Anselmo Inacio De Freitas De Aguiar v Real People Housing (Pty) Limited

The appellant's father acquired vacant land in 1970, erecting a family home and improvements in the early 1980s. In 1997 the property was sold in execution to First National Bank (FNB) after the father's financial difficulties. FNB sold the property to the respondent, who took transfer in May 2001. On 14 May 2001, the respondent concluded a written lease with the appellant at a monthly rental of R9,795.04. The appellant failed to pay rental regularly and by 15 April 2006 was in arrears exceeding R130,000. The respondent instituted action for recovery of arrears and cancellation of the lease. On 25 April 2006 the parties reached a settlement agreement made an order of court, whereby the lease was cancelled and the respondent agreed to sell the property to the appellant for R1.5 million, to be paid or secured by 31 May 2006. Clause 1.4 provided that if the appellant failed to pay or secure the purchase price, he agreed to vacate the premises by 30 June 2006. The appellant failed to pay or secure the purchase price and refused to vacate, leading to eviction proceedings.

• Whether leave should be granted to adduce further evidence on appeal to enable reliance on an alleged enrichment lien as a defence to eviction
• Whether the requirements for adducing further evidence on appeal under section 22(a) of the Supreme Court Act 59 of 1959 were satisfied
• Whether a lessee is entitled to rely on an enrichment lien for expenses in respect of necessary and useful improvements to urban property
• Whether evidence relating to an enrichment lien would be materially relevant to the outcome given the settlement agreement's undertaking to vacate

The appeal was dismissed with costs. The order of the high court was varied by substituting a period of 60 days for the period of 120 days within which the appellant was required to vacate the property.

The binding legal principles established are: (1) The test for adducing further evidence on appeal under section 22(a) of the Supreme Court Act 59 of 1959 is stringent and requires: (a) a reasonably sufficient explanation why the evidence was not led at trial; (b) prima facie likelihood of the truth of the evidence; and (c) material relevance to the outcome of the trial. (2) Courts will only exercise the power to receive further evidence on appeal sparingly and in exceptional circumstances, in the interests of finality. (3) Inadequate presentation of a litigant's case at trial will only in the rarest instances be remediable by the adduction of further evidence at the appeal stage. (4) Where parties have entered into a settlement agreement containing an unequivocal undertaking to vacate property, that undertaking forms an independent basis for eviction and cannot be avoided by reliance on an enrichment lien which is incompatible with the contractual undertaking. (5) Ignorance of a court decision that clarified existing common law (rather than creating new law) does not constitute a reasonably sufficient explanation for failure to lead evidence at trial.

The court made several non-binding observations: (1) That the Business Aviation Corporation decision did not create new law but merely clarified the common law position regarding enrichment liens for lessees of urban property. (2) That any improvements effected by the appellant's father (rather than the appellant himself) would be irrelevant to consideration of a lien the appellant sought to rely upon. (3) That any improvements effected before 2001 when the respondent became owner would be irrelevant as the respondent could not have been enriched by such improvements. (4) That where proposed further evidence does not relate to a single critical issue but contemplates a full-scale new trial spanning a lengthy period with a multitude of witnesses and contested documents, this is a compelling consideration against granting leave to adduce further evidence. (5) The court indicated that a fair compromise for the period to vacate was 60 days, given that the appellant had already had almost three years since the high court order to arrange his affairs.

This case is significant in South African civil procedure for reaffirming and applying the stringent requirements for adducing further evidence on appeal under section 22(a) of the Supreme Court Act 59 of 1959. It emphasizes the principle of finality in litigation and that courts will only exercise their power to receive further evidence sparingly and in exceptional circumstances. The judgment clarifies that inadequate presentation of a case at trial will only rarely be remediable by adducing further evidence on appeal. The case also demonstrates that where parties have entered into a settlement agreement containing clear undertakings, those undertakings will be enforced according to their terms without room for unexpressed mental reservations. It illustrates the interaction between contractual undertakings and equitable defenses such as enrichment liens in the context of eviction proceedings.