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

• Jurisdiction: South Africa
• Judgment Date: 01 October 1986
• Citation: 1987 (2) SA 547 (BG)

Grobler NO v Boikhutsong Business Undertaking (Pty) Ltd and Others
1987 (2) SA 547 (BG)

1987 (2) SA p547

Citation	1987 (2) SA 547 (BG)
Court	Bophuthatswana General Division
Judge	Smith J
Heard	June 3, 1985; June 4, 1985; June 5, 1985; June 6, 1985; October 3, 1985; October 4, 1985; October 8, 1985; October 9, 1985; November 4, 1985; November 5, 1985; November 6, 1985; February 17, 1986
Judgment	October 1, 1986

Flynote : Sleutelwoorde

Ejectment — Of mala fide possessor — Claim by executor on behalf of estate as owner of a portion of a farm — Estate of M, a Black, promised transfer of property when relocated from a I White area in 1950, but transfer delayed until April 1982 — First defendant obtaining long lease of property from Minister of Urban Affairs who mistakenly believed property vested in State — Defendant becoming aware of estate's claim to ownership in April — May 1982 — Defendant nevertheless building café and trading store at cost of R235 000 on property J and placing fraudulent documents

1987 (2) SA p548

A before Court to show that the building was well under construction prior to notice of the disputed ownership — Defendant trading on property from November 1982 at a profit of R900 000 in the first year and increasing thereafter — Defendant a mala fide possessor and occupier — Use and occupation by defendant in excess of enhanced value — Plaintiff as owner entitled to eject defendant.

B Land — Transfer — Black family of M relocated from White area and promised transfer of 400 morgen on a farm in W in 1950 — Transfer duty paid in 1958 — Land surveyed in 1962 and M dying in 1963 — SA Development Trust intending to C transfer land and priced it at R16 per morgen in 1969 and, considering the agreement took place then, six years after death of M — Proclamation 347 of 2 December 1977 enacted in terms of which all land vested in State unless it was the subject of a written lease, concession or contract — Agreement to transfer not in writing — Nevertheless agreement not hit by proclamation — Court finding intention D in proclamation was that where reference was made to an agreement to transfer this was something short of an agreement of sale and could be oral — Where negotiations initiated prior to promulgation transfer should be proceeded with to finality — Court finding that there was an agreement to transfer the land and estate of M was the owner of the land.

E Lien — For improvements — Mala fide possessor building on property belonging to estate of M — Trading store and café erected on property during a time when defendant became aware of disputed ownership of land — Defendant placed fraudulent documents before the Court to show buildings were F well under construction prior to the notice of the disputed ownership — Defendant spent R235 000 on buildings — Defendant trading from November 1982 and making profit of R900 000 in first year and increasing profit thereafter — Estate tendering offer that defendant could remove building — Court G finding defendant's occupation not bona fide — Value of defendant's use and occupation in excess of enhanced value of land and claim for ius retentionis thus failing.

Costs — Attorney and client costs — When to be awarded — Dispute on ownership arising — Defendant placing fraudulent documents and dishonest evidence before Court to support his defence against plaintiff's claim — Costs awarded in favour of plaintiff on the attorney and client scale. H

Headnote : Kopnota

Plaintiff, as the executor of the estate late Priscilla Motsuenyane, applied for a declaratory order that the estate was the owner of a certain portion of the farm 'Wildebeesfontein', Bafokeng, and for an order ejecting first defendant, which operated a trading store and café, 'Happy Store', from the property. In 1950 the Motsuenyane family was I relocated from a 'Black spot' in Klerksdorp and offered land of the SA Development Trust at Wildebeesfontein. In 1956 the family inspected the land and in 1958 the family moved. The land was paid for and transfer duty was paid in respect of 400 morgen. In 1962 the land was surveyed. In 1963 Priscilla Motsuenyane died. The agreement was not in writing. The SA Development Trust had always intended to transfer the land to the family and had set a price of R16 per morgen in 1969 and considered that the agreement had been concluded at that date, six years after the death of Priscilla Motsuenyane. In 1976 an J executor had been appointed to wind up the estate and to obtain transfer of the land. Trans-

1987 (2) SA p549

fer was finally registered in April 1982. Third defendant, H, A an entrepreneur, had taken an interest in the land in 1981 which was strategically situated adjacent to a mine compound. He made enquiries about the ownership of the land and the Bophuthatswana Government mistakenly represented that the land belonged to it. In March 1982, the Minister of Urban Affairs entered a lease of nine years and 11 months with first defendant, leasing the land at R90 per annum with the proviso that any structure erected would accrue to the State. In April 1982, a son of Priscilla saw building operations commence on B the land. His attorney addressed a letter to third respondent informing H of the estate's ownership and demanding that he refrain from building. H alleged that he received this notification on 4 May 1982. In April 1982, the mine manager of the adjacent mine had advised H of the estate's interest in the land, but H had sought and was given the mistaken information by various Government Departments that the State owned the land. He carried on regardless with building the store. In July C 1982 an interdict was sought by the plaintiff to prevent the building but the rule was discharged, and first and third defendant carried on building the trading store. False documents were produced to show that the building was well under construction prior to the notification by the attorney of the estate's interest in the property. Defendants contended that the State owned the land and that the agreement to transfer the land was invalid as it was not in writing. It was contended that the land was affected by Proc 347 of 2 December 1977, in terms of which all land vested in the State unless it D was the subject of a written lease, concession or contract. Plaintiff's case was that the property was excluded by the proclamation because there was an agreement to transfer or, alternatively, transfer of the land was being negotiated prior to the date of operation of the proclamation. Defendant contended, furthermore, that, even if the SA Development Trust Fund was the owner of the land, it and its successor in title were estopped from denying the lease which was binding on the E parties. It was also contended that first defendant had a ius retentionis and it was entitled to remain on the property until it received compensation for the buildings which cost R235 000. Plaintiff had contended that the first defendant was a mala fide possessor and that the ius retentionis defence should fail. The plaintiff was prepared to allow the defendant to remove the building, which in any event was not one which the estate itself would have erected. Happy Stores had proved a lucrative venture for the defendants, as the profit in the F first year of trading from November 1982 was R900 000 and had increased subsequently. No rent had been paid to the estate. Costs were sought on the attorney and client scale against first and third defendants who had forged ahead with building brooking no opposition and had opposed plaintiff's application, indulging in dishonesty, by placing fraudulent documents before the Court and giving dishonest evidence, to achieve their ends.

Held, that the plaintiff had established on the facts that G there was an agreement to transfer the land in question.

Held, further, that Proc 347 seemed clear in its intention which was that, where reference was made to an agreement to transfer, this was something short of an agreement of sale and could even be oral and, where there were agreements to transfer, these should proceed to finality in the hands of the persons who had agreed to transfer or who were still negotiating.

Held, further, that plaintiff had established that on the balance of probabilities it was the owner of the property in H question.

Held, further, as to the question of whether the lease was binding on plaintiff, that the Government of Bophuthatswana was never the owner of the land and accordingly the argument on behalf of first defendant that the lease was binding on plaintiff failed.

Held, further, that, on the facts, the plea of estoppel failed.

Held, further, that first defendant was not a bona fide I possessor who possessed as owner and, from the time first defendant started trading in November 1982 and enjoyed the use and occupation to the value of at least R230 000, he was a mala fide occupier.

Held, further, that, on the facts, the value of first defendant's use and occupation was in excess of the enhanced value of the land and accordingly the claim of a ius retentionis had to fail.

Held, further, on all the facts, that the Court was satisfied J that considerations of fairness

1987 (2) SA p550

A required that plaintiff be recouped in so far as the Court could so ensure and should be awarded attorney and client costs.

Held, further, that it should be declared that the estate was the owner of the land and the first defendant and all persons claiming through or under it should be ejected.

Case Information

Application for ejectment and a declaratory order. Facts not B material 3 to this report have been omitted from the reasons for judgment.

J B Lazarus SC (with him D M Ettlinger) for the plaintiff.

J Browde SC (with him D Marais) for the first and third defendants.

Cur adv vult.

C Postea...