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[2021] ZAWCHC 196
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Acrewood Property Investments (Pty) Ltd v Pelo Chicken (Pty) Ltd (11396/21) [2021] ZAWCHC 196 (8 October 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
WESTERN
CAPE DIVISION, CAPE TOWN
Case number: 11396/21
Before:
The Hon. Acting Justice Mr Montzinger
Hearing:
6 October 2021
Judgment: 8
October 2021
In the matter between:
ACREWOOD
PROPERTY INVESTMENTS (PTY) LTD
Applicant
and
PELO
CHICKEN (PTY)
LTD
Respondent
JUDGMENT
MONTZINGER
AJ:
[1]
This matter involves a commercial eviction.
[2]
The applicant launched its application on 7 July 2021 seeking an
order evicting the respondent
from its commercial premises situated
at ground floor, Stand Alone building, St Peters square, 441 Main
Road, Observatory.
The respondent conducts a food take away
business from these premises.
[3]
The respondent was served with the application papers on 20 July 2021
with notice
that the application will be made on 5 August 2021.
The respondent delivered a notice of opposition on 25 July 2021.
A certain Mr Clifford Sibanda signed the notice in his capacity as
the representative of the respondent. A notice of
set
down was also served on the respondent on 27 July 2021 again
confirming that the application will be made on the unopposed
motion
court roll on 5 August 2021. On this day, Henny J postponed the
matter agreement in terms of a draft order.
[4]
The order by agreement made provision that the matter be postponed
for hearing on
6 October 2021 on the semi-urgent court roll. It
also regulated the filing of further affidavits. In compliance
with
the order the respondent delivered an opposing (
sic
)
affidavit on 16 August 2021. This affidavit was also deposed to
by Mr Sibanda. The remainder of the terms of the agreed
order
was complied with, except that no heads of argument was filed on
behalf of the respondent.
[5]
The matter came before the Court for hearing on 6 October 2021.
On this day
Mr Sibanda was again present and addressed the court in
his capacity as the representative of the respondent. He was
however
not inclined to argue the merits of the matter and requested
a postponement to be able to appoint an attorney to assist him.
He was of the view that the matter is complex as it involved issues
relating to how the Covid-19 pandemic has affected the business
of
the respondent. The Court pointed out to him that it cannot
consider statements in open court that are not under oath.
The
Court enquired from him whether the respondent will be able to record
the reasons for the postponement in an affidavit.
Mr Sibanda
undertook to do so by close of busines and did comply with this
undertaking. The applicant was provided an opportunity
until
13:00 on 7 October 2021 to respond to the further affidavit in
support of the postponement application.
[6]
Notwithstanding the request for further affidavits the Court invited
the parties to
address it on the merits of the matter should the
respondent’s application for postponement be refused. The
Court then
heard argument in respect of the postponement and the
merits, with Mr Sibanda participating, and stood the matter down
until 8
October 2021 for judgment in respect of the postponement
application and if the postponement is refused judgment on the
merits.
[7]
Three issues emerged for consideration. Firstly, whether a
postponement should
be granted. If refused, whether the
applicant has made out a case for the relief it seeks. Thirdly,
what will be a
reasonable period for the respondent to vacate the
premises.
The postponement application:
[8]
In the respondent’s postponement affidavit various grounds were
advanced why
the court should postpone the matter
sine die
to
allow the respondent to appoint an attorney.
[9]
The allegations in the postponement affidavit are aimed at conveying
a sense that
the hospitality industry, in which the respondent
operates, is on the road to recovery because President Ramaphosa
reduced the
lockdown restrictions to level 1. For this reason,
it is implied that the business of the respondent will start to
recover
again. This will then enable the respondent to comply
with its contractual obligations. Reference was made to the
fact
that several employees are dependent on the continued trading of
the respondent.
[10]
It is common knowledge that the continued lockdown restrictions have
had a detrimental effect
on various industries in general, but the
hospitality industry in particular. The situation in which many
small businesses
find themselves in because of the effect of the
Covid-19 pandemic and its associated lock down restrictions is a
reality, and the
Court is almost inclined to facilitate an outcome
that will prevent unnecessary loss of employment in the context of
our country’s
already high unemployment numbers.
However, the aforementioned reality does not constitute a
ground for a postponement.
[11]
The only allegation in the postponement affidavit that is remotely
connected to a reason for
a postponement relates to a request to be
allowed to appoint an attorney so that attorney can place facts
before the court.
This Court is no wiser what these facts will
be and how it will be relevant in respect of the merits of the
application.
Also, no clarity was provided how the anticipated
facts will be different to the fact that are already before the
Court.
In total the respondent has had three opportunities to
answer to the allegations by the applicant. Firstly, in the
form of
a plea in the Magistrate’s Court proceedings. Secondly,
the answering affidavit in the present proceedings and thirdly an
affidavit in support of the postponement application.
[12]
The applicant filed an affidavit opposing the postponement. The
opposing affidavit primarily
takes issue with the respondent’s
failure to take reasonable steps to obtain legal representation.
It also highlights
the prejudice the applicant would suffer if a
postponement would be granted.
[13]
When considering the postponement application two issues were
considered. Firstly, whether
the respondent’s right to
legal representation compels the court to grant a postponement.
Secondly, if the lack of
legal representation is not a bar to refuse
a postponement, whether there are any other grounds upon which the
Court can grant
a postponement.
[14]
The legal confines in which a Court must consider a postponement
application is well established.
Suffice it to point out that
the legal position and the requirements an applicant must comply with
to succeed with a postponement
application has been consistently
endorsed by our Courts including the Constitutional Court. In
this regard the Constitutional
Court’s summary of the
principles underlying a postponement application in
National
Police Service Union and Others v Minister of Safety and Security and
Others
2000
(4) SA 1110
(CC) at 1112
C – F
[1]
,
guides the Court’s consideration in this matter.
[15]
Having regard to these principles, an applicant is at the mercy of
the Court as an indulgence
is sought and the party must provide a
reasonable explanation for the need to postpone
[2]
and must thus show a ‘
good
and strong reason’
[3]
for the grant of the postponement.
[16]
Since, in this matter, the primary reason for the postponement is
premised on the respondent’s
need to obtain legal
representation, the Supreme Court of Appeal has emphasised
[4]
that the right to legal representation is a corollary of the right of
access to justice. The denial of this right has wide-ranging
consequences for the nature and experience of justice. Nevertheless,
the Supreme Court of Appeal also issued a caution: a
litigant may not
benefit from his own misconduct or otherwise careless approach to
legal proceedings.
[17]
Considering the facts of this matter this Court is of the view that
the respondent will benefit
from its own misconduct or leisured
approach to the litigation if a postponement is granted. This
Court is of the view that
by not granting a further postponement to
appoint an attorney will not deny the respondent justice. The
respondent has had
a significant amount of time to appoint an
attorney and had the opportunity to place its defence before the
court on numerous occasions.
Also, Mr Sibanda who indicated
that he is the manager of the respondent and has studied accountancy
is not a vulnerable person
for who a Court should go the extra mile
when the right to legal representation is raised as a justification
for a postponement.
Moreover, the right to be afforded an
opportunity to be allowed an attorney at this late stage is only one
of the factors the Court
should consider with all the other factors
whether to grant a postponement or not and cannot on its own justify
a postponement.
[18]
As mentioned before the application was initially set down for 5
August 2021. This date
was known to the respondent and on that
date, Mr Sibanda was present and represented the respondent and in
fact negotiated a draft
order with counsel on behalf of the
applicant. Mr Sibanda impressed me as a person who is educated
and with an ability to
understand the proceedings. In court he
informed me that he studied accountancy and is currently managing the
business of
the respondent. That Mr Sibanda has a full
appreciation of the proceedings is demonstrated by the fact that a
notice of opposition
and an affidavit in opposition to the
application was delivered. The Court is thus not confronted
with a situation where
the respondent is entirely helpless with no
ability to understand the gravity and impact of the relief the
applicant seeks.
[19]
However, the issue of legal representation must also be considered in
the context that during
September 2020 the applicant launched
proceedings in the Cape Town Magistrate’s Court seeking relief
in respect of payment
of the arrear rental, cancellation of the lease
agreement and ejectment of the respondent from the lease premises.
The respondent
evidently filed a plea on 19 April 2021 in those
proceedings. Mr Sibanda and his wife, who is apparently the
sole director
of the respondent, signed the plea. The
respondent did not obtain or appoint legal representation in that
matter. On
29 June 2021 the applicant withdrew the action in
the Magistrate’s court and pursued the current application only
seeking
the ejectment of the respondent from its property.
While the Magistrate Court proceedings was pending the respondent did
not appoint an attorney despite being aware of the applicant’s
intention to pursue its remedies through the legal machinery
of the
law.
[20]
This is thus not a situation where the respondent was surprised by
the institution of the court
proceedings seeking its ejectment.
It has effectively had an opportunity to obtain legal representation
since September 2020.
More than a year later the respondent
arrives at Court seeking a postponement to instruct an attorney,
without any explanation
what happened in the intervening period since
September 2020 until 6 October 2021.
[21]
As the Appellate court has said in
McCarthy Retail Ltd v
Shortdistance Carriers CC
[2001] 3 All SA 236
(A) that the
interest of other litigants, like the applicant, and the Court is
also important. Having considered the fact
that the parties
have effectively been in litigation since September 2020; the
respondent’s inability to provide a
‘
full and
satisfactory’
explanation or a
good and strong reason’
why a legal representative could not be present at court on 6
October 2021; the lateness of the postponement application; and the
lack of good cause as there is no conceivable defence on the merits
of the matter this Court finds that the respondent will benefit
from
its own careless approach to the legal proceedings and should the
right to legal representation, in the context of the facts
of a
matter, not come to the respondent’s rescue.
[22]
Having regard to the other factors that a Court should consider when
asked to grant a postponement
the respondent’s request must
unfortunately also fail. There is no reasonable explanation in
Mr Sibanda’s affidavit
why the application for a postponement
was delayed. The application for a postponement properly
contextualised cannot be
seen in any other light but as an attempt to
delay the applicant’s quest to obtain its relief. The
Court has serious
doubts that the application is
bona fide
and
is of the view that the respondent recklessly disregarded the rules
of the Court to obtain some benefit in the form of time.
[23]
Finally, when the Court considers the potential prejudice that a
postponement will cause both
parties the applicant’s prejudice
cannot be cured by a costs order and thus outweighs the respondent’s
potential prejudice.
The applicant has suffered the inability
of the respondent to pay rental for a period exceeding a year.
In addition, because
it is evident that the respondent is unable to
settle the arrear and current rental suggest that any monetary
judgment will be
cold comfort for the applicant. A postponement
with a costs order will solicit the same consequence.
[24]
For all these reasons the application for a postponement is refused.
The ejectment application:
[25]
There are no disputes of facts on the material issues the applicant
must establish to be successful
with the relief.
[26]
The essential material terms of the lease agreement provide for a
lease period of five years
commencing on 1 July 2020 at an amount of
R 20 125.00 rental per month. The agreement also contains
the ordinary
terms applicable to commercial
lease agreements that
determines
the rights and duties of the contracting parties as well as the
effects and consequences of the obligations.
[27]
The respondent immediately, since July 2020, failed to comply with
its obligations in terms of
the lease agreement. On or about 1
June 2021 the respondent was already indebted to the applicant in the
amount of R 215 235.31
for arrear rental and R 48 852.59 in
respect electricity charges. Currently, these amounts have
increased and is the
respondent indebted to the applicant in the
total amount of R 348 988.44.
[28]
On 25 August 2020 the applicant called on the respondent to rectify
its breach. The breach
was not rectified and on 11 September
2020 the lease was cancelled. Since the last-mentioned date,
the respondent has thus
been in unlawful occupation of the premises.
[29]
It is not in dispute that the applicant is the owner of the leased
premises
[5]
.
The
failure to pay rental, the request to rectify the breach and the
ultimate cancellation is also not disputed.
This
Court is therefore satisfied that the applicant has made out a case
and is thus entitled to an order for the respondent’s
ejectment.
