Red Stripe Trading 68 CC v Mahlomola and Another (2011/06) [2006] ZAGPHC 39 (28 April 2006)

IN THE HIGH COURT OFSOUTH AFRICA(WITWATERSRANDLOCAL DIVISION)CASE NO: 06/2011In the matter between:RED STRIPE TRADING 68 CCApplicantandMAHLOMOLA JOSHUA MFirst RespondentMAHLOMOLA JULIASecond RespondentJ U D G M E N TBLIEDEN, J:[1] On 31 March 2006, some two weeks ago, I dismissed the present application and in broad terms furnished my reasons for making this order. At that time I informed counsel that detailed reasons would be furnished later. These reasons now follow.[2] This case is one of 26 similar although not identical cases involving the same applicant. In each of these cases the applicant applies or will apply for the eviction of the separate respondents who are unlawful occupiers of specific erven in various suburbs and townships.[3] Only one of these cases will be dealt with, but as the issue before the court is identical in each of the other cases the reasons for making the order in this case applies to the other cases as well.[4] As it is not in issue that the respondents are illegal occupants of the property occupied by them, the provisions of the Prevention of Illegal Eviction from Unlawful Occupation of Land Act, No. 19 of 1998 (PIE) are applicable.[5] The relevant section of PIE for the purposes of this application is section 4, the applicable portion of which reads:“4. Eviction of unlawful occupiers. –(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 landfor 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.(3) Subjectto the provisions of subsection (2), the procedure for the serving of notices and filing of papers is as prescribed by the rules of the court in question.(4) Subject to the provisions of subsection (2), if a court is satisfied that service cannot conveniently or expeditiously be effected in the manner provided in the rules of the court, service must be effected in the manner directed by the court: Provided that the court must consider the rights of the unlawful occupier to receive adequate notice and to defend the case.” (my underlining)[6] When this application and the other 25 similar cases were called in the unopposed court I informed counsel that myprima facieview was that I doubted whether the applicant in this case and in the other applications hadlocus standito bring the applications. Counsel was not able to persuade me that this view was wrong. I shall now deal with the considerations which caused me to come to the conclusion I have arrived at.[7] In the unreported judgment ofRed Stripe Trading 68 CC and Khumalo Mndaw Joseph(case number 31039/04) in this court, and which judgment was handed down on 23 March 2005, Gildenhuys J found that the applicant was not a “person in charge of land” which in that case and those similar to it was the basis for its claim tolocus standito institute the eviction procedures it did.[8] The facts of that application, which to a measure are different to those in the present case, are that the respondent was in unlawful occupation of the property concerned as are the respondents in the present case. In that case as in this the registered owner was a bank. It had sold the property to a close corporation known as Get-a-Home CC, which had in turn sold it to the applicant. In the latter deed of sale the following appears:“For the purpose of Sections 1 and 4(1) of the Prevention of Illegal EvictionFrom and Occupation of Land Act, 19 of 1998itis recordedthat 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.”[9] In answer to a submission by counsel that the applicant in that case was a “person in charge” in terms of section 4(1), the learned judge found:“[10] Because the applicant’s right to obtainvacuapossessioof the property is a mere personal right, it can only be enforced against the person from whom it was acquired. See Nkadia v Mahlazi and Others1982 (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 no locus standi to evict the respondent from the property. This is evident from the judgment of Caney J in Jadwat and Moola v Seedat,1956 (4) SA 273(N) at 276C-Dwhere 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.’”[10] I respectfully agree with the decision of Gildenhuys J on this point. However, it does not arise in the present case as the clause relied upon by counsel in that case to afford the applicantslocus standidoes not exist in the contract relied upon in the present case.[11] In paragraph [12] of that judgment the learned judge said:“[12] It is evidentfrom 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. See Marcus v Stamper and Zoutendijk1910 AD 58at 75 and Vivier v Waterberg Ko-Operatiewe Landboumaatskappy Bpk1956 (2) SA 665(T) at 672D-E.”