Hauptfleisch v Caledon Divisional Council

• Jurisdiction: South Africa
• Judge: Watermeyer J, Diemont J and Corbett AJ
• Judgment Date: 07 March 1963
• Citation: 1963 (4) SA 53 (C)
• Hearing Date: 25 February 1963
• Court: Cape Provincial Division

Corbett, A.J.:

On the 5th December, 1961, respondent in this appeal, the G Divisional Council of Caledon, instituted proceedings on notice of motion wherein it claimed an order declaring that appellant had no right to occupy a certain dwelling house situated at Stanford's Cove, De Kelders, in the Division of Caledon, ordering him to vacate the property immediately and granting certain consequential relief. The notice of motion and supporting affidavits were served upon appellant on the 6th H December, 1961, and in terms of the notice of motion he was required, if he intended to oppose the application, to file his opposing affidavits on or before the 15th December, 1961. Appellant apparently asked respondent to allow him an extension of time within which to file his opposing affidavit but this request was refused. Appellant then filed affidavits indicating that he had various possible defences to the claim but requesting further time in which to prepare and file his opposing

Corbett AJ

affidavits. The question of such an extension of time was argued before ROSENOW, J., on the 20th December, 1961, and he ordered that an extension of time for the filing of affidavits until the 15th January, A 1962, be granted to appellant and that the question of costs relating to the application for an extension of time stand over for determination at the hearing of the matter.

Thereafter appellant filed certain affidavits in which he raised a number of defences to respondent's claim but, before mentioning them, it is necessary to state briefly the salient facts of the matter as they B appear from the affidavits filed.

The dwelling in question stands upon land which originally formed portion of an extent of 1074 morgen acquired by one J. H. D. de Villiers on the 29th May, 1913. On the 20th March, 1920, portion of the land, 326 C morgen in extent and including the area upon which the dwelling is situated, was transferred to De Kelders Syndicate Limited. This company proceeded to plan the development of the land and on the 9th February, 1940, a certificate of registered township title in respect of 219 morgen was issued to the company. This township, known as De Kelders Extension No. 1 Township, contains as part of its approved scheme of D layout an area reserved as a public place, which has vested in respondent. The dwelling house in issue is situated upon this area reserved as public place and is consequently respondent's property. It appears that the house was erected more than 50 years ago and during the time that the land upon which it lies belonged to de Villiers it was E occupied successively by various overseers employed by de Villiers and by de Villiers himself. As from 1936 and until 1948 it was occupied by one R. P. Schneider and his father. In 1940, when the township was established, the Schneiders, who acted as the selling agents of the township company, arranged with the company to keep the house for themselves and they furnished it and effected alterations and F improvements to it. In 1948 the Schneiders sold to appellant the right of occupation of the house, the improvements and the furniture on the express understanding that they could not pass transfer to him but that he possibly could become owner by prescription. Appellant has continuously occupied the house since then. Shortly after purchasing and G taking up residence in the house appellant notified respondent that it should send a valuer to value the property for the purpose of the payment of rates. This was done and a valuation of R1,600 was placed upon the property. Thereafter and up until 1960 appellant paid regularly the rates upon the property, which amounted to R7.90 per annum. Appellant also paid to respondent rates due in terms of the Vermin H Extermination Ordinance of 1946. In 1960 the property was re-valued by respondent at a figure of R3,000. Appellant states that he verily believes that he is shown as the owner of the property on the valuation roll for the Division. During the period 1950 to 1952 appellant effected certain renovations and additions to the house, viz. a new roof and the addition of a kitchen, a new stoep and two garages. According to appellant, the value of those renovations and additions amounted to R3,000. It is alleged by appellant that the plans for these works were approved by respondent.

Corbett AJ

The fact that the house occupied by appellant constituted an encroachment upon an area reserved for public places was drawn to the attention of respondent by the Provincial Secretary during 1960 and on the 30th September, 1960, respondent resolved to take action in the A matter. Eventually, having called for tenders (which included a tender from appellant), respondent leased the property to one Steytler as from the 1st September, 1961. On a number of occasions during the period July to November, 1961, appellant was requested by respondent to vacate the property but at all times failed to comply with these requests. Ultimately respondent launched the aforementioned motion proceedings B claiming ejectment. Finally, I should also mention that on the 2nd March, 1960, appellant surrendered his estate as insolvent. From an affidavit filed by one of the joint trustees in appellant's insolvent estate there figured amongst the assets in the estate 'an alleged right of occupation of cottage at Stanford's Cove, C.P.' but this asset, amongst others, was not dealt with in the first distribution and C liquidation account and the proceeds thereof, if any, must still be dealt with by the trustees and distributed amongst creditors. Amongst the papers filed by respondent in support of the application was a letter from the joint trustees stating that they laid no claim to the dwelling or to any right of occupation thereto but that they reserved D the right to recover from any person or body, liable therefor, in respect of improvements effected to the property and payments made for the right to occupy the property.

In the opposing affidavits filed by him and at the hearing of this E matter on the 16th May, 1962, appellant raised five defences to the respondent's claim for ejectment. These were:

(a)

that he had acquired ownership of the dwelling by acquisitive prescription;

(b)

that respondent was estopped from claiming ejectment;

(c)

that respondent was precluded by reason of the exceptio doli from claiming ejectment;

(d)

F that respondent enjoyed a jus retentionis over the property until properly compensated for the improvements effected by him;

(e)

that portion of the dwelling was situated below the high water mark and that, therefore, respondent had no locus standi to claim ejectment from this portion of the dwelling.

G At the hearing of the application the Court rejected...