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[2011] ZAGPJHC 54
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Byway Projects 10 CC v Masingita Autobody CC t/a Masingita Autobody and Others (A5059/10, 09/36885) [2011] ZAGPJHC 54 (14 June 2011)
REPUBLIC
OF SOUTH AFRICA
SOUTH
GAUTENG HIGH COURT, JOHANNESBURG
APPEAL CASE NO:
A5059/10
CASE NO (a quo) 09/36885
DATE:14/06/2011
In
the matter between:
BYWAY
PROJECTS 10
CC
.......................................................................................
Appellant
and
MASINGITA
AUTOBODY
CC
.......................................................................
First Respondent
t/a MASINGITA AUTOBODY
D
MATHABULA
.........................................................................................
Second
Respondent
L
NKUNA
.........................................................................................................
Third
Respondent
D
NKUNA
.....................................................................................................
Fourth Respondent
L
JOHNS
..........................................................................................................
Fifth Respondent
SHERIFF
JOHANNESBURG
SOUTH
.........................................................
Sixth Respondent
JUDGMENT
PETER
AJ
[1]
The issues in the appeal are first whether or not an ex parte
anti-dissipation order ought to have been confirmed, secondly
whether
or not on a proper interpretation of the provisions of
section 23(2)
of the
Close Corporations Act, 1984
the second to fifth respondents
are personally liable for the obligations of the first respondent
under and in terms of the agreement
of lease, and thirdly, the
liability of the first respondent to make payment of alleged arrear
rentals, ancillary charges and damages
for breach of an agreement of
lease of an immovable property.
[2]
On 19 September 2007 the appellant entered into a written agreement
with the first respondent in terms of which the appellant
let to the
first respondent premises situated at 25 Fennel Road, Village Main,
Johannesburg. The first respondent, a close corporation,
was therein
described as "Masingita Autobody". The description of the
first respondent did not include either the letters
"CC" or
its registration number. The agreement of lease was signed by the
third and fifth respondents. The rental was
payable monthly in
advance on the first day of each month. The lease was to commence on
1 September 2007. The rent for September
2007 was R16 000,00 per
month and thereafter in the sum of R17 600,00 plus VAT per month
whereafter it was to escalate 10 percent
per annum compounded
annually. The tenant undertook to pay for all electricity, water,
effluent, refuse, sewerage, street frontage
and other municipal
charges levied on the premises. Pursuant to the conclusion of the
lease the first respondent took occupation
of the premises.
[3]
By January 2008 the first respondent had fallen into arrears with the
rent. By February 2008 the appellant was writing letters
of demand.
Between February 2008 and September 2008 the appellant wrote repeated
letters of demand and received intermittent payments.
The last of the
letters of demand was dated 4 September 2008 in which the appellant
demanded several amounts totalling R132 260,00.
This was made up of
three months rent, a charge for outstanding water and lights of R32
000, 00, a charge for "rental on compressor
and purchase''"
of R34 200,00 and R4 500,00 for the deployment of security guards. On
10 September 2008 a second agreement
was concluded. The signatories
to this second agreement was the appellant's representative and the
second, third and fourth respondents.
The second, third and fourth
respondents confirmed that they wished to retract from the present
lease. They held themselves out
as representing "Masingita
Autobody" and consented to auctioneers, appointed at the
instance of the appellant, to attend
to the disposal of the equipment
in the premises. Importantly in the second agreement the sum of R213
100,00 was acknowledged as
forming part and parcel of the lease. It
was further recorded that "the parties responsible for the lease
are responsible
for the monies that are due as per the lease".
The wording of the agreement is somewhat confusing, parts thereof
suggest that
the second, third and fourth respondents are personally
parties thereto and parts suggest that they represent Masingita
Autobody.
[4]
Notwithstanding the conclusion of the second agreement the
appellant's complaint is that the respondents remained in occupation
and carried on business "as usual" without further payment
save for an amount of R45 521,97. Pursuant thereto and in
the belief
that its tenant was a partnership, the appellant launched motion
proceedings in November 2008 against the second to
fifth respondents.
The appellant sought an interim ex parte attachment of the assets
constituting the property of Masingita Autobody.
It also sought final
relief for the cancellation of the lease agreement, confirmation of
the attachment and ejection of the second
to fourth respondents. The
record does not disclose whether or not the ex parte relief was
granted. The application however was
opposed by the fifth respondent
who provided evidence of the existence of the first respondent as an
incorporated close corporation.
This evidence reflected the second to
fifth respondents as registered members each holding a 25 percent
members' interest in the
first respondent close corporation. The
fifth respondent also provided a schedule detailing the rent payable
under the agreement
and the amounts paid thereunder. In support of
payment, copies of deposit slips, cheques and bank statements of the
first respondent
were adduced. On the fifth respondent's version the
first respondent was in arrears with rent and at the beginning of
September
2008 owed a sum in excess of R38 961,47 having made
non-timeous and irregular payments. The fifth respondent's schedule
did not
include any charge for municipal services. The fifth
respondent raised a dispute in relation to the installation of meters
and
alleged that from September 2008 the supply of electricity was
cut on account of the appellants failure to apply to the City Council
for the installation of such meters.
