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[2016] ZAWCHC 46
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Hamman and Another v Kotze (21616/2015) [2016] ZAWCHC 46 (22 April 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case
No: 21616/2015
In
the matter between:
NICOLENE
HAMMAN
..................................................................................................
First
Applicant
BERTUS
PETRUS VAN DER
MERWE
....................................................................
Second
Applicant
And
ALBERTUS
BAREND
KOTZÉ
...........................................................................................
Respondent
JUDGMENT
DELIVERED
THIS 22
ND
DAY OF APRIL 2016
RILEY,
AJ
[1]
On 9 November 2015 the first applicant
brought an application for the eviction of the respondent (her
father), from commercial premises
known as No. 4, 14 Van Riebeeck
Street, Rawsonville. The respondent opposes the application.
On 16 November 2015 and
by agreement between the parties the matter
was postponed for hearing to 9 February 2016 on the semi-urgent
roll. A time
table for the filing of answering and replying
papers was worked out and it was
inter
alia
agreed that respondent would
report weekly in writing to first applicant on the turn over and
sales of the ice cream business conducted
at the said premises.
[2]
On 27 January 2016 the second applicant
brought an application to be joined as the second applicant to the
application.
On 9 February 2016 the parties agreed that
the main application would be postponed to 23 March 2016 for
hearing. Respondent
was granted leave to file a further
answering affidavit by 2 March 2016 and applicants were granted leave
to file further replying
affidavits before 9 March 2016.
[3]
It is not in dispute that in and during the
period 1998 the respondent entered into an agreement of lease with
the second applicant
in respect of premises known as number 2 and
thereafter also in respect of the premises known as number 4, 14 Van
Riebeeck Street,
Rawsonville. This lease terminated in and
during 2003. For the sake of convenience, I shall hereinafter
respectively refer
to the leased premises as unit 2 (i.e. number 2)
and unit 4 (i.e. number 4). It is further not in dispute that
after the
respondent divorced his ex-wife, the first applicant’s
mother, that first applicant and her mother entered into a
partnership
agreement and conducted the businesses known as Alta’s
Food Liner and Nikki’s Kafee and Take Aways.
[4]
On 18 March 2005 first applicant and her
mother dissolved the partnership agreement and it was
inter
alia
agreed that the first applicant
would become the sole owner of the business known as Nikki’s
Kafee and Take Aways, which
business was conducted from the premises
at 14 Van Riebeeck Street; Rawsonville. It was agreed
that first applicant
would conduct the business in her own name and
for her own account.
[5]
It is common cause that the second
applicant is the registered owner of units 2 and 4 at 14 Van Riebeeck
Street, Rawsonville and
that at the time when first applicant
launched this application a valid and enforceable agreement of lease
existed between first
and second applicant’s in terms of which
the first applicant would lease units 2 and 4 from second applicant.
This lease
expires on the last day of February 2020.
[6]
Clause 8 of the lease agreement
specifically provides that first applicant may not sub-let the leased
premises without the written
consent of the second applicant.
It is not in dispute that the second applicant has never given the
first applicant written
consent to sub-let the said premises, nor has
first applicant requested such consent.
[7]
Respondent concedes that when his lease
agreement with second applicant expired in 2003, that first applicant
entered into a new
contract of lease with second applicant on similar
or “
soortgelyke terme
”,
as he puts it. The parties are also agreed that no written sub-lease
was entered into between the first applicant and the
respondent.
[8]
It is further not in dispute that after the respondent’s lease
at the Van Riebeeck Street premises came to an end that
he conducted
an ice cream business known as Milky Lane in Worcester and that in
November 2013 he moved premises from Mountain Mill
Centre to
Stockenstroom Street at Worcester. In October 2014 he sold this
business to a certain Kaminisa Hoosen as a going
concern.
[9]
According to the first applicant she opened the ice cream division of
her existing business, Nikki’s Kafee and Take Aways,
and
operated it from unit 4, from about December 2014. As the
respondent was unemployed and she was already employing her
mother
and brother, she offered him employment as manager of the ice cream
division of her business on the basis inter alia that
he would be
entitled to 60% of all profits generated from it. Respondent
disputes that he is in applicant’s employ
and alleges that he
and the applicant had entered into a sub-lease agreement in respect
of unit 4 in terms of which it was agreed
that she would sub-let the
unit to him against payment of the sum of R2000-00 per month on the
same terms as the lease agreement
between first applicant and second
applicant. Respondent further alleges that he is the sole owner
of the ice cream business
conducted from unit 4 and that he is
entitled to the full profits generated by it.
[10]
To bolster his
claims of ownership of the ice cream business and his averment that
he was sub-letting the premises from the first
applicant, the
respondent further alleges that he effected certain improvements to
unit 4 and that he installed power points and
air-conditioning units,
which work he avers was respectively done by Rawson Elektries BK and
SF Refrigeration CC.
General
principles applicable to lease and sub-letting
[11]
It is accepted
law that where a party has a possessory claim in respect of property,
that he or she may exercise that right in respect
of all third
parties. It is further trite law that where a lessee has no
right to sub-let, the person to whom he or she gives
occupation of
the property, let in terms of a purported sub-lease, acquires no
rights that may be enforced against the owner of
the property and
he/she may be evicted by the latter even if the original lease is not
cancelled. See in this regard
Principles of the Law of
Sale and Lease, Kerr et al p. 76 (1998),
Hissias
v Lehman and Another
1958 (4) SA 715
(T).
[12]
In Hissias v
Lehman and Another (
supra
)
the applicant had in terms of a deed of sale sold an erf to second
respondent and Clause 9 of the deed provided that the purchaser
undertook not to cede his rights under the agreement or to sell or
lease the property, without the written consent of the seller
which
consent was not to be unreasonably withheld. Whilst the
property was registered in the name of the applicant, the second
respondent had without obtaining the required consent, leased it to
the first respondent and placed him in occupation. Roper
AJ
held at p. 718C that ‘…
The
applicant has a real right in his property. As dominus he has
the right of possession and occupation of it against all
the world
save and so far as he parted with his right to such possession and
occupation. In an agreement such as that contained
in this deed
of sale the owner in effect says to the purchaser, ‘I give you
immediate occupation but I will give no right
of occupation to any
person substituted for yourself in occupation unless this is done
with my written consent’. If
a person is substituted
without such consent, that person as it appears to me, is in unlawful
occupation and in position analogous
to that of a trespasser.”
The applicant was granted an ejectment
order. See also
Akoon v Jhavary
1934 NDP 382.
The
factual disputes and the general principles applicable thereto
[13]
In the present
matter there are three main factual disputes that appear from the
papers, namely:
1.
Whether the first applicant and/or
respondent is the owner of the ice cream business which is operated
from unit 4;
2.
Whether first applicant and the respondent
concluded a sub-lease agreement in January 2015; and
3.
Whether the second applicant represented to
respondent that his prior consent to conclude the sublease was not
required i.e. that
the principle of estoppel applies.
[14]
I agree with Mr
Bothma that the first factual dispute relates essentially to the
first applicant and the respondent’s entitlement
to ownership
of and/or the profits generated from the ice cream business, and
related thereto, the question whether or not this
issue is decisive
in the determination of the relief sought in this application.
In my view it is not necessary for
me to make a determination on the
ownership issue to decide whether or not the applicants’ are
entitled to the relief that
is sought in this application.
In dealing with the factual disputes I shall however deal with
and refer
to aspects relating to the ownership issue without making a
final determination thereon.
[15]
In regard to the approach to be followed by
the court relating to the factual disputes in this matter, Ms Marais
who appeared on
behalf of the respondent, submitted that I should
approach the alleged factual disputes on the basis of the well-known
principles
laid down in
Plascon Evans
Ltd v Van Riebeeck Paints (Pty) Ltd
1984 (3) SA (A).
[16]
In that matter
Corbett JA (as he then was) held at 634E – 635C that:
“
The
appellant nevertheless sought a final interdict, together with
ancillary relief, on the papers and without resort to oral evidence.
In such a case the general rule was stated by Van Wyk J (with whom De
Villiers J and Rosenow J concurred) in
Stellenbosch
Farmers Winery Ltd v Stellenvale Winery (Pty) Ltd
1957 (4) SA 234
(C) at 235E – G to be
“
Where
there is a dispute as to the facts a final interdict should only be
granted in notice of motion proceedings if the facts stated
by the
respondent together with the admitted facts in the applicants justify
such an order… Where it is
clear that facts,
though not formally admitted cannot be denied, they must be regarded
as admitted.
”
[17]
It is correct
that in proceedings on notice of motion where disputes of fact have
arisen on the affidavits, a final order, whether
it be an interdict
or some other form of relief, may be granted if those facts averred
in the applicants affidavit have been admitted
by the respondent,
together with the facts alleged by the respondent, justify such an
order.
