Belavista Investments v Pombili and Another (APPEAL 158 of 2010) [2011] NAHC 241 (10 August 2011);
“Reportable”
IN
THE HIGH COURT OF NAMIBIA CASE No A 158/10
HELD
AT WINDHOEK
In
the matter between
BELLA
VISTA INVESTMENTS …...............APPLICANT/PLAINTIFF
and
SACKEUS
KANYUGULI POMBILI ….........1ST
RESPONDENT/DEFENDANT
OMUTHIYA
TOWN COUNCIL ….............2ND
RESPONDENT/DEFENDANT
Coram:
DAMASEB, JP
HEARD:
21 June 2011
DELIVERED:
10 August 2011
_________________________________________________________
JUDGMENT
DAMASEB,
JP:
[1] This case started life as a claim for rei
vindicatio against the first
respondent who is in occupation of the land to which the vindication
claim relates. It was brought by way of notice of motion. Ancillary
relief was also sought. Based on registered title, the applicant
wanted the first respondent:
to
be ejected from the land;
to
be ordered to stop construction work on the land;
to
be ordered to remove his building material and structures from the
land; and
to
be ordered not to come on to the land.
[2]
The respondent put up a spirited defence against all of the above
relief and put forward a rival claim to the land from which he was
sought to be ejected, on the basis that the land formed part of
communal land and that he had become owner of that land by having
bought it from a person who was its owner under customary law.
Although the second respondent is cited because of the fact that the
disputed land falls under its municipal jurisdiction,
no
relief is sought against it and it has also not opposed the matter.
[3]
At the close of pleadings in the application, the crisp issue between
the parties was whether
or not the applicant is the registered title holder over the disputed
land, or whether the first respondent was the owner of that land by
virtue of the purported transfer made to him by a traditional leader
purporting to act in terms of customary law.
THE
BASIS OF APPLICANT'S CLAIM TO OWNERSHIP
[4]
As will soon become apparent, the applicant’s claim to
ownership of portion 491, Omuthiya Townlands NO. 1013, situated in
registration division ‘A’ in the Oshikoto Region,
measuring 14,1449 hectares, is based on a deed of transfer No.
4525/2008 taken on 19 August 2008.
It
is now common cause that the disputed property is part of land that
had in 2002 ceased to be communal land as it was declared a
settlement area falling under the Oshikoto Regional Council since
December 2002.1
The
land was transferred to that Local Authority's jurisdiction in
December 2007.2
THE
BASIS OF RESPONDENT'S CLAIM TO OWNERSHIP
[5]
Although the issue had since become moot as the applicant’s
ownership of portion 491, Omuthiya Townlands has since been conceded,
the first respondent laid claim to the land based on an agreement he
concluded with one Leonard Kaloo Shidika on 18 June 2010 in which
Shidika declared as follows:
‘I
am selling my plot to Sakeus Pombili Kanjuguli...at Omuthiya at the
amount of NS 250 000...and it is without any complain.’ (Sic)
[6]
According to the first respondent, Shidika had on his part acquired
the land from a traditional leader, Thomas Nakaziko, who deposed to
an affidavit in the following terms:
‘I
am a traditional leader, duly recognized in terms of the Traditional
Authorities Act, 25 of 2000 as a Chief of the traditional community
at Ekolu Village at Omuthiya. During 1995 I allocated the plot
(currently registered in favour of Mr. Leonald Shidika as No. 24 in
my register of persons with customary land title to one Mr. Johannes
Martin. Mr. Martin later died and the said plot was allocated to his
brother Mr. Titus Alfeus. In 2004 Mr. Alfeus transferred his right to
the plot to Mr. Shidika and I registered the transfer as No. 24 in
the aforesaid register. I attach an extract of the register hereto as
Annexure TNI.’
CASE
CHANGED FROM MOTION TO ACTION
[7]
A significant development in the case is the pre-trial hearing that
took place on 29 April 2011. At that hearing the applicant was
represented by Mr Kauta and the first respondent by Mr Strydom. Mr
Strydom took the view that many disputes had arisen on the papers as
regards the ownership of the land which were irresolvable without
recourse to oral evidence. It appeared that without fully considering
the implications of that, but principally in order to avoid a
potential delay in the hearing of the matter on the set-down date, Mr
Kauta agreed that, instead of the matter proceeding as an opposed
motion which it started life as, it proceed as a trial action.
[8]
I then made an order in the following terms in order to give effect
to what was agreed between the parties:
‘1.
The present application will now proceed by way of trial action and
shall be heard on 23 June 2011; accordingly, the affidavits filed to
date will constitute the pleadings in the action.
The first
respondent (now first defendant) having expressed the wish to do so,
is permitted to file a further pleading in the action in the form of
a plea, and in that respect it is hereby directed that such plea be
filed not later than 6 May 2011.
Should the
applicant (now plaintiff) wish to replicate to the plea aforesaid,
he must file such replication not later than 11 May 2011.
Upon the close of
pleadings as hereinbefore set out, but in any event not later than 2
(two) court days after the replication by the applicant has been
served on the first defendant, the parties’ counsel are
directed to meet and to discuss the future conduct of the trial
action, including but not limited to the following bearing in mind
the proximity of the trial date:
The dates by which
the discovery of documents
Will be done by
either party;
Preparation of a
list of the issues that the
parties seek the
court’s adjudication on, having regard to the pleadings and
admissions made, if any;
Preparation of an
agreed bundle of
documents; and
Preparation of the
list of either party’s
witnesses
to be called at trial.’
[9]
In compliance with that order the then-first defendant filed a notice
of amendment of its plea raising 2 special pleas: one challenging the
applicant’s locus standi (since abandoned) and the other, a
right of retention (pleaded in the alternative to his ownership
claim) over the disputed land, based on an alleged improvement lien.
The latter is pleaded as follows:
“At
all relevant times hereto the first respondent/first defendant has
been in possession and occupation of a portion of Erf 491, Omuthiya.
Further,
at
all relevant times hereto and pursuant to such possession and such
occupation, the first respondent/first defendant has embarked upon
various improvements incidental to the property, the value of which
amounts to N$ 2 000 000-00. The first respondent/first defendant has
a valid improvement lien over such portion of Erf 491, Omuthiya that
relates to the area which is the subject of such improvements, and
which lien the first respondent/first defendant herewith invokes. In
the premises and even in the event of the Honourable Court finding
that the applicant/plaintiff is the owner of Erf 491, Omuthiya, all
of which is still denied, then and by virtue of such improvement
lien, the first respondent/first defendant is entitled to remain in
possession and occupation of such a portion of Erf 491, Omuthiya
until such time as he has been duly reimbursed for such
improvements.”
[10]
The by-then-plaintiff in its replication admitted that the first
respondent was in occupation of the land and had effected certain
construction work on the land but denied its right to an improvement
lien. It replicated in the alternative that in the event of the Court
finding that the first respondent had such a lien, it tendered
security as follows:
‘Insofar
as it may be held that first respondent has established a valid
improvement lien (which is denied), applicant tenders security in the
form of a bank guarantee to be given by a Namibian banking
institution in the amount of N$250 000,00; alternatively, and only if
it is held that the said amount is inadequate, then in the amount of
N$2 million, pending the outcome of an enrichment action to be
instituted by first respondent within 10 days after receipt of the
said security.'
[11]
On 17 May 2011, following a status hearing, the parties filed a joint
report under the new case management rules. The first respondent
recorded the following in paragraph 1.8 of the joint report:
‘1.8
addition
by the first respondent/defendant
At
the meeting it was unequivocally stated on behalf of first
respondent/ defendant that should it be necessary for the court to
determine the issue of ownership, then the
pleadings will need to be extensively amended and the matter will
have to be dealt with on a completely different basis than currently
reflected on the pleadings nor would the
first respondent/defendant be in a position to proceed due to a
series of logistical problems which it is not foreseen will be
resolved by the time the trial is due to commence. The first
respondent/defendant’s rights in this regard remain strictly
reserved.’(My
underlining for emphasis)
[12]
As regards the future conduct of the litigation, the parties agreed
on the following:
‘2.1
The parties agree that applicant/plaintiff’s founding affidavit
will constitute the particulars of claim, the answering affidavit
first respondent/defendant’s plea and the replying affidavit
Applicant/plaintiff replication.
2.2
The parties further agree that first respondent/defendant’s
notice of intention to Amend will constitute
an amendment to his Plea introducing two special pleas and
that it is not required of first respondent/defendant to file an
amended plea.
2.3 at the meeting,
Mr Slabber indicated that applicant/plaintiff will not be replicating
to two special pleas.
2.4
Subsequently, it was agreed that applicant/plaintiff could replicate
to the two special pleas should it be so advised and the replication
attached hereto marked ‘C’ was then transmitted by
telefax to first respondent/defendant’s legal practitioners of
the first instance and to his instructed counsel on 23 May 2011 and
filled at Court on 24 May 2011.’ (My
underlining for emphasis)
[13]
On the understanding that the matter had become a trial action, the
plaintiff filed a discovery affidavit setting out the documents that
it intended to use at the trial. The first respondent did not
discover and just before trial applied for postponement of the matter
which was opposed. That application was never moved. In fact, Mr
Frank asked the Court to reverse its ruling converting the matter in
a trial because, he argued, what was alleged on behalf of the first
respondent as a dispute in relation to ownership, was a 'diversionary
ripple' because the land in question was not subject to the customary
law powers of Traditional Authorities and a traditional leader could
therefore not have passed a valid title to Shidika who in turn
purported to have alienated it to the first respondent. Mr Frank
argued further that in any event, the land had passed to the
applicant on 19 August 2008 while the first respondent only
approached Shidika in respect of the land during December 2009. The
consequence of the latter being that - as Mr. Frank put it–‘whatever
rights and obligations the defendant’s predecessor in title had
to the land (assuming he had any) he could not have transferred
during December 2009 to the defendant without the consent of the
owner of the land.’
[14]
I proceeded to hear oral argument on 21 June 2011, based on the
affidavits filed at the close of pleadings in the application and
also based on the amended plea and the replication thereto. During
the course of argument Mr Strydom for the first respondent conceded
that the applicant's claim to ownership of portion 491, Omuthiya
Townlands NO.1013, was unassailable based on the title deed, and that
prayer 1 in the Notice of Motion was no longer opposed. Upon my
enquiring he agreed that an order could immediately be made in terms
of prayer 1 of the notice of motion.
[15]
It was for that reason that on 21 June 2011, I made an order in the
following terms:
‘The
first respondent is hereby interdicted and restrained from
undertaking or continuing to undertake any construction activities on
Erf 491, Omuthiya, a part of portion 3 of the Farm Omuthiya Townlands
No 1013, situated in the registration division “A” in the
Oshikoto Region, Republic of Namibia (“the premises”).
Judgment is reserved in respect of prayers 2 – 4 of the Notice
of Motion.’
[16]
What remains to be decided now is the remainder of the relief set out
as follows in the Notice of Motion:
‘...
2. Ordering the
first respondent to forthwith remove all and any construction
materials and structures from the premises with immediate effect.
3. Ordering the
first respondent and/or his agents to refrain from entering on the
premises at any time.
4. Costs of suit.’
[17]
Whether or not the applicant is entitled to the remainder of the
relief is bound up with the question whether or not the first
respondent is a mala fide
possessor. The applicant maintains he is and is not entitled to lay
claim to an improvement lien. Mr Frank argued that even if he were
not, he had failed to prove the value of the necessary improvements
to the land that would entitle him to the lien. In the event that I
find that an improvement lien has been proved, the applicant tenders
security in the amount of N$ 2000 000 which the Court may perfect
subject to the first respondent bringing an action within a specified
period and on the basis that he vacate the land.
[18]
Mr Strydom argued that the first respondent is not a mala
fide possessor because he had taken
possession of the land and invested considerable sums of money on it
based on an agreement concluded with a traditional leader who made
himself out to have the authority to do so and that both the
applicant and the second respondent, who ought to have known better,
recognized the authority of the traditional leader and first
respondent's right to the land. Mr Strydom argued that the fact that,
with the benefit of hindsight, in law the traditional leader did not
have the competence on the strength of which he bestowed rights on
the first defendant, does not detract from the fact that the first
respondent took occupation of the land in good faith and could not be
denied the benefit of the expenditure incurred on the land on that
basis.
[19]
Mr Strydom wants the Court to decide that (a) the first respondent is
not a mala fide possessor;(b)
that the money spent in erecting structures on the land was in
pursuit of what he thought was good title; and (c) the first
defendant is entitled to remain on the land as security for his
investment and can only vacate upon the provision of sufficient
security to cover the investment, coupled with an order for him to
bring an action within a specified period.
[20]
Mr Strydom relied on the following in particular: Although
with hindsight, it is clear that the land on which the first
respondent constructed the buildings for which he seeks compensation
had belonged to the applicant by way of registered title since 2008,
since first respondent took occupation of the land, the applicant
itself had been under the belief that the piece of land on which
those buildings were constructed in fact belonged to the first
respondent. That is demonstrated by the fact that the applicant
offered to buy from the first respondent the very land from which it
sought to eject the first respondent in the present proceedings. On
18 January 2010 a director of the applicant wrote to the first
respondent (copied to the second respondent) as follows:
‘Following
our discussion in December 2009 in which you indicate[d] the
willingness to sell your
Erf at Omuthiya
gwiipundi
that is bordering our erf. I therefore want to state that after
further consultations we came to a conclusion not to stand in your
way, thus
you can go ahead to sell your erf.’
(My
underlining for emphasis)
[21]
The second respondent under whose jurisdiction the land fell since
2002 had itself also believed that the land was still subject to
communal land tenure, when on 23 March 2010 in response to a letter
of demand by the applicant, it stated:
‘Again
Omuthiya Town Council took cognizance of your letter dated 25
February 2010 and carefully studied its content thereon... but it
seemed that the demarcation of your land was not communicated/shown
to the people who had the rights of occupation by the Traditional
Authority. As a result the Council was inundated with questions and
claims of ownership by different individuals’.
Before
that the second respondent had approved building plans submitted to
it by the 1st respondent in respect of the very same land.
The second respondent’s chief executive officer had also on 3
march 2010 in a ‘TO WHOM IT MAY CONCERN’ letter
confirmed that the first respondent had ‘bought a land from Mr
Leonard Kaloo Shidika...at Omuthiya at the amount of N$ 250 000...on
30 December 2009.’ The second respondent had also approved
first respondent’s application for sub-division of the very
same land. It is clear therefore that the second respondent under
whose municipal jurisdiction the land fell since 2002 had itself
believed, not only that portion 491, Omuthiya Townlands was the
property of the first respondent, but that the land was still subject
to communal land tenure.
[22]
I must record for completeness that Mr Frank argued that even if the
Court were to find that the first respondent were not a mala
fide possessor initially, he so
became on or about 23 March 2011 and beyond and that the security he
would be entitled to can only relate to investments in the land
before that period.
[23]
Against the backdrop that the first respondent occupied portion 491,
Omuthiya Townlands and begun to construct on it at a time that both
the applicant as legal owner, and the second respondent under whose
municipal jurisdiction that land fell, were under the belief the land
belonged to the first respondent, what falls for decision are the
following: Is the first respondent a mala
fide possessor? What rights does a
mala fide possessor
have? Has an improvement lien been proved and if so what security
would be sufficient?
THE
LAW
[24]
I find a useful discussion of the law on bona fide and mala
fide possessors in Maasdorp's Institutes of South African Law,
Vol. II, The Law of Things, where the learned author states
the following (at p.43):
‘...
[W]where a person has built with his own material, or planted his own
trees, or sown his own seed, or made other improvements, at his own
expense, or by means of his own labour, on the land of another, and
the latter claims back his property the former is entitled to claim
compensation for all necessary and useful expenses he has incurred.
The amount of the compensation is limited to the sum which he has
expended in effecting the improvements.'
The
learned author also states (at p 42.):
'Where
possession has been bona fide up
to a certain point and then becomes mala fide through the possessor
coming to know that he was not entitled to the possession, he only
acquires the fruits gathered by him before that date.’
[25]
To facilitate recovery of the compensation, when the owner of the
land claims back his property, a
bona fide possessor
enjoys a lien or right of retention of the land until his claim has
been satisfied.3
[26]
It
is important to distinguish the right to claim compensation from the
right to retention until compensation is paid. The latter would
always include the former while the former does not always include
the latter. This is amply demonstrated by what is stated in
Maasdorp's
Institutes at
p.45 as follows:
‘A
mala
fide
possessor has no right of retention although he may have a right of
compensation.'
And
further:
‘A
mala
fide
possessor
is in the position of a spoliator, who is bound before everything
else to restore that which he has obtained by spoliation, and is
therefore not entitled to a right of retention, and be bound to
restore the land before the question of compensation can be raised by
him. If, however, the owner of the ground has stood by and allowed
the building to proceed without any notice of his own claim, the mala
fide
possessor
is, owing to the fraud of the owner, placed in the same position as a
bona
fide
possessor,
and entitled to the same rights of retention.’
[27]
Whether or not a mala fide possessor has a right to
compensation does not arise in the present case, and I prefer to
express no view on it.
COMMON
CAUSE OR UNDISPUTED FACTS
[28]
With the concession by the first respondent that led to my granting
prayer 1 of the Notice of Motion, there is no longer any dispute that
the land being occupied by the first respondent is part of the land
covered by the deed of transfer held by the applicant over portion
491 of Omuthiya Townlands. The applicant became the registered
owner of that land on 19 August 2008. The person (Shidika) to whom
the first respondent paid N$ 250 000 for the land had 'acquired' it
from a chief for communal use in 2004. The applicant paid Shidika for
the land in December 2009. From the date on which the land ceased
being communal land, no traditional leader could exercise customary
law powers over it. In terms of the Deeds Registries Act, No.47 of
1937, and s16:
‘Save
as otherwise provided in this Act or in any other law the ownership
of land may be conveyed from one person to another only by means of a
deed of transfer executed or attested by the registrar, and other
real rights in land may be conveyed from one person to another only
by means of a deed of cession attested by a notary public and
registered by the registrar’.
[29]
The irrefutable evidence is that on 23 March 2010 the applicant
informed the first respondent of its legal claim to the land as
follows:
‘You
are herewith informed that you are illegally occupying a large
portion of Erf 491 Omuthiya, which belongs to BELAVISTA. We are the
registered owners of the land as can be established in the Deeds
Office. You have also instructed Messrs Stubenrauch Planning
Consultants to subdivide Erf 491 without having any legal right to it
and without having consulted this with us, the owners of the land. We
are also aware of the fact that you have started constructing on this
land and we hereby demand from you to vacate our land and seize
construction on or before 12h00 noon on 24 March 2010, failing which
we have no alternative but to apply to court for an order to remove
you and stop you from constructing on our land, requesting also the
court to order you to pay all legal costs.’
[30]
As can be seen, the applicant did not attach the title deed to that
letter or specify it in some way that could enable the first
respondent independently verify the claim. Its right of ownership was
then denied in a letter to the applicant written by Shikongo Law
Chambers on 24 March 2011. Given applicant's earlier recognition of
the first respondent as the owner of portion 491, Omuthiya Townlands,
that attitude was both understandable and excusable.
[31]
However, on 6 April 2011, applicant's present legal practitioners of
record then wrote to Shikongo Law Chambers in the following terms:
‘We
respectfully submit that your client has no legal right to the
property which he is currently occupying and developing. Our client
is the lawful and registered owner of the land by virtue of Deed of
Transfer No T. 4525/2008 and should your client claim any ownership,
we put him to the proof thereof. Ne again request you to notify your
client that he is unlawfully occupying the property and any
development he is conducting upon it will be at his own risk and
peril and any advice to the contrary will be reckless in the
circumstances.’
[32]
The significance of the 6 April letter is that for the first time the
applicant provides proof of its ownership of the disputed land; and
having been referred to a deed of transfer by number the first
respondent from that date onwards begun to act at its peril.
MALA
FIDE OR BONA FIDE POSSESSOR?
[33]
For the reasons set out above, I must agree with Mr Strydom that
before 6 April 2010,4
the
first respondent was not a mala
fide possessor.
In the first place, the applicant did not consider him as such and,
secondly,
the
second respondent who should have known better did not.
[34]
To the extent that on or about January 2010, the applicant, the 2nd
respondent and the first respondent had all believed, although
mistakenly as it now turns out, that the first respondent was
lawfully on the land on which he constructed some buildings, he was
not a mala
fide possessor.
That position changed on 6 April 2010 when the applicant provided him
proof that it was the registered title holder of the land. That he
insisted in the face of that to be the owner is unreasonable. He
should reasonably have entertained a doubt about his claim to
ownership; not least because his erstwhile lawyers warned him on 16
July 2010 not to continue with further construction on the land.
[35]
On 16 July 2010, the legal practitioners of applicant wrote a letter
to the first respondent’s legal practitioner from Shikongo Law
Chambers in which they, amongst others, stated the following:
‘Our
client has also informed us that he recently established that your
client has continued building on our client’s property, despite
having received our client’s application for an interdict. Our
client also informed us that your client has now fenced off an even
bigger portion of his illegal building activities. Your are kindly
requested to advice your client to immediately cease building
operations, pending finalization of the hearing of this application,
failing which an urgent application shall be brought for interim
relief to the High Court of Namibia.’
[36]
In reply to that letter, Shikongo Law Chambers replied in their
letter, dated 16 July 2010, as follows:
‘Having
noted the content of your latter regarding the construction, we have
requested our client not to proceed with the construction in case he
is proceeding (copy enclosed).’
[37]
Mr Frank referred me to the case of B C v Commissioner of Taxes
1958 (1) SA 172 (SR) where the following is stated by Beadle J at
179:
‘I
do not think that a man who remains in possession after having been
lawfully told to quit can be said to be in bona
fide
possession pending the decision of a suit to eject him. In my view B
C’s state of mind during this period must have been one of
doubt as to his right to remain in possession. A man whose state of
mind is that of doubt cannot be classed as a bona fide possessor.
Voet 41.3.9.’
This
dictum is in point. I am satisfied that after 6 April 2010 the first
respondent had become a mala fide possessor.
HAS
THE VALUE OF THE IMPROVEMENT LIEN BEEN PROVED?
[38]
Having come to conclusion that the first respondent was bona
fide possessor before 6 April 2010
and mala fide
after that date, the next question is what proof the first respondent
provided of the value of his improvements on the occupied land before
he became mala fide
possessor.
[39]
In the answering affidavit the first respondent stated that he had in
December 2009 paid N$ 250 000 to one Shidika for the land. As far as
other amounts spent are concerned, he states the following in the
answering affidavit:
‘I
have incurred considerable costs in developing Erf 491 and spent more
than N$500,000 already in acquiring the plot from Mr. Shidika and
erecting buildings thereon.’
[40]
The first respondent gives no details of what was actually built and
in the notice of intention to amend filed after the case was
converted into a trial action, the amount of N$500 000 inexplicably
became N$ 2000 000. At all events that amount has been tendered in
the event that I am satisfied that an improvement lien has been
proved.
[41]
Although as things stand at the moment I am satisfied that given the
rather short period between his acquisition of the land and when he
became a mala
fide possessor,5
the
first respondent's claim that he expended N$2000 000 on the disputed
land sounds exaggerated and is in fact unsubstantiated, it is
possible that if the matter proceeded to trial he could have proved
that amount. Given the parties' agreement on 28 April 2011 as I have
shown, the case had metamorphosed into a trial action and gave the
parties certain rights, including the calling of oral evidence to
prove facts. I cannot agree with Mr Frank's suggestion that,
regardless of the parties' agreement, it was open to the Court to
just reverse its earlier order. It would have required the consent of
the parties in light of their earlier agreement, to remove the right
to have recourse to oral evidence to prove a fact in issue.6
As
was stated by the Namibian Supreme Court in Stuurman
v Federal Insurance Company of Namibia Ltd
2009(1)
NR 331 (SC) at 337 para [21]:
‘Parties
engaged in litigation are bound by the agreements they enter into
limiting or defining the scope of the issues to be decided by the
tribunal before which they appear, to the extent that what they have
agreed is clear or reasonably ascertainable. If any one of them want
to resile from such agreement it would require the acquiescence of
the other side, or the approval of the tribunal seized with the
matter, on good cause shown. As was held by the Supreme Court of
South Africa in Filta-Matix
(Pry) Ltd v Freudenbergand Others
1998
(1) SA 606 (SCA) ([1998] 1 All SA 239) at 614B-D: “To allow a
party, without special circumstances, to resile from an agreement
deliberately reached at a pre-trial conference would be to negate the
object of Rule 37, which is to limit issues and to curtail the scope
of the litigation. If a party elects to limit the ambit of his case,
the election is usually binding.”
[42]
Although the value of the improvements by the first respondent is not
properly established; and while it would be onerous on the applicant
to simply order security in that amount just because it made a tender
for that amount, in light of the manner in which the case was
transformed into an action, it would work to the prejudice of the
first respondent to simply dismiss his claim of N$ 2000 000 for lack
of proof. In all fairness, he needs to be afforded the opportunity to
prove the value of the improvements covering the period for which he
was a bona fide possessor.
[43]
In order to avoid delay and costs I will afford the parties the
possibility to agree on the amount of security without returning to
Court for trial of that one issue.
COSTS
[44]
The applicant came to this Court seeking the eviction of the first
respondent from portion 491 of Omuthiya Townlands. In that respect it
has been substantially successful. As it happens, the issue of an
improvement lien was raised on the eve of trial and featured nowhere
in the answering papers. As I demonstrated in paragraph [11] the
first respondent's initial case never included reliance on an
improvement lien giving rise to the right of retention. The applicant
then tendered security without delay although the alleged value of
the improvements is so vague and is incapable of precise
determination. In any event, the applicant's ownership of the land
has since been conceded and the value of the improvement lien remains
unspecified. In all the circumstances the applicant is entitled to
its costs. The matter was of sufficient complexity to justify the
employment of senior and junior instructed counsel.
THE
ORDER
[45]
Accordingly, I make an order in the following terms:
Not
later than 15 days from the date of this order being handed down,
the parties shall meet and discuss a mutually acceptable amount to
constitute sufficient security for the improvements to the land
brought about by the first respondent from the date of his
occupation of that land following the transaction with Shidika, up
to and inclusive of 6 April 2010. If the parties are able to reach
agreement on the amount and the form in which such security must be
provided by the applicant, they must reduce their agreement in
writing, and such agreement shall be subject to the following
conditions:
Within
10 days of the security being
perfected,
the first respondent must bring an action for compensation for
improvements made on portion 491 of Omuthiya Townlands covering the
period from the date of his occupation of the said land following the
transaction concluded with Shidika, up to 6 April 2010; and such
action shall be limited to that period only.
Within
14 days of the agreed security being furnished by the applicant in
the form agreed between the parties, the applicant shall vacate
portion 491 of Omuthiya Townlands and shall remove any and all
construction material from the land and shall refrain from
entering upon the land again save for removing only the
construction material; and failing that the deputy sheriff for
the district of Ondangwa is hereby authorized to evict the first
respondent from the premises and he shall be liable for all costs
associated therewith on the scale as between attorney and own
client.
In
the event of the parties being unable to agree on the amount of
security and the form in which it is to be furnished for the purpose
stated in 1 above, the first respondent must within 5 days of the
parties failing to reach agreement, request from the managing judge
dates for the hearing of oral evidence on the value of improvements
made to portion 491 of Omuthiya Townlands in respect of the period
stated in 1 above. The managing judge shall then issue further
directions for the trial.
Costs
are awarded to the applicant, including the costs of one instructed
and two instructed counsel.
_________________
DAMASEB,
JP
ON
BEHALF OF THE APPLICANT: Adv T J Frank, SC
Assisted
By: Adv G Narib
Instructed
by: Dr Weder, Kauta & Hoveka Inc.
ON
BEHALF OF THE firstRESPONDENT: Adv A Strydom
Instructed
By: Shakumu Legal Practitioners
4He
seemed to suggest that the period should begin to run from the
moment security was tendered. For the reasons I set out in the body
of this judgment I cannot agree with that.
6Namib
Plains Farming and Tourism CC v Valencia Uranium (Pty) Ltd and 5
Others Case NO. SA 25/2008, NmSC
(unreported), at p.25 paras [39] and [40].