The
plaintiff, as represented by its Managing Director, Ms Elizabeth
Chidavaenzi, issued summons out of this court on 9 June 2008 seeking
the ejectment of the defendant from Stand number 3182 of subdivision
A of Stand 159 Prospect in Harare ('the property').
On
2 October 2008 the defendant filed her plea and sought the dismissal
of the ...
The
plaintiff, as represented by its Managing Director, Ms Elizabeth
Chidavaenzi, issued summons out of this court on 9 June 2008 seeking
the ejectment of the defendant from Stand number 3182 of subdivision
A of Stand 159 Prospect in Harare ('the property').
On
2 October 2008 the defendant filed her plea and sought the dismissal
of the plaintiff's claim on the basis that she was a legitimate
possessor and occupier of the property in question, the right, title
and interest in the property having been lawfully transferred to her
by virtue of “the declaratory order issued by this court under case
number HC7594A/06”.
It
was further the defendant's contention that she was in occupation
of the property pursuant to a sale agreement entered between herself
and a company called Champion Constructors (Pvt) Ltd.
Alternatively,
it was contended, by the defendant, that the plaintiff was estopped
from denying that the seller, Champion Constructors (Pvt) Ltd, was
the holder of rights, title and interest in, and was entitled to
dispose of the property in the manner it allegedly did.
The
Evidence
In
support of its contention, the plaintiff relied on the evidence of
its Managing Director and representative, Ms Elizabeth Chidavaenzi.
Several documentary exhibits were tendered in support of the
plaintiff's position which was mainly an unequivocal denial of
Champion Constructors (Pvt) Ltd having been authorized to dispose of
the property in the manner it did or at all.
The
defendant relied on her own evidence together with the testimony of
two former workers of Fingold Real Estate Agents which was said to
have been mandated by Champion Constructors (Pvt) Ltd to dispose of
the property to the defendant. In addition, reliance was also sought
on several documentary exhibits…,.
The
Issues
At
the pre-trial conference which was held on 9 July 2007 the parties
were unanimously agreed that the matter be referred to trial on
basically two issues, viz;
(1)
Whether the defendant has right of occupation over Stand number 3182
of subdivision A of 159 Prospect; and
(2)
Whether the plaintiff has the right to evict the defendant from the
property in question.
The
Plaintiff's Evidence
The
thrust of the plaintiff's representative's evidence was to
demonstrate to the court that the plaintiff was the registered owner
of the property in issue and that no mandate was given to anyone to
sell the property.
The
evidence, as presented by Ms Elizabeth Chidavaenzi, its Managing
Director, who happens to be a major and controlling shareholder in
both the plaintiff and Champions Constructors (Pvt) Ltd was that the
property in issue was owned by the plaintiff as one of the 39
subdivisions of Stand 159 Prospect. Ms Elizabeth Chidavaenzi produced
a title deed to confirm the ownership of this property by the
plaintiff….,.
As
regards the relationship between the plaintiff and Champion
Constructors (Pvt) Ltd, it was Ms Elizabeth Chidavaenzi's testimony
that the latter was contracted by the plaintiff to service the land
and develop residential houses on the subdivisions and would be paid
in kind for its services or in the form of completed houses which it
would in turn sell to prospective home owners in order to recoup its
expenses.
It
was Ms Elizabeth Chidavaenzi's testimony that whilst in the past
the plaintiff, through Champions Constructors (Pvt) Ltd, had mandated
an estate agent called Fingold Real Estate to dispose two of its
properties, it did not sanction the sale of the property in issue.
According to this witness's testimony, this explains why the
agreement pertaining to the defendant was not signed by the seller.
To put it bluntly, she said it was a fraudulent sale which was
masterminded by John Chagaresango (an employee of Finglold Real
Estate) who is a close relative of the defendant.
Ms
Chidavaenzi believed that John Chagaresango acted in collusion with
his erstwhile fellow sales agent Ms Mutodi. It was the witness's
further testimony that her attention to the 'agreement' signed by
the defendant on 26 September 2006 was drawn to her for the first
time ever when the defendant's legal practitioners sent her a
letter of demand in November 2006 in which the lawyers were demanding
that she signs the 'agreement' and that her immediate reaction
was simply not to ratify such a fraudulent agreement.
It
was significant that, according to this witness's testimony,
Fingold Real Estate, the supposed agent of Champion Constructors
(Pvt) Ltd did not present the 'agreement' to her for her
signature. The witness strongly believed that Fingold sales agents,
who had had the privilege of doing work for her company in the
disposal of two houses earlier on, took advantage of their inside
knowledge of the project to fraudulently 'sell' the property in
question to the defendant.
The
witness was quite adamant that for the two properties which Fingold
Real Estate Agents had been mandated to sell she had herself given
Fingold Real Estate Agents written sale instructions on behalf of
Champion Constructors (Pvt) Ltd as is the norm in the industry.
Through
her testimony, the witness challenged Fingold
Real Estate sales agents to produce her written instructions to them
authorising them to sell the property in question.
No
such written instructions were produced.
It
was Ms Elizabeth Chidavaenzi's
further testimony that even if one were to lean backwards and accept
for a moment that there had been a proper agreement between the
defendant and Champion Constructors (Pvt) Ltd, the defendant had not
even made the slightest attempt to comply with various provisions of
that agreement to the extent that the defendant would not have been
able to enforce it. It is significant that this breach was accepted
by the defendant and both Ms Mutodi and John Chagaresango, both of
whom sought to justify it on the strength of some other oral promises
allegedly made by Ms Elizabeth Chidavaenzi.
Ms
Chidavaenzi
commented on the final order granted in favour of the defendant…,
She said this order was confirmed in default and that an attempt was
made to oppose the confirmation of this order but failed on some
technicality. The witness further said that the poor handling of this
particular case was one of the reasons she severed ties with her
erstwhile legal practitioners, namely, Messrs Mandizha and Company.
Ms Chidavaenzi
further explained that, at the time, herself and Champion
Constructors (Pvt) Ltd were barred leading to the granting of the
final order in question the parties were engaged in negotiations to
try and amicably resolve this matter.
Ms
Chidavaenzi's
understanding was that the final order in question did not give the
defendant the right of occupation but the right to enforce the
agreement. She stated that from the time the defendant obtained the
order in question she has made no attempt to enforce that order and
that even if she had attempted to do so she would not have succeeded.
It
was further the evidence of Ms Chidavaenzi
that
having discovered this fraudulent agreement which involved the
defendant, purely out of compassion and consideration for the
defendant she initiated negotiations to try and resolve the impasse
and that the only original but heavily amended (in pen) document from
Fingold Real Estate (which bears the name of Betty Kanyuchi as a
replacement of Miss Sibongile Kaziboni) must be looked at within this
context.
Indeed,
correspondence…, confirm there were in fact some discussions which
were carried out on a “without prejudice' basis.
The
Defendant's Evidence
In
summary, the witness's evidence dealt with how she came to be
involved in the “purchase” of the property in issue having been
assisted to do so by a close family member, John Chagaresango, a son
to her elder sister. She said John Chagaresango was working for
Fingold Real Estate Agents.
It
was her accepted evidence that she had told John Chagaresango that
she wanted to buy a house and that having seen a completed sample
house and the house now in issue under construction, she was invited
by her nephew, John Chagaresango, to sign an agreement of sale on 26
September 2006 which was witnessed by John Chagaresango, Mr Phiri,
her advisor, and one Faith Muzungu a younger and literate relative of
hers.
It
was her testimony that after signing the agreement…, she commenced
to pay in three different instalments on 28 September 2006, 9 October
2006 and 3 November 2006 a total Z$32,500,000=. She had difficulties
in explaining why she paid an extra Z$500,000= if the price of the
property was pegged at Z$32,000,000=.
She
said that sometime in November 2006, after she had made three
payments, she went to view progress of construction on site where she
met Ms Chidavaenzi
for the first time. It was her evidence that, on confronting her on
delay in the construction, Ms Chidavaenzi commented that the witness
was troublesome and that the house would be finished soon. The record
of proceedings will show that despite this being a very critical part
of the defendant's case, Ms Chidavaenzi was never cross-examined on
her alleged encounter with the defendant.
It
was the defendant's evidence that the terms of the agreement which
she signed were never explained to her and that she was assured by
John Chagaresango that Ms Elizabeth
Chidavaenzi would sign the agreement upon full payment of the
purchase price of the property.
The
defendant further explained that she moved onto the disputed property
and started making improvements towards finishing the house. Under
cross examination she told the court that Ms Chidavaenzi did not
authorise her to make any improvements. It was very clear that the
defendant blindly signed the agreement of sale….,.
The
Evidence of Evis Monica Mutodi
She
was the second witness called by the defendant to bolster her case.
The
witness has a fairly balanced academic background and her chain of
qualifications were given as follows:- a Bachelar's degree in
Chemistry and a Certificate in Education (both from University of
Zimbabwe), a qualified examiner with Zimsec and a Diploma in Real
Estate with the
Estate Agents Council of Zimbabwe. She is a member of the Estate
Agents Council of Zimbabwe. The witness said she had 4 years
experience in real estate.
It
was the witness's evidence that at the relevant time she was
employed by Fingold Real Estate as a Sales Negotiator and had
previously sold two properties on behalf of Champion Constructors
(Pvt) Ltd in the same scheme as the house in issue. The witness said
she did not know and never dealt with the plaintiff in this case but
dealt with Champion Constructors (Pvt)
Ltd.
Ms
Mutodi said she got to know of the defendant through her then
workmate, John Chagaresango, who introduced her as someone who was
looking for a house to buy. She said she then telephoned Ms
Chidavaenzi
who positively responded by referring her to the house in issue as
being available for sale. She then drove to the site with the
defendant, John Chagaresango, and another member who she could not
remember. On site they were cleared to view a completed sample house
first before they proceeded to Stand 3182 (the Stand in issue). The
defendant, having shown interest, expressed the desire to purchase
the property after which the witness said she telephoned Ms
Chidavaenzi to advise of the defendant's interest. It was her
evidence that she advised Ms Chidavaenzi that John Chagaresango would
be reporting to her office in pursuit of this transaction. She
understood, thereafter, an agreement was drawn up but she did not
take part in drawing up that agreement.
The
witness was emphatic in her evidence in chief that she did not deal
with the defendant other than driving her to the construction site.
She also remembered that when they visited the Stand in question no
work had commenced on that Stand.
Under
cross-examination, the witness confirmed that when they visited the
property in question no work had commenced on it. However, with
further probing she appeared uncertain of what the exact position of
the property was.
The
difficulty with this witness's evidence was that her alleged
telephone conversation with Ms Elizabeth
Chidavaenzi, important as it was given the nature of the plaintiff's
declaration…, was never put to Ms Chidavaenzi in cross-examination.
Secondly,
Evis
Monica Mutodi's
evidence was characterized by unmistakable prevarication.
In
her evidence in chief she said the initial instruction to sell the
property in question was given to her by Ms Chidavaenzi. When
questioned by the plaintiff's counsel in what form the instruction
came, she said it was Ms Chidavaenzi's practice to put instructions
on an agreement of sale for Fingold Real Estate.
Probed
further, she said such instructions had been given to her over the
telephone.
When
that averment was further tested, under cross-examination, she
changed and said the instructions were in fact given to Mrs Alec over
the telephone in her presence but conveniently claimed not to have
heard everything that was said.
In
one breadth she said she was given the instructions in agreement form
and that she had herself taken that initial instruction to the
defendant's lawyers. When further probed she changed her story and
said that those initial instructions to sell the property were in
fact given to Fingold Real Estate typists.
The
record of proceedings, particularly where this witness was
cross-examined, will reveal a sorry state because at the end of her
evidence she had presented a hopelessly confusing piece of evidence.
It
must be remembered that this witness was very critical to the
defendant's case in that she was supposed to provide the nexus
between the original instructions to Fingold Real Estate by Ms
Elizabeth
Chidavaenzi leading to the alleged contractual agreement with the
defendant.
That
nexus was heavily compromised by the prevarication which
characterized Ms Mutodi's evidence.
Against
that prevarication is the clear and concise evidence of Ms
Chidavaenzi which was to the effect that she did not authorize or
mandate Fingold Real Estate or anyone for that matter to dispose of
the property in issue.
It
is also significant that the much talked about written initial sale
instructions to Fingold Real Estate were never tendered in court. Ms
Chidavaenzi was quite categoric that there were no such instructions,
and, in my view, the probabilities are firmly in her favour.
There
were other aspects of Ms Mutodi's evidence which were far from
convincing. It is common cause that both Ms Mutodi and John
Chagaresango were employed by Fingold Real Estate Agents as sales
agents or negotiators. They had worked together for a fairly
reasonable length of time. However, when pushed, under cross
examination, Ms Mutodi said she did not know whether or not John
Chagaresango was a registered estate agent. She also said she did not
know John Chagaresango's qualifications.
Further,
her evidence under cross-examination was not consistent with that of
the defendant even on the purchase price.
The
defendant said the purchase price was pegged at Z$32,000,000= but Ms
Mutodi said she told the defendant that the price was Z$32,500,000=.
Not only that, but Ms Mutodi told the court in her evidence under
cross examination that she disclosed to the defendant about some
clauses in the sale agreement. Compare this with the defendant's
evidence who said she was never told anything including any
escalation in the event of delayed payment and any other clause in
the agreement. In fact, the defendant's explanation was that when
it came to the agreement itself she dealt with her cousin John
Chagaresango and not Ms Mutodi.
The
witness was categoric that the purchase price of the property was
Z$32,500,000 when everyone else involved in this transaction,
including the defendant and John Chagaresango, including the written
copy of the supposed agreement, reflect Z$32,000,000 as the purchase
price.
As
the cross-examination took its toll on her, Ms Mutodi reneged from
her earlier evidence that she had personally negotiated the agreement
itself with the defendant but rather had dealt with John
Chagaresango.
There
was more confusion when the defendant's counsel sought to put
things right in re-examination. The witness again changed her story
and stated that the instructions to sell were given to her and she
passed them on to John Chagaresango.
I
think, in all fairness, it would be extremely dangerous for this
court to seek to be guided by the evidence of this witness. She
sufficiently discredited herself and the record of proceedings will
confirm this observation.
If
Evis
Monica Mutodi's
evidence was so porous and unconvincing then perhaps it is time to
move and look at the evidence of John Chagaresango.
The
Evidence of John Chagaresango
This
witness was the last one for the defendant and is closely related to
the defendant in that he is a son to the defendant's older sister.
The
witness told the court that he went as far as Standard Six and did
undergo some in-house training as a sales agent at Fingold Real
Estate. At the time, he had worked for Fingold Real Estate, as a
sales agent, for about 3 and a half years.
From
his own testimony, it was clear the witness was quite conversant with
his work. He said he was involved in advertising houses for sale,
taking potential purchasers to view houses for purchase, verifying
ownership of houses by checking title deeds through the Surveyor
General's office, and handling agreements of sale.
The
witness confirmed that the defendant was indeed closely related to
him and that she had mandated him to look for a house to purchase.
The
witness told the court that he knew Ms Chidavaenzi
as they worshipped at the same church and then later interacted with
her at Fingold Real Estate as Ms Chidavaenzi was not only a friend of
Ms Violet Alec, the owner of Fingold Real Estate, but had given
Fingold Real Estate the mandate to sell certain of her properties.
It
was the witness's evidence that he was familiar with the sale of
the property in question. Throughout his testimony, he referred to
the property in question as Stand 1382. However, the truth is that
the correct reference of the property is Stand 3182.
It
was quite revealing that John Chagaresango vividly remembered Ms
Chidavaenzi instructing Fingold Real Estate to dispose three of her
properties but conveniently he said he was only involved in the sale
of this particular property which incidentally is linked to his aunt
and is the subject of this dispute.
In
contrast with the evidence of Evis
Monica Mutodi,
John Chagaresango told the court that prior to the defendant visiting
the site for construction Mrs Violet, Ms Mutodi, Ms Chidavaenzi and
himself had been to the site.
John
further told the court that it was to him that Ms Chidavaenzi
disclosed the purchase price of the property in issue. Compare this
with the testimony of Ms Mutodi who had earlier on told the court
that it was to her that this same disclosure was made.
John
vividly remembered that the agreement of sale was prepared at Fingold
Real Estate with him and Ms Mutodi present and having some imput in
it. This was inconsistent with the evidence of Ms Mutodi who said,
among other things, that she handed the original instructions to John
and that once she did that she had nothing further to do with that
agreement.
There
was further confusion created by John Chagaresango's evidence when
he suggested that once the agreements were done, he, together with
Evis
Monica Mutodi took
those copies, together with the original instruction copy, to Ms
Chidavaenzi at her office at Robinson House to have the copies
signed. It was his evidence that Ms Chidavaenzi then asked them to
leave those copies for her to scrutinize after which she would
telephone them. John went on to say that when he later followed up on
those documents, Ms Chidavaenzi told him not to worry as she would
sign the documents.
This
piece of John's evidence presented quite some challenge to the
court for basically three reasons;
(i)
Firstly, it was in sharp contrast with the evidence of Ms Mutodi who
clearly stated that once she gave the original instructions to John
Chagaresango she never had anything to do with this agreement. She
did not herself testify on the visit to Robinson House.
(ii)
The second reason why the court had difficulties with this evidence
was that, important as it appeared in as far as the plaintiff's
declaration was concerned, Ms Chidavaenzi, who was subjected to quite
some long and searching cross-examination, was never specifically
asked about this visit to her offices by both Ms Mutodi and John
Chagaresango as well as John Chagaresango's follow ups.
(iii)
Thirdly, and more importantly, is the fact that after the trial had
started the defendant filed a supplementary summary of evidence in
which she undertook to produce “the original draft agreement with
handwritten alterations by Miss E Chidavaenzi which alterations she
made at the time of sale before the final draft was produced. This is
evidence of her mandate from Ms Chidavaenzi.”
The
assumption was that this document was available and would be produced
in court. Alas! it was never produced and the explanation by John
Chagaresango as regards the fate of this document runs contrary to
what the defendant's summary made on the 11th
hour with the indulgence of the court sought to portray.
John
further told the court, under cross-examination, that he did not
explain all the terms of the agreement to his aunt, the defendant.
Asked to explain his reasons for not doing so he retorted as follows:
“I
did not because the sale of this property was done on trust between
Ms Chidavaenzi and myself.”
In
cross examination, the witness was directed to specific clauses of
the agreement which were apparently not complied with by the
defendant, and all the witness could do was to repeat that this
agreement was not based on what the defendant and himself and others
(as witnesses) had signed for but on other verbal assurances by Ms
Chidavaenzi.
Assuming
the agreement was indeed entered into, it was quite curious to the
court that given the experience of John Chagaresango in real estate
business, he would have failed to appreciate the significance of a
written contract, particularly a contract with a variation clause
which is as specific as clause 8 of the agreement which is sought to
bind the parties in this case.
Surely,
if the agreement was to be based on some other verbal assurances by
Ms Chidavaenzi, would it have been prudent for a man in the mould of
John Chagaresango to encourage his aunt to sign an agreement which
was in sharp contrast with such verbal assurances. An inevitable
question would then arise, why sign the agreement if one desires not
to be bound by the terms above one's signature?
General
Assessment of the Evidence
The
evidence of the plaintiff's representative and Managing Director of
both the plaintiff and the alleged seller, Champion Constructors
(Pvt) Ltd, was precise and to the point. The witness was consistent
throughout her testimony – firstly, in her plea, followed by her
summary of evidence, her evidence in chief, and in her evidence under
cross-examination that she did not give Fingold Real Estate, or
anyone for that matter, the mandate to dispose of the property in
issue and that what happened was tainted with fraud. She was quite
clear that she only got to know about the alleged sale which had
supposedly taken place on 26 September 2006 in November of the same
year when a letter of demand had been dispatched to her by the
defendant's legal practitioners and that she decided not to ratify
such a fraudulent agreement.
The
court was unable detect anything sinister in Ms Chidavaenzi being a
major shareholder in both the above entities, that is Champion
Constructors (Pvt)
Ltd
and the plaintiff.
The
witness was subjected to a focused and thorough cross-examination,
and, in my view, she acquitted herself extremely well and emerged
unscathed.
One
of the several pointed questions which was thrown at the witness in
cross examination which demonstrated her focus and open-mindedness,
which, in the court's view, gave some indication as to the possible
motives behind the conduct of Evis
Monica Mutodi and
John Chagarasango in coming up with this idea of this 'sale' is
captured in the record of proceedings as follows:-
“Q.
Is there any probable reason why Ms Mutodi would go on to sell a
specific Stand in respect of which she has no mandate?
A.
A human being is not predictable, and, in this case, the most
probable reason could have been money because on each sale they made
they would earn a commission and Fingold confirms it that Monica
Mutodi and John both shared the commission they earned from the
unlawful sale.”…,.
As
a witness, I found Ms Elizabeth
Chidavaenzi focused, emphatic, confident, and convincing throughout
the proceedings. Her evidence proclaimed loudly and boldly that there
was no contract to talk about between Champions Constructors (Pvt)
Ltd
and the defendant.
The
same cannot be said of the evidence of Evis
Monica Mutodi and
John Chagaresango. I have already tried to highlight some of the
obvious shortcomings in their testimonies. Their evidence,
individually and combined, was quite suspect as it failed to tally
where it mattered most.
The
evidence of the two witnesses was critical to the defendant's case
because it was through them or one of them that the defendant's
case was supposed to be anchored.
After
listening to, and carefully weighing that evidence it became clear to
the court that Fingold Real Estate could not possibly have been
mandated to sell this property to the defendant by Champion
Constructors (Pvt) Ltd or anyone for that matter. If my reading of
the evidence is correct (which I am certain it is) then Fingold Real
Estate could not possibly have acted as an agent of Champion
Constructors (Pvt) Ltd.
We
have a scenario where, at most, John Chagaresango acted as an agent
of his aunt, the defendant, in looking for a house to purchase. If
John abused his position at Fingold Real Estate then the defendant,
by initiating this litigation, has targeted the wrong party. She is
simply 'barking up the wrong tree.” The defendant's recourse
should be against either Fingold Real Estate Agents or its identified
former employees, John Chagaresando and Monica Mutodi, if it is true
they shared the commission derived from the money paid by the
defendant (which allegation incidentally stands unchallenged in the
record of proceedings).
The
effect of the order of this Honourable Court
That
order was an order by default and it was affecting the parties cited
therein, viz, the defendant in the instant case, Champion
Constructors (Pvt) Ltd and Elizabeth
Chidavaenzi.
Paragraph
(a) of that order clearly stated that it was “legally binding and
enforceable against Champion Constructors (Pvt) Ltd.”
It
is common cause that the holder of title of the property in question
is the plaintiff in this case, which was not cited in the proceedings
of 19th
September 2007. It appears quite clear to me that this order could
not possibly have been fully enforced without the citation of the
holder of title - the plaintiff.
This
might possibly explain why almost three years after obtaining that
order the defendant has not attempted to enforce it. The defendant
might have fully appreciated the futility of pursuing that route.
In
any event, it is doubtful that if the court sitting on 19 September
2007 had been fully armed with the evidence presented in this fully
fledged trial would have granted that order. In my view, the court
would have been constrained to grant that order given that the title
holder was not party to those proceedings. No court desires to be
associated with a brutum
fulmen
decision.
Is
the defendant a bona fide possessor?
It
is abundantly clear from the evidence that the defendant obtained an
order from this court on 19 September 2007 which called upon her to
enforce it. The defendant has, from that time, adopted a
lackadaisical approach in dealing with that order. She has made no
effort to enforce that order and does not seem to be in a hurry to do
so.
Instead,
as the plaintiff's counsel has correctly observed, the defendant
has simply moved onto the property without attempting to properly
enforce the order.
The
defendant is fully aware that the plaintiff was vehemently opposed to
her occupation. Not only that, but when she occupied the property she
embarked on unauthorized improvements on the disputed property. I
believe that under such circumstances the defendant cannot qualify to
be an innocent possessor of the property in question.
In
any event, in the light of the findings of the court, the defendant
is in a fraudulent agreement masterminded by her own agent, John
Chagaresango, and is therefore disabled from deriving any benefit
awarded to a bona fide possessor. The defendant must have recourse
against either her agent or Fingold Real Estate Agents.
The
position the defendant finds herself in was aptly put by RH CHRISTIE,
Business Law in Zimbabwe, Juta and Co. Ltd 1985…, in the following:
“But,
if the agent fraudulently misrepresents his authority he is liable in
delicit for all consequential damages that are not too remote.”
Does
the defendant have a right of lien?
The
point has been made by the defendant's counsel that the defendant
is a bona fide possessor, and, as such, has a lien or ius retentionis
to enforce her right to compensation for the improvement she made on
the property in issue.
The
plaintiff's counsel is of the firm view that the defendant has
recourse against her cousin and agent who fraudulently masterminded
her entering into an agreement with a non-existent principal.
SILBERBERG
and SCHOEMAN, The Law of Property, second edition, published by
Butterworth, 1983…, admirably deal with this issue of lien when
they state;
“By
definition, a lien holder's right lies against the owner of the
property which he has maintained, repaired, or improved…,. The
headnote of the report states that Brooklyn House case is also
authority for the proposition that a person who has improved property
of another, in pursuance of a contract with a third party, has the
same rights as a person who has merely protected it against loss or
damage…,.”
See
also Brooklyn House Furnishers (Pvt) Ltd v Knoetze and Sons 1970 3 SA
264 (A) for further guidance on the issue.
It
does seem to me that the issue of a lien, not having been pleaded in
the alternative or the defendant not having counter-claimed for
compensation for the improvements made, that issue falls squarely
outside the purview of the enquiry that must seize me. For this
reason, this issue which is not part of the pleadings but was only
given prominence in court addresses is irrelevant in the enquiry
before me. The issue does not call for consideration in this matter
for a case is rooted in the pleadings and not in court addresses.
What
the plaintiff has successfully established in this case is that it is
the holder of title of the property in question and that it did not
mandate anyone to dispose of that property. Consequently, the
defendant cannot use her improvements as a weapon or defence against
her eviction. She can only file a claim if she so desires - but after
vacating the premises in question. In this regard, I lean on the
reasoning or the ratio in the case of Syfrets Participation Bond
Managers Ltd v Estate Co-op Wine Distributors (Pvt) Ltd 1989 (1) SA
106 (T). Although the case involved improvements made by a tenant, I
am satisfied that the same principle would apply in the instant case.
Overally,
I am satisfied that the plaintiff's case is with merit and judgment
is accordingly entered in its favour.
IT
IS ORDERED;
1.
That the defendant be and is hereby evicted from the property being
Stand 3182 of subdivision 'A' of Stand 159 Prospect within seven
days from the date of this order.
2.
That the defendant pays costs of suit.
