Armstrong NO v Bhamjee (146/89) [1990] ZASCA 114; 1991 (3) SA 195 (AD); [1991] 3 All SA 725 (AD) (28 September 1990)

Armstrong NO v Bhamjee (146/89) [1990] ZASCA 114; 1991 (3) SA 195 (AD); [1991] 3 All SA 725 (AD) (28 September 1990)

The Supreme Court of Appeal held that the respondent had no legal rights to the building or trading rights after the death of H P Van Nieuwenhuizen, as the personal servitude terminated with his death and could not be transmitted or alienated. The respondent's agreement with P F Roux conferred no legal title to the building or trading rights vis-à-vis the owner of the property. The building formed part of the property owned by Coronation Collieries Ltd, and the respondent was at best a bona fide occupier without rights to the materials or improvements. Since the respondent did not prove the extent or value of his actual loss under the insurance policy, he failed to discharge the onus...

Citation
[1990] ZASCA 114
Parties
Appellant: Roderick Brian Armstrong (in his capacity as representative of Lloyds Underwriters); Respondent: Suliman M Bhamjee
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
28 September 1990
Case Number
146/89
Procedural Posture
Civil Appeal / Appeal From Judgment of Witwatersrand Local Division
Outcome
Appeal allowed. Respondent's claim dismissed.
Judges
Joubert, Milne, Steyn, F H Grosskopf, Nienaber
Legal Topics
Personal Servitude, Insurance Indemnity, Burden of Proof, Superficies Solo Cedit
Land and Property Civil Procedure Personal Servitude Insurance Indemnity Burden of Proof Superficies Solo Cedit

Case Brief

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Parties

Roderick Brian Armstrong (in his capacity as representative of Lloyds Underwriters)

Appellant

Suliman M Bhamjee

Respondent

Procedural Posture

Civil Appeal / Appeal From Judgment of Witwatersrand Local Division

Legal Issues

  1. 1 Whether the respondent had any legal rights in the building destroyed by fire on 5 December 1981.
  2. 2 Whether the respondent was entitled to recover under the fire insurance policy for the loss of the building.
  3. 3 Whether the respondent proved the extent and value of his actual loss.

Ratio Decidendi

The Supreme Court of Appeal held that the respondent had no legal rights to the building or trading rights after the death of H P Van Nieuwenhuizen, as the personal servitude terminated with his death and could not be transmitted or alienated. The respondent's agreement with P F Roux conferred no legal title to the building or trading rights vis-à-vis the owner of the property. The building formed part of the property owned by Coronation Collieries Ltd, and the respondent was at best a bona fide occupier without rights to the materials or improvements. Since the respondent did not prove the extent or value of his actual loss under the insurance policy, he failed to discharge the onus...

Court Disposition

Appeal allowed. Respondent's claim dismissed.

Orders

  • The order of the court a quo is set aside and substituted with: 'The defendant is absolved from the instance with costs.'