LG Marincowitz and Sons (PTY) LTD v All Occupiers of 238 Cornelis Street Fairland ,Johannesburg and Others (2879/17) [2018] ZAGPPHC 815 (31 October 2018)

HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

Case No: 2879/17

In the matter between:

LG MARINCOWITZ AND SONS (PTY) LTD

Applicant

and

ALL OCCUPIERS OF 238 CORNELIS STREET

First Respondent

FAIRLAND, JOHANNESBURG (ALSO KNOWN AS

ERF 192, FAIRLAND, JOHANNESBURG)

CITY OF JOHANNESBURG MUNICIPALITY

Second Respondent

Case summary: Eviction – from residential property – Prevention of the Illegal Eviction from and the Unlawful Occupation of Land Act 19 of 1998 (the PIE Act) – whether occupier an ‘unlawful occupier’ as contemplated in the PIE Act – whether occupier has a ‘right in law’ to occupy the property – successive sales – occupier and previous owners concluded earlier sale and current owner and previous owners concluded subsequent sale of the property – subsequent purchaser became owner of the property through transfer and registration into its name – subsequent purchaser acquired a real right of ownership vis-à-vis earlier purchaser’s contractual right to specific performance, that is delivery of the merx – maxim qui prior est tempore potior est iure, therefore, finds no application – in accordance with the maxim lex non cogit ad impossibilia, earlier purchaser cannot obtain an order for specific performance against previous owners nor has the earlier purchaser any remedy against the subsequent purchaser and present owner of the property unless she can prove that subsequent purchaser took delivery with knowledge of the earlier sale – such knowledge on part of subsequent purchaser not established.

JUDGMENT

MEYER J

[1] The applicant, LG Marincowitz and Sons (Pty) Ltd (Marincowitz), which is the registered owner of an immovable property, being Erf 192, Fairland, Johannesburg, Gauteng and situate at 238 Cornelis Street, Fairland, Johannesburg (the property), seeks the ejectment of the first respondent, Ms Aimee Harinoro (Ms Harinoro) and her family from the property. By way of counter-application, Ms Harinoro seeks that the agreement of sale of the property concluded between Marincowitz and the previous registered owners, Ms Aline Rafidimalalasoa, Mr Mathieu Prosper Andrianarisoa, Ms Fidiarimasy Barny and Mr Fabrice Barny (the previous owners), be declared void ab initio or unlawful or unenforceable and that the transfer of the property into the name of Marincowitz be declared unlawful and ‘be reversed’. In the alternative Ms Harinoro claims that she ‘be paid, refunded and reimbursed with a total amount, as may be proven, that was paid to the previous owners and expended in the improvements made on the property’ and that she, ‘upon payment of such amount be ordered to vacate the immovable property in question within a period of sixty (60) days from the date on which the last payment of the amount referred to herein is made’.

[2] On 20 December 2008, Ms Harinoro and the previous owners concluded a written ‘Deed of promise of sale’ in respect of the property, which was signed by her and the previous owners. It reads as follows:

‘We, Aline Rafidimalalasoa, Mathieu Prosper Andrianarisoa, Fidiarimasy Barney and Fabrice Barney, co-owners of the property located at number 238 Cornelis Street in Fairland, Johannesburg, South Africa are selling our property, reference Erf 192, Fairland, Johannesburg, RSA to Mrs. Aimee Harinoro for a total amount of Rands 2.5 million.

We hereby certify that we have received the sum of Rands 1.5 million as a first instalment for the sale.’

[3] The previous owners maintained that it was further agreed between them and Ms Harinoro that she would pay R1.5 million on signing of the agreement and that the balance purchase price would be paid by the end of March 2009. On 13 September 2012, the previous owners’ attorney caused a letter of demand to be served on Ms Harinoro, wherein they demanded payment of the balance purchase price in the sum of R984 409.65 by 14 October 2012. She, according to them, failed to make any payment by that date and their attorneys caused a letter of cancellation of the agreement of sale to be served on Ms Harinoro on 22 October 2012. They thereafter launched an application for the eviction of Ms Harinoro and her

family from the property in the Gauteng Local Division of the High Court, Johannesburg under case no 20758/13. That application

was dismissed with costs on 21 November 2014. In dismissing the application, Maenetje AJ found that the previous owners’

purported cancellation of the written agreement was legally ineffective and ‘that the written sale agreement is still of

force and effect, entitling her, as well as those who occupy the land on account of her title, to remain in occupation of the land until the written sale agreement, as may happen, is lawfully terminated.’

[4] By letter dated 1 August 2016, the previous owners demanded from Ms Harinoro that she pays the sum of R2 144 176.07 within 30 days of receipt of the letter of demand, being R409 801.00 in respect of the outstanding purchase price, R1 459 692.00 for occupational rental for the period April 2009 to July 2016, and R274 682.07 in respect of municipal services. By letter dated 16 September 2016, Ms Harinoro was advised that she failed to comply with the previous owners’ demands set out in their letter of demand, and that they have elected to terminate the agreement of sale with effect from 31 August 2016.

[5] On 1 August 2016, the previous owners and Marincowitz entered into an agreement of sale of the property, in terms whereof the property was sold to Marincowitz. The property was thereafter transferred and registered into the name of Marincowitz on 14 December 2016 under title deed no T49089/2016. Marincowitz, as owner of the

property, now seeks to vindicate the property by the eviction of Ms Harinoro and her family.

[6] Ms Harinoro contends that she is not in unlawful occupation of the property as contemplated in the Prevention of the Illegal Eviction from and the Unlawful Occupation of Land Act 19 of 1998 (the PIE Act), which Act, in its presently relevant part, defines an ‘unlawful occupier’ as-

‘a person who occupies land without the express or tacit consent of the owner or person in charge, or without any other right in law to occupy such land . . .’.

Ms Harinoro contends that she has a ‘right in law’ to occupy the property by virtue of the prior agreement of sale which she had concluded with the previous owners, which agreement had not been validly cancelled. She states that she took occupation of the property ‘around 20 December 2008, following an agreement of sale which [she] concluded with the previous owners’ and that she ‘did not enter into any lease agreement with the previous owners, but an agreement of sale and which agreement still subsists.’ Ms Harinoro contends that because the agreement of sale concluded between her and the previous owners had not been lawfully cancelled, the successive agreement of sale concluded between the previous owners and Marincowitz ‘ought to be declared void ab initio’.

[7] The view I take of this matter renders it unnecessary to consider the validity of the agreement concluded between the previous owners and Ms Harinoro and, if valid, whether it was validly cancelled. This is not a case where an earlier purchaser pursues a contractual right to specific performance - delivery of the merx - while a subsequent purchaser pursues a similar contractual right to specific performance. In such situations the courts often applied the maxim qui prior est tempore potior est iure and held that the possessor of the earlier right is entitled to specific performance, unless the possessor of the later right can show a balance of equities in his or her favour. (See Pick and Pay Retailers (Pty) Ltd v Eayrs and others NNO [2012] 1 All SA 522 (SCA) paras 17 – 18.)

[8] Here the property was not only sold to Marincowitz, but it became the owner of the property through transfer and registration of the property into its name. Marincowitz acquired a real right of ownership of the property. In LAWSA Vol 27 2nd Ed para 135, it is stated:

‘Ownership is in principle a comprehensive right embracing not only the power to use (ius utendi), to enjoy the fruits (ius fruendi) and to consume the thing (ius abutendi) but also the power to possess (ius possidendi), to dispose of (ius disponendi), to reclaim the thing from anyone who wrongfully withholds it (ius vindicandi) and or to resist any unlawful invasion of the thing (ius negandi).’

(Footnotes omitted.)

[9] As stated by GB Bradfield Christie’s Law of Contract in South Africa 7th Ed at 620:

‘In accordance with the maxim lex non cogit ad impossibilia specific performance will never be ordered if compliance with the order would be impossible. Thus, although a contract to sell the property of another is valid, an order of specific performance will not lie against the seller (nor against the third party who is not privy to the contract) and the buyer would have to be content with a claim for damages. The position is the same when A has sold but not delivered property to B and then sold and delivered the same property to C. By virtue of the delivery, ownership is now with C and B cannot obtain an order of specific performance against A. Nor has B any remedy against C unless B can prove C took delivery with knowledge of the previous sale.’

(Footnotes omitted.)

[10] It has not been established that Marincowitz took transfer with knowledge of the previous sale of the property to Ms Harinoro. The previous owners maintained that the sale agreement between themselves and Ms Harinoro had been validly cancelled. Ms Harinoro also raises an improvement lien as a dilatory defence against Marincowitz’s rei vindicatio. She states that she has ‘paid a substantial amount of money to the previous owners in respect of the property in question towards the purchase price’ and that:

‘Following the aforementioned payments and the improvements made on the property in question a lien was therefore created over the property in respect of which I now have real rights thereof against any third parties.’

[11] It is trite that the affidavits in motion proceedings constitute both pleadings and evidence. Ms Harinoro’s answering affidavit and founding affidavit in her counter-application lack such facts as would be necessary for determining whether a lien was conferred upon her by operation of law. Her allegations that she effected improvements and that she has a lien are mere conclusions with the primary facts on which they depend omitted. (See Radebe and others v Eastern Transvaal Development Board 1988 (2) SA 785 (A) at 793 C – F.) Equally apposite here is what Cloete JA said in Rhoode v De Kock and another 2013 (3) SA 123 at 128 H-129 A:

‘Here, there is not even a prima facie case for the respondents to meet. The appellant’s case amounts to this: “I have made alterations and additions to the respondents’ property. I have produced no acceptable evidence to establish whether the property has been improved in value, nor have I disclosed what I expended in money or materials. But I wish to resist an application for ejectment until compensated for an amount that I have not begun to quantify.” To enforce a lien in these circumstances would in my view to allow an abuse of the process of the court.’

[12] No grounds have been established that would render it unfair or unjust for Ms Harinoro and her family to be evicted from the property. Ms Harinoro’s claims for restitution and for damages as a result of the previous owners’ alleged breach of contract or the repudiation thereof by them, lie against the previous owners, who are not parties to her counter-application, and not against Marincowitz.

[13] In the result the following order is made:

1. The first respondent is to vacate the property, being Erf 192, Fairland, Johannesburg, Gauteng and situate at 238 Cornelis Street, Fairland, Johannesburg (the property) on or before 30 November 2018.

2. Should the first respondent fail to comply with paragraph 1 of this order, the Sheriff of this court is authorised to take the necessary steps to execute this order and to evict the first respondent from the property.

3. Ms Aimee Harinoro is to pay the costs of the applicant’s application.

4. The counter–application is dismissed with costs.

P.A.MEYERJUDGE OF THE HIGH COURT

Dates of hearing:

17 October 2018

Date of Judgment:

31 October 2018

Applicants’ counsel:

Adv T Jacobs

Instructed by:

Tim Sukazi Inc., Hatfield, Pretoria

Counsel for 1st Respondent: Adv R G Masipa

Instructed by:

Sekonya Attorneys, Pretoria