Red Stripe Trading 68 CC v Khumalo (31039/04) [2005] ZAGPHC 31 (23 March 2005)

IN THE HIGH COURT OFSOUTH AFRICA(WITWATERSRANDLOCAL DIVISION)Case no: 31039/04In the matter between:RED STRIPE TRADING 68 CCApplicantandKHUMALO MNDAU JOSEPHRespondent_______________JUDGMENT_______________GILDENHUYS J:[1] This case is one of 14 cases which came before me in motion court.The other 13 cases areRed Stripe Trading 68 CC v Tsoari,case no 30985/04;Red StripeTradinv 68 CC v Sihishe and Another,case no 31031/04;Red Stripe Trading 68 CC vPitlele and Another, case no 31042/04;Red Stripe v 68 CC v Molotsi and Another,Case no: 31049/04;Red Stripe Trading 68 CC v Tsabalala and Another,case no 31050/05;Red Stripe Tradinc 68 CC v Ngobese and Another,case no 31051/04;Red Stripe Trading68 CC v Maphoso,case no 31053/04;Red Stripe Trading 68 CC v Tshimangodzo andAnother,case no 490/05;Red Stripe Trading 68 CC v Khumalo and Others, case no 491/05;Red Stripe Trading 68 CC v Mahlatsi, case no 497/05;Red Stripe Trading 8 CC v Marupingand Another,case no 504/05;Red Stripe Trading 68 CC v Mokubela,case no 506/05;RedStripe Trading 68 CC v Selby and Another, case no 509/05.The applicant, which is the same corporation in each of the cases, applied under the Prevention of Illegal Eviction from an Unlawful Occupation of Land ActAct 19 of 1998.(to which I shall refer as “PIE”) for the

eviction of the occupiers of specific erven in former Black townships. I dismissed all the applications, and undertook to give reasons today. Because the facts in each of the cases are virtually identical, the reasons which I give in this case also apply to the other cases. My reasons follow hereunder.[2] The respondent is the occupier of Erf 1271, Daveyton (to which I shall refer as “the property”). He became the registered a bond over the property in favour of the then Nedperm. He fell behind with his instalments under the bond. Nedperm foreclosed against the respondent, and the property was sold in execution. Peoples Bank Limited bought the property on 17 April 2003 and received transfer on 23 May 2003. It is still the registered owner of the property. Despite the sale and transfer of the property to Peoples Bank, the respondent and his family remained in occupation thereof.[3] On 11 August 2004, Peoples Bank sold the property together with a large number of other properties to Get-a-Home CC. The Deed of Sale contains the following provisions:“4.1 The Purchaser shall take occupation or shall be deemed to have taken occupation on the date on which this Agreement is signed by the last party signing.4.2…………..4.3The Seller does not guarantee vacant occupation of any of the properties and the Purchaser shall be solely responsible for the eviction and removal of unlawful occupiers

from any property.”[4] On 30 November 2004 the applicant concluded a written deed of sale with Get-a-Home CC for the purchase of the property. Clause 2 of the deed of sale reads as follows:“2 Possession datePossession of the property will be given to the Purchaser shall be obliged to take possession thereof, on date of signature hereof from which date the property shall be the sole risk, profit or loss of the Purchaser.For the purpose of Sections 1 and 4(1) of the Prevention of Illegal Eviction From and Occupation of Land Act, 19 of 1998 it is recorded that the Purchaser has the legal authority to enter or reside upon the property and further to give permission to a person to enter or reside upon the property.”[5] Having complied with the formal requirements of PIE, the applicant applied to this Court for an order evicting the respondent and his family from the property. The applicant is described in the founding affidavit as “a person in charge as defined in PIE”. PIE defines “person in charge” as“a person who has or at the relevant time had legal authority to give permission to a person to enter or reside upon the land in question.”Section 1 of PIE.[6] Mr Booyens, who appeared for the applicant, submitted that the applicant haslocus standito apply for the eviction of the respondent under the provisions of section 4 of PIE. The relevant subsections of section 4 reads as