[18]
In
Ripoll–Dausa
v Middleton N.O. and Others
[2005] ZAWCHC 6
;
2005 (3) SA
141
(C) at 151 G Davis J however held that “
the
power of the court to give such final relief on the papers before it
is however not confined to such a situation. In certain
instances, the denial by the respondent of a fact alleged by the
applicant may not be such as to raise a real, genuine or bona
fide
dispute of fact
”. See in
this regard
Room Hire Co (Pty) Ltd v
Jeppe Street Mansions (Pty) Ltd
1949
(3) SA 1155
(T) at 1163 – 5,
DA
Mata v Otto N.O.
1972 (3) SA 858
(A) at 882 D – H. If in such a case, the respondent has
not availed himself of his right to apply for the deponent
concerned
to be called for cross-examination under Rule 6(5)(g) of the Uniform
Rules of Court and the court is satisfied as to
the inherent
credibility of the applicants factual averment, it may proceed on the
basis of the correctness thereof and include
this fact among those
upon which it determines whether the applicant is entitled to the
final relief which he seeks …
”
The learned judge held further that there may be exceptions to this
general rule as for example where the allegations
or denials of the
respondent are so far-fetched or clearly untenable that the court is
justified in rejecting them merely on the
papers.
[19]
In the present matter the respondent has
not requested that any of factual disputes be referred to oral
evidence. Mr Bothma
has on the other hand submitted that in the
present matter respondent’s version must be rejected on the
basis that the allegations
made by him are far-fetched and manifestly
untenable. He submitted further that this was indeed a case
where the factual
averments made by the respondent are patently
mala
fide
and simply designed to subvert the
Stellenvale principle (
supra
)
and to abuse the Plascon Evans rule to his benefit.
[20]
Before
considering whether there is merit in Mr Bothma’s submissions,
it is necessary to consider certain of the events leading
up to the
launching of this application so that the respondent’s conduct
can be viewed in its proper perspective.
[21]
Applicant avers that after she employed the
respondent as manager of the ice cream division, she and her husband
went away on holiday
for two weeks and on their return on 17 July
2015, she noticed that the respondents’ behaviour and attitude
had drastically
changed towards her. Respondent had adopted the
attitude that he was the owner of the ice cream division and that he
was
not obliged to make any contribution whatsoever to her in terms
of their employment agreement. Although respondent continued
to
make certain contributions to her in respect of the running costs of
the ice cream division, he however proceeded to insure
the ice cream
machine and other assets in the ice cream division in his name, thus
effectively ceasing to make the contribution
of R600-00 per month
towards the insurance premium payable by her.
[22]
It further
became clear to first applicant that respondent was no longer
prepared to comply with his employment agreement with her.
Because of their family relationship, she attempted to resolve the
situation informally but was unsuccessful. Their relationship
however soured further and matters reached a head when first
applicant’s husband and respondent had words and she was forced
to seek legal advice.
[23]
On 11 September
2015 first applicant’s husband received a letter from
respondent’s attorney of record in terms of which
her husband
was
inter alia
advised that he was prohibited from entering onto the ice cream
division of Nikki’s Kafee and Take Aways. In the
aforesaid
correspondence, respondent further avers that he was the
sole owner of the ice cream division.
[24]
On 17 September 2015 first applicant’s
attorneys of record addressed correspondence to respondent in which
respondent was
advised that first applicant insisted that respondent
was in the employ of the first applicant and that he had no separate
rights
in respect of the ice cream division. Respondent was
further advised that due to his conduct and attitude towards first
applicant
and her husband that internal disciplinary proceedings
would be instituted against him.
[25]
On 29 September
2015 the first applicant gave notice to the respondent to attend a
disciplinary inquiry which was to take place
at the offices of the
first applicant’s attorneys of record.
[26]
The main thrust
of the disciplinary charges against the respondent was that there was
a breach of trust in the employer/employee
relationship,
insubordination on the part of the respondent to his employer,
failure to respect his employer’s property rights
and/or
interest and failing to respect his employer’s good name,
reputation and so forth. The further specific acts
of
misconduct are set out in the notice marked NH5 to the record and it
is not necessary to repeat them at this stage.
[27]
On the same day respondent’s
attorney of record wrote to first applicant’s attorney of
record and advised that respondent
was not and is not an employee of
first applicant, that he was the owner of the ice cream division,
that he leased the premises
and that he would accordingly ignore the
notice to attend the disciplinary inquiry.
[28]
In accordance with the disciplinary notice
first applicant held the disciplinary inquiry in the absence of the
respondent.
The outcome of the disciplinary inquiry was that
respondent was summarily dismissed from first applicant’s
employ.
[29]
On 9 October 2015 first applicant’s
attorneys, inter alia, notified the respondent’s attorneys in
writing that the applicant
persisted that respondent was in her
employ and that he had been found guilty of the allegations as set
out in the disciplinary
notice and that the respondent had been
summarily dismissed. Respondent’s attorney of record were
further advised that
first applicant denied that respondent was the
owner of the ice cream division of her business, that in any event,
whether or not
the respondent was an employee or not, that first
applicant was giving respondent notice to vacate unit 4 within
twenty-four hours,
failing which first applicant would apply for his
eviction from the premises.
[30]
On 20 October 2015 and in response to the
notice to vacate, respondent’s attorneys addressed
correspondence to first applicant’s
attorneys in which is inter
alia stated that, respondent “
volstaan
egter dat hy oor ‘n regsgeldige afdwingbare huurkontrak met u
klient beskik
”.
[31]
Considering the
respondent’s averment of the existence of a “legally
enforceable lease agreement” with her, the
first applicant
through her attorneys, and in a letter dated 23 October 2015,
requested the respondent to provide the following
specific
information regarding the alleged lease agreement:
“
1.
Wie was die partye tot die
huurooreenkoms;
2.
Was dit ‘n mondeling of skriftelike huurooreenkoms, en indien
‘n skriftelike ooreenkoms ontvang
ons graag ‘n afskrif
daarvan;
3.
Het die partye persoonlik gehandel; en indien nie, verneem ons graag
die indentiteit van die derde party/partye;
4.
Ons verneem graag wat die vernaamste terme van die huurooreenkoms was
en spesifiek ook:
4.1
wat die huursaak was;
4.2
wat die huurprys was;
4.3
wat die terme van betalings was, weekliks of maandeliks;
4.4
wat die termyn van die huurooreenkoms was, hetsy bepaald of
onbepaald.”
[32]
Instead of
responding to the reasonable request by first applicant’s
attorneys, respondent’s attorneys replied
inter
alia
that; “
u
kliënt is deeglik bewus van die huurkontrak, waar ons klient sy
besigheid bedryf
” and further
“
Die besonderhede wat u van ons
kliënt versoek, is binne u kliënt se kennis
”.
[33]
It is clear that
first applicant was at a very early stage trying to establish the
basis and validity of the respondents claim that
a sub-lease
existed. The response and attitude of the respondent to decline
applicant’s invitation to provide the information
to first
applicant does not make sense particularly in the context of the
defence later raised by him. If it is so that a
valid and
enforceable sub-lease existed, then one would have reasonably
expected him to provide the requested information.
It is
further significant that the respondent did not at this early stage,
when it would have been very easy for him to do so,
provide first
applicant with all the relevant detail and information about the
alleged sub-lease.
[34]
In my view this
was an ideal opportunity for respondent to provide applicant with all
the details in substantiation of his defence
so as to avoid a
situation where an unnecessary dispute of fact could arise at a later
stage should there be litigation.
In my view the
respondent did not provide the information that first applicant
requested as he knew that there was indeed no valid
sub-lease and as
will appear from what later appears herein, that respondent had
fabricated and adjusted his version as the matter
developed, in an
attempt to create the existence of a sub-lease. The consequence of
respondent’s conduct is that by fabricating
and adjusting his
version, that he also created a dispute of fact.
[35]
In the
circumstances the respondent cannot now allege that there is a
dispute of facts and then rely on Plascon Evans in circumstances
where he is responsible for creating the dispute of facts.
The
problems with the respondent’s version
[36]
In
his answering affidavit respondent alleges that he effected certain
improvements at unit 4. According to him he installed three
phase
power points and other improvements at unit 4. This allegation
is however belied in an affidavit deposed to by William
Burger De
Waal (“De Waal”) of Rawsonville Elektries BK in which he
states that he received all instructions for the
upgrade of the power
points in unit 4 from first applicant and that all payments in this
respect had been received from first applicant.
Respondent’s
version that the invoice was accidently made out to first applicant’s
business is not tenable. If
it is so that he gave instructions
as owner of the ice cream business, then in that event, the invoice
would have been made out
in his name and one would have expected that
he would insist that the invoice be made out to him. What is
further significant
is that De Waal, who is a completely independent
party to these proceedings, states that, he was approached by
respondent’s
attorney to sign an affidavit in which he was
required to corroborate respondent’s version by having to state
under oath
that: “…
Ek
bevestig hiermee dat ek opdrag van Albertus Barend Kotze ontvang het
om die werk te verrig soos per Aanhangsel WB1 hierby ingesluit.
Vermelde
faktuur is deur my uitgereik op 15 Junie 2015 nadat Mnr. Kotze die
betrokke perseel as ‘n besigheidsperseel omskep
het.
Ek
bevestig dat Mnr Albertus Barend Kotze ook verantwoordelik is vir
betaling van die rekening en dat hy tans ‘n bedrag van
R
1000.00 per maand aan my betaal ten opsigte van die rekening.
Hierdie rekening is byna ten volle vereffen”
[37]
It is
not in dispute that S W Steyn (“Steyn”) of the
respondent’s attorneys had requested De Waal to have the
affidavit signed in a letter dated 7 December 2015. In
that same letter Steyn states that after De Waal had signed
the
affidavit ; “…
kan Mnr De
Waal die rekening aan Mnr Kotze oorhandig sodat dit aan my kantore
besorg kan word.”
[38]
On 7 December 2015 De Waal sent an
email to Steyn Prokureurs in which he emphatically states:
“
Ek dra geen kennis van Mnr. Kotze
se opdragte nie. Alle instruksies is ontvang van Mev. Hamman.
Toerusting wat installeer
is behoort ook aan Mev. Hamman.”
[39]
As appears from
the aforementioned, De Waal had refused to sign the affidavit
that was presented to him by Steyn Prokureurs.
It is clear that
he refused to sign the affidavit as its contents was false and or
untruthful and he specifically informed respondents
attorneys that he
had received all instructions to do the installations and
improvements from the first applicant and that she
had paid him for
the services rendered. It is noteworthy that respondent and or his
attorneys only made the overtures to De Waal
after the applicant had
already launched the application against the respondent.
[40]
The attempt by
respondent and or his attorneys to persuade De Waal to sign an
affidavit, the content of which was clearly not true,
is disturbing
and more so indicative of a desperate attempt on the part of
respondent to fabricate and or build up a version that
he was the
owner of the ice cream division and / or to give credence to his
version that he was the sub-lessee of unit 4.
What is
further significant is that the respondent makes no mention of the
overtures that he made to De Waal in any of the papers
filed by him
of this affidavit nor does he attach the correspondence and / or
affidavit to his opposing papers.
[41]
A further
problem that respondent is confronted with is his allegation that:
“
20. Ek het vir SF
Refrigeration opdrag gegee om lugversorging in perseel 4 te
installeer sowel as ‘n luggordyn.
Ek heg hierby aan
as ’ABK5’, synde die faktuur aan my voorsien deur SF
Refrigeration BK ten opsigte van die luggordyn
sowel as die deposito
strokies vir betalings wat ek aan SF Refrigeration gemaak het.”
This allegation is similarly contradicted by the independent evidence
of Steven Engelbrecht of SF Refrigeration who
states in an affidavit
that all instructions to install air conditioners in unit 4 were
received from first applicant and that
all payments in respect
thereof was also made by her. Respondent’s version
in this respect is dealt a further
blow by the second applicant who
in an affidavit in the replying papers states that applicant had
approached him for permission
to make improvements to unit 4 and that
he had given her permission to do such improvements.
[42]
There is no
basis for a finding that either De Waal and /or Engelbrecht colluded
with the first applicant. The evidence rather
points to a poor
and desperate attempt on the part of the respondent to build up a
version which did not exist and for which there
was no basis in fact
or law.
[43]
Even though Ms
Marais submitted that there was no proof in the form of a contract of
employment or proof of the payment of employee
taxes to show that
respondent was in fact in the employ of the first applicant,
she could not give a reasonable explanation
why, if the respondent
was not employed with first applicant, reference is made to him in
first applicant’s daily duty roster/register
that she kept for
her business. The suggestion that he is referred to in the
daily duty roster/register, because first applicant
wanted to keep a
record of who was in the premises at every given time does not make
sense and is rejected. If the respondent
was indeed
self-employed and conducted the ice cream business independently,
then there would be no reason whatsoever why his name
would appear in
the applicant’s daily duty roster/register that was kept for
her employees. It may be so that the daily
duty roster/register
was not kept in the most satisfactory way but I am nonetheless
satisfied that it is definitely a factor which
supports first
applicant’s averments that respondent was in fact employed by
her. I pause to mention that respondent was
further unable to give a
reasonable explanation as to why he would have to account to first
applicant for his whereabouts if he
conducted his own business.
In this regard I refer in particular to the entry made in the daily
duty roster/register relating
to him doing “
Worcester
aankope
” and or why the daily
duty roster would stipulate what times he was on duty. In my view
nothing turns on the fact that there
was no written contract of
employment between the parties and / or that there was no proof of
payment of employee tax.
[44]
A further aspect
reflecting negatively on the respondent’s version is the fact
that he denied knowledge of any similarity
between the 1998 contract
concluded between himself and second applicant and the subsequent
lease agreement concluded between first
and second applicant.
In his first answering affidavit, in dealing with the issue of his
knowledge of the contents of the
lease agreement, respondent
specifically states that: “
In
2003 het die huurkontrak met van der Merwe verstryk en applikant het
‘
n nuwe kontrak met
soortgelyke terme met van der Merwe
aangegaan in haar eie naam.”
(my
emphasis)
[45]
On a simple
reading of this statement by respondent I understand this to mean
that according to the respondent the lease agreement
entered between
first and second applicant; subsequent to the termination of his
(i.e.. respondent’s) lease with second applicant,
contained
similar terms to the lease agreement he had concluded with the second
applicant. I must accept that respondent
would not make
such a statement unless he had, had sight of the agreement entered
into between first and second applicant, and
or if he was aware of
the terms of the agreement. In conflict with his
knowledge of the terms of the agreement between
the first and second
applicants’, respondent surprisingly later states in his second
answering affidavit that:
“
32
… ek bevestig dat die terme van die kontrak tussen
die eerste en tweede applikante, anders as die huursaak
en die termyn
daarvan, nie binne my kennis was toe ek die onderverhuur kontrak met
die eerste applikant aangegaan het nie, en dat
dit eers tot my kennis
gekom het na ek die eerste applikant se funderende stukke gelees
het.”
[46]
If the latter averment is correct then it
is strange that applicant did not at the outset mention what is
contained in para 32 of
his second answering affidavit.
It is further important to point out that respondent does not dispute
the allegation
that second applicant’s prior written consent
was required for the sub-lease in respect of unit 4. In
regard
to the fact that second applicant’s written consent was
required for the sub-lease, respondent states in his first answering
affidavit that:
“
Ten
alle relevante tye was die verhuurder; van der Merwe, deeglik bewus
van die feit dat ek in perseel 4 my besigheid bedryf het,
dat hy dus
minstens stilswyend toestemming gegee het tot die onderverhuuring
deur applikant van perseel 4 is aan my duidelik.
”
[47]
I agree with Mr. Bothma that it is clear
that respondent had, insofar as the first answering affidavit was
concerned, at the least,
nailed his colours to the mast by alleging a
tacit approval on the part of the second applicant for the conclusion
of the sub-lease.
[48]
After the second
applicant was joined to the proceedings, the respondent however,
adjusted his version. In his second answering
affidavit respondent
alleges that he was never aware that prior permission on the part of
the second applicant was required for
the conclusion of the
sub-lease. In this regard, respondent states:
“
24.1
Die tweede applikant was bewus daarvan, sedert ten minste Januarie
2015, dat ek die perseel by eerste applikant huur en dat
ek die
roomysbesigheid vir my eie rekening bedryf, soos hierbo
uiteengesit, maar het nooit aangedui dat sy toestemming benodig
is om
die onderverhuurkontrak aan te gaan nie.
24.2
Die eerste en tweede applikante het dus deur hul gedrag, nalatig of
opsetlik, die indruk geskep dat die eerste applikant nie
die tweede
applikant se toestemming nodig gehad het om die onderverhuurkontrak
met my aan te gaan nie of in die alternatief, het
hul die indruk
geskep dat die tweede applikant sy toestemming vir die eerste
applikant gegee het om onderverhuurkontrak aan te
gaan.”
[49]
The
inconsistencies and the conflict in respondent’s above two
versions are obvious. On the one hand (in the first answering
affidavits), respondent concedes that second applicant’s
consent is required for the conclusion of the sub-lease, but
alleges that this consent was tacitly granted and states that this
consent/permission was “duidelik” to him.