[5]
The final relief was argued before Beasley AJ. On 2 April 2009 the
application was dismissed on account of the appellant having
sued the
second to fourth respondents in partnership, whereas its tenant was
the first respondent.
[6]
In August 2009 the appellant instituted a second application which
gives rise to this appeal. The appellant again sought interim
ex
parte relief. It sought not only an attachment and inventory of all
the assets of its tenant but an attachment of the right,
title and
interest of the second to fifth respondents in the costs order and
any attachment made in terms thereof arising from
the order of
Beasley AJ. Final relief was sought to rectify the lease agreement to
reflect the lessee as Masingita Autobody CC,
confirm cancellation of
the lease, confirm the attachment of the assets and to eject the
first to fifth respondents and all those
enjoying occupation through
them, from the premises. In addition, an order for the payment of
money was sought against the first
to fifth respondents jointly and
severally. Payment was sought for an amount of alleged arrears prior
to cancellation in September
2008, liquidated damages and payment of
all municipal charges for the month of October 2008 and for each
further month that the
first to fifth respondents remained in
occupation of the premises without any quantification thereof.
Alternative relief was sought
premised on a later date of
cancellation but similarly seeking payment of arrears, liquidated
damages and an order directing payment
of the municipal charges,
without any quantification thereof.
[7]
On 8 September 2009 an interim order of attachment was granted. In
November 2009 the fifth respondent filed an affidavit in
which he
again stated that he was the managing member of the first respondent
raised the same disputes in relation to the payments
and municipal
charges and annexed copies of the same documentation, as he had done
previously. He repeated his allegation that
the electricity and water
supplies had been cut off and there had been no consumption. The
second, third and fourth respondents
did not oppose the application.
[8]
On 31 March 2010 Mayat J made an order setting aside the ex parte
attachment, rectifying the lease agreement sub-joining the
letters
"CC" to the name Masingita Autobody, declared the lease
cancelled and granted the order of ejectment with costs
against the
first and fifth respondents. The relief sought for a judgment
sounding in money and visiting personal liability on
the second to
fifth respondents was not granted.
[9]
Leave to appeal having been refused by the Court a quo, this appeal
is prosecuted with a leave of the Supreme Court of Appeal.
Confirmation
of the ex parte attachment order
[10]
There are two considerations: the bringing of the application ex
parte without notice to the respondents and the case to be
made out
for the so-called anti-dissipation interdict.
[11]
Forty years ago Beck J made the following comment in Republic Motors
(PVT) LTD v Lytton Road Service Station (PVT) Ltd
1971 (2) SA 516
(R)
at 518 F-H:
"The
procedure of approaching the Court ex parte for relief that affects
the rights other persons is one which, in my opinion,
is somewhat too
lightly employed. Although the relief that is sought when this
procedure is resorted to is only temporary in nature,
it necessarily
invades, for the time being, the freedom of action of a person or
persons who have not been heard and it is, to
that extent, a negation
of the fundamental precept of audi alteram partem. It is accordingly
a procedure that should be sparingly
employed and carefully
disciplined by the existence of factors of such urgency, or of
well-grounded apprehension of perverse conduct
on the part of a
respondent who is informed beforehand that resort will be had to the
assistance of the Court, that the course
of justice stands in danger
of frustration unless temporary curial intervention can be
unilaterally obtained."
[12]
In my view that observation is equally relevant today. In similar
vein is Clegg v Priestley
1985 (3) SA 950
at 953J to 954C. There it
is stated that the fundamental rule is that a court will refuse to
make an order that may prejudice the
rights of parties not before it.
This rule is subject to qualification where temporary immediate
relief is essential, because of
the danger in delay or because notice
may precipitate the very harm the applicant is trying to forestall.
[13]
In relation to the requirements that must be met for the grant of
anti-dissipation interdict, irrespective of whether same
is brought
ex parte or on notice, there are two requirements that must be met.
First a debtor is wasting or getting rid of funds
or secreting
assets, or there is a reasonable apprehension that the debtor is
about to embark on such conduct. Secondly, save in
exceptional
circumstances, there is an intention on the part of the debtor to
defeat creditors' claims. These requirements were
laid down in Knox D
'Arcy Limited and Others v Jamieson and Others
[1996] ZASCA 58
;
1996 (4) SA 348
(A) at
372F-H and recently confirmed in Carmel Trading Co Ltd v
Commissioner, South African Revenue Service and Others
2008 (2) SA
433
(SCA) at 435 para 3.
[14]
Mr Nowitz, who appeared for the appellant, submitted that the ex
parte application for an anti-dissipation order was justified
by
reason of three facts: the first respondent was in arrears with its
rent, it had not adequately responded to the letters of
demand and
the first respondent did not vacate the premises but carried on
trading as before, notwithstanding the second agreement,
in terms of
which the appellant was permitted to sell the first respondent's
goