In the high court of south africa free state division, bloemfontein

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Case number: 4505/2013

In the matter between:

DOUGLAS MASON Plaintiff Appellant




HEARD ON: 10 February 2015 and 27 October 2015.

Written Heads filed 20 November 2015


[1] The plaintiff sued the defendant for an amount of Two Hundred and Twenty Nine Thousand Eight Hundred and Eighty Two Rand and Sixty Seven Cents (R229 882.67), being the cost of renovations to a farmhouse, in respect of which the defendant granted him a right of occupation, alternatively, being the cost of renovations effected by the plaintiff to the farmhouse, in consequence of a verbal agreement between the parties. Mr DM Grewar represented the plaintiff and Mr MC Louw represented the defendant in this court. At the commencement of the trial, counsel informed the court that they had agreed to separate the issues of the merits and quantum in terms of Rule 33(4) of the Uniform Rules of Court, and that this court is required to adjudicate the merits only. The court is indebted to both counsel who submitted comprehensive written Heads of Argument in this matter.

[2] The plaintiff’s case is that in January/February 2011, the defendant granted him a right of habitatio of a farmhouse called Wetherun (Wetherun) on the farm Pandam, in the area of Steynsrus, Free State, on which the defendant also lived. The conditions of such habitatio are that the plaintiff would restore Wetherun, at his cost, to its original condition or to a habitable condition. In return, the plaintiff would occupy the house and/or live in it for as long as he wants. The plaintiff claims, in the alternative, that he and the defendant entered into a verbal agreement in about January/February 2011 in terms of which the plaintiff could occupy the farmhouse Wetherun for as long as he wants on condition that he restores Wetherun to its original condition or to a habitable condition. I pause to mention that the plaintiff is a Canadian citizen and has temporary residence in South Africa. As a freelance journalist, he is obliged to travel frequently and is in South Africa for a few months at a time.
[3] As a result of the right of habitatio, alternatively the verbal agreement between the parties, the plaintiff undertook renovations to the farmhouse from May 2011 until 14 February 2013, during which time he expended an amount of R229 882.67 for the useful and/or necessary restoration of Wetherun. On 14 February 2013, the defendant summarily terminated the plaintiff’s occupation of the farmhouse, alternatively repudiated and/or breached the verbal agreement between them. The plaintiff’s claim is consequently based on damages suffered as a result of the breach of the verbal agreement, alternatively on the unjustified enrichment of the defendant at the expense of the plaintiff who has been impoverished in the amount claimed.
[4] The defendant’s case is that the parties did enter into an agreement but on terms different to those claimed by the plaintiff. His version is that they agreed that the plaintiff would restore/renovate Wetherun as claimed by the plaintiff, but that the defendant would not be obliged to compensate the plaintiff for any costs incurred in such renovations, except if the farm were to be sold. In that event the defendant would compensate the plaintiff for any increase in the value of the farm as a result of the renovations. He denied being unjustifiably enriched as a result of the renovations effected by the plaintiff. In addition, the defendant, by way of an amendment to his plea in September 2015, raised a special plea that the agreement between the parties was void ab initio because it did not comply with section 3 of the Subdivision of Agricultural Land Act 70 of 1970 (the Act). The agreement was terminable at the instance of either party. He terminated the agreement, as he was entitled to do, as a result of blasphemous statements made by the plaintiff to the defendant and his family.
[5] The issues before this court are:

5.1 Whether the agreement concluded by the plaintiff and

defendant is unlawful and/or void for being in contravention

of section 3 of the Act;

5.2 Whether it was express/tacit/implied condition of the

agreement that the plaintiff would be compensated upon

termination of the contract by either party, or whether the

parties agreed that compensation would be paid to the

plaintiff only upon sale of the farm Pandam, if there was an

increase in the value of the farm as a result of the

5.3 Whether the defendant was entitled to cancel the agreement

because the plaintiff made certain blasphemous statements;

5.4 Whether the defendant repudiated the agreement without

just cause and is in breach thereof; and

5.5 Whether the defendant was unjustifiably enriched as a result

of the renovations to Wetherun.

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