follows:“(1) Notwithstanding anything to the contrary contained in any law or the common law, the provisions of this section apply to proceedings by an owner or person in charge of land for the eviction of an unlawful occupier.(2) At least 14 days before the hearing of the proceedings contemplated in subsection (1), the court must serve written and effective notice of the proceedings on the unlawful occupier and the municipality having jurisdiction.(6) If an unlawful occupier has occupied the land in question for less than six months at the time when the proceedings are initiated, a court may grant an order for eviction if it is of the opinion that it is just and equitable to do so, after considering all the relevant circumstances, including the rights and needs of the elderly, children, disabled persons and households headed by women.(7) If an unlawful occupier has occupied the land in question for more than six months at the time when the proceedings are initiated, a court may grant an order for eviction if it is of the opinion that it is just and equitable to do so, after considering all the relevant circumstances, including, except where the land is sold in a sale of execution pursuant to a mortgage, whether land has been made available or can reasonably be made available by a municipality or other organ of state or another land owner for the relocation of the unlawful

occupier, and including the rights and needs of the elderly, children, disabled persons and households headed by women.(8) If the court is satisfied that all the requirements of this section have been complied with and that no valid defence has been raised by the unlawful occupier, it must grant an order for the eviction of the unlawful occupier, and determine –(a) a just and equitable date on which the unlawful occupier must vacate the land under the circumstances; and(b) the date on which an eviction order may be carried out if the unlawful occupier has not vacated the land on the date contemplated in paragraph (a).”[7] PIE defines “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…”Section 1 of PIE.There can be no doubt that, since the property has been sold in execution and transferred to Peoples Bank, the respondent is anunlawful occupier. See the judgment of Harms JA inNdlovu v Ngcobo2003 (1) SA 113(SCA) at 121 D/E.. The eviction application is therefore subject to the provisions of section 4 of PIE.[8] PIE does no more than impose prerequisites to be complied withSection 4(2) of PIE.and factors to be consideredSection 4(6) and (7) of PIE.in an application for the eviction of an unlawful occupier. It does not bestow any new entitlement on any person

to apply for the eviction of such an occupier. In the words of Harms JA inNdlovu v Ngcobo2003 (1) SA 113(SCA) at 13J-124A.“What PIE does is to delay or suspend the exercise of the landowner’s full proprietary rights until a determination has been made whether it is just and equitable to evict the unlawful occupier and under what conditions. Simply put, that is what the procedural safeguards provided for in s 4 envisage.”[9] The contract of sale on which the applicant relies does not effect atranslation dominii. The position of the seller under such a contract has been described by Van der LindeRegtsgeleerd, Practical en Koopmans Handboek, 1.15.9.as follows:“Vrde levering, schoon de koop door wederzijdsche toestemming voltrokken is, blijft de verkooper eigenaar, en kooper en verkooper hebben tegen elkander niets, dan eene personeele actie, tot naarkoming hunner wederkeerige verpligtingen. – De eerste van die action komt toe aan den kooper, of zijnen erfenaam, tegen den verkooper, of zijnen erfgenaam. – De andere aan den verkooper, of zijnen erfgenaam, tegen den kooper, of zijnen erfgenaam.De verkooper is gehouden, om aan den kooper het verkogte goed te leveren, en hem in’t bezit van het zelve te stellen, en zulks dadelijk, of op den tijd, bij het contract bepaald.”Before delivery, although the purchase was concluded by mutual agreement, the seller re-mains the owner, and the

purchaser and seller have nothing against each other, except apersonal action for compliance with their reciprocal obligations. – The first such action enureto the benefit of the purchaser, or his heir, against the seller, or his heir . – The other to theseller, or his heir, against the purchaser, or his heir.See alsoYork & Co (Pvt) Ltd v Jones NO1962 (1) SA 65(SR) at 66G-H.andSweet v Ragerguhara NO and Others.1978 (1) SA 131(D&CLD) at 134D-G.Possession of immovable property is a juristic fact.The Law ofSouth Africa(Joubert ed) Vol 27r para 244 p162. See the distinction drawn by CPJoubert in his article “Action for Ejectment – Possessor or Occupier” 19 62 (vol79)SALJ130Betweenius possidendibeing the right to obtain or be placed in occupation and possession,Possession, which is the fact of possession andius possessionis, which denotes the legalconsequences and relations of possession.It requires actual control of the property, and does not pass by virtue of a contractual provision that the purchaser “shall be deemed to have taken occupation” or “that the purchaser shall be obliged to take possession”.See para [3] and [4] above.[10] Because the applicant’s right to obtainvacua possessioof the property is a mere personal right, it can only be enforced against the person from whom it was acquired. SeeNkadia v Mahlazi and Others.1982 (2) SA 441(T) at 447G-H.The applicant has no real

