REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG
CASE NO:  3468/2018

(1)	REPORTABLE: NO
(2)	OF INTEREST TO OTHER JUDGES: NO
(3)	REVISED: YES
…………………………	          ……………………………….
DATE                     	           SIGNATURE

In the matter of:	

ARMANDO GONÇALVES	First Applicant 	
MARIA CANDIDA MARQUES GONÇALVES	Second Applicant	
and		
GARY WEBER	First Respondent	
BACKLOADS Z LIMITED	Second Respondent	

JUDGMENT

BESTER AJ
[1]	The applicants are the co-owners of the immovable property situated at Plot 196, Eighth Avenue, Pomona Estates, Kempton Park (“the property”).  The second respondent employs the first respondent, and trades from the property. The applicants seek the respondents’ eviction.  
[2]	The applicants claimed that the respondents initially occupied the property by virtue of a written lease agreement entered into between the applicants and the first respondent on 4 February 2015.  In terms of the agreement, the applicants let the property to the first respondent for a period of one year terminating on 31 January 2016, and the first respondent would pay them rental of R20 000,00 per month in advance, as well as municipal charges and services.  After 31 January 2016, the applicants contend, the first respondent continued to occupy the property on a monthly lease upon the same terms and conditions as provided for in the written agreement.  
[3]	On 6 June 2017 the applicants’ attorney made demand for payment of outstanding rental of R73 200,00 and outstanding water and electricity charges in the amount of R75 969,00.  The following day the first respondent replied, stating that he will pay R75 000,00 in three instalments during the course of June 2017, with the comment that this will be as he had done in the past.  He did not identify whether he referred to the outstanding rent, or the outstanding municipal charges, and evidently only gave his undertaking in respect of the one or the other.  Upon a query, he disputed the water and electricity charges, on the basis that he had never received an account for these.  He was then provided with the municipal accounts for the whole period of occupancy.
[4]	On 16 June 2017 the first respondent paid R24 400,00 and raised certain concerns about the water and electricity accounts.  The applicants’ attorney advised him to approach the municipality.  Subsequently the first respondent sought an extension to pay a further instalment, and correspondence was exchanged between the first respondent and the applicants’ attorney regarding the municipal accounts.
[5]	On 8 August 2017 the applicants’ attorney delivered a further demand to the first respondent, seeking payment of R48 400,00 in respect of arrear rentals, and R83 039,28 in respect of outstanding municipal charges.  No payment was made.  The applicants then instituted proceedings in the Magistrate’s Court on 30 August 2017, claiming R134 887,28 in respect of arrear rentals and municipal charges.  The only payment thereafter was an amount of R24 400,00 paid in October 2017, which the respondents later claimed was a gratuitous payment.  On 6 November 2017 the applicants cancelled the lease agreement in writing as a result of the first respondent’s breaches.
[6]	The next day the first respondent’s attorneys replied on his behalf, referring the applicants’ attorneys to his plea in the Magistrate’s Court action.  The pertinent issue in the plea was that the first respondent alleged that he concluded the lease agreement in his capacity as the general manager of the second respondent, and that the second respondent was the lessee in terms of the lease agreement.  
[7]	The applicants, however, insist that the agreement was with the first respondent personally.  In the lease agreement, the lessee is described as “Gary Weber t/a Backloads Limited”.  There is thus a dispute between the parties as to whether the lease agreement was between the applicants and the first respondent, or the applicants and the second respondent.  
[8]	In the applicants’ further letter of demand, dated 28 November 2017, the applicants persist with their version that the first respondent was the lessee.  However, they stated that, in the event that the lease was in fact with the second respondent, then demand was made from the second respondent to pay the amount of R194 960,43.  
[9]	The second respondent did not respond to the demand.  On 18 December 2017, in line with the alternative approach decided upon by the applicants, their attorney sent the second respondent a notice of cancellation, with the same caveat that this is an alternative cancellation based on the respondents’ version that the second respondent is the lessee in terms of the lease.  
[10]	The respondents, in their answering affidavit, contend that no agreement was concluded, because the written agreement failed to reflect the true intention of the parties, namely that the applicants contracted with the second respondent and not with the first respondent.  The respondents further point out that the applicants have instituted a second action in the Magistrate’s Court, and in this action they have cited both the respondents as defendants.  The respondents complained that the applicants have failed to disclose this action, in which they are seeking a rectification of the written agreement to reflect the second respondent as the lessee.  This, the respondents alleged, was dishonest on the part of the applicants.  