[12] In the present case the applicant relied on a cession as referred to in the above-quoted passage as its basis for possessinglocus standi. I am in respectful disagreement with the learned judge that a vindicatory action (rei vindicatio) of an immovable is capable of cession in this case or at all. I shall deal with this aspect later in this judgment.[13] To put the present application into proper perspective it is necessary to describe the facts which led to the cession relied upon by the applicant. These are:13.1Nedbank Ltd is the registered owner of the immovable property concerned.13.2On 19 December 2005 it in writing ceded its “right, title and interest” to the property concerned to Ariano 124 CC (Ariano). This cession was described as “unconditional irrevocable and binding on both parties to the agreement”. At the same time Ariano also entered into a deed of sale with Nedbank for the said property.13.3On 13 January 2006 Ariano ceded to the applicant its right, title and interest in and to the property inclusive of therei vindicatio.[14] It is therefore plain that the applicant comes to court as a purported cessionary of certain rights, and not as the owner of the property as is specified in subparagraph (1) of section 4 of PIE. His entitlement to do this depends on the legal effect of the cession relied upon.[15] The basic principle in Roman-Dutch law is that before delivery takes place a purchaser or anyone in a position similar to him is not entitled to institute therei vindicatioas he is not the owner of the thing. This view is made plain inVoet6.1.20 where the following is stated:“Furthermore those who never obtained the ownership of property have no power to vindicate it.Instances are they to whom a thing has not yet been legally delivered after they have bought it and paid the price; or they to whom a thing has been donated by the making of an agreement or stipulation without delivery; since such persons have only a personal action for delivery.” (Gane’s translation : vol 2 p 231.)[16] There are a number of cases in various courts in this country where the question is raised whether a party can acquire a vindicatory right by means of cession. These include the two cases referred to in par [11] above and other cases such as:Stern NO v Standard Trading Co (Pty) Ltd1955 (3) SA 423(A) at 429A-B;Smit v Saipem1974 (4) SA 918(A);Caledon & Suid-Westelike Distrikte Eksekuteurskamer Bpk v Wentzel1972 (1) SA 270(A) at 274-275;Air-Kel (Edms) Bpk h/a Merkel Motors v Bodenstein1980 (3) SA 917(A). However, all these cases deal with the transfer of rights to movables where ownership can pass in various ways other than the actual physical handing over of the subject-matter so transferred. The points raised in these cases are the requirements necessary for the passing of ownership to take place and whether this can be done by agreement andinter aliacession alone. For the reasons stated below it is not necessary to deal with the varying decisions in these cases.[17] In the instant case the relevant rights of vindication relate to immovable property. The law in this regard is clear, such property can only be transferred by registration in the deeds registry. As is made plain by Sonnekus inSakereg(1994 at page 402) and the authorities relied upon by him, “Eiendomsreg assaaklike reg is ten ene male nieindie Suid-Afrikaanse reg op ‘n suiwer konsensuele wyse, sonder voldoening aan die betrokke publisiteitsvereistes (registrasie by onroerende en lewering by roerende goedere) oordraagbaar nie.” As arei vindicatiois an inseparable part of the ownership in land, it cannot be ceded without the property being transferred in terms of the law, which in the present case is by registration of transfer in the deeds registry. It must be stressed, as is made plain in the cases quoted above, that therei vindicatiois only a remedy and not a right, it cannot be ceded separately from the right of ownership.[18] At best the registered owner can authorise a purchaser to institute proceedings on his behalf. In such a case the proceedings will have to commence in the name of the principal. An agent is, in general, not entitled to sue in his or her own name on behalf of his or her principal. InGravett NO v Van der Merwe1996 (1) SA 531(B&CLD) at 537G it was said:“It is trite law that a plaintiff cannot sue in his own name on behalf of another.”SeefurtherSentrakoopHandelaars Bpk v Lourens and Another1991 (3) SA 540(W) andStandard General Insurance Co Ltd v Eli Lilly (SA) (Pty) Ltd (FBC Holdings (Pty) Ltd (Third Party)1996 (1) SA 382(W).[19] In the circumstances, the cession relied upon by the applicant in the present case does not afford it anylocus standito pursue the relief it claims from the respondents. The application therefore falls to be dismissed.________________________P BLIEDENJUDGE OF THE HIGH COURTDate of Judgment : 28thApril 2006

