The
applicant brings an application to compel the return of his
biscuit-making equipment which is in the possession of the first and
second respondents.
The
applicant's case is based on the following facts.
He
owns the biscuit making equipment. The applicant was in the business
of biscuit-making with the third respondent. When production was
shelved for a while, in February 2016, the third respondent offered
to store it at an acquaintance's, namely, the second respondent.
He understood
that the storage was going to be free of charge.
The
first respondent is the owner of the premises where the equipment is
being kept.
He
was unaware of the rental arrangement. When the applicant asked for
his equipment, from the second respondent, he was advised that she
was also renting the space the equipment was stored in from the first
respondent and that he owed the first respondent rentals for the
storage.
She asked
him to pay rentals for the storage of the equipment to the first
respondent for the period the equipment was stored at the premises.
The first respondent has refused to hand over the equipment. The
applicant contends that he is not privy to the lease agreement
entered into between the first and second respondents and no lien
applies to him. The claim for arrear rentals should be made against
the third respondent.
He
brings a claim for vindication of the equipment.
The
second respondent submitted as follows.
There
is no evidence that the applicant is the owner of the property in
dispute. In February 2016, the third respondent requested her to keep
the equipment and he would come and collect it later. The whole
complex where the equipment is stored belongs to the first
respondent. The complex is divided into several bays which the first
respondent leases out. She leases Bay No.2. The equipment is stored
in that bay. She sub-leased part of Bay No.2, which she leased from
the first respondent, to him at a rental. Storage fees were agreed to
and the applicant was later made aware of the fees. The applicant
gave his permission to the third respondent to store the property at
her bay. She is owed arrear rentals and hence has a landlord's lien
over the equipment. She has a right to possession by virtue of a
verbal sublease agreement she entered into with the third respondent
which agreement still subsists. She is owed arrears of $2,700=. The
equipment continues to accrue holding over damages. The applicant may
not remove her equipment from Bay No.2 until she pays arrear rentals
owing to the first respondent. She is not using the equipment as it
is obsolete and she has no use for the equipment.
The
first respondent submitted that he is not aware of the arrangement
between the second and third respondents concerning the equipment and
how it came to be on the premises. He wants the first respondent to
pay arrear rentals outstanding.
The
third defendant was barred.
It
is common cause that the third defendant took the equipment for
storage with the second defendant who leases the premises. The
dispute is over the arrangement involving the storage of the
equipment and whether the applicant is entitled to demand possession
of the equipment from the respondents.
An
owner of property is entitled to vindicate his property from whoever
possesses it without his consent. See Chetty
v Naidoo
1971
(3) SA 13.
In
Stanbic
Finance Zimbabwe v Chivhunga
1999 (1) ZLR 262 the court dealt with the subject of onus in a rei
vindicatory
action and remarked as follows;
“The
owner may claim his property whatever found from whosoever is holding
it is inherent in the nature of ownership that possession of the rei
should normally be with the owner and it follows that no other person
may withhold it from the owner. In instituting a rei vindication he
need therefore do no more than allege, and prove, that he is the
owner and that the defendant is holding the res…,.”
An
applicant who seeks to vindicate his property should prove the
following;
(a)
He is the owner of the property;
(b)
That the property is in the possession of another person; and
(c)
That he possesses it without his consent.
An
owner of property has exclusive rights to the property. He has a
right to reclaim his property from any person who wrongfully
withholds it.
Once
an applicant has proved the requirements of a rei
vindicatio,
the onus shifts onto the respondent to justify his right of
retention.
The
second
respondent relies on a lease agreement entered between her and the
third respondent to continue holding onto the equipment. She contends
that she has a landlord's lien against the applicant's property.
The
case of Oakland
Nominees Ltd v Gelria Mining and Investment Co Ltd
1976 (1) SA…, recognises that a possessor may have enforceable
rights against an owner. The court remarked as follows;
“Our
law jealously protects the rights and ownership and the correlative
right of the owner in regard to his property, unless, of course, the
possessor has some enforceable right against the owner that is
tangible through an existing or past relationships.”
SILBERBERG
and SCHOEMAN's The
Law of Property,
Fifth Edition defines a landlord's lien…, as follows;
“Primarily,
the hypothec covers things carried and brought onto the property
leased by the tenant (invecta
et illata)
that are owned by the tenant, including cash. However, in certain
circumstances, it also extends to goods and articles owned by the
third parties. Thus, the things carried in and brought onto the
property leased by a sub-lease are subject to the head-lessor's
hypothec to the extent to which he or she owes rent to the lessee as
his or her sub lessor.”
