Muller v De Water [1912] ZAWLD 26 (22 August 1912)

Ejectment.-Landlord and Tenant.-Parties.-Builder's Lien.-When builder allows possession to tenant of owner before completion of building.

Respondent leased certain pre1nises from applicant, who undertook to give possession on a certain day. Thereafter applicant sued respondent for one month's rent and the latter raiserl the defence that he had not been given possession. The Court decided that possession
had been given to respondent through his son. After the son had obtained possession, he had carried out certain building alterations under a contract with the applicant and a dispute had arisen between them as to payment for the worlc done. Respondent had never actually occupied the premises, and his son claimed to retain possession on the ground that he
had a builder's lien for the amount outstanding under his contract. By virtue of a stipulation in the lease applicant cancelled the lease and claimed an order of ejectment against the respondent :-Held, that notwithstanding that respondent's son was in actual occupation, claimed a jus retentionis in his own right and had not been joined in the application, an
order of ejectment should be granted against the respondent, such order not to affect the rights of anyone claiming possession other than through the respondent.
Semble, that if a builder who is altering premises allows a tenant of the building owner to go· into possession of such premises, the builder, on completion of the alterations, cannot turn the tenant out of possession and therefore cannot assert a builder's lien in connection
with such premises.