---

 

878

LIEBENBERG  v. LIEBENBERG.

(CAPE PROVINCIAL DIVISION.)

 

1970.  September 30; December II. VAN ZYL, J., and TEBBUTT, A.J.

Landlord and tenant.-Claim for rent based on a tacit lease.-No proof of such contract.-Appellant cannot on appeal base her claim on a condictio.-No proof that enrichment had been unjustified.

 

The appellant had claimed rent from the respondent on the basis of a tacit lease. The court found however that she had failed to prove such an agreement. On appeal the appellant contended that she was entitled to the rent on the basis of a condictio.

Held, that the action had been conducted on the basis of a tacit lease.

Held, further, that the respondent would be prejudiced if the appellant were to be allowed, on ,appeal, to raise the aspect of a condictio or enrichment.

Held, further, that the appellant had failed to prove that any enrichment of respondent had been unjustified and her claim, based on a condictio, could therefore not succeed.

 

Appeal from a decision in a magistrate's court. The facts appear from the reasons for judgment.

 

D. B. Knight, for the appellant;

 

W. G. Burger, for the respondent.

 

Cur. adv. vult.

 

Postea (December 11th).

 

130

 

SOUTH AFRICAN LAW REPORTS (1971) (1)  878-879

(Translation)

 

TEBBUTT, A.J.: Appellant instituted action in the magistrate's court at Calvinia against respondent for payment of three amounts--

(i)       an amount of R15.60 being certain necessary expenses incurred by appellant in connection with the hiring of a motor vehicle which formed part of the costs of a prior lawsuit between the parties and which, so the appellant alleges, respondent under­ took to pay;

(ii)      an amount of R50 being rent in respect of respondent's occupation of a certain room in a house at Calvinia, of which appellant was the usufructuary, from November, 1967 until 31st

 

879

 

March, 1969 at R5 per month, which amount, so appellant alleges, respondent admitted to be the value of the lease of the room; and

(iii)      further rent at R5 per month as from 1st April, 1969 until the date on which respondent pays or vacates the said room.

 

The magistrate granted judgment in favour of appellant on the first and third claims, but rejected her claim for payment of rent in the amount of R80. Appellant now appeals against this finding of the court a quo. The first and third claims are therefore not really relevant to this appeal, but the magistrate's judgment concerning the payment of rent in connection with the third claim, has some bearing on the present appeal, viz. against the rejection of the claim of R80. In order to properly grasp the scope of this appeal, it is necessary, firstly, to refer to the circumstances which gave rise to the action between the parties in the magistrate's court and, secondly, to give a fairly detailed exposition of the pleadings.

 

The present case is the latest of a whole series of litigation between the parties. The parties were previously married to each other and were divorced on the 22nd February, 1968. A deed of settlement whereby the appellant became the usufructuary of a house at Calvinia was incorporated in the final decree of divorce between the parties. This house is situate on plots 194 and 195, Calvinia. It was also agreed that the respondent would pay maintenance in a certain amount to appellant. The latter would also be entitled to lease the said property, whether in whole or in part, as she saw fit, and to retain the rent in partial payment of maintenance. The monthly amount of maintenance which respondent would pay to appellant would be over and above the rent which the appellant would get in this way. This was the first case between the parties. At the time of the divorce, a part of the house was already leased and the monthly rent amounted to R33. Respondent failed to pay the appellant maintenance in 1968 alleging that appellant owed him an amount in connection with certain purchases at a shop and this led to·the second case between the parties in the Magistrate's court at Calvinia. The matter later came on appeal before this Court. A part of the record of that case is relevant to the present case.

 

131

 

879-880                  SOUTH AFRICAN LAW REPORTS (1971) (1)

(Translation)

 

The evidence was led in the magistrate's court at Calvinia on 26th February, 1969. During the cross-examination of the respondent the following appears:

 

"The house is situate on both plots. It is the house of which the plaintiff is the usufructuary. I am of the opinion that R5 per month is a reasonable rent for a room in the house. There is no other contract between us apart from the final decree of divorce and the papers annexed thereto. There is a storeroom in the house not mentioned in the lease, in which I live. I did not pay for the room because in my opinion it was not included. I use it as a storeroom. The storeroom is annexed to house on plots 194 and 195."

Apparently as a result of the respondent's said answers appellant's attorneys addressed the following letter to respondent on 6th March, 1969:

 

880

"re Maintenance Mrs. M. M. E. Liebenberg

I refer to the above and your agreement with my client, dated 10th November, 1967, in terms of which she was granted a usufruct over the property situate on plots 194 and 195, Calvinia. As appears from your own admission you have violated this agreement and you have used, and still so use, one room with a monthly leasing value of at least R5 since the conclusion of the agreement until the present date. Consequently my client herewith claims payment of the amount of R75 being reasonable rent for the period November, 1967 until 28th February, 1969. Should you fail to effect payment of the said amount at my office on or ·before Friday 14th March, 1969 at 10 a.m., legal action will, without further notice being given to you, be instituted against you for payment thereof."

This was then the letter of demand which later led to the present case. The amount which·was eventually claimed, viz. R80, was R5 more because of the elapse of a further month.

I now refer to the pleadings. Appellant's particulars of claim read as follows:

"For payment of the amount of R80 being rent in respect of defendant's (respondent's) occupation of certain premises being part of the house situate on plots 194 and 195, Calvinia, for the period November, 1967 until 31 of March, 1969 at R5 per month being the admitted value of the lease by the defendant and of which the plaintiff is the usufructuary."

 

Respondent requested the following further particulars :

"(a) What part of the house is being used by the defendant;

(b) when and by whom was the rent of R5 per month determined?"

Appellant's answer to the questions with reference to the first ques­tion is, "one room". With reference to the second question the answer is

 

"(i) 26th February, 1969 and during March, 1969; (ii) defendant ,himself and confirmed by plaintiff."

 

It will of course be realised that 26th February, 1969 is the day on which the respondent gave the evidence referred to above and that the letter quoted above was written in March to the respondent.

In his plea respondent admitted that he occupied one room of a building of which appellant was the usufructuary, but denied any agreement concerning its lease or that R5 per month was a reasonable and fair rent. He further pleaded that appellant had only been the lawful occupier of the property since 22nd February, 1968 and that as from that date a tacit agreement existed to the effect that he may use the room free of rent.

 

 

132

 

SOUTH AFRICAN LAW REPORTS (1971) (1)   880-881

(Translation)

 

The only evidence adduced by appellant in substantiating her claim in the present case, is the original record of the previous case which was handed in and certain letters including the letter of 6th March, 1969, handed in by appellant's attorney, Mr. S. J. du P. Hattingh. Mr. Hattingh also testified that respondent failed to reply to the said letter.

The magistrate rejected the claim for R80 for the following reasons.

In her particulars of claim the appellant alleged:

"That a contract of lease existed between the parties in terms of which the defendant had to pay the plaintiff rent at the rate of R5 per month."

In his plea respondent denied this and alleged that it had been tacitly agreed that he could use the room in question without paying rent, and was therefore not bound to pay rent. In view of these allegations the magistrate ruled that the onus was on the appellant to prove the alleged contract.

The only evidence adduced by the appellant was the letter of demand of 6th March, 1969. Concerning this the magistrate said the following:

 

881

 

"It was alleged on behalf of the plaintiff (appellant) that a contract of lease existed because he (respondent)--

(1) occupied the room; and

(2) because he continued to occupy the room after receipt of demand for payment of rent and thus tacitly without disputing the alleged contract of lease, continued to live in the room.

It was also alleged on behalf of the plaintiff that her attorney first became aware of the alleged contract of lease in the course of the previous case. It was also contended on behalf of the plaintiff that the amount of R5 monthly was determined by defendant's (respondent's) admission in the course of the previous case that R5 per month was a reasonable rent for the room. It was also contended that if a person receives a letter of demand and fails to reply thereto or to deny the allegations therein, he admits the claim contained in the letter of demand. These contentions of the plaintiff, viz. that in failing to reply to the letter of demand and to deny the claim therein or by remaining further in occupation he tacitly agreed thereto, hold no water in my opinion. The court therefore held that as far as claim (b) for R80 is concerned, the plaintiff had failed to prove the existence of a legal contract from November, 1967 to March, 1969 in terms of which the defendant had to pay a monthly rent of R5." Concerning the position after 1st April 1969 the magistrate held that the tacit agreement was altered by the letter of demand of 6th March, 1969 into a contract in terms of which the respondent had to pay a rent of R5 and by continuing to occupy the room after receipt of the letter of 6th March, 1969 the respondent tacitly agreed to pay the rent at R5 per month. Because of this, judgment was given in favour of the appellant on the third claim.

Concerning costs. the magistrate ordered that because each of the three claims could be separately and clearly defined, each party should get his or her costs with reference to his or her success in each claim. He therefore ordered that respondent should pay appellant's costs in respect of the first and third claims, but that appellant, should pay respondent's costs in respect of the claim for R80 (forming the subject of the present appeal): Appellant also appeals against this:

Various grounds of appeal were noted, but only one was argued.

 

133

 

881-882                  SOUTH AFRICAN LAW REPORTS (1971) (1)

(Translation)

It is therefore unnecessary to refer to the others. The ground on which appellant relied is that the magistrate erred in identifying or confusing the respondent's occupation of the room with a contract of lease and in holding that the appellant can only claim against the respondent on the ground of a legal contract of lease for his occupation of the room for the period November, 1967 until 31st March, 1969. In my opinion it was correctly not contended that a contract of lease came into being prior to 6th March, 1969 between him and appellant due to the fact that respondent failed to reply to the letter of 6th March, 1969. On this basis appellant could not have argued either that such a contract was thereafter accepted by respondent. There is no evidence proving the existence of such a contract.

In extending the·single ground of appeal Mr. Knight contended, on behalf of the appellant, that appellant was entitled to the R80 on the basis of a condictio. He founded his contention on the case of Lobo Properties (Pty.) Ltd. v. Express Lift Co. (S.A.) Ltd., 1961 (1) S.A. 704 (C), in which DE VILLIERS, A.J., delivered the judgment in this Court. The main headnote of this case reads as follows : "……………………"

 

882 A

Mr. Knight contended that this judgment was on all fours with the facts of the present case.

Before considering this contention it is necessary first to deal with an argument advanced by Mr. Burger, who appeared on behalf of the respondent. Mr. Burger contended that the appellant was not entitled to raise this point on appeal as it never formed the basis of appellant's claim in the court a quo. Although appellant's claim could in the light of the particulars furnished in the summons be construed as a claim on a condictio, so Mr. Burger contended, it cannot now, on appeal, be so interpreted as the parties have further pleaded and conducted the case on the basis of a tacit agreement and that it is consequently too late now to found the claim on a condictio. Mr. Knight's reply is that the particulars contained in the summons lay the foundation for a claim based on a condictio, that the appellant never waived this and that the magistrate erred in thinking that appellant's claim was based merely on a tacit lease.

In my opinion the particulars of claim can be interpreted as a claim based on a condictio, as Mr. Burger conceded. If appellant is entitled to a reasonable remuneration from respondent on the ground of a condictio for the use and occupation of the premises, she does not lose her right in describing the amount as rent. (See the Lobo Properties case, supra at p. 711). The amount which may be claimed by way of a condictio usually equals reasonable rent (see van den Reever, The Partiarian Agricultural Lease, p. 38; Blignaut v. Rademeyer, 18 E.D.C. 200 at p. 208; Union Government v. Foxon, 1925 N.P.D. 47 at p. 56; the Lobo Properties case, supra at pp. 710-711) and in one case the amount which the Court could have·awarded by way of con-

134

 

SOUTH AFRICAN LAW REPORTS (1971) (1)  882-883

(Translation)

dictio was described  as "rent" (per INNES, C.J., in Wepener v. Schraader, 1903 T.S. 629).

Mr. Burger contended that the further particulars make it plain that the appellant based her claim merely on a contract of lease,·because when she was asked by whom "the monthly rent was determined" she answered "by defendant himself and confirmed by the plaintiff". This, Mr. Burger contended, amounted to an offer which had been accepted and that we therefore had to deal with a contract and that there could therefore be no question of a condictio. I do not agree with him. It can always be pleaded that the parties together determined what would be a reasonable remuneration for the use and occupation of the other's premises and the fact that it is described as rent in no way detracts from that.·

Mr. Burger's contention rests on a somewhat firmer basis if one looks at the plea. That respondent understood the basis of the claim to be a lease, becomes in my opinion evident from the altered plea which was filed shortly before the trial. It is admitted therein that respondent occupies a room in the building, but it is denied that "any express agreement concerning the lease thereof has been entered into". This of course still does not mean that appellant intended it to be so-respondent may have erred in his view concerning the claim---

 

883

and the other pleadings filed by the appellant contain nothing to show that she did not intend her claim to be one based on a condictio. On the contrary, in her replication, in answer to respondent's allegation that she tacitly agreed to let him occupy the room free of charge, she denied that he could occupy or use it "without paying any remuneration to her" (the underlining is mine).

 

If one looks at the record of the trial in the court a quo, Mr. Burger's contention is, however, much stronger. It appears from the contentions made there on behalf of the parties that the case was in fact conducted on the basis of a tacit lease. Firstly, when respondent applied for the filing of an altered plea, appellant's attorney objected, inter alia, on the ground that appellant’s attorney objected, inter alia, on the ground that appellant

"would now have to lead evidence concerning the fairness of the rent at R5".

 

Secondly, the question concerning the onus and who is to lead evidence first, was argued and respondent's attorney contended that the appellant had to prove the existence of a contract. It. was not then contended on behalf of appellant that her claim was based on enrichment. Thirdly, in .his address to the court a quo after the closing of evidence appellant's attorney contended as follows. I quote from the magistrate's notes:

 

"Tacit agreement arose by way of plaintiff's stipulation as appears from the notice of 6th March, 1969 which defendant received but failed to reply to. Continued the occupation and in so doing confirmed the lease."

The attorney furthermore quoted quite a number of cases concerning the formation of contracts by the conduct of one of the. Parties.

 

135

 

883-884                  SOUTH AFRICAN LAW REPORTS (1971) (1)

(Translation)

There was no contention and no cases were quoted concerning enrichment or a condictio. The replication of respondent's attorney was aimed throughout at proof of a lease by appellant. The magistrate in his judgment, nowhere referred to a condictio or to possible liability on the basis of enrichment, but only dealt with the question whether a lease had been proved by the appellant. He was in my opinion absolutely correct in approaching the case in this way as no other basis of liability had been argued before him. The allegation that appellant's claim is. also based on a condictio was made for the first time in the notice of appeal---not specifically raised---and was only pertinently argued in this Court.

Concerning the question whether a new point may be raised on appeal, INNES, C.J., said the following in Cole v. Government of the Union of South Africa, 1910 A.D. 263 at p. 272: "………………."

 

883 H

(See also Marks Ltd. v. Laughton, 1920 AD. at p. 22; "Applebee v. Berkovitch, 1951 (3) S.A 236 (C) at p. 247). Herbstein and van Winsen, Superior Court Practice, 2nd ed., p. 655, put it as follows: "………………..”

 

884

SCHREINER, J.A, in Van Mentz v. Provident Assurance Corporation of Africa Ltd., 1961 (1) S.A 115 (A.D.) at p. 122, says the following:

''……………….."

 

884 A

In my opinion the respondent would be prejudiced if the appellant were to be allowed now to raise the aspect of a condictio or enrichment. As already mentioned, this aspect was not properly canvassed before the magistrate. Although certain parts of the pleadings are susceptible to such an interpretation, none of the parties conducted the case before the magistrate on such an interpretation of the pleadings. If appellant had conducted her case on the basis of a condictio respondent would most probably have wanted to lead evidence. He might well have wanted to prove his allegation of occupation free of charge, something which was quite unnecessary as long as the case against him was being conducted on the basis of a lease and appellant failed to adduce even prima facie proof of such a contract. It is also not clear that respondent would not have conducted and argued his case in a totally different manner if appellant had clearly based her case on a condictio.

 

'·For the above reasons I am of. the opinion that Mr, Burger's contention on this preliminary point is sound and that the appeal should be refused on the ground that appellant should not now be allowed to

 

136

 

frame her claim on the basis of a condictio and because appellant failed to argue any other ground of appeal.

For two further reasons this appeal can also not succeed.

Firstly, even if this Court had found that the case had been conducted in ,such a way that a claim based on a condictio could have been considered, then such a claim would also have failed.

The onus of proving that the respondent has been unjustifiably enriched to the prejudice of the appellant, rests on the appellant. She must therefore prove that in occupying the room the respondent was unjustifiably enriched to her·prejudice. I shall accept in appellant's favour (although there is in fact no evidence to this effect) that respondent·has saved rent for another place by his occupation of the storeroom on plots 194 and 195 and that appellant would have leased (although there is again no evidence to this effect) this room if respondent had not used it and that he has thereby been enriched to appellant's prejudice. But this still does not mean that the enrichment was unjustifiable. It cannot be said in every case that a bona fide occupier has been unjustifiably enriched in such a way that he must reimburse the owner for his occupation. (See Rademeyer and Others v. Rademeyer and Others, 1967 (2) S.A. 702 (C) at p. 711). Compensation on the basis of enrichment cannot be claimed for occupation unless the circumstances in which the occupier occupied the premises are such that he would, in the normal run of events, have expected to pay compensation. It is clearly for this reason that the Courts have refused the plaintiff's claim in cases like Pucjlowski v. Johnston's Executors, 1946 W.L:D. 1; Wepener v. Schraader, 1903 T.S. 629; Le Roux v. van Biljon and Another, 1956 (2) S.A. 17 {T). It has been decided in those

 

885

cases that where a purchaser is given possession of property in terms of a contract of sale which is invalid due to a formal defect or for some other reason, the seller cannot claim the value of the use of the land. Our Courts have, however, held that the right to claim arises where a person occupies another's property in circumstances indicating a relationship of lease or something similar, where one would in the normal run of events expect the occupier to compensate the owner e.g. in the case of a putative or inchoate lease. See, e.g. Blignaut v. Rademeyer, 18 E.D.C. 200; Union Government v. Foxon, 1925 N.P.D. 47; the Lobo Properties case, supra. (See also de Vos, Verrykingsaan­ spreeklikheid in die Suid·Afrikaanse Reg, p. 153). That DE VILLIERS, A.J., approached the matter in this way, appears, in my opinion, from his judgment in the Lobo Properties case. There he points out that ,the right· to 'claim arises "……………….."

Appellant failed in the present case to prove any circumstance from which . it could be inferred that respondent should . have expected to pay for his. occupation. On the contrary  it is specifically denied by respondent that he had to pay and he alleges that an occupation free

 

137

 

885-886                  SOUTH AFRICAN LAW REPORTS (1971) (1)

(Translation)

 

of charge had been granted to him by appellant. Appellant apparently also never expected to gain anything from respondent's occupation until the idea that she could perhaps claim something arose as a result of her attorney's cross-examination of the appellant. She has therefore failed to prove any unjustifiable enrichment and therefore a claim based on a condictio cannot succeed.

 

The second further reason why the appeal can in my opinion not succeed, is the following. The onus of proving the amount of compensation rests on the appellant. All that she did to discharge this onus was to refer to the passage quoted from respondent's evidence in the previous case. She tried to use this as an admission of the leasing value of the storeroom---i.e. as proof of the compensation due by respondent for his occupation of the storeroom. In my view this evidence does not amount to an admission. In the first place this passage means that respondent assesses the reasonable rent for the room at R5 per month. The storeroom which he used is adjacent to the house and is probably an outside room. His assessment was made for a room in the house. It cannot therefore be said that he has made any assessment. In the second place the evidence was not recorded by way of question and answer. We are therefore in the dark as to the question to which the respondent replied. The question may give a totally different meaning to the recorded words. There is therefore no justification for the inference that respondent, in answering the question put to him, intended to assess the value of the use of the storeroom. The passage quoted from respondent's evidence can therefore not be used against him as an admission.

The appeal on the merits can therefore not succeed.

 

886

Finally there are still two points concerning costs to which reference must be made. The first concerns the correctness or otherwise of the magistrate's order of costs in the court a quo. It was contended on appeal that appellant was substantially successful in the lower court and was therefore entitled to all her costs. Where claims can be separately and clearly defined a court is, however, entitled to grant each party his costs in respect of every claim in which he was successful (see Jones and Buckle, Civil Practice of the Magistrate's Courts in South Africa, 2nd ed., p. 730). The claims can in the present case be clearly defined. The magistrate granted to each party his costs in respect of the claims in which he succeeded. The magistrate has therefore properly exercised the discretion conferred upon him by law and there is no ground upon which this Court can or should, on appeal, interfere with this order. The appeal against the magistrate's order·of costs is therefore also dismissed. The second point concerns the costs of the appeal. The appellant failed to comply with the provisions of rule 51 (4) of the·Magistrate's Court: she failed to file security for the costs of. the appeal to this Court. When the appeal was called, respon-

 

138

 

SOUTH AFRICAN LAW REPORTS (1971) (1)  886

(Translation)

dent applied for the appeal to be struck from the roll because of appellant's failure to provide security. The appellant then applied for exemption from providing security on the ground of her lack of means. This was the only reply she could give to the application for striking the appeal off the roll. Without abandoning respondent's application Mr. Burger, for the respondent, consented to the hearing of ,the appeal on condition that after such hearing the question of costs be settled.

As far as the costs of the appeal are concerned, respondent is entitled to an order that the appellant should pay these costs because the appeal has failed. Appellant failed to furnish the necessary security and these costs, or at least part thereof, can therefore not be claimed from this source. Appellant also possesses no more than the money she receives by way of support or as rent. Mr. Burger informed the Court that his client would be prepared to accept a monthly payment of R10 in respect of the costs and it will be so ordered. Concerning the costs for the application in respect of appellant's failure to provide security for costs, I am of the opinion that the respondent was fully entitled to apply for the appeal to be struck from the roll and that appellant should bear these costs as well.

In the result the appeal is refused with costs, including the costs in respect of respondent's application to have the appeal struck from the roll. Appellant is granted permission to pay the said costs at R10 per month, which amount the respondent may deduct from the R40 which he has to pay monthly for appellant's support, until the full amount of the costs owing to him in respect of the present case has been settled.

 

VAN ZYL, J., concurred.

Appellant's Attorneys: Schalk Hattingh, Fraserburg; Herold, Gie and Broadhead, Cape Town. Respondent's Attorneys : Groenewald and Groenewald, Calvinia; C. P. de Klerk and van Gend, Cape Town.

 

139

---