IN THE HIGH COURT OF

SOUTH AFRICA

(

WITWATERSRAND

LOCAL DIVISION)

CASE NO: 06/2011

In the matter between:RED STRIPE TRADING 68 CCApplicantandMAHLOMOLA JOSHUA MFirst RespondentMAHLOMOLA JULIASecond Respondent

RED STRIPE TRADING 68 CC

MAHLOMOLA JOSHUA M

MAHLOMOLA JULIA

J U D G M E N T

BLIEDEN, J:[1] On 31 March 2006, some two weeks ago, I dismissed the present application and in broad terms furnished my reasons for making this order. At that time I informed counsel that detailed reasons would be furnished later. These reasons now follow.[2] This case is one of 26 similar although not identical cases involving the same applicant. In each of these cases the applicant applies or will apply for the eviction of the separate respondents who are unlawful occupiers of specific erven in various suburbs and townships.[3] Only one of these cases will be dealt with, but as the issue before the court is identical in each of the other cases the reasons for making the order in this case applies to the other cases as well.[4] As it is not in issue that the respondents are illegal occupants of the property occupied by them, the provisions of the Prevention of Illegal Eviction from Unlawful Occupation of Land Act, No. 19 of 1998 (PIE) are applicable.[5] The relevant section of PIE for the purposes of this application is section 4, the applicable portion of which reads:

BLIEDEN, J

:

“4. Eviction of unlawful occupiers. –(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 landfor the eviction of an unlawful occupier.

4. Eviction of unlawful occupiers. –

(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.

(3) Subjectto the provisions of subsection (2), the procedure for the serving of notices and filing of papers is as prescribed by the rules of the court in question.

(3) Subject

to the provisions of subsection (2), the procedure for the serving of notices and filing of papers is as prescribed by the rules of the court in question.

(4) Subject to the provisions of subsection (2), if a court is satisfied that service cannot conveniently or expeditiously be effected in the manner provided in the rules of the court, service must be effected in the manner directed by the court: Provided that the court must consider the rights of the unlawful occupier to receive adequate notice and to defend the case.” (my underlining)

(4) Subject to the provisions of subsection (2), if a court is satisfied that service cannot conveniently or expeditiously be effected in the manner provided in the rules of the court, service must be effected in the manner directed by the court: Provided that the court must consider the rights of the unlawful occupier to receive adequate notice and to defend the case.

[6] When this application and the other 25 similar cases were called in the unopposed court I informed counsel that myprima facieview was that I doubted whether the applicant in this case and in the other applications hadlocus standito bring the applications. Counsel was not able to persuade me that this view was wrong. I shall now deal with the considerations which caused me to come to the conclusion I have arrived at.[7] In the unreported judgment ofRed Stripe Trading 68 CC and Khumalo Mndaw Joseph(case number 31039/04) in this court, and which judgment was handed down on 23 March 2005, Gildenhuys J found that the applicant was not a “person in charge of land” which in that case and those similar to it was the basis for its claim tolocus standito institute the eviction procedures it did.[8] The facts of that application, which to a measure are different to those in the present case, are that the respondent was in unlawful occupation of the property concerned as are the respondents in the present case. In that case as in this the registered owner was a bank. It had sold the property to a close corporation known as Get-a-Home CC, which had in turn sold it to the applicant. In the latter deed of sale the following appears:

prima facie

locus standi

Red Stripe Trading 68 CC and Khumalo Mndaw Joseph

person in charge of land

“For the purpose of Sections 1 and 4(1) of the Prevention of Illegal EvictionFrom and Occupation of Land Act, 19 of 1998itis recordedthat 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.”

For the purpose of S

ections 1 and 4(1) of the Prevention of Illegal Eviction

F

rom 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.

[9] In answer to a submission by counsel that the applicant in that case was a “person in charge” in terms of section 4(1), the learned judge found:

person in charge

“[10] Because the applicant’s right to obtainvacuapossessioof the property is a mere personal right, it can only be enforced against the person from whom it was acquired. See Nkadia v Mahlazi and Others1982 (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 no locus standi to evict the respondent from the property. This is evident from the judgment of Caney J in Jadwat and Moola v Seedat,1956 (4) SA 273(N) at 276C-Dwhere he said:

[10] Because the applicant’s right to obtain

vacua

possessio

of the property is a mere personal right, it can only be enforced against the person from whom it was acquired. See Nkadia v Mahlazi and Others1982 (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 no locus standi to evict the respondent from the property. This is evident from the judgment of Caney J in Jadwat and Moola v Seedat,

1982 (2) SA 441

1956 (4) SA 273(N) at 276C-D

1956 (4) SA 273

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.’”

‘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.’

”

[10] I respectfully agree with the decision of Gildenhuys J on this point. However, it does not arise in the present case as the clause relied upon by counsel in that case to afford the applicantslocus standidoes not exist in the contract relied upon in the present case.[11] In paragraph [12] of that judgment the learned judge said:

“[12] It is evidentfrom 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. See Marcus v Stamper and Zoutendijk1910 AD 58at 75 and Vivier v Waterberg Ko-Operatiewe Landboumaatskappy Bpk1956 (2) SA 665(T) at 672D-E.”

[12] It is eviden

t

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. See Marcus v Stamper and Zoutendijk1910 AD 58at 75 and Vivier v Waterberg Ko-Operatiewe Landboumaatskappy Bpk1956 (2) SA 665(T) at 672D-E.

1910 AD 58

1956 (2) SA 665

[12] In the present case the applicant relied on a cession as referred to in the above-quoted passage as its basis for possessinglocus standi. I am in respectful disagreement with the learned judge that a vindicatory action (rei vindicatio) of an immovable is capable of cession in this case or at all. I shall deal with this aspect later in this judgment.[13] To put the present application into proper perspective it is necessary to describe the facts which led to the cession relied upon by the applicant. These are:13.1

rei vindicatio

13.1

Nedbank Ltd is the registered owner of the immovable property concerned.

13.2

On 19 December 2005 it in writing ceded its “right, title and interest” to the property concerned to Ariano 124 CC (Ariano). This cession was described as “unconditional irrevocable and binding on both parties to the agreement”. At the same time Ariano also entered into a deed of sale with Nedbank for the said property.

right, title and interest

unconditional irrevocable and binding on both parties to the agreement

13.3

On 13 January 2006 Ariano ceded to the applicant its right, title and interest in and to the property inclusive of therei vindicatio.

rei vindicatio.

[14] It is therefore plain that the applicant comes to court as a purported cessionary of certain rights, and not as the owner of the property as is specified in subparagraph (1) of section 4 of PIE. His entitlement to do this depends on the legal effect of the cession relied upon.[15] The basic principle in Roman-Dutch law is that before delivery takes place a purchaser or anyone in a position similar to him is not entitled to institute therei vindicatioas he is not the owner of the thing. This view is made plain inVoet6.1.20 where the following is stated:

Voet

“Furthermore those who never obtained the ownership of property have no power to vindicate it.Instances are they to whom a thing has not yet been legally delivered after they have bought it and paid the price; or they to whom a thing has been donated by the making of an agreement or stipulation without delivery; since such persons have only a personal action for delivery.” (Gane’s translation : vol 2 p 231.)

Furthermore those who never obtained the ownership of property have no power to vindicate it.

Instances are they to whom a thing has not yet been legally delivered after they have bought it and paid the price; or they to whom a thing has been donated by the making of an agreement or stipulation without delivery; since such persons have only a personal action for delivery.

[16] There are a number of cases in various courts in this country where the question is raised whether a party can acquire a vindicatory right by means of cession. These include the two cases referred to in par [11] above and other cases such as:Stern NO v Standard Trading Co (Pty) Ltd1955 (3) SA 423(A) at 429A-B;Smit v Saipem1974 (4) SA 918(A);Caledon & Suid-Westelike Distrikte Eksekuteurskamer Bpk v Wentzel1972 (1) SA 270(A) at 274-275;Air-Kel (Edms) Bpk h/a Merkel Motors v Bodenstein1980 (3) SA 917(A). However, all these cases deal with the transfer of rights to movables where ownership can pass in various ways other than the actual physical handing over of the subject-matter so transferred. The points raised in these cases are the requirements necessary for the passing of ownership to take place and whether this can be done by agreement andinter aliacession alone. For the reasons stated below it is not necessary to deal with the varying decisions in these cases.[17] In the instant case the relevant rights of vindication relate to immovable property. The law in this regard is clear, such property can only be transferred by registration in the deeds registry. As is made plain by Sonnekus inSakereg(1994 at page 402) and the authorities relied upon by him, “Eiendomsreg assaaklike reg is ten ene male nieindie Suid-Afrikaanse reg op ‘n suiwer konsensuele wyse, sonder voldoening aan die betrokke publisiteitsvereistes (registrasie by onroerende en lewering by roerende goedere) oordraagbaar nie.” As arei vindicatiois an inseparable part of the ownership in land, it cannot be ceded without the property being transferred in terms of the law, which in the present case is by registration of transfer in the deeds registry. It must be stressed, as is made plain in the cases quoted above, that therei vindicatiois only a remedy and not a right, it cannot be ceded separately from the right of ownership.[18] At best the registered owner can authorise a purchaser to institute proceedings on his behalf. In such a case the proceedings will have to commence in the name of the principal. An agent is, in general, not entitled to sue in his or her own name on behalf of his or her principal. InGravett NO v Van der Merwe1996 (1) SA 531(B&CLD) at 537G it was said:

Stern NO v Standard Trading Co (Pty) Ltd

1955 (3) SA 423

Smit v Saipem

1974 (4) SA 918

Caledon & Suid-Westelike Distrikte Eksekuteurskamer Bpk v Wentzel

1972 (1) SA 270

Air-Kel (Edms) Bpk h/a Merkel Motors v Bodenstein

1980 (3) SA 917

inter alia

Sakereg

Eiendomsreg as

saaklike reg is ten ene male nie

in

die Suid-Afrikaanse reg op ‘n suiwer konsensuele wyse, sonder voldoening aan die betrokke publisiteitsvereistes (registrasie by onroerende en lewering by roerende goedere) oordraagbaar nie.

Gravett NO v Van der Merwe

1996 (1) SA 531

“It is trite law that a plaintiff cannot sue in his own name on behalf of another.”

It is trite law that a plaintiff cannot sue in his own name on behalf of another.

SeefurtherSentrakoopHandelaars Bpk v Lourens and Another1991 (3) SA 540(W) andStandard General Insurance Co Ltd v Eli Lilly (SA) (Pty) Ltd (FBC Holdings (Pty) Ltd (Third Party)1996 (1) SA 382(W).[19] In the circumstances, the cession relied upon by the applicant in the present case does not afford it anylocus standito pursue the relief it claims from the respondents. The application therefore falls to be dismissed.

Sentrakoop

Handelaars Bpk v Lourens and Another

1991 (3) SA 540

Standard General Insurance Co Ltd v Eli Lilly (SA) (Pty) Ltd (FBC Holdings (Pty) Ltd (Third Party)

1996 (1) SA 382

________________________

P BLIEDENJUDGE OF THE HIGH COURTDate of Judgment : 28thApril 2006

P BLIEDENJUDGE OF THE HIGH COURT

Date of Judgment : 28

th

April 2006