Lakka v Beukes
| Jurisdiction | South Africa |
| Judge | CC Williams J and VM Phatshoane J and O'Brien AJ |
| Judgment Date | 20 March 2020 |
| Citation | 2020 JDR 0483 (NCK) |
| Docket Number | CA&R 60/2018 |
| Court | Northern Cape Division |
O'Brien AJ:
Introduction:
The appellant bought a property from the Visagies on 7 July 2016. The property was registered in her name on 26 January 2017. In terms of the sale agreement between herself and the Visagies, she bought the property for a
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O'Brien AJ
sum of R160,000.00 (ONE HUNDRED AND SIXTY THOUSAND RAND). A clause in the agreement stipulates that the appellant will take possession of the property as the owner on the date of registration at which point all risks devolve upon her.
When the appellant wanted to take possession of the property, she found it occupied by the first respondent. The first respondent refused to vacate the property.
Because of the first respondent's refusal, the appellant instituted eviction proceedings against the first respondent and all those who occupied the property out of the De Aar magistrate's court on 29 August 2017. In terms of the provisions of Act 19 of 1998, the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act, ("the PIE Act") the second respondent, Emthanjeni Municipality, was cited as a party to the proceedings. The second respondent did not take part in the proceedings.
On 30 October 2018, the learned magistrate found the first respondent to have made improvements to the property and accordingly has a right of retention to the property. Although finding that the Visagies were enriched – not the appellant – the improvement to the property by the first respondent entitles her to the retention of the property; therefore, she is a lawful occupier under the PIE Act. The application was dismissed with costs. The issue for determination is whether the first respondent has an improvement lien against the appellant. The secondary issue is whether the first respondent is indeed a lawful occupier of the property.
The factual background:
As stated above, the appellant became the registered owner of the property on 26 January 2017.
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O'Brien AJ
In her answering affidavit, the first respondent avers that during 2002, she bought the property from the Visagies for an amount of R44,000.00 (FORTY FOUR THOUSAND RAND). This amount was paid to the Visagies in monthly instalments of R600.00 (SIX HUNDRED RAND) from March 2002 until March 2005. When she received her pension pay-out, she paid the remainder of the outstanding amount.
The first respondent further states that she and the Visagies agreed that R21,000.00 (TWENTY ONE THOUSAND RAND) of the purchase price would be paid in cash and the balance would be used to repair the property because of severe defects to it.
She instructed her attorney to draft an agreement to meet the legal requirements.
On 11 September 2002, she divorced, and during 2003 she signed the purchase agreement and was satisfied that she had concluded a lawful agreement with the Visagies.
The first respondent claims that at no stage was she informed that the Visagies intended to sell the property. A few years after she had purchased the house – she does not know when – she noticed that it was advertised in a newspaper. She approached another firm of attorneys, which resulted in the advertisement being withdrawn. The Visagies undertook to transfer the property into her name.
During 2016 she was informed by her first attorney, Mr Rich of Joseph & Van Rensburg attorneys, that transfer could not be done in her name as Mr Visagie had obtained a loan of R150,000.00 which loan was due and payable and the property was due to be attached. He required her to pay a further R150,000.00 for the property, but she refused.
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O'Brien AJ
During August 2016, Mr. Rich informed her that the appellant had bought the property. She was requested to sign a lease agreement but declined the invitation.
Unexpectedly, on 31 January 2017, she received a telephone call from an unknown person at Joseph & Van Rensburg attorneys requesting her banking details. Later, she established that an amount of R11,142.83 had been deposited into her bank account.
On 8 March 2017, she received a letter from the attorneys demanding that she vacate the property. She approached Venter & Partners for assistance. However, they were only prepared to apply for a postponement.
The first respondent approached another firm of attorneys, Minnaar & De Kock, who wrote a letter to Joseph & Van Rensburg Attorneys. In this letter, she accepted the repudiation by the Visagies but was only prepared to vacate the property on payment of R104,118.00 as restitution together with the amount of R68,000.00 which she had expended on improvements to the property from 2010 until 2015.
The Appellant filed a replying affidavit.
As stated earlier, the Magistrate found that the first respondent – because of improvements she made to the property – had a jus retentionis on the property. Therefore, the first respondent was a lawful occupier under the PIE Act. Although the Magistrate raised the issue of a dispute of fact in his judgment, he applied the Plascon-Evans rule and accepted the respondent's version. However, it appears that the dispute of facts is minimal given the common cause factors.
It is common ground that the appellant lawfully bought the property from the Visagies and had it transferred into her name.
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O'Brien AJ
On the first respondent's version, the following issues are not in dispute:
The first respondent bought the property from the Visagies for R44,000.00 which property was never registered in her name;
The first respondent received an amount of R11,000.00 from the Visagies which was returned to her after she became aware of the dispute regarding the ownership of the property;
The first respondent received a letter of demand on 8 March 2017 demanding that she vacate the property on 10 April 2017;
The first respondent did not accept a counteroffer from the appellant;
The first respondent made improvements to the property and paid the purchase price to the Visagies;
On 22 August 2017, the first respondent through her current attorney exercised a lien about the expenses and improvements she made to the property.
An improvement lien is available to a bona fide possessor of property who has made improvements to that property. It is a right recognised by law as a real right which is enforceable against the whole world. It does not exist in a vacuum but has a basis of an underlying enrichment claim. It is a just and equitable remedy for no one should be enriched at the expense of another where the former had made improvements to a property.
It has been said that a lien is an accessory to a main obligation and indivisible. [1]
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O'Brien AJ
In Brooklyn House Furnishers (Pty) Ltd v Knoetze & Sons [2] , the Court noted that a lien does not ground a cause of action. It is a defence against a re vindicatio claim. In the past, our courts have held that, in exercising just and equitable principles, a plaintiff is to put up security against the former's claims. [3]
South African law does not permit a general enrichment action. However, Schutz, JA in McCarthy Retail Ltd v Short Distance Carriers CC [4] stated the following:
"… And although there has been no unequivocal recognition of a general enrichment action, time and again unjustified enrichment principles had been treated as a source of obligations being the basis or creating a new class or sub-class of liability in particular circumstances."
He goes on to state that one of the restraints upon the acceptance of a general action is the belief, or fear, that a tide of litigation would be let loose. Furthermore, he believes that under a general action, only very few actions would succeed which would not have succeeded under one or other of the old forms of action or the continued extensions. He states that the acceptance of a general action may not be as crucial as is sometimes thought, save of course, that its denial may lead to occasional individual injustices. [5]
For the moment then, the condictionis will still be used to grant an action: but there will be circumstances where a specific set of facts may not resort under the established condictionis as Schutz JA puts it. In my opinion, the learned Judge of Appeal opened the door for the recognition of a general enrichment action.
With the above in mind, I turn to the general requirements for an enrichment action. They are:
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the appellant must have been enriched;
the first respondent must have been impoverished;
the appellant's enrichment must be at the expense of the first respondent; and
the enrichment must be unjustified or sine causa. [6]
Was the appellant enriched?
According to the first respondent, during 2002, she is not sure when it happened, she bought the property from the Visagies. She bought it for R44,000.00 which she repaid at R600.00 per month between March 2002 and 2005. She eventually paid R61,698.59. However, the agreement between the Visagies and the first respondent, was that she...
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