right to the property in question. It also has no contractual relationship with the respondent. In the absence of a real right or contractual relationship, it has nolocus standito evict the respondent from the property. This is evident form the judgment of Caney J inJadwat and Moola v Seedat,1956 (4) SA 273(N) at 276C/D.where he said:“Clearly the buyer of a property who has not obtained transfer (nor cession of the owner’s cause of action) is not entitled to sue for ejectment.”[11] The Natal decisions inKanniappen v Govender1962 (1) SA 101(N) at 104H.andNicholas v Wigglesworth1937 NPD 376at 380.are to the same effect. Botha J referred to these decisions inBuchholtz v Buchholtz1980 (3) SA 424(W) at 425B-D.and said“TakingNicholas’casesupraas the origin of what was said in the Natal cases, it is clear beyond doubt, in my opinion, that the Courts were dealing with the situation where a purchaser of property had not yet received either transfer or – and this is important – possession of the property purchased. In such circumstances it is indeed clear that the purchaser would have no right to sue for the ejectment of the person in possession of the property because the purchaser had not acquired ajus in remin relation to the property. By virtue of his purchase of the property he acquires no more than ajus in personamagainst the seller, and, if someone is in possession of the

property, then the purchaser must look to the seller, the owner, to obtainvacua possessioof the property.”See also the judgment of Coetzee J inPadayache v Veerapan and Another1979 (1) SA 992(W) at 999B-G.and the informative article by CP Joubert in theSouth African Law Journal, “Action for Ejectment – Possessor and Occupier”.1962 (vol 79)SALJ130 at 131.[12] It is evident from the authorities referred to above that, under common law, the applicant has no standing to institute legal proceedings to evict the respondent. The applicant did not rely on a cession of Peoples Bank’s vindicatory action. Nor did Mr Booyens suggest that such a cession occurred. Although a vindicatory action (rei vindicatio) is capable of cession, such a cession will not be presumed unless the intention to make it was clear. SeeMarcus v Stamper and Zoutendijk1910 AD 58at 75.andVivier v Waterberg Ko-Operatiewe Landboumaatskappy Bpk.1956 (2) SA 665(T) at 672D-E.[13] The applicant relies on its alleged status asperson in charge, as defined in PIE, to support its standing. Even if the applicant does fall within the definition ofperson in charge, that does not give it the requisitelocus standito have the respondent evicted. Accordingly, the application for eviction which the applicant brought against the respondent had to fail, and was dismissed.___A GILDENHUYSJUDGE OF THE HIGH COURT23 March 2005Appearances:For the applicant:MR B BOOYENSB BOOYENS ATTORNEYSJOHANNESBURG.For the respondent:IN PERSON.

IN THE HIGH COURT OF

SOUTH AFRICA

(

WITWATERSRAND

LOCAL DIVISION)

Case no: 31039/04

In the matter between:RED STRIPE TRADING 68 CCApplicantandKHUMALO MNDAU JOSEPHRespondent_________________

RED STRIPE TRADING 68 CC

KHUMALO MNDAU JOSEPH

_________________

JUDGMENT_________________

GILDENHUYS J:

[1] This case is one of 14 cases which came before me in motion court.The other 13 cases areRed Stripe Trading 68 CC v Tsoari,case no 30985/04;Red StripeTradinv 68 CC v Sihishe and Another,case no 31031/04;Red Stripe Trading 68 CC vPitlele and Another, case no 31042/04;Red Stripe v 68 CC v Molotsi and Another,Case no: 31049/04;Red Stripe Trading 68 CC v Tsabalala and Another,case no 31050/05;Red Stripe Tradinc 68 CC v Ngobese and Another,case no 31051/04;Red Stripe Trading68 CC v Maphoso,case no 31053/04;Red Stripe Trading 68 CC v Tshimangodzo andAnother,case no 490/05;Red Stripe Trading 68 CC v Khumalo and Others, case no 491/05;Red Stripe Trading 68 CC v Mahlatsi, case no 497/05;Red Stripe Trading 8 CC v Marupingand Another,case no 504/05;Red Stripe Trading 68 CC v Mokubela,case no 506/05;RedStripe Trading 68 CC v Selby and Another, case no 509/05.The applicant, which is the same corporation in each of the cases, applied under the Prevention of Illegal Eviction from an Unlawful Occupation of Land ActAct 19 of 1998.(to which I shall refer as “PIE”) for the eviction of the occupiers of specific erven in former Black townships. I dismissed all the applications, and undertook to give reasons today. Because the facts in each of the cases are virtually identical, the reasons which I give in this case also apply to the other cases. My reasons follow hereunder.[2] The respondent is

the occupier of Erf 1271, Daveyton (to which I shall refer as “the property”). He became the registered a bond over the property in favour of the then Nedperm. He fell behind with his instalments under the bond. Nedperm foreclosed against the respondent, and the property was sold in execution. Peoples Bank Limited bought the property on 17 April 2003 and received transfer on 23 May 2003. It is still the registered owner of the property. Despite the sale and transfer of the property to Peoples Bank, the respondent and his family remained in occupation thereof.[3] On 11 August 2004, Peoples Bank sold the property together with a large number of other properties to Get-a-Home CC. The Deed of Sale contains the following provisions:

The other 13 cases are

Red Stripe Trading 68 CC v Tsoari,

case no 30985/04;

Red StripeTradinv 68 CC v Sihishe and Another,

case no 31031/04;

Red Stripe Trading 68 CC vPitlele and Another

, case no 31042/04;

Red Stripe v 68 CC v Molotsi and Another,

Case no: 31049/04;

Red Stripe Trading 68 CC v Tsabalala and Another,

case no 31050/05;

Red Stripe Tradinc 68 CC v Ngobese and Another,

case no 31051/04;

Red Stripe Trading68 CC v Maphoso,

case no 31053/04;

Red Stripe Trading 68 CC v Tshimangodzo andAnother,

case no 490/05;

Red Stripe Trading 68 CC v Khumalo and Others

, case no 491/05;

Red Stripe Trading 68 CC v Mahlatsi

, case no 497/05;

Red Stripe Trading 8 CC v Marupingand Another,

case no 504/05;

Red Stripe Trading 68 CC v Mokubela,

case no 506/05;

RedStripe Trading 68 CC v Selby and Another

, case no 509/05.

Act 19 of 1998.

“4.1 The Purchaser shall take occupation or shall be deemed to have taken occupation on the date on which this Agreement is signed by the last party signing.4.2

“4.1 The Purchaser shall take occupation or shall be deemed to have taken occupation on the date on which this Agreement is signed by the last party signing.

4.2

…………..4.3The Seller does not guarantee vacant occupation of any of the properties and the Purchaser shall be solely responsible for the eviction and removal of unlawful occupiers from any property.”

…………..

4.3

The Seller does not guarantee vacant occupation of any of the properties and the Purchaser shall be solely responsible for the eviction and removal of unlawful occupiers from any property.”

[4] On 30 November 2004 the applicant concluded a written deed of sale with Get-a-Home CC for the purchase of the property. Clause 2 of the deed of sale reads as follows:

“2 Possession datePossession of the property will be given to the Purchaser shall be obliged to take possession thereof, on date of signature hereof from which date the property shall be the sole risk, profit or loss of the Purchaser.For the purpose of Sections 1 and 4(1) of the Prevention of Illegal Eviction From and Occupation of Land Act, 19 of 1998 it is recorded that the Purchaser has the legal authority to enter or reside upon the property and further to give permission to a person to enter or reside upon the property.”

“

2 Possession date

Possession of the property will be given to the Purchaser shall be obliged to take possession thereof, on date of signature hereof from which date the property shall be the sole risk, profit or loss of the Purchaser.

