alleges that the value of the defendant's property has thereby been enhanced by an amount which exceeds the said sum of R31 397. The plaintiff alleges that the defendant has accordingly been unjustly enriched at the expense of the plaintiff in the said sum of R31 F 397, and the plaintiff claims this sum from the defendant.

To this claim the defendant has noted an exception on the ground that the claim is bad in law and lacks averments necessary to sustain a cause of action.

G The defendant details his exception in the following terms:

"1.

Ex facie para 4 of the particulars of claim plaintiff was a bona fide occupier of defendant's property in terms of an invalid agreement of lease.

2.

Plaintiff has accordingly no greater right than a lessee of the said property under a lawful and valid lease would have had to recover conpensation for H useful improvements.

3.

A lessee has no right in law to recover compensation for useful improvements which he has effected to the leased property unless

(a)

the agreement of lease provides for the said I improvements; or

(b)

the lessor consents thereto.

4.

Plaintiff does not allege that as a bona fide occupier he effected the said improvements

(a)

in the reasonable and bona fide belief that he was entitled to do so under an agreement of lease; or

1984 (3) SA p356

Zietsman J

(b)

A in the reasonable and bona fide belief that the lessor had consented thereto.

5.

In the premises plaintiff is not entitled in law to recover compensation for the useful improvements allegedly effected by him on defendant's property."

B The defendant did not request further particulars before excepting to the plaintiff's claim and, in respect of certain aspects of the plaintiff's claim, very little information is given. We, for example, do not know what was to be the duration of the lease in terms of the agreement entered into between the plaintiff and Fluor Mining and we do not know the duration of C the lease which has now been concluded between the plaintiff and the defendant. We also do not know when it...