[30]
The only glimpse of a defence the respondent advanced on the papers
seem
to be one of fairness and equity. It blames its inability to
pay rental on the prevailing lockdown restrictions and thus
by
implication relies on a defence of supervening impossibility of
performance. It also accused the applicant for not providing
breaks in the obligation to pay rent. It mentions a fire
involving a former tenant. An allegation of a proposed payment
plan agreed with the applicant is also made. These are all
issues of equity and fairness and they do not present a defence
to
the applicant’s claim. The legal position is that a
Court has no equitable discretion to refuse the granting
of an
eviction order if the applicant has established all the grounds.
This principle was confirmed in the reported judgment
of
AJP
Properties CC v Sello
2018
(1) SA 535
(GJ)
(“AJP
v Sello”)
[6]
.
[31]
Reliance on the defence of supervening impossibility of performance
does not require much consideration.
A recent judgment by the
Gauteng Local Division in the matter of
Matshazi
v Mezepoli Melrose
Arch
(Pty) Ltd and Another
and
related matters
[2020] 3 All SA 499 (GJ)
[7]
where a similar defence was raised by respondents in four different
matters dismissed the reliance on the ‘
force
majeure’
defence as no such clause was provided for in the contract. In
that matter
the
defences raised by the respondent companies were that because of the
national lockdown,
force
majeure
presented,
excusing them from their obligations to their employees and their
other creditors, who therefore had no
locus
standi
to
bring the applications.
[32]
As recently as August 2021 the Gauteng Local Division in
Freestone
Property Investments (Pty) Ltd v Remake Consultants CC and Another
[2021] ZAGPJHC (25 August 2021)
in a matter where the facts correlate with the matter before this
Court found that the declaration of the state of disaster and
the
continued effect of the Covid-19 pandemic may have resulted in a
dramatic decline of customers through the shopping centre
in which
the lease premises were situated, does not afford a defence to the
lessee
[8]
.
The respondent in this matter is in a similar position as the
respondents in
Freestone
v Remake
and should the respondent’s defence, at least in respect of the
obligation to vacate, suffer the same result.
Equitable
date to eject:
[33]
What remain is to determine an equitable date on which the respondent
should be ordered to vacate
the premises. In its notice of
motion the applicant contends for 3 days and in its written
submissions a period of one week
is requested.
[34]
According to
AJP
v Sello
supra
although
a Court’s discretion is limited if all the grounds for an
ejectment order has been established, our law does recognise
that
courts can exercise a discretion which, it appears, is not derived
from its inherent jurisdiction but from a common law power
to stay or
suspend the execution of an ejectment order. The Court in
AJP
v Sello
cogently
narrated the debate as to whether a Court has a discretion to
postpone or suspend an eviction order, in the context of
commercial
property. Spilg J concluded that a Court always has a
discretion to
postpone or suspend an
eviction order, which discretion must be judicially exercised.
Such
an approach, the Court reasoned, is in line with the discretion
afforded to a Court in terms of Uniform Rule 45A to suspend
execution
of its orders. Eviction or Ejectment is a species of execution.
[35]
Similar to the Court’s approach in
AJP
v Sello
this Court
finds that the interests of justice will deny an applicant who fails
to afford the respondent a fair opportunity to relocate.
The
applicant must bear the financial consequences of its conduct when
considered against the economic realities faced by
the respondent and
its employees if the Court was to direct an eviction with immediate
effect or within the timelines proposed
by the applicant.
[36]
The objective economic realities, which by definition should have
been appreciated by the applicant,
and which appear from the papers
are at least as follows:
(i)
Unless the respondent is able to find
suitable alternative premises it faces significant financial hardship
if not financial ruin.
This also jeopardises the staff
contingent and their dependents; staff are likely to be laid off
temporarily until suitable
premises are found or be exposed to
retrenchment if the respondent is obliged to downscale or totally
closed its doors.
(ii)
The respondent is required not only to
reinstate the applicant’s premises to its pre-occupation state
but must also find suitable
premises to relocate its business,
negotiate a new lease, effect necessary alterations and install
shopfittings in order to recommence
business.
(iii)
The
respondent has been in the premises for over a year. The
applicant did start proceedings in a lower court but unilaterally
decided to withdraw that action only on 29 June 2021. The
respondent’s plea in the Magistrate’s Court proceedings
was filed on 19 April 2021. The applicant thus effectively
sacrificed a period of seven (7) months by unilaterally withdrawing
the action and relaunching the current proceedings.
