Troksie and Another v Liquidator of RSD Construction CC Wilbecar Liquidators CC t/a Bureau Trust Gauteng RSD Construction CC and Others (71322/2010) [2015] ZAGPPHC 321 (8 May 2015)

Troksie and Another v Liquidator of RSD Construction CC Wilbecar Liquidators CC t/a Bureau Trust Gauteng RSD Construction CC and Others (71322/2010) [2015] ZAGPPHC 321 (8 May 2015)

The court found that the applicants did not acquire a valid usufruct by oral or written agreement, as the oral agreement was unenforceable under the Alienation of Land Act and the written agreement only granted a limited right of occupation, which had expired. Registration of a personal servitude after liquidation is impermissible, as it would prejudice the general body of creditors. The applicants did not have an improvement lien enforceable in these proceedings; any claim for improvements must be lodged with the liquidators. The applicants' occupation was unlawful, and PIE did not provide a complete defence to eviction, but the court considered their long residence and age, granting...

Citation
[2015] ZAGPPHC 321
Parties
Applicant: G.P. Troskie; Applicant: S.J. Troskie; Respondent: Liquidator of RSD Construction CC; Respondent: Wilbecar Liquidators CC t/a Bureau Trust; Respondent: Gauteng RSD Construction CC; Respondent: Registrar of Deeds; Respondent: Absa Bank Ltd/Standard Bank Ltd; Respondent: Root X Auctioneers
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
8 May 2015
Case Number
71322/2010
Procedural Posture
Urgent Application / Judgment After Hearing of Application and Counter Application
Outcome
Application dismissed; counter-application for eviction granted with delayed execution.
Judges
Van der Berg
Legal Topics
Personal Servitude, Usufruct, Alienation of Land Act, Acquisitive Prescription, Improvement Lien, Eviction Under Pie
Land and Property Civil Procedure Personal Servitude Usufruct Alienation of Land Act Acquisitive Prescription Improvement Lien Eviction Under Pie

Case Brief

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Parties

G.P. Troskie

Applicant

S.J. Troskie

Applicant

Liquidator of RSD Construction CC

Respondent

Wilbecar Liquidators CC t/a Bureau Trust

Respondent

Gauteng RSD Construction CC

Respondent

Registrar of Deeds

Respondent

Absa Bank Ltd/Standard Bank Ltd

Respondent

Root X Auctioneers

Respondent

Procedural Posture

Urgent Application / Judgment After Hearing of Application and Counter Application

Legal Issues

  1. 1 Whether the applicants acquired a valid usufruct over the property by oral or written agreement.
  2. 2 Whether the applicants can compel registration of a personal servitude after liquidation.
  3. 3 Whether the applicants have an improvement lien over the property.

Ratio Decidendi

The court found that the applicants did not acquire a valid usufruct by oral or written agreement, as the oral agreement was unenforceable under the Alienation of Land Act and the written agreement only granted a limited right of occupation, which had expired. Registration of a personal servitude after liquidation is impermissible, as it would prejudice the general body of creditors. The applicants did not have an improvement lien enforceable in these proceedings; any claim for improvements must be lodged with the liquidators. The applicants' occupation was unlawful, and PIE did not provide a complete defence to eviction, but the court considered their long residence and age, granting...

Court Disposition

Application dismissed; counter-application for eviction granted with delayed execution.

Orders

  • The applicants' application is dismissed.
  • The applicants are ordered to vacate the property known as Plot 116 Rietfontein within nine months of the date of this order, failing which the sheriff is authorised to remove them and their possessions on 1 March 2016.