Jointhelf 117 CC AND Others v Close – By Security CC (1379/2007) [2007] ZANWHC 55 (27 September 2007)

Jointhelf 117 CC AND Others v Close – By Security CC (1379/2007) [2007] ZANWHC 55 (27 September 2007)

The court found that the first respondent had performed work on all the units in question, which enhanced the value of the property owned by the first applicant. The first applicant was enriched at the expense of the first respondent, who had not been paid for its services. The law recognizes a right of retention or improvement lien in favour of a possessor who has made necessary or useful improvements, even if the possessor contracted with a third party and not directly with the owner. The first respondent's right of lien is therefore exercisable against the applicants, and the application for access was dismissed.

Citation
[2007] ZANWHC 55
Parties
Applicant: Jointshelf 1175 CC; Applicant: 55 Others; Respondent: Close-by Security CC; Respondent: Hanmag 52 (Pty) Ltd t/a Coetzee; Respondent: Property Development Services
Court
North West High Court, Mafikeng
Jurisdiction
South Africa
Judgment Date
27 September 2007
Case Number
1379/2007
Procedural Posture
Urgent Application / Final Judgment on Urgent Application
Outcome
Application dismissed with costs.
Judges
M.T.R. Mogoeng
Legal Topics
Improvement Lien, Spoliation Order, Enrichment, Right of Retention
Land and Property Civil Procedure Improvement Lien Spoliation Order Enrichment Right of Retention

Case Brief

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Parties

Jointshelf 1175 CC

Applicant

55 Others

Applicant

Close-by Security CC

Respondent

Hanmag 52 (Pty) Ltd t/a Coetzee

Respondent

Property Development Services

Respondent

Procedural Posture

Urgent Application / Final Judgment on Urgent Application

Legal Issues

  1. 1 Whether the first respondent has a right of lien over the property against the applicants.
  2. 2 Whether the right of lien is exercisable against the applicants who did not contract with the first respondent.
  3. 3 Whether the spoliation order granted against the second respondent entitles the first respondent to deny access to the applicants.

Ratio Decidendi

The court found that the first respondent had performed work on all the units in question, which enhanced the value of the property owned by the first applicant. The first applicant was enriched at the expense of the first respondent, who had not been paid for its services. The law recognizes a right of retention or improvement lien in favour of a possessor who has made necessary or useful improvements, even if the possessor contracted with a third party and not directly with the owner. The first respondent's right of lien is therefore exercisable against the applicants, and the application for access was dismissed.

Court Disposition

Application dismissed with costs.

Orders

  • The application is dismissed with costs.