The most important one for our present purposes is Article 10 which stated: “Provided, nevertheless, that whenever the owner of any lands, takes them for himself, or lets them to others, he is bound to pay the old lessee, or his heirs, compensation for the structures, which the lessee had erected with the consent of the owner, as well as for ploughing, tilling, sowing and seed corn, to be taxed by the court of the locality, without, however, the lessees being allowed to continue occupying and using the lands, after the expiration of the term of the lease, under the pretext of (a claim for) material or improvements, but may only institute their action for compensation after vacating (the lands).”
3. APPLICATION IN SOUTH AFRICAN CASE LAW
In the first reported case on this issue, namely The Trustees in Insolvency of Lyons & Stone v The L and SA Exploration Company, the High Court decided that “apart from the contract, the tenant of an urban tenement is not entitled to claim compensation for improvements at the expiration of his tenancy.”
The court here clearly finds that the placaeten is only applicable to rural tenements by expressly excluding a claim for compensation in respect of urban tenements.
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The leading case in dealing with this aspect however was De Beers Consolidated Mines v London and South African Exploration Company where de Villiers, CJ in his obiter judgement and relying to a great extent on the writings of inter alia Keesel, finds that although the Placaeten does not mention urban property specifically, it was clearly not intended to place rural lessees in a better position than urban lessees.
The case deals with an appeal from the High Court in which judgement was given against the appellant for the removal of a building erected by the appellant. The respondent in the appeal leased to the appellant a certain vacant property on which the appellant erected a building, and removed same at expiration of the lease to leave the property “in good repair and condition”, as required by the contract of lease.
The court finds that “The 9th article had never been accepted in Holland as altering the civil law in regard to the sub-letting of urban tenements, but it does not follow that some of the other articles may not have been accepted as generally applicable. Some of the later writers accept that the 10th, 11th and 12th articles as having been incorporated into the common law of Holland and Friesland relating to landlord and tenant. Their view appears to me to be correct, but even if it were not, I cannot agree with the Judges in the Court below in holding that if the Placaat does not apply to urban tenements, lessees thereof would have no right during their tenancy to remove materials affixed by them to the soil.”
The court is of the opinion that an action for damages should have been the instituted, and the appeal succeeds.
In van Wezel v van Wezel’s Trustee the appellant claimed ownership of inter alia a windmill, cowshed, and enclosures following a sale by his father (before his sequestration), and which was erected by his father on the leased property of the respondent. The court endeavours to determine the Roman Dutch law as it prevails in South Africa in order to ascertain the true legal position in
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regard to the structures. The court questioned whether the Placaat altered the civil law in regards of every kind of lease, or whether it only referred to certain agricultural leases, and referring to the judgement in the De Beers case, the court accepts that it refers to all leases. The court finds that “It appears therefore that all the Placaat intended was that in the cases of leases of agricultural lands (extended by the De Beers Mines v S.A. Exploration Co. to urban tenements), the lessee should have the right before the lease expires to remove from the land the materials of any houses or structures erected during his tenancy. To this extent the Placaat altered the common law of Holland, but no further.”
It was found that the cowshed, enclosures and other structures were intended to be permanent structures and the appeal was accordingly dismissed. The court thus refers with approval to the judgement in De Beers and the extension of the placaeten to urban tenements without really investigating the subject matter further and more thorough.
In Spies v Lombard the Appellate division considered whether the placaeten ever became part of South African law and to what extent. The Court considered article 9 of the placaeten which dictates that lessees of rural land are not allowed to make over their lease or rights, by selling, donating or exchanging without first obtaining the written consent of the owner.
This prohibition was specifically directed against “Bruyckers ofte Pachters” which refer to the lessees of rural land. The court found inter alia that some of the rules derived from the placaeten had become part of our law through reception by the courts, and more specifically those contained in articles 10 to 13.Although the question as to the validity of section 9 of the placaeten in South African law was decided upon, it was also clear that the term “Bruyckers van Landen” which was similarly used throughout the Placaeten, made reference to lessees of rural land and not urban property.
The fact that the obiter dictum in the De Beers case extended art 10 to 12 to both rural and urban property, while interpreting and considering the exact same terms and wording of the placaeten,
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to wit “landen”, could create confusion. This creates an anomaly according to Kerr, as according to him, these four articles should either apply to rural property only or to both rural and urban property.
In the case of Syfrets PMB v Estate & Co-op Wine Distributor the court confirms in judgement that the placaeten have been received into South African law and refers with approval to the De Beers and Van Wezel cases in support of this view. In the application for ejectment by the Applicant, the court further dwells on compensation payable for improvements and although it finds that the placaeten does not deal with urban tenements and only specifically with rural land Van Zyl, J concludes that “ that does not, in my mind exclude land situated in urban areas on the basis, as it were, of the maxim inclusio unius est exclusio alterius.The abuses which were taking place in respect of lessees of rural land or tenements might equally have been perpetrated in respect of urban land or tenements.”
The court then refers to the same term of “landen” and bases the finding on this being the “common denominator.” It goes further by stating that land or ‘landen’ is the rendition of the Latin solum, which means land, earth, ground, soil or the like and is not limited to that situated in any particular area.
The court concludes that it would be inequitable to grant the lessee of an urban tenement a lien but to deny it to the lessee of a rural tenement and that there is no justification in modern law for making such a distinction
Mahomed, J in his judgement in Palaborwa Mining v Coetzer also refers with approval to the De Beers judgement, and is in agreement with the finding of the court in the latter case that the Placaeten did not intend to place agricultural lessees in a better position than urban lessees.
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The Respondent in this matter was the lessee in terms of immovable property leased from the applicant, being the owner. In opposition to an application for an ejectment order, the Respondent claimed that the Applicant was unfairly enriched as a result of improvements effected to the property, and that he has a claim for compensation. The court, while explaining the object of the Placaeten, questions the need for a “rational distinction between urban and rural tenements” and why lessees of urban tenements should continue having a greater scope for abuse than those of rural tenements.
In answering these questions the Court finds that:
“ ..[it] has been suggested...that the Placaaten , in their terms , deal specifically with rural land and were, therefore, not intended to be extended to land in urban areas. I think this is a non-sequitur. Both rural and urban property must be situated on physical land. I can see no reason why abuses by occupiers of such land should be protected in one area and not in another. Certainly, if the operation of these Placaaten is to be extended to modern times in South Africa, there can be no persuasive reason of logic or policy why such an extension must be confined to rural tenements only.”
Although all the cases mentioned above have not specifically dealt with the issue at hand per se, one can conclude from the mostly obiter judgements that the general approach by our courts is that the placaeten is applicable to urban properties, or at the very least that the scope of the placaeten should extend to urban properties.
In 2006 however the Supreme Court of Appeal had the opportunity to reconsider this approach in Business Aviation Corporation v Rand Airport Holdings.
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4. CURRENT POSITION
In probably the most thorough analysis and in depth interpretation of the placaeten, the Appellate Division in the Business Aviation case departs from its previous position on this issue and finds, contrary to previous judgements, that the placaeten does not extend to urban property.
The respondent in this case leased certain property to the appellant in terms of an oral lease agreement, and sought an eviction order against the appellant after giving one months’ notice to vacate the said property, and the appellant failed to do so. The appellants relied on an enrichment lien following necessary and useful improvements made to the property for which they had not been compensated.The court in judgement refers to the Roman-Dutch principle that lessees originally were in the same position as bona fide possessors concerning claims for improvements to leased properties, and that lessees had an ius retentionis that allowed them to retain the property until their claims had been satisfied.
A central and important consideration to the appeal that the Court had to decide on was whether article 10 of the placaeten indeed extended to urban tenements. The Court is not in agreement with the obiter judgement of De Villiers, CJ in the De Beers case and finds the statement in the latter case that articles 10 to 12 of the placaeten extended also to urban lessees as incorrect and erroneous.
Referring further to van Wezel the court further finds the view of Wessels, JA (as quoted above) to be unsupportable and also obiter and thus not binding on the court a quo.The court finds that “...acceptance of the hypothesis that the Placaeten also applied to urban leases could hardly be said to be either unbroken or uniform”, and the appeal was subsequently upheld.
As the court was specifically tasked with the interpretation and application of the placaeten one could quite rightly argue this to be the landmark case (as opposed to De Beers) and as the authority on the subject of the application of the Placaeten, the issue central to the judgement.
The effect of this judgment is that a tenant has an enrichment lien over the landlord’s property it (the tenant) has improved which entitles the tenant to remain in occupation of the property until the dispute for compensation for improvements has been settled.
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5. AN ACADEMIC VIEW
In Kerr’s 1991 essay, Improvements by lessees he opines that in order to interpret the placaeten, one needs to determine what the phrase “landen” means in the context of the placaeten. He states that in a grammatical context its meaning relates to agricultural land or rural property, and that up to 1989 there seems to have been a general perception in legal sources that landen was used in the placaeten with this standard meaning. Referring to van der Keesel, he concludes that
“the earlier authorities who considered that the Placaeten applied to rural land only, are correct”
His reference to earlier authorities seems to refer to the legal position before the judgement was delivered in Syfrets Participation Bond Managers v Estate and Co-op Wine Distributors in 1989, but he revisits the subject a few years later and makes it clear that, the scope of the placaeten should not be extended to include leases of urban property, and is of the opinion that if reform is needed, it should be done by legislature in repealing the placaeten and enacting statutes that conform more to modern needs.
Kahn also spends time on interpreting the placaeten, and similarly concludes that the placaeten clearly does not apply to urban tenements.
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6. CONCLUSION
It seems that the general approach taken by our courts over a period of time was that the placaeten did extend to urban properties. In interpreting the meaning and application of the placaeten, it is clear from most recent case law that this approach is erroneous, and that urban property is not included. Taken together with the very strong opinions of modern South African writers to the same effect, it is clear that the Placaeten of 1658 never included an extension to urban property, and that any attempts to advocate that it does, would be the result of a misconstrued, incorrect or even an incomplete interpretation of the Placaeten.
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- BIBLIOGRAPHY
DU BOIS, F. ET AL
2007.Wille’s Principles of South African Law.9th ed
Juta & Co Ltd.Cape Town
KAHN, E ET AL.
1998. Principles of the law of Sale & Lease
Juta & Co Ltd.Cape Town.
KERR, AJ
1991. Improvements by Lessees
South African Law Journal 108 (9)
KERR, AJ
2004. The Law of Sale and Lease. 3rd ed.
Butterworths.Durban
Wille’s Principles of South African Law.2007
See Syfrets Participation Bond Managers, Palaborwa Mining and Spies cases discussed below
W E Cooper Landlord and Tenant second edition, p 329 note 3, as quoted in Business Aviation Corporation v Rand Airport Holdings, par 8
Van Wezel v Van Wezel’s Trustee 1924 AD 409.
Spies v Lombard 1950 (3) SA 469 (A)
Syfrets Participation Bond Managers Ltd v Estate and Co-op Wine Distributors (PTY) Ltd 1989 (1) 106 (W)
Palaborwa Mining Co Ltd v Coetzer 1993 SA 306 (T)
Business Aviation Corporation (PTY ) Ltd and another v Rand Airport Holdings (Pty) Ltd 2006 (6) SA 605 (SCA)
Praelectiones ad Gr 2.10.8
Syfrets Participation Bond Managers v Estate and Co-op Wine Distributors (PTY) LTD 1989 (1) SA 106 W