In the
second answering affidavit respondent alleges that the second
applicant represented to him that no such consent was ever
required.
[50]
I am on the
whole satisfied that the inconsistent and conflicting versions of the
respondent are indicative of a litigant who, as
aptly submitted by Mr
Bothma, “seeks to amend his factual allegations to relieve the
pinch of the shoe.”
[51]
On the evidence
before me I am satisfied that the respondent tailored and adjusted
his factual version as and when he needed to
do so, to suit his
case. I accordingly have no hesitation in rejecting the
respondent’s factual version of the existence
of a sub-lease
between him and first applicant as untenable and unworthy of belief.
[52]
My findings in this regard are fortified by
the affidavits of De Waal and Engelbrecht and the second applicant
who materially confirm
and corroborate the first applicant’s
version. In addition, although respondent addresses the facts
contained in the
affidavit by second applicant, filed with the
replying papers, he ignores the allegations made by De Waal and
Engelbrecht as hereinbefore
referred to.
[53]
Considering the numerous discrepancies,
inconsistencies, and/or contradictions in respondents factual
version; his version that
there was a sub-lease between himself and
first applicant accordingly falls to be dismissed on this basis
alone.
The
estoppel argument
[54]
According to Ms De Waal, the respondent’s
main contention is that a fixed term agreement sub-lease agreement
was concluded
between the respondent and first applicant in respect
of unit 4 and that the first and second applicants either
intentionally or
negligently represented to the respondent that the
sub-lease agreement was valid and enforceable for that fixed
period and
that the respondent had accordingly acted thereon to this
detriment, believing the truth of their representation by
establishing
the ice cream business at the premises (i.e. at unit 4)
with a view to operate it in “the medium term”.
[55]
In
South
African Broadcasting Corporation v Coop
2006 (2) SA 217
(SCA) para 64 at 233 I – 234 A the SCA held
that:
“
The
essentials of estoppel can briefly be stated as follows: The person
relying on estoppel will have to show that he or she was
misled by
the person whom it is sought to hold liable as principal to believe
that the person who acted on the latter’s behalf
had authority
to conclude the act, that the belief was reasonable and that the
representee acted on that belief to his or her prejudice
.”
[56]
It is accepted
law that the doctrine of estoppel is based on considerations of
fairness and justice, and its application is aimed
at preventing
prejudice and injustice. See LAWSA Vol 18, 3
rd
ed, para 79. According to
Amler’s
Precedents and Pleadings
(7
th
ed) Harms 195-197 the essentials for the doctrine of estoppel are the
following:
(a)
Representation by words or conduct of a
certain factual position.
(b)
The party acted on the correctness of the
facts as represented.
(c)
The party so acted, or failed to act; to
her or his detriment.
(d)
The representation was made negligently.
(e)
The party who made the representation could
bind the defendant by means of a representation
See
also
The Law of Estoppel in South
Africa,
Rabie and Sonnekus 3
rd
ed, 48-13
Company Unique Finance (Pty)
Ltd v Johannesburg Northern Metropolitan Local Council
2011 (1) SA 440
(GSJ) at 458 – 459 A and
Glofinco
v Absa Bank Ltd t/a United Bank
2002
(6) SA 470
(SCA) at para 12. According to Rabie and Sonnekus
(supra)
para 36, estoppel must be pleaded. The onus of establishing
estoppel rests on the party who raises it i.e the estoppel assertor.
See
Union Government v Vianini Ferro -
Concrete Pipes (Pty) Ltd
1941 AD 43
at
49, Strachan v Blackbeard and Son1910 AD 282 at 288 – 289.
All the elements and facts necessary to constitute
estoppel must be
set out in the pleadings with precision; certainty; accuracy; and
particularity. The principle that estoppel
should be raised in
pleadings or application papers was reaffirmed in Company Unique
Financial (Pty) Ltd v Johannesburg Northern
Metropolitan Council
(supra) where the court held at 459 A-B that; “…
a
claimant who relies on an estoppel will have to show that he or she
was misled by the principal in believing that the party, who
purportedly acted on the principals behalf had authority to conclude
the act, that the belief was reasonable and that the claimant
acted
on that belief to his or her prejudice. Assurances by the agent
of the existence or extent of his own authority are
of no
consequence.
”
[57]
I have already hereinbefore highlighted that the respondent has given
inconsistent and conflicting versions of whether or not
he was aware
that the second applicant’s written consent was required.
I have also found that the factual averments
made by the respondent
are untrue and untenable.
[58]
Considering the legal principles outlined
above I am of the view that the estoppel argument raised on behalf of
the respondent must
fail for inter alia the following reasons:
58.1
Respondent has failed and neglected to expressly
plead estoppel.
58.2
Respondent makes no reference whatsoever to the
principle of estoppel and the closest he comes to asserting anything
relating to
estoppel is when he states in his further answering
affidavit that;
“
21.5
Die eerste en tweede applikante het dus deur hul gedrag nalatig of
opsetlik, die indruk geskep, dat die eerste
applikant nie die tweede
applikant se toestemming nodig gehad het om die ondervehuringkontrak
met my aan te gaan nie of in die
alternatief, het hul die indruk
geskep dat die tweede applikant sy toestemming vir die eerste
applikant gegee het en onderverhuuringkontrak
aan te gaan.
21.6
Die verteenwoordiging wat hulle geskep het was, met betrekking tot
die eerste applikant se woorde en gedrag uitdruklik en
ondubbelsinning tot en met die onaangename ommeswaai in haar
gesindheid teenoor my vanaf Julie 2015. Die tweede applikant
se
gedrag ten opsigte van my eienaarskap van die besigheid en die
ondervehuur van perseel 4 was ook ondubbelsinning tot en met
sy
betrokkenheid by hierdie aansoek.
21.7
As gevolg van die eerste en die tweede applikante se gedrag, en die
indruk wat hulle geskep het dat ek regmatig die perseel
by die eerste
applikant huur het ek die besigheid ingerig en bedryf op die basis
dat ek ‘n vaste termyn huurkontrak het wat
geldig is tot ten
minste Februarie 2020, en dat ek tot dan ‘n kontraktuele reg to
die huur van perseel 4 het”
58.3
It is significant that respondent makes these
averments against the background of his earlier statement that; “…
en ek was op geen tyd bewus dat daar so
‘n term in die hoofooreenkoms was nie”,
with
reference to the fact that the lease agreement between first and
second applicant prohibits sub-letting without the written
consent of
the second applicant.
58.4
This is of course at odds with the averments made
by him in his first answering affidavits where he states at 71 para
87 that; “…
hy dus minstens
stilswyend toestemming gegee het tot die onderverhuuring deur
applikant van perseel 4 aan my is duidelik.
”
58.5
Respondent alleges that second applicant
represented to him that his (i.e. second applicant’s) prior
consent was not required
for the conclusion of the sub-lease,
alternatively that second applicant had created the impression that
such consent had been
given. I agree with Mr Bothma that it is
not clear on what alleged representation the respondent relies and
accordingly it
is unclear to the applicant’s what case they
have to meet in this respect.
58.6
Respondent further, on the one hand alleges that
consent was granted albeit tacitly, but later avers that he never
knew that consent
was required.
58.7
The respondent has further provided no evidence to
show on what basis or manner, fault is to be attributed to the second
applicant
and makes bare allegations in this respect without
substantiation. See para 58.2 above.
58.8
What is further fatal to the respondents
estoppel argument is that on respondent’s own version the
alleged representation,
i.e. that the impression had been created
that consent was not required and or that consent was granted, could
not have caused
the respondent to enter into the sub-lease. It
is clear that, certainly in respect of the second applicant, the
respondent’s
version appears to be that the representation by
second applicant consisted of acquiescence in the execution of the
sub-lease agreement,
which acquiescence could therefore only have
occurred after the execution of the sub-lease. I am accordingly
satisfied that
on the respondent’s own version, the alleged
acquiescence could not have induced respondent to enter into the
sub-lease agreement.
In the circumstances there is
no merit in the estoppel argument and it must therefore be dismissed.
[59]
Counsel for the
respondent has advised that should I grant the relief prayed for by
applicant that respondent will be in a position
to vacate no 4, 14
Van Riebeeck Street, Rawsonville by the end of April 2016.
[60]
In the result I
make the following order.
1.
An order for the eviction of the respondent
from the premises known as number 4, 14 Van Riebeeck Street,
Rawsonville is hereby granted.
2.
The respondent is ordered to vacate the
said premises by no later than 16h00 on 30 April 2016.
3.
If the respondent has not vacated the said
premises by 16h00 on 30 April 2016 the Sheriff is hereby authorised
and required to carry
out the eviction order on 3 May 2016 by
removing the respondent from the said premises.
4.
The respondent is ordered to pay the costs
of the application.
RILEY,
AJ