IN
THE HIGH COURT OF SWAZILAND
Civ.
Case No.17/88
In
the matter between
LAKE
VIEW (PTY) LTD
and
STEGI
PROPERTIES (PTY) LTD
CORAM
F. X. ROONEY
FOR
APPLICANT MR OSCROFT
FOR
RESPONDENT MR NXUMALO
JUDGMENT
7
June 89
Rooney,
J.
The
applicant is the registered owner of Portion 6 of Farm 987 situated
near Mbabane - Piggs Peak Road. The respondent is the registered
owner of the adjacent Portion 7. Some years ago the respondent
contructed a dwelling house on Portion 6 in the mistaken belief that
the land used for this purpose was included in Portion 7.
In
June 1987 the applicant became aware of the existence of the building
on its land and this was brought to the attention of the respondent.
Later that year the respondent made further additions to the existing
building. On the 2nd January, 1988 the applicant obtained a Rule Nisi
interdicting the respondent from building on portion 6, directing it
to demolish and remove all buildings and evicting the respondent. The
rule was opposed by the respondent.
Counsel
for both parties agreed at the hearing of the matter that the only
issue to be tried was the respondent's entitlement to receive
compensation for the building erected on the land. The estimated cost
of the original building is said to be E4,500 and now is worth
E9,000. The further improvements effected by the respondent,
subsequent to it being advised of the true position, is assessed at
E4,000.
2
The
applicant maintains that the existing building do not amount to any
improvement and that they cannot be adopted for its purposes. The
respondent takes the view that it was in possession of the land bona
fide and that the building is an useful improvement which had
benefited the applicant.
As
the applicant is the owner of the land it is entitled to an order for
possession and the eviction of the respondent. The only question to
be decided is whether that order should be unconditional or
conditional upon the respondent being paid compensation for the
improvements effected.
In
an affidavit filed by the respondent the building in question is
described as "a one bedroomed house with a kitchen and
storeroom, with a combined dining room and lounge, outside toilet and
an open veranda. The total area of the building erected is 123.5
square metres..."
The
original building was enhanced in January 1988 to the following
extent. "The open veranda was closed in, a new open veranda was
built, a new bathroom was built, the house was wired for the
installation of electricity......and plumbing was effected in the
bathroom".
There
is no indication of the materials used in the construction of this
modest dwelling. The applicant's attorneys stated in a letter dated
12 June 1987 "Our clients would have no use for the
building....it does not lend itself to conversion into a standard
dwelling". There is no indication of the intention of the
applicant in regard to the land except a statement by Mr J. R. Masson
that the existing building "will be a hindrence to the
development of the land".
In
regard to the original building erected by the defendant, it is
accepted that this was the result of a genuine mistake. The defendant
believed that the land used was part of Portion 7 which it owned. It
was therefore a bona fide possessor with the animus domini. It
intended to hold the land as owner. (Oosthuizen v Estate Oosthuizen
(1903) T.S. 688...... Innes CJ. at 691).
3
A
bona fide possessor is entitled to be paid upon demand what are known
as "useful expenses." The position of the owner of the land
is considered by de Villiers J.P. in Meyer's Trustee v Malain 1911
T.P.D. 559 at 566; where the learned judge set out passages from
Voet, the Digest and other ancient authorities. The bond fide
pssessor is entitled to recover the useful expenses "insofar as
the property has in reality been enhanced in value, provided the cost
was greater than is the utility or the improvement actually in
existence" (Voet)
The
authorities cited by de Villiers state that the order of the judge
will vary according to the circumstances of the parties and the
facts. At 567 he states -
"Gluck
(-Vol.8 sec. 592 p 303) ........draws the distinction between
improvements which cannot be seperated at all, and those which can be
removed without injury to the principal thing - a distinction which
is inherent in the nature of the case. In the former case, if the
improvements are not as useful as they were to the possessor, or the
expenditure is so great that the owner is not in a position to pay
without selling the property, the possessor cannot ask for
compensation, except insofar as the owner is in a position to sell
the thing and obtain a buyer at once who, in view of the
improvements, is prepared to give considerably more than he otherwise
would have done. If, on the other hand, the improvements can be
separated from the principal thing without damage, then we have to
consider whether the owner, having regard to his position and
financial circumstances, would probably have incurred the expenditure
himself or not. In the former case the possessor can recover the
expenses incurred insofar as the thing has really been improved and
has now been rendered more useful. But if the value of the
improvement is greater than the expenses actually incurred, the
possessor can only recover the expenses. In the latter case, however
the owner may free himself from any liability,
4
liability
in respect of the improvements, and allow the possessor to remove
them insofar as this can be done without rendering the thing worse
than it was before the expenditure was made."
At
569 de Villiers concluded
"If
the improvements can be separated, and the owner himself would
probably not have incurred the expenditure, the owner would be freed
from all liability if he were to allow the possessor to remove them.
In the present case it is beyond doubt that the defendant himself
would not have incurred the expenditure of building the home. His own
home, with which he is quite satisfied, is some distance away, and
the house built by Meyer is quite useless to him. This seems to me to
the equitable view to take; and on this view of the law, even if we
assume for the purpose of this case that Meyer was a bona fide
possessor, the plaintiff cannot succeed." The issue arose again
in Fletcher and Fletcher v Bulawayo
Waterworks
Ltd 1915 A.D. 636. Because the improvement effected on the land
comprised a well and pumping plant a separation could not be
effected, (see Innes C.J. at 648).
5
In
Lechona v Cloete and Others 1925 A.D. 537, it was held that even if
the defendant was to receive the full benefit of the Maxim that "no
one shall be enriched at the expense of another" and was
therefore entitled to useful expenses, as the evidence showed that
the land had not been enhanced in value byond the price of the base
materials annexed to the soil, defendant was not entitled to be paid
by way of compensation more than the value of such materials.
Boshoff
and Another v R & S Syndicate Limited 1933 T.P.D. 253 is a case
very similar to the present one. The appellants without the knowledge
and consent of the owners erected and occupied a building of brick,
wood and iron on their land in the belief that the land was theirs.
The owners would not have erected the building and they sued for
ejectment tendering the right to remove the building even if the
removal caused damage. The court held that the appellants were not
entitled to compensation and upheld the magistrate who had granted
ejectment against the appellants with leave to remove the building.
The
applicant here asks for an order that the the respondent demolish and
remove all buildings on Portion 6. It must be assumed, in the absence
of evidence to the contrary, that the improvements can be separated
from the land without damage to the land itself. In any event the
applicant has not claimed that the removal of the building would
cause any damage and, if it might do so, they have by implication
waived any benefit arising.
6
I
therefore confirm the Rule Nisi obtained on the 22nd January 1988
with the proviso that the respondent shall have 60 days in which to
remove the buildings and all materials relating to it.
I
confirm that the costs of this application must be paid by the
respondent.
F.
X. ROONEY
JUDGE