For the purpose of Sections 1 and 4(1) of the Prevention of Illegal Eviction From and Occupation of Land Act, 19 of 1998 it is recorded that the Purchaser has the legal authority to enter or reside upon the property and further to give permission to a person to enter or reside upon the property.”

[5] Having complied with the formal requirements of PIE, the applicant applied to this Court for an order evicting the respondent and his family from the property. The applicant is described in the founding affidavit as “a person in charge as defined in PIE”. PIE defines “person in charge” as

a person in charge as defined in PIE

person in charge

“a person who has or at the relevant time had legal authority to give permission to a person to enter or reside upon the land in question.”Section 1 of PIE.

“a person who has or at the relevant time had legal authority to give permission to a person to enter or reside upon the land in question.”

Section 1 of PIE.

[6] Mr Booyens, who appeared for the applicant, submitted that the applicant haslocus standito apply for the eviction of the respondent under the provisions of section 4 of PIE. The relevant subsections of section 4 reads as follows:

locus standi

“(1) Notwithstanding anything to the contrary contained in any law or the common law, the provisions of this section apply to proceedings by an owner or person in charge of land for the eviction of an unlawful occupier.(2) At least 14 days before the hearing of the proceedings contemplated in subsection (1), the court must serve written and effective notice of the proceedings on the unlawful occupier and the municipality having jurisdiction.(6) If an unlawful occupier has occupied the land in question for less than six months at the time when the proceedings are initiated, a court may grant an order for eviction if it is of the opinion that it is just and equitable to do so, after considering all the relevant circumstances, including the rights and needs of the elderly, children, disabled persons and households headed by women.(7) If an unlawful occupier has occupied the land in question for more than six months at the time when the proceedings are initiated, a court may grant an order for eviction if it is of the opinion that it is just and equitable to do so, after considering all the relevant circumstances, including, except where the land is sold in a sale of execution pursuant to a mortgage, whether land has been made available or can reasonably be made available by a municipality or other organ of state or another land owner for the relocation of the unlawful occupier, and including the rights and needs of the elderly, children, disabled persons and households headed by women.(8) If the court is satisfied that all the requirements of this section have been complied with and that no valid defence has been raised by the unlawful occupier, it must grant an order for the eviction of the unlawful occupier, and determine –

(a) a just and equitable date on which the unlawful occupier must vacate the land under the circumstances; and(b) the date on which an eviction order may be carried out if the unlawful occupier has not vacated the land on the date contemplated in paragraph (a).”

[7] PIE defines “unlawful occupier” as

unlawful occupier

“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…”Section 1 of PIE.

“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…”

There can be no doubt that, since the property has been sold in execution and transferred to Peoples Bank, the respondent is anunlawful occupier. See the judgment of Harms JA inNdlovu v Ngcobo2003 (1) SA 113(SCA) at 121 D/E.. The eviction application is therefore subject to the provisions of section 4 of PIE.[8] PIE does no more than impose prerequisites to be complied withSection 4(2) of PIE.and factors to be consideredSection 4(6) and (7) of PIE.in an application for the eviction of an unlawful occupier. It does not bestow any new entitlement on any person to apply for the eviction of such an occupier. In the words of Harms JA inNdlovu v Ngcobo2003 (1) SA 113(SCA) at 13J-124A.

Ndlovu v Ngcobo

2003 (1) SA 113(SCA) at 121 D/E.

2003 (1) SA 113

Section 4(2) of PIE.

Section 4(6) and (7) of PIE.

2003 (1) SA 113(SCA) at 13J-124A.

“What PIE does is to delay or suspend the exercise of the landowner’s full proprietary rights until a determination has been made whether it is just and equitable to evict the unlawful occupier and under what conditions. Simply put, that is what the procedural safeguards provided for in s 4 envisage.”

[9] The contract of sale on which the applicant relies does not effect atranslation dominii. The position of the seller under such a contract has been described by Van der LindeRegtsgeleerd, Practical en Koopmans Handboek, 1.15.9.as follows:

translation dominii

Regtsgeleerd, Practical en Koopmans Handboek

, 1.15.9.

“Vrde levering, schoon de koop door wederzijdsche toestemming voltrokken is, blijft de verkooper eigenaar, en kooper en verkooper hebben tegen elkander niets, dan eene personeele actie, tot naarkoming hunner wederkeerige verpligtingen. – De eerste van die action komt toe aan den kooper, of zijnen erfenaam, tegen den verkooper, of zijnen erfgenaam. – De andere aan den verkooper, of zijnen erfgenaam, tegen den kooper, of zijnen erfgenaam.De verkooper is gehouden, om aan den kooper het verkogte goed te leveren, en hem in’t bezit van het zelve te stellen, en zulks dadelijk, of op den tijd, bij het contract bepaald.”Before delivery, although the purchase was concluded by mutual agreement, the seller re-mains the owner, and the purchaser and seller have nothing against each other, except apersonal action for compliance with their reciprocal obligations. – The first such action enureto the benefit of the purchaser, or his heir, against the seller, or his heir . – The other to theseller, or his heir, against the purchaser, or his heir.

“Vr

de levering, schoon de koop door wederzijdsche toestemming voltrokken is, blijft de verkooper eigenaar, en kooper en verkooper hebben tegen elkander niets, dan eene personeele actie, tot naarkoming hunner wederkeerige verpligtingen. – De eerste van die action komt toe aan den kooper, of zijnen erfenaam, tegen den verkooper, of zijnen erfgenaam. – De andere aan den verkooper, of zijnen erfgenaam, tegen den kooper, of zijnen erfgenaam.

De verkooper is gehouden, om aan den kooper het verkogte goed te leveren, en hem in’t bezit van het zelve te stellen, en zulks dadelijk, of op den tijd, bij het contract bepaald.”

Before delivery, although the purchase was concluded by mutual agreement, the seller re-mains the owner, and the purchaser and seller have nothing against each other, except apersonal action for compliance with their reciprocal obligations. – The first such action enureto the benefit of the purchaser, or his heir, against the seller, or his heir . – The other to theseller, or his heir, against the purchaser, or his heir.

See alsoYork & Co (Pvt) Ltd v Jones NO1962 (1) SA 65(SR) at 66G-H.andSweet v Ragerguhara NO and Others.1978 (1) SA 131(D&CLD) at 134D-G.Possession of immovable property is a juristic fact.The Law ofSouth Africa(Joubert ed) Vol 27r para 244 p162. See the distinction drawn by CPJoubert in his article “Action for Ejectment – Possessor or Occupier” 19 62 (vol79)SALJ130Betweenius possidendibeing the right to obtain or be placed in occupation and possession,Possession, which is the fact of possession andius possessionis, which denotes the legalconsequences and relations of possession.It requires actual control of the property, and does not pass by virtue of a contractual provision that the purchaser “shall be deemed to have taken occupation” or “that the purchaser shall be obliged to take possession”.See para [3] and [4] above.[10] Because the applicant’s right to obtainvacua possessioof the property is a mere personal right, it can only be enforced against the person from whom it was acquired. SeeNkadia v Mahlazi and Others.1982 (2) SA 441(T) at 447G-H.The applicant has no real right to the property in question. It also has no contractual relationship with the respondent. In the absence of a real right or contractual relationship, it has nolocus standito evict the respondent from the property. This is evident form the judgment of Caney J inJadwat and Moola v Seedat,1956 (4) SA 273(N) at 276C/D.where he said:

York & Co (Pvt) Ltd v Jones NO

1962 (1) SA 65(SR) at 66G-H.

1962 (1) SA 65

Sweet v Ragerguhara NO and Others

1978 (1) SA 131(D&CLD) at 134D-G.

1978 (1) SA 131

The Law of

South Africa

(Joubert ed) Vol 27r para 244 p162. See the distinction drawn by CPJoubert in his article “Action for Ejectment – Possessor or Occupier” 19 62 (vol79)

79)

SALJ

130Between

ius possidendi

being the right to obtain or be placed in occupation and possession,

Possession

, which is the fact of possession and

ius possessionis

, which denotes the legalconsequences and relations of possession.

shall be deemed to have taken occupation

that the purchaser shall be obliged to take possession

See para [3] and [4] above.

vacua possessio

Nkadia v Mahlazi and Others

1982 (2) SA 441(T) at 447G-H.

1982 (2) SA 441

Jadwat and Moola v Seedat

1956 (4) SA 273(N) at 276C/D.

1956 (4) SA 273

“Clearly the buyer of a property who has not obtained transfer (nor cession of the owner’s cause of action) is not entitled to sue for ejectment.”

[11] The Natal decisions inKanniappen v Govender1962 (1) SA 101(N) at 104H.andNicholas v Wigglesworth1937 NPD 376at 380.are to the same effect. Botha J referred to these decisions inBuchholtz v Buchholtz1980 (3) SA 424(W) at 425B-D.and said

Kanniappen v Govender

1962 (1) SA 101(N) at 104H.

1962 (1) SA 101

Nicholas v Wigglesworth

1937 NPD 376at 380.

1937 NPD 376

Buchholtz v Buchholtz

1980 (3) SA 424(W) at 425B-D.

1980 (3) SA 424

“TakingNicholas’casesupraas the origin of what was said in the Natal cases, it is clear beyond doubt, in my opinion, that the Courts were dealing with the situation where a purchaser of property had not yet received either transfer or – and this is important – possession of the property purchased. In such circumstances it is indeed clear that the purchaser would have no right to sue for the ejectment of the person in possession of the property because the purchaser had not acquired ajus in remin relation to the property. By virtue of his purchase of the property he acquires no more than ajus in personamagainst the seller, and, if someone is in possession of the property, then the purchaser must look to the seller, the owner, to obtainvacua possessioof the property.”

“Taking

Nicholas’

case

supra

as the origin of what was said in the Natal cases, it is clear beyond doubt, in my opinion, that the Courts were dealing with the situation where a purchaser of property had not yet received either transfer or – and this is important – possession of the property purchased. In such circumstances it is indeed clear that the purchaser would have no right to sue for the ejectment of the person in possession of the property because the purchaser had not acquired a

jus in rem

in relation to the property. By virtue of his purchase of the property he acquires no more than a

jus in personam

against the seller, and, if someone is in possession of the property, then the purchaser must look to the seller, the owner, to obtain

of the property.”

See also the judgment of Coetzee J inPadayache v Veerapan and Another1979 (1) SA 992(W) at 999B-G.and the informative article by CP Joubert in theSouth African Law Journal, “Action for Ejectment – Possessor and Occupier”.1962 (vol 79)SALJ130 at 131.[12] It is evident from the authorities referred to above that, under common law, the applicant has no standing to institute legal proceedings to evict the respondent. The applicant did not rely on a cession of Peoples Bank’s vindicatory action. Nor did Mr Booyens suggest that such a cession occurred. Although a vindicatory action (rei vindicatio) is capable of cession, such a cession will not be presumed unless the intention to make it was clear. SeeMarcus v Stamper and Zoutendijk1910 AD 58at 75.andVivier v Waterberg Ko-Operatiewe Landboumaatskappy Bpk.1956 (2) SA 665(T) at 672D-E.[13] The applicant relies on its alleged status asperson in charge, as defined in PIE, to support its standing. Even if the applicant does fall within the definition ofperson in charge, that does not give it the requisitelocus standito have the respondent evicted. Accordingly, the application for eviction which the applicant brought against the respondent had to fail, and was dismissed.

Padayache v Veerapan and Another

1979 (1) SA 992(W) at 999B-G.

1979 (1) SA 992

South African Law Journal

1962 (vol 79)

130 at 131.

rei vindicatio

Marcus v Stamper and Zoutendijk

1910 AD 58at 75.

1910 AD 58

Vivier v Waterberg Ko-Operatiewe Landboumaatskappy Bpk.

1956 (2) SA 665(T) at 672D-E.

1956 (2) SA 665

___A GILDENHUYSJUDGE OF THE HIGH COURT23 March 2005Appearances:For the applicant:MR B BOOYENSB BOOYENS ATTORNEYSJOHANNESBURG.For the respondent:IN PERSON.

___A GILDENHUYSJUDGE OF THE HIGH COURT

23 March 2005

Appearances: