THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA
JUDGMENT
Case No 426/09

In the matter between:

ANSELMO INACIO DE FREITAS DE AGUIAR
Appellant

and

REAL PEOPLE HOUSING (PTY) LIMITED
Respondent

Neutral citation:
De Aguiar v Real People Housing (426/09) [2010]
ZASCA 67 (24 May 2010)

Coram:
MTHIYANE, VAN HEERDEN, MLAMBO and
SHONGWE JJA and GRIESEL AJA

Heard:
4 May 2010

Delivered:
24 May 2010

Summary:
Application for leave to adduce further evidence –
requirements restated – whether lessee entitled to rely on
enrichment lien for expenses in respect of necessary and
useful improvements.

ORDER

On appeal from: South Gauteng High Court (Johannesburg) (Bhana
AJ sitting as court of first instance):
(a)
The appeal is dismissed with costs.
(b)
The order of the high court is varied by substituting a period of
60 days for the period of 120 days in para 1 of the order.

JUDGMENT

GRIESEL AJA (MTHIYANE, VAN HEERDEN, MLAMBO and
SHONGWE JJA concurring):
[1] The sole issue for determination in this appeal is whether or not
leave should be granted to the appellant to adduce further evidence so as
to enable him to rely on an alleged improvement lien as a defence to a
claim for his eviction from certain premises. If leave is refused, it is
common cause that the appeal should fail.
[2] The present respondent (as applicant in the court below) obtained
an order in the South Gauteng High Court, Johannesburg for the eviction
of the appellant (respondent in the court below) and all those who
occupy the premises described as 90 Main Road, Walkerville, Meyerton
(the property) by virtue of his occupation.

[3] Most of the relevant facts are uncontentious and can be briefly
stated. The appellant’s father acquired the property as vacant land in
1970, later erecting a family home and other improvements thereon
during the early 1980s. The appellant and his family have been in
occupation of the property ever since. During November 1997 the
property was sold in execution to First National Bank (FNB) after the
appellant’s father ran into financial difficulties. FNB subsequently sold
the property to the respondent, who took transfer thereof during May
2001. On 14 May 2001, the respondent concluded a written lease with
the appellant in respect of the property at a monthly rental of R9 795.04.
In breach of the lease, however, the appellant failed regularly to pay the
rental due and as at 15 April 2006 he was in arrears in a total amount in
excess of R130 000. The respondent accordingly instituted action against
the appellant in the Vereeniging magistrate’s court for recovery of the
arrears and cancellation of the lease. It simultaneously commenced
eviction proceedings out of the same court. Both the action and the
application were opposed by the appellant.
[4] On 25 April 2006 the parties reached a settlement of their
disputes and entered into a written ‘settlement agreement’ which was
made an order of court. In terms of the settlement, the lease was
cancelled and the respondent agreed to sell the property to the appellant
at a purchase price of R1,5 million, which had to be paid, alternatively
secured by acceptable bank guarantees, on or before 31 May 2006.
Clause 1.4 of the settlement agreement provides as follows:

‘In the event that the defendant fails to meet the conditions mentioned in 1.3 above
[ie payment or securing of the purchase price], the defendant has agreed to vacate the
premises on or before 30 June 2006.’
It was also recorded that the agreement constituted ‘a full and final
settlement of the disputes between the parties’.
[5] The appellant failed to pay or secure the purchase price by due
date, with the result that he became obliged to vacate the property on 30
June 2006. He refused to do so, which led to the launching of the
application for eviction in the court below, based squarely on the under-
taking contained in clause 1.4 of the settlement agreement.
[6] In his answering affidavit filed in opposition to the claim for
eviction, the appellant raised numerous issues, none of which amounted
to a valid defence in law and none of which requires judicial attention at
this stage. The learned judge in the court below rightly rejected the
appellant’s opposition to the order sought and found that the
respondent’s right to seek eviction arose out of the ‘self-standing settle-
ment agreement’ entered into between the parties. He accordingly
granted an eviction order, affording the appellant a further 120 days to
vacate the premises.
[7] The appellant filed a notice of application for leave to appeal
against the eviction order, raising a number of grounds of appeal. Those
grounds all fell away, however, and were overtaken by a notice styled
‘Supplementary Grounds for Leave to Appeal’, supported by a
supplementary affidavit, in which the appellant – now represented by a
new legal team – claimed to be entitled to rely on an enrichment lien

over the premises, based on ‘considerable amounts of money’ allegedly
expended by him and his father in respect of ‘necessary and useful
improvements’ to the property. This was an entirely new point, which
was neither foreshadowed in the evidence on record at that stage nor
supported by such evidence. The appellant accordingly sought leave to
appeal so as to enable him to apply to the court hearing the appeal for
leave to lead further evidence relating to such expenses and improve-
ments.
[8] In the event, the application for leave to appeal was dismissed by
the court below, but was subsequently granted by this court on petition.
Pursuant to that order, a substantive application for leave to adduce
further evidence was delivered on behalf of the appellant, which is what
is before us at this stage. Should such leave be granted, the respondent
wants the matter to be remitted to the high court for that court to
determine whether, having regard to the evidence adduced by the
appellant, he is entitled to rely on a lien as a right to retain possession of
the property.
Legal position
[9] In terms of s 22(a) of the Supreme Court Act 59 of 1959 this
court (and a high court) is afforded power –
‘. . . on the hearing of an appeal to receive further evidence, either orally or by
deposition before a person appointed by such division, or to remit the case to the
court of first instance, or the court whose judgment is the subject of the appeal, for
further hearing, with such instructions as regards the taking of further evidence or
otherwise as to the division concerned seems necessary; . . . .’

[10] These provisions have been the subject of judicial scrutiny on
innumerable occasions over the years and although the requirements
have not always been formulated in the same words, the basic tenor of
the various judgments throughout has been to emphasise the court’s
reluctance to reopen a trial:1 in the interests of finality, the court’s
powers should be exercised sparingly and further evidence on appeal
should only be admitted in exceptional circumstances.2
[11] It is incumbent upon an applicant for leave to adduce further
evidence to satisfy the court that it was not owing to any remissness or
negligence on his or her part that the evidence in question was not
adduced at the trial.3 Furthermore, inadequate presentation of the
litigant’s case at the trial will only in the rarest instances be remediable
by the adduction of further evidence at the appeal stage.4 It is thus clear
that the test is a stringent one. As pointed out by Corbett JA in S v N:5
‘A study of the reported decisions of this Court on the subject over the past 40 years
shows that in the vast majority of cases relief has been refused: and that where relief
has been granted the evidence in question has related to a single critical issue in the
case.’
[12] While pointing out that it is undesirable to lay down fixed rules
as to when the court ought to accede to the application of a litigant
desirous of leading further evidence upon appeal, this court as well as the

1 Erasmus Superior Court Practice A1-55 – A1-56 (Service Issue 33).
2 Colman v Dunbar 1933 AD 141 at 161; S v N 1988 (3) SA 450 (A) at 458E; Rail Commuters Action
Group & others v Transnet Ltd t/a Metrorail & others 2005 (2) SA 359 (CC) para 43.
3 Simpson v Selfmed Medical Scheme & another 1995 (3) SA 816 (A) at 824J.
4 R v Carr 1949 (2) SA 693 (A) at 699.
5 Footnote 2 above at 458I–459A.

Constitutional Court has in a series of decisions laid down certain basic
requirements. The formulation that is perhaps the most often quoted is
that of Holmes JA in S v De Jager:6
‘(a)
There should be some reasonably sufficient explanation, based on alle-
gations which may be true, why the evidence which it is sought to lead was not led at
the trial.
(b)
There should be a prima facie likelihood of the truth of the evidence.
(c)
The evidence should be materially relevant to the outcome of the trial.’
[13] Applying the foregoing principles to the evidence before us, I am
of the view that the present application cannot succeed.
Evidence materially relevant to the outcome
[14] Starting with the last requirement first, counsel for the
respondent strongly relied on the terms of the settlement agreement
concluded between the parties on 25 April 2006. He pointed out that it
contains an unequivocal undertaking by the appellant to vacate the
property on or before 30 June 2006, should he be unable to pay or secure
the purchase price by that date.7 It contains no room for an unexpressed
reservatio mentalis that would entitle the respondent to evade his con-
tractual undertakings. The settlement agreement formed an independent

6 1965 (2) SA 612 (A) at 613B. See also the cases referred to in footnote 2 above as well as Loomcraft
Fabrics CC v Nedbank Ltd & another 1996 (1) SA 812 (A) at 824H–825D; S v M 2003 (1) SA 341
(SCA) para 16; Prophet v National Director of Public Prosecutions 2007 (6) SA 169 (CC) para 33;
and President of the Republic of South Africa & others v Quagliani, and two similar cases 2009 (2)
SA 466 (CC); [2009] ZACC 1 para 70.
7 Para 4 above.

basis for the respondent’s application for eviction, as the learned judge in
the court below rightly found. This finding, which has not been assailed
on appeal on behalf of the appellant, is dispositive of the matter. As
correctly submitted by counsel for the respondent, the appellant’s
purported reliance on an enrichment lien is incompatible with the
undertaking to vacate the property. The appellant has not sought – either
in the answering affidavit or in his supplementary affidavit – to assail the
validity of the settlement agreement or to qualify the undertaking
contained therein. In the result, no amount of further evidence relating to
improvements can avoid the consequences of this undertaking or affect
the outcome of the application.
[15] In the light of this conclusion, it is not strictly necessary to deal
with the other requirements. It is, in any event, clear to me that the
application does not comply with any of the other requirements
applicable to applications of this nature, as I shall briefly demonstrate.
A reasonable explanation
[16] From the affidavits filed on behalf of the respondent in the
application for leave to adduce further evidence it is evident that the only
reason why evidence in support of the alleged lien was not placed before
the court earlier was due to the fact that he was allegedly unaware of the
judgment of this court in Business Aviation Corporation (Pty) Ltd &
another v Rand Airport Holdings (Pty) Ltd.8 In that case – an action by a
lessor for the eviction of the lessees from an urban property – the lessees

8 2006 (6) SA 605 (SCA).

relied on an enrichment lien as they had expended money on necessary
and useful improvements to the property for which they had not been
compensated. The lessor met the lessees’ defence with the contention
that the lien purportedly relied upon had been abolished by two
Placaeten, promulgated by the Estates of Holland in 1658 and 1696
respectively. On appeal to this court it was held that the provisions of
article 10 of the Placaeten had never applied to urban leases, with the
result that the Placaeten did not provide an answer to the lessees’
reliance on an enrichment lien. It was this perceived ‘fundamental
change’ in the law of which the appellant claims to have been unaware
and on which he now seeks to rely. The appellant cannot say why his
erstwhile legal representatives did not inform him of his rights, but he
surmises that this must be due to the fact that they had been equally
ignorant of the said judgment and its effect on the rights of lessees.
[17] In my opinion, the appellant’s explanation does not withstand
scrutiny, nor does it excuse his failure to invoke the purported lien at an
earlier stage:
(a)
First, the decision in Business Aviation Corporation was handed
down in this court on 30 May 2006. There is simply no explanation –
apart from pure speculation on the appellant’s part – as to why his
former legal team would have been unaware of that decision when the
present matter came to be argued before the court below exactly one year
later, on 30 May 2007. Whatever the true reason may be, it is clear to me
that this is not one of those ‘rarest instances’ where the respondent

should be permitted to take shelter behind the perceived inadequate
presentation of the defence case.9
(b)
Second, the Business Aviation decision did not create new law, as
suggested by the appellant; it merely clarified the common law position
as it had existed for many years. Nothing prevented the appellant, if so
advised, from relying on an improvement lien when deposing to his
answering affidavit. This is all the more so, seeing that the appellant
alleges that he effected improvements to the property, not only in his
capacity as lessee, but also as a lawful occupier. The Business Aviation
decision did not in any way affect the rights of lawful occupiers to rely
on enrichment liens.
A prima facie likelihood of the truth of the evidence
[18] In his answering affidavit in the main application the appellant
made mention of various improvements effected to the property over the
years, making it clear that it was his father who had developed the
property and paid for the various improvements. Thus, although the
appellant was clearly alive to the issue of improvements when deposing
to his answering affidavit, no mention was made of any improvements
for which the appellant himself can claim credit. In his supplementary

9 Carr’s case, supra.

affidavit, however, the appellant claims that he and his father had spent
‘a substantial amount of money on useful and necessary improvements
to the premises’. Any improvements effected by his father are, of course,
completely irrelevant to a consideration of the lien on which the
appellant seeks to rely. Moreover, any improvements effected before
2001, when the respondent became the owner of the property, are
equally irrelevant, because the respondent could not have been enriched
by such improvements.
[19] As to the details regarding exactly which improvements they
were, when they were effected and at what cost, the appellant is
exceedingly vague. More importantly, the appellant does not presently
have the necessary evidence available to establish the enrichment lien on
which he wishes to rely; such evidence must still be found. According to
him, it has been ‘very difficult . . .  to track down the builders’ who
carried out the improvements in question. He has also experienced
difficulty finding ‘any records of such transactions and in most instances
payment took place in cash transactions the records of which have been
disposed of’. This court is therefore quite unable to evaluate the cogency
of the evidence that the appellant proposes to place before the high court,
should leave be granted. Such evidence as has been adduced by the
appellant, in the form of a report prepared by an architect, Mr John
Cornish, has persuasively been refuted on behalf of the respondent. On
the basis of information supplied by the appellant, Mr Cornish drew a
schedule, illustrated by an aerial photograph, of improvements the
appellant claims to have made after 1 August 2001. With reference to
building plans obtained from the local authority, however, it was

demonstrated by the respondent that most of the improvements claimed
by the appellant have in fact been in existence at least since October
1985 and therefore could not have been improvements effected by him
after August 2001.
[20] Moreover, it is clear from what is set out above that the new
evidence does not relate to a ‘single critical issue’, as required. Instead, it
is envisaged that, should the matter be remitted to the high court and
referred for the hearing of oral evidence, the appellant ‘will be able to
call many witnesses, including the builders (with subpoenas duces tecum
for documents) as well as many of my family members who were aware
that I was paying for the improvements to be effected and witnessed the
building operations’. Thus, what the appellant contemplates is a full-
scale new trial, spanning a lengthy period of time and involving a
multitude of witnesses and documents, much of which will be
strenuously contested by the respondent, as appears from the affidavit
filed in opposition to the present application. This is a compelling con-
sideration against granting the relief sought.10
Conclusion
[21] To sum up, I am of the view that the appellant has not satisfied
any of the requirements for leave to adduce further evidence. In the
circumstances, the application for leave to adduce further evidence is
without merit. It follows that the appeal falls to be dismissed with costs.

10 Cf Metrorail supra loc cit; S v N supra at 459A–B.

[22] Counsel for the respondent has asked us to vary the order of the
court below in one respect: as mentioned earlier, the court below
afforded the appellant a period of 120 days to vacate the property.
Counsel asked that this period be substituted with a period of 30 days. In
the light of the fact that the appellant has had a further period of almost
three years since the date of the order by the high court in which to
arrange his affairs, I am inclined to accede to this request. However, in
my view, a fair compromise would be to allow the appellant a period of
60 calendar days from the date of this order to vacate the property.
[23] It is ordered:
(a)
The appeal is dismissed with costs.
(b)
The order of the high court is varied by substituting a period of
60 days for the period of 120 days in para 1 of the order.

B M GRIESEL
Acting Judge of Appeal

APPEARANCES
FOR APPELLANT:
George Kairinos
Instructed by:
Harry Goss Attorneys, Bedfordview

McIntyre & Van der Post, Bloemfontein

FOR RESPONDENT:
Dirk Vetten

Instructed by:
Martini-Patlansky, Houghton, Johannesburg

Lovius-Block Attorneys, Bloemfontein

THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

From:
The Registrar, Supreme Court of Appeal
Date:
24 May 2010
Status:
Immediate
Please note that the media summary is intended for the benefit of the media and
does not form part of the judgment of the Supreme Court of Appeal.
* * *
DE AGUIAR v REAL PEOPLE HOUSING
– Case No 426/09

The Supreme Court of Appeal today dismissed an appeal by Mr Anselmo De Aguiar
(the appellant) against an eviction order granted by the South Gauteng High Court,
Johannesburg.
The appellant applied to the SCA for leave to lead new evidence so as to establish a
lien over the property in question as a defence to a claim for his eviction from a
smallholding in Meyerton, Gauteng. He alleged that he had spent ‘considerable
amounts of money’ in respect of necessary and useful improvements to the property.
The SCA referred to previous authorities, where it was held that, in the interests if
finality, the court’s powers to allow further evidence ‘should be exercised sparingly
and further evidence on appeal should only be admitted in exceptional circum-
stances’. With reference to the facts on which the appellant relied, the SCA held that
the appellant’s application did not comply with any of the requirements laid down in
the authorities. The appeal was accordingly dismissed with costs. The appellant and

all other persons occupying the premises with him will now have to vacate the
premises within 60 days from the date of the SCA’s order.

--ends--