(iv)
If the
litigation was diligently pursued in the Magistrate’s Court the
respondent could have been ejected from the premises
by now.
(v)
The
applicant still has a claim for outstanding rental and holding over
against the respondent and the sureties. So, it is
not without
recourse, although it seems as if any monetary judgment will not be
easily satisfied.
[37]
Considering
the applicant’s own conduct in the manner it handled the
litigation the applicant’s request to eject the
respondent in
such a short period is not justified.
This
Court is of the view that it would be harmful to the interests of
justice to compel the respondent to vacate immediately instead
of
affording it the opportunity of finding suitable alternative premises
that would serve not only its interests but also those
of its
clientele and employees. I am satisfied that these constitute
sufficient grounds, to justify a delay in enforcing
the ejectment
order.
[38]
The respondent has not indicated in its postponement affidavit,
despite being requested by the
Court to do so, how much time it will
require to relocate. Notwithstanding, the absence of any
indication from the respondent
I believe that in all the
circumstances real and substantial justice requires that the
respondent be afforded four (4) clear weeks
to find alternative
premises to relocate and bearing in mind, as the Court stated in
AJP
v Sello
that relocation is often the principle consideration for
delaying the execution of an eviction order in respect of commercial
premises.
Appropriate
Costs order:
[39] Costs
should follow the event. However, I’m not satisfied to
grant costs on a High Court tariff. The applicant
started the
proceedings in the Magistrate’s Court. No justifiable
reason appears from the papers why the matter was
withdrawn and
relaunched in this Court. The matter should have stayed in the
Magistrate’s Court and be finalised in
that Court. This
Division’s inherent jurisdiction is not ousted to entertain
this matter. However, this Court
is of the view that the only
justification for withdrawing the matter in the Magistrate’s
Court and instituting it in this
Court was to achieve a faster
resolution of the dispute. Such an approach by litigants impact
the right to access to Courts
for other litigants. Such an
approach should be discouraged. An appropriate costs order is
reflected in the order below.
I would
therefore make the following order:
[40]
An order is made in the following terms:
(1)
The respondent and all other persons or entities occupying the
premises situated at Ground
Floor, Stand Alone Building, St Peters
Square, 441 Main Road, Observatory is ordered to vacate the premises
on or before 5 November
2021.
(2)
The Sheriff of this Honourable Court (or his/her deputy) is
authorised and directed to take
all steps on 11 November 2021, or any
time thereafter, to give effect to prayer (1) above if the respondent
does not vacate the
premises on 5 November 2021.
(3)
To the extent necessary and if requested by the Sheriff the South
African Police Services
are directed to assist the Sheriff in
carrying out paragraph 2 of this Order.
(4)
The respondent shall pay the applicant’s costs of this
application on a scale as between
attorney and client on the Regional
Court scale.
A
MONTZINGER
Acting
Judge of the High Cour
t
Appearances:
Applicant’s
counsel:
Adv Nicola Van Zyl
Applicant’s
attorney:
STBB Attorneys
Respondent:
In person represented by Mr Sibanda
[1]
Also
Lekolwane and
another v Minister of Justice and Constitutional Development
[2006] ZACC 19
;
2007
(3) BCLR 280
(CC) para [17]
[2]
Carephone
(
Pty
)
Ltd
v Marcus NO and others
1999 (3) SA 304 (LAC)
para [54]
[3]
Gentiruco
A G v Firestone SA (Pty) Ltd
1969
(3) 318 (T) at 320 C - 321 B
[4]
Pangarker v Botha and
another
[2014] 3 All
SA 538 (SCA)
[5]
MC
Denneboom Service Station CC and another v Phayane
2014
(12) BCLR 1421
(CC)
confirming
Chetty
v Naidoo
[1974] 3 All SA 304
(1974 (3) SA 13)
(A) that it is generally sufficient for an applicant to succeed with
an ejectment order
to demonstrate that it is the registered owner of
the property.
[6]
Para
17 referring to various judgment. In this judgment the court
dealt with a commercial eviction.
[7]
Referring
to
MV
Snow Crystal Transnet Ltd t/a National Ports Authority v Owner of MV
Snow Crystal
2008 (4) SA 111 (SCA)
[8]
At par
29