[11]	However, Ms Vergano, appearing for the applicants, pointed out in argument, with reference to the particulars of claim in the second action, that the claims are in the alternative, and in line with the version placed before Court in this application.  The particulars of claim in the second Magistrate’s Court action, in the first instance, alleges that the lease had been concluded with the first respondent, and claims the outstanding debt from him.  As an alternative, they alleged that the lease agreement had been concluded with the second respondent, that the lease agreement ought to be rectified accordingly and that the second respondent should pay the outstanding amounts.  
[12]	The respondents do not (as was done in the plea in the first Magistrate’s Court action by the first respondent) contend for the rectification of the agreement to reflect the second respondent as the lessee.  Instead, they persist with the argument that there is no lease agreement whatsoever, because, they say, the applicants failed to properly identify the lessee.
[13]	During argument I pressed Mr Riley, who appeared for the respondents, a number of times to explain what the basis is of the respondents’ occupation of the property.  He declined the invitation, electing to stand by the statement that the respondents are in possession, and that it is for the applicants to prove the case that they have brought to Court.  Mr Riley argued that the applicants must fail in their application, because there is a material dispute of fact as to the existence of the lease agreement relied upon in the founding affidavit, in line with the rule in Plascon-Evans.
[14]	Ejectment of an occupier of property can be obtained either by means of the rei vindicatio, or a possessory claim.  A possessory claim is where the applicant must allege and prove that the respondent is in possession of the property, and that the applicant has a right to obtain possession from the respondent.  This, more often than not, requires the applicant to prove an agreement in terms of which the respondent is in possession, and a valid termination of that right to possess, upon which the respondent is obliged to return possession to the applicant.  For the possessory claim, it is not necessary for the applicant to allege and prove any title to the property.
[15]	The rei vindicatio is available to the owners of property.  To succeed, the applicants have to prove that they own the property and that the respondents were in possession of the property at the time of the institution of the application. In this application, it is common cause that the applicants are the owners of the property, and at least that the second respondent is in possession of the property.  Because possession of another’s property is prima facie wrongful, it is not necessary for the applicants to allege or prove that the respondents’ possession is wrongful or against their wishes, and even if this allegation is made, it does not draw an additional onus.  
[16]	Faced with the applicants’ argument that they are entitled to rely on the rei vindicatio, Mr Riley insisted that the applicants have not brought the respondents to court on the basis of the rei vindicatio, and that the matter cannot be decided on that basis.  Mr Riley argued that the rei vindicatio was opportunistically only raised at the hearing of the matter.  Ms Vergano’s response was to point out that the vindicatory claim was argued as an alternative to the possessory claim in the heads of argument she had prepared on behalf of the applicants, and that Mr Riley, on behalf of the respondents, subsequently delivered heads of argument without taking issue with the argument based on vindication.  In fact, his heads are silent on the point.  
[17]	The first respondent, in the answering affidavit, denies that he took occupation of the property or that he remained in occupation thereof.  With reference to the correspondence exchanged with the applicants’ attorney, referred to earlier, he contends that, although he used the pronoun ‘I’, he wrote the correspondence on behalf of the second respondent.  The applicants, however, pointed out that the second respondent’s name is not mentioned in the correspondence at all.  A reading of the correspondence does not reveal even the most oblique reference to the second respondent as the lessee.  The first respondent does not explain in its answering affidavit, and Mr Riley did not clarify in argument, why then the respondents now argue that there is no lease agreement whatsoever. 
[18]	If the respondents wish to rely on a right to possession, it is for them to allege and prove that right.  Furthermore, where the applicants allege a right of possession, such as by virtue of a lease, which is denied by the respondents, the applicants need no longer prove the lease and its termination.  Simply put, the respondents have no defence to the applicants’ vindicatory claim.  It is thus not necessary for me to decide whether a lease agreement existed, and if it had, whether the first or the second respondent was the lessee in terms thereof.  
