Daniels v Scribante and Another (LCC164/2015) [2015] ZALCC 13 (4 December 2015)

IN THE LAND CLAIMS COURT OF SOUTH AFRICA

(HELD AT CAPE TOWN)

CASE NUMBER: LCC164/2015

DATE: 4 DECEMBER 2015

In the matter between

YOLANDA DANIELS..............................................................................................................Applicant

And

THEO SCRIBANTE........................................................................................................1st Respondent

CHARDONNE PROPERTIES CC...............................................................................2nd Respondent

JUDGMENT

MEER. AJP:

1. The applicant applies for leave to appeal against the whole of my judgment dated 11 November 2015. The grounds of appeal in the notice of appeal filed about one and a half weeks ago traverse issues in respect of which reasoned findings are made in the judgment and it would serve no purpose to repeat these here. In heads of argument emailed to the Court only late yesterday afternoon, the application is further motivated on the basis that the judgment deals with a novel point of law. This, I understand to be, the right

of an occupier under the Extension of Security of Tenure Act No 62 of 1997, (“ESTA”) to make improvements to his or her dwelling without the consent of the landowner.lt is contended by Mr Hathorn for the Applicant that this novel point is a compelling reason for leave to be granted and for the appeal to be heard.

2. The fact that this matter raises for the first time the right of an occupier to make improvements to his/her dwelling without consent, does not in my view, of itself warrant the granting of leave to appeal. For, sitting as a Court of Appeal this Court has already dealt with the novel point as a Court of Appeal. The judgment makes reasoned findings as to why the arguments raised in support of this aspect by the appellant are of no merit, regard being had to the purpose and content of ESTA.

3. In heads of argument in the current application Mr Hawthorn drew my attention also to pages 269 and 285 of the South African Law of Unjustified Enrichment, Du Plessis 2012, and submitted with reference thereto that an occupier under ESTA, who has a real right to occupation, would be entitled to make necessary and useful improvements at common law without the consent of the owner. Notwithstanding the balancing of the rights of owners and occupier under ESTA, the issue should be considered in the light of these principles, he submitted...

I am unable to agree with this submission for the reasons set out in my judgment, namely that such a stance would be contrary to the objects of ESTA.

4. On a careful consideration of the submissions of both Counsel, I am of the view that another Court would not come to a decision different to mine. There are accordingly no reasonable prospects of success on appeal.

5. THIS BEING SO. THE APPLICATION FOR LEAVE TO APPEAL IS DISMISSED. AS IS CUSTOMARY IN THIS COURT. THERE IS NO ORDER AS TO COSTS.

MEER, AJP Acting Judge President

LAND CLAIMS COURT

OFFICE OF THE CHIEF JUSTICE REPUBLIC OF SOUTH AFRICA

Supreme Court of Appeal, Registrar’s Office • PO Box 258, Bloemfontein, 9300 • c/o Elizabeth- &

President Brand Street, Bloemfontein •

Tel (051) 4127 400 • Fax (051) 4127 449 • www.supremecourtofappeal.qov.za

Enquiries: MrMyburgh

Date: 18 FEBRUARY 2016 Ref: 1201/15

YOUR REF: JDV1/0005/Mr Roberts/MS Strydom YOUR REF: BM Jones/ut/M03442

Webbers Attorneys: Honey Attorneys

P O Box 501

BLOEMFONTEIN

9300

P O Box 29

Mr/Ms

APPLICATION FOR LEAVE TO APPEAL Y DANIELS v T SCRIBANTE & ANOTHER

With reference to the application lodged in this office on 21 DECEMBER 2015 this Court ordered on 18 FEBRUARY 2016 that the application be dismissed as per attached order:-

Yours faithfully

PS W MYBURGH (Mr.)

REGISTAR

REGISTERED POST (H/B/D/O)

YOUR REF: LCC 164/15 Meer AJP (Court a quo)

Registrar of the High Court Private Bag X 10060 RANDBURG 2125

Copy for your information.