As
regards property of a third party, SILBERBERG and SCHOEMAN's The
Law of Property,
Fifth Edition…,
states that the lien extends to property owned by third parties and
remarks that “…, the things carried in and brought on to the
property leased by a sub-lessee are subject to the head-lessor's
hypothec to the extent to which he or she owes rent to the lessee as
his or her sub-lessor.'' See Sugarman
and SA Breweries Ltd v Burrows 1916 WLD 73.
The
case of Bloemfontein Municipality v Jackson 1929 AD 266 deals with a
scenario where property of a third party is brought on to the leased
premises by the tenant and is available to the tenant. The court held
that a third party whose movables are brought in by the tenant are
covered by the hypothec where they are brought in with the knowledge
and consent of the owner, with the intent that the goods be used by
the tenant and the lessor is unaware that the goods belong to a third
party. The owner will be taken to have consented to the goods being
subject to the landlords hypothec.
In
the latter case of Eight
Kaya Sands v Valley Irrigation Equipment
2003 (2) SA 495, the court held that property belonging to a third
party found on the leased property which is available to the tenant,
who creates the impression that the goods belong to the tenant
exposes those goods to the landlord's tacit hypothec, and that
where property belonging to a third party is attached, the goods must
be released when that ownership has come to the landlord's
knowledge.
The
case of TR
Services (Pty) Ltd v Polynton's Corner Ltd
1961 (1) SA 773 (D) lays out the requirements of the hypothec where a
third party is involved as follows;
(a)
The goods must be on the premises with the knowledge of the owner of
the goods.
(b)
There must be a degree of permanence.
(c)
The property must be there for the use of the tenant; and
(d)
The landlord must have had no notice that they belonged to some third
party.
The
case of Brooklyn
House Furnishers v Kneetze and Sons
1970
(3) SA 264 deals with an enrichment lien. It is authority for the
proposition that a lien can be regarded as a defence against an
owner's res
vindicatio
until
the owner has satisfied his debts to the lien holder. The retainer
must have a claim against the owner.
A
landlord has a right, at common law, to possess a tenant's property
where a tenant fails to pay rentals. This is possible under a
landlord's lien or lessor's tacit hypothec as it is otherwise
known. The law allows a landlord to withhold personal property of a
tenant brought on to the leased premises by the tenant, for failure
to pay rentals to safeguard payment of his rentals. The lien accrues
as soon as the rentals become due and attaches to property belonging
to a lessee found on the leased premises when rent is due. The
landlord may hold onto the property until the arrear rentals are
paid. The landlord is entitled to take the property and sell it to
recover his rentals. Where he decides to dispose of the property to
recover the debt, he is required to follow proper legal channels.
Generally, the hypothec covers goods brought on to the leased
premises by the tenant for rentals that are owed by the tenant. The
property must be on the premises of the tenant. Property outside the
premises may not be taken.
A
sub-lessees' property is subject to the landlords hypothec where he
fails to pay rentals.
The
landlord's hypothec extends to property belonging to a third party
brought onto the leased premises by the tenant on the basis of
implied consent or estoppel.
AJ
Van Der WALT, in an article titled Extending
the lessor's tacit hypothec to third parties 'property'
states
that the reasoning
for
this approach is that
such
a third party and owner, having been aware of the whereabouts of his
property, fails to protect it from the landlord's lien by informing
the landlord of his rights in the property and hence is subjected to
the lien. Property that is brought for use by the tenant, and
with
the knowledge and consent of the owner, and where the goods have been
on the premises for an indefinite period and are intended for
permanent use by the tenant are attachable. Where the goods are taken
to the premises for use by the tenant and the landlord is unaware
that the property belongs to a third party,
the goods are
covered by a lien.
The
basis of the lien being capable of being a defence to a rei
vindicatio
is based on implied consent of the owner and estoppel.
The
law governing the applicability of a lien, moreso the requirements of
a lien, are clear that they relate to a claim for a lien by a
landlord. A tenant who sub-leases the premises may not rely on the
landlord's lien - he is not the landlord. It is only the landlord
who may rely on a landlord's tacit hypothec.
The
landlord's lien raises Constitutional concerns.
The
extension of the lien to third parties is unfair when one considers
that there may be no privity of contract between the third party and
the landlord. The lien violates an owner's right to property in
that an owner is deprived of his property in circumstances where he
is not a party to any lease agreement and has no contractual
relationship with the landlord.
As
regards the lien, generally, the law allows the property of a tenant
to be seized without notice or hearing in violation of principles
governing due process of law. This amounts to an unlawful taking of
property. The landlord is afforded immediate relief whilst the
tenant's recourse is to take the rent dispute for resolution at
court. The practice allows self-help on the part of the landlord
thereby protecting only the interests of the landlord. The practice
is discriminatory.
The
applicant has managed to show that he is the owner of the biscuit
making equipment. He produced receipts to that effect, illustrating,
on a balance of probabilities, that he owns the property. The
equipment is in the possession of another person who possesses it
without his consent. The respondents were in possession of the
equipment when these proceedings were instituted.
The
applicant has satisfied the requirements of a rei
vindicatio.
The onus shifts on to the respondents to show that they have a right
of retention over the equipment.
The
applicant's version that the equipment was to be stored for free is
more probable.
I
see no reason why the third respondent would want to enter into a
lease agreement for property not belonging to him and when the
partnership had dissolved. There is no reason why the third
respondent would enter into the lease agreement himself, in his name,
when the applicant was available and in the absence of any authority
to do so. What was his benefit? The indications are that he stored
the equipment for free and is conniving with the second respondent
and the sublease is a sham.
Even
if it is accepted that there was a sub-lease agreement between the
second and third respondents, there is no privity of contract between
the owner of the equipment and these respondents. There is nothing to
support the allegation that the third respondent was an agent of the
applicant. The applicant was not involved in the arrangements for
storage and he says he was unaware that he was required to pay for
the storage.
The
third respondent entered into the lease agreement he must bear the
consequences of failing to pay the rentals.
The
defence of the respondents is not based on an enrichment claim. The
claim is for a landlord's lien. The second
respondent seeks to rely on a landlord's lien as a defence.
The
second
respondent is not a landlord. The landlord, is not claiming any lien
against the applicant. He has distanced himself from the claim of a
landlord's lien and says that he simply wants his rental from the
second respondent. He is frustrated that the applicant has cited him
in these proceedings.
What
complicates this matter is that the applicant is not a party to the
sub-lease.
A
landlord's hypothec is simply that. It is a right exercisable by a
landlord alone. A lessee who sublets a property may not, upon failure
of the sub-lessee to pay rentals, have a lien over the sub-lessee's
property.
Equipment
brought onto leased property by a sublessee is subject to the
head-lessor's hypothec where he owes rentals to the lessee who is
his sub-lessor. The sub-lessor himself has no hypothec against the
equipment.
The
facts do not support a defence of a lien against a third party.
Firstly,
on the basis that the lien is not claimable by the second
respondent. Secondly, whilst the equipment was brought in with the
knowledge and consent of the owner,
the
respondents have not managed to show that the equipment was brought
by the owner and for use either by the tenant or the third
respondent. Further, the respondents have not shown that the
equipment has remained there for an indefinite period constituting a
sufficient degree of permanence to subject the equipment to a
landlord's lien. The sublease was a monthly agreement. The
equipment was brought in February 2016. By July 2016 the applicant
was already demanding his property. There is no degree of permanence
about the equipment. There is no legal relationship between the
applicant and the second or first respondent. There is no
creditor/debtor relationship between the parties.
Whilst
the storage was sought for purposes of storing the applicant's
equipment, there is no legal justification why the equipment should
serve as security for the debt of the third respondent. There is no
landlord's lien that binds the owner. The second
respondent's recourse lies with the person with whom she has a
lease agreement.
The
respondents have failed to prove a right of retention of the
equipment. The applicant is entitled to vindicate his property. The
first respondent lays no claim against the applicant. There is no
basis for an order of costs against him.
In
the result, it is ordered as follows:
1.
The first respondent shall return the biscuit-making equipment,
being:
(a)
Biscuit making machine with 50kg per hour capacity.
(b)
Dough mixer 50kg capacity.
(c)
Dough mixer 30kg capacity.
(d)
Dough mixer 10kg capacity.
(e)
Wafer baking tongs (6).
(f)
Horizontal line auto packing machine.
(g)
Water packaging (Bopp).
To
the applicant within seven days of the granting of this order.
2.
The first respondent shall pay costs of suit.