[19]	The first respondent contends that the second respondent effected “numerous improvements on the property during its occupation”.  No specifics are provided, other than to state that this included a complete overhaul of the infrastructure of the property, together with necessary maintenance and improvements.  Without explanation, the first respondent states that he is unable to provide the Court with the details of such improvements and simply estimates the value thereof in excess of R200 000,00.  On these sparse allegations the second respondent contends that it has an improvement lien over the property, and states that it will continue to exercise the lien pending payment for the improvements by the applicants.  
[20]	In reply the applicants deny that the second respondent has an improvement lien, and claims that this is a mere afterthought to hold possession of the property.  Specifically, they complain that the improvement lien has not been set out in sufficient detail. 
[21]	The respondent, in order to successfully raise the defence of an improvement lien, must allege and prove that he has lawful possession of the property.  The second respondent, however, specifically says that there is no lease agreement, and that there was no lease agreement, between it and the applicants, and, as also pointed out above, fails to stipulate any basis for its possession of the property.  Because possession of another’s property is prima facie wrongful, I have to conclude for purposes of the alleged improvement lien that the second respondent has not been in lawful occupation of the property.  That is the end of this defence.
[22]	The second respondent further had to allege and prove that the expenses were necessary for the salvation of the property or that the improvements were useful, as well as what the actual expenses were and what the extent of the enrichment to the owner of the property is (because the claim under the lien can only be for the lesser of the enrichment and the actual expenses). It has not done so.
[23]	I therefore conclude that the second respondent does not hold an improvement lien over the property.  
[24]	The applicants, in their replying affidavit, whilst maintaining that the lien is fictitious, stated that they would instruct their attorney to hold an amount of R200 000,00 in the firm’s trust account, and that at the hearing they would provide proof thereof.  Their approach was that, should the Court find that the second respondent does not have a lien over the property, security should be dispensed with.  Ms Vergano did not provide the proof of payment as anticipated, nor did she provide an explanation for why it was not available.  
[25]	Mr Riley submitted that the respondents had accepted the tender for security, and if it had been provided earlier, there would not have been any need for the hearing to take place, because the second respondent would have vacated upon receipt of security. 
[26]	It is, however, evident from the replying affidavit that the applicants only intended to provide security for the alleged value of the lien in the event of this Court concluding that there is in fact a lien.  In these circumstances it was not open to the second respondent to have accepted the tender, as Mr Riley contended.  Because I have concluded that no lien has been proven, the issue of the tender of security has become moot.  
[27]	The applicants have claimed attorney and client costs against the respondent.  The respondents’ conduct in this matter, by avoiding stipulating any basis upon which either of them are lawfully entitled to be occupy the premises, and simply playing off two alternative versions of the lease agreement against one another, thereby substantially prolonging their stay at the premises, is not bona fide.  In these circumstances I deem it appropriate that the respondents should pay the costs of the application on the attorney and client scale.  
[28]	Further, for the same reasons, the apparent dispute as to whether or not the first respondent is in possession of the property, should be met with an order for his ejectment, together with the ejectment of the second respondent. 
[29]	I therefore make the following order:
a)	The first and second respondents and any person occupying the immoveable property situated at plot 196 Eighth Avenue, Pomona Estates, Kempton Park (“the property”) with the permission of either of the respondents, shall vacate the property forthwith, and by no later than 31 August 2018.  
b)	In the event of the respondents or any other person claiming to be in occupation of the property under them, failing to comply with the order in paragraph a) above, the Sheriff of this Court and/or his/her deputy is authorised to evict the respondents and those occupying through them, from the property.  
c)	The respondents shall pay the costs of this application on the scale as between attorney and client, jointly and severally.  

______________________________________
A Bester
Acting Judge of the High Court of South Africa
Gauteng Local Division, Johannesburg

Heard:					18 August 2018
Judgment:				24 August 2018

For the Applicants:			Adv V Vergano
instructed by:				Caldeira & Associates

For the Respondents:			Adv N Riley
instructed by:	 			Snaid & Edworthy Attorneys