Grobler NO v Boikhutsong Business Undertaking (Pty) Ltd and Others

• Jurisdiction: South Africa
• Court: Bophuthatswana High Court
• Judge: Smith J
• Judgment Date: 01 October 1986
• Citation: 1987 (2) SA 547 (BG)

Smith J:

The particulars of plaintiff's claim as amended read as follows:

'Particulars of plaintiff's claim

1 (a)

Plaintiff is Dirk Cornelius Grobler NO, an D attorney practising in partnership as Van der Merwe, De Wet & Grobler, at 1st Floor, Woolworths Building, Steen Street, Rustenburg, Transvaal.

(b)

Plaintiff sues in his capacity as executor in the estate of the late Priscilla Motsuenyane ("the estate") having been duly E appointed as executor under certificate of appointment granted to plaintiff by the magistrate, Bafokeng, Rustenburg, on 20 September 1976.

...

3.

The first defendant is Boikhutsong Business Undertaking (Pty) Ltd, a company duly incorporated F with limited liability according to the company laws of the Republic of Bophuthatswana and which has its registered office at 515 Maroka Street, Tlhabane.

4 (a)

The second defendant is the Honourable Minister of Urban Affairs and Land Tenure of the Republic of Bophuthatswana.

(b)

The second defendant is cited because of his G possible interest in the relief claimed. No order for costs is sought against the second defendant save in the event of his opposition to the plaintiff's claim.

5 (a)

The third defendant is Mohamed Ahmed Haffejee who resides at 72/74 Hollyhock Street, Sinniaville.

(b)

The third defendant is cited because of his H possible interest in the action resulting from the order as to costs made in this honourable Court on 24 September 1982 in case No 564/82.

(c)

No costs are sought against the third defendant in this action save in the event of his opposition to the plaintiff's claim.

6 (a)

The estate is the owner of the immovable I property described as portion 4 (a portion of portion 2) of the farm Wildebeestfontein 274, registration division JQ, district Bafokeng (hereinafter referred to as "the property").

(b)

The property is held by the estate under duly registered title deed No T143/1982, which was registered in the deeds registry by the Registrar General, Bophuthatswana, on J 29 April 1982.

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7.

The first defendant is in wrongful and unlawful A occupation of the property.

8.

The plaintiff's ownership of the property is in dispute.

Wherefore plaintiff claims:

1.

An order declaring that plaintiff is the owner of portion 4 (a portion of portion 2) of the farm Wildebeestfontein 274, registration division JQ, B district Bafokeng.

2.

An order ejecting from the property the first defendant and all persons claiming or holding through or under it.

3.

An order that the first defendant pay the costs of suit and, consequent upon an order in terms of prayer 1 thereof, that it pay the costs of the application in C case No 564/82 in this honourable Court.

4.

Further or alternative relief.'

The first defendant's plea, as amended, reads as follows:

'1.

Ad para 1:

The first defendant has no knowledge of the D allegations herein contained and the plaintiff is accordingly put to the proof.

2.

Ad para ?:

The allegations herein contained are admitted.

3.

Ad para 4:

Inasmuch as the plaintiff has advised that it intends to withdraw the action against the second defendant, E the first defendant does not plead to the allegations herein contained.

4.

Ad para 5:

The first defendant notes the allegations herein made but inasmuch as they do not relate to the claim against the first defendant, the first defendant does F not plead hereto.

5.

Ad para 6(a):

The first defendant denies each and every allegation as if specifically set out and traversed.

6.

Ad para 6(b):

The first defendant has no knowledge of the G allegations herein contained, which are denied.

7.

Ad para 7:

(a)

the first defendant admits that it is in occupation of a building situate on the north-west side of the property.

(b)

The first defendant denies that such H occupation is wrongful or unlawful.

(c)

Should it be found (which is still denied) that the plaintiff is the owner of the property, then the first respondent pleads that it is entitled to occupy the area of the property which it does occupy by virtue of one or more of the rights set out below.

8.

The first defendant's right to occupation based on a I binding prior lease.

(a) (i)

At all times material hereto, the Minister of Urban Affairs and Land Tenure NO was the owner of and/or entitled to administer and grant leases over the property in question.

(ii)

Should it be found that the South African J Development

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A Trust was the owner of the leased property at the time that the first defendant and the Minister of Urban Affairs and Land Tenure entered into the lease, then the first defendant avers that such lease was binding upon and effective against the South African B Development Trust (and their successors in title including the plaintiff) on one or more of the grounds set out in para I of the first defendant's trial particulars and/or that the South African Development Trust is estopped from denying the validity and effectiveness of such lease by virtue of the facts set out in the said para 1.'

C These trial particulars are lengthy. They relate facts and circumstances upon which certain contentions are based. These contentions are:

(i)

that ownership of the land vested in the Government of Bophuthatswana at all material times, including the D time when the lease was entered into;

(ii)

that, if ownership did not vest in the Government, the plaintiff and the estate are precluded from asserting otherwise;

(iii)

that, in terms of s 93(2) of the Constitution of Bophuthatswana, the power to administer the property and to grant leases E vested in the Government;

(iv)

alternatively to (ii) and (iii), if the plaintiff is not precluded from denying the Government's ownership, it is nevertheless precluded from contending that the Government was not entitled to enter into the lease or that the lease is not binding on the plaintiff.

F The plea continues:

'8 (b)

During or about March 1982, the Minister of Urban Affairs and Land Tenure represented by a Mr Uys, duly authorised thereto, entered into a lease with the first defendant, represented by the third defendant.

(c)

G In terms of the lease, the first defendant leased from the owner thereof a portion of the property in question (being the portion presently occupied by the first defendant) for a period of nine years and 11 months with an option of renewal for a further similar period.

(d)

H The aforesaid lease is and remains in force.

9.

The right of first defendant to exercise a jus retentionis :

(a)

At all times material hereto, the first defendant has occupied the property in question in the reasonable and bona fide belief that the first defendant was lawfully I entitled to occupy the property and/or to erect buildings thereon and would have the use of such buildings.

(b)

In the event of the above honourable Court finding that the lease above referred to does not confer upon the first defendant a right of occupation, then the first defendant avers that in the bona fide and J reasonable belief that it was entitled to occupy and possess the property in terms of the lease, the

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first defendant effected useful improvements A to the property consisting of surveying the land, preparing the land for the erection of buildings and creating buildings.

(b)(bis)

Alternatively, the first defendant occupied the land and effected the improvements (or some of them) as B a mala fide occupier.

(c)

The cost of the building operations involved in erecting the building and the enhancement in value of the property resulting from the buildings amounts to not less than R235 000.

(d)

The first defendant has occupied the property since March 1982 and is still in occupation.

(e)

The first defendant has received no C compensation in respect of its expenditure on useful improvements to the land and/or the enhancement in value of the land resulting from such improvements.

(f)

In the premisses, the first respondent (sic) is entitled to remain in occupation of the D property in order to exercise its jus retentionis until the first defendant has received the above-mentioned compensation.

10.

Ad para 8:

The first defendant admits the allegations herein contained.'

The first defendant's counterclaim was not persisted in.

E The third defendant's plea reads as follows:

'1.

Inasmuch as no relief is sought against the third defendant, the third defendant does not, save as set out below, plead to the plaintiff's allegations or join issue with the plaintiff and abides the decision of the Court.

2.

F Ad para 5:

(a)

The third defendant admits the allegations herein contained.

(b)

The third defendant avers that he is entitled to an order against the plaintiff in respect of the costs of the application herein referred to.

Wherefore third defendant prays for an order against G plaintiff for:

(a)

payment of third defendant's costs incurred in case No 564/82 in the above honourable Court;

(b)

costs of this action;

(c)

further or alternative relief.'

Originally, there was a second plaintiff, Jacob Mosete. He, H however, withdrew his action against the defendants on 9 June 1983. On 19 September 1983 the plaintiff withdrew its action against the second defendant. The attitude of the latter was that he would abide the decision of the Court.

It should be mentioned that the third defendant is the power I behind the first defendant.

As to onus, it was submitted on behalf of the defendants that the plaintiff's claim for ejectment is based on an allegation of ownership of the land and it followed that the plaintiff has the onus of proving ownership and that the defendants are...