IN
THE HIGH COURT OF SWAZILAND
HELD
AT MBABANE
CASE
NO. 1199/91
In
the matter between:
SUSAN
MSIBI PLAINTIFF
And
R.H.
MATTHEIS 1ST DEFENDANT
MRS
D.G. MABUZA 2ND DEFENDANT
CORAM :
DUNN J
FOR
THE PLAINTIFF : MR DUNSEITH
FOR
THE 1ST DEFENDANT : MR SHILUBANE
JUDGMENT
30TH SEPTEMBER 1994
The
plaintiff purchased plot No. 1293 from the second defendant in June
1989. There was a house on the plot which the first defendant had
leased from the second defendant in terms of a written agreement for
a period of 5 years commencing the 1st May 1986. Clause 3 of the
lease agreement provided that-
Any
improvements the lessee may wish to undertake on the premises will be
compensated for after expiry of the lease.
The
plaintiff was aware of the lease agreement at the time of the
purchase of the property and on the basis of the rule huur gaat voor
koop, was obliged to honour the agreement. The first defendant
continued in occupation of the. premises, after the sale of the
property, paying the monthly rental to the plaintiff's agents, Buzzby
Services (PTY) Ltd.
2
It
later transpired that the lease agreement was null and void because
of a failure to comply with certain provisions of the Land
Speculation Control act No. 8/1972, the first defendant not being a
citizen of Swaziland. The first defendant accepted the position and
vacated the premises in February 1991. One of the improvements he had
effected on the property was the erection of a 158 metre diamond mesh
perimeter fence.
The
plaintiff issued summons against the two defendants claiming payment
of a total sum of E12,800.00. The plaintiff's case was that the
second defendant had not disclosed to her that the first defendant
was entitled to compensation for improvements to the property. The
plaintiff alleged that the first defendant had removed some of the
improvements upon vacating the house. The amount claimed was the
value of the improvements plus rental for the months of March and
April 1991.
It
is common cause that the plaintiff's agent prevented the first
defendant from removing the perimeter fence and that it remains in
place to date.
The
two defendants entered an appearance to defend but in time, the
plaintiff obtained default judgment against the second defendant as
prayed in the summons. The first defendant had filed a counter claim
for payment of the sum of E6,000.00 being the cost of the perimeter
fence.
When
the case was called, the plaintiff withdrew the action against the
first defendant and the action proceeded on the counter-claim.
The
first defendant established in his evidence that he erected the
perimeter fence during the currency of the "lease".
3
He
was not challenged in his evidence that the cost of the fence was
E1,102.00. He gave evidence of what it would cost to erect such a
fence at to-day's prices namely E6,000.00 as claimed. It is trite law
that a lessee's right to claim compensation for improvements accrues
upon the termination of the lease and only after he has vacated the
property. Further, that his claim is against the person who is the
owner of the property at the time of the termination of the lease.
See COOPER, THE SOUTH AFRICAN LAW OF LANDLORD AND TENANT 1st Edition
p. 304 and the authorities there cited.
The
fact that the lease agreement was null and void does not alter the
position regarding the payment of compensation. The first defendant
was at the very least a tenant on a monthly lease vis-a-vis the
plaintiff. The rental for the house was paid on that basis to the
plaintiff's agent. The plaintiff was aware of the agreement between
the two defendants regarding improvements to the property and the
obligation to pay compensation continued into the relationship
between the plaintiff and the first defendant. There can be no escape
from the conclusion that the plaintiff is obliged to pay compensation
to the first defendant for the perimeter fence. The question for
decision is as to the extent of the compensation. The learned author
Cooper supra states at p.303 that the compensation to which a lessee
is entitled is the actual cost of material. The lessee has no claim
for the cost of labour. The authorities referred to by the learned
author regarding the exclusion of the labour costs are not available
to me but I accept the learned author's statement as correctly
stating the law. The first defendant is in the circumstances only
entitled to compensation for the perimeter fence in the proved sum of
E1,102.00.
4
Judgment
is accordingly entered in his favour in that sum, on the
counter-claim, together with interest at 9% p.a. from to-day's date
to date of payment and costs.
B.
DUNN
JUDGE
