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South Africa decisions
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Blom and Others v Modiboa and Another (M364/2022) [2024] ZANWHC 4 (5 January 2024)
The High Court granted leave to appeal against an eviction order but refused to enforce that order pending appeal, finding no exceptional circumstances or irreparable harm.
Passano v Erasmus (82775/2015) [2023] ZAGPPHC 583 (16 January 2023)
The High Court held that the defendant’s occupation was lawful because she had a retention lien for improvements, and dismissed both claims with no costs order.
Du Toit v Du Plessis and Another (364/2012) [2012] ZANCHC 59 (29 June 2012)
The court found that there was no sufficient basis to imply a term into the parties' relationship that required the first respondent to transfer his shares and directorship in the second respondent to the applicant upon withdrawal. The second respondent was not a shell company but an active business entity, and the applicant conceded that he could not claim transfer if this was the case. The interim interdict was not justified as the fears of harm to the premises were unfounded, and the retention right claimed by the applicant did not constitute a cause of action. The application for confirma…
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Pienaar v Schoeman (1984/2007) [2007] ZAFSHC 43 (31 May 2007)
The applicant failed to establish a prima facie case for the removal and safekeeping of the harvester, as the respondent's version regarding the payment terms and right of retention for improvements could not be rejected on the papers. The respondent's evidence supports the existence of a retention right, and there is insufficient evidence that the applicant would pay or secure the respondent's claim for improvements. The alternative relief sought, namely prohibiting the respondent from using the harvester, constitutes a final interdict. Applying the Plascon-Evans rule, the matter must be dec…
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Potgieter N.O and Another v De Villiers (432/03) [2004] ZANCHC 38 (22 October 2004)
The High Court granted eviction, finding the trustees had valid title, the respondent proved no enforceable prior right, and no retention right for improvements.
Buzzard Electrical (Pty) Ltd. v 158 Jan Smuts Avenue Investments (Pty) Ltd. and Another (637/94) [1996] ZASCA 70; 1996 (4) SA 19 (SCA); [1996] 3 All SA 1 (A); (31 May 1996)
The Supreme Court of Appeal held that in cases where the owner contracts with a main contractor to perform work, and the main contractor subcontracts the work to another party, any enrichment of the owner is not at the expense of the subcontractor but at the expense of the main contractor. The owner's obligation is limited to what is due under the contract with the main contractor, and the subcontractor cannot claim enrichment directly or indirectly against the owner. The retention right is only available where the owner is unjustly enriched at the expense of the claimant, which was not the c…
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Lubbe v Volkskas Bpk (386/90) [1992] ZASCA 97; 1992 (3) SA 868 (AD); [1992] 2 All SA 270 (A) (29 May 1992)
The court dismissed Lubbe’s appeal, holding that his urgent application for declaratory and mandatory relief was unnecessary and contrary to execution-sale procedure.
Standard Kredietkorporasie Bpk. v Jot Motors (Edms) Bpk. (118/84) [1985] ZASCA 96; [1986] 1 All SA 329 (A) (25 September 1985)
The Supreme Court of Appeal held that the respondent, who repaired the vehicle at the request of Marogane, was in lawful possession and entitled to a right of retention until compensated for the repair costs. The respondent's knowledge of the appellant's ownership and the terms of the hire purchase agreement did not amount to mala fides, nor did it constitute acting against express instructions. Clause 3(a) of the agreement required the buyer to keep the vehicle free from liens, but did not prohibit necessary repairs or the possibility of a lien arising from unpaid repair costs. The indemnity…
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Wynland Construction (Pty) Ltd. v Ashley-Smith and Others (64/85) [1985] ZASCA 45; [1985] 2 All SA 368 (A) (29 May 1985)
The court held that the builder had no right of retention over the owners’ properties because the owners had paid Brewland, and no enrichment at the builder’s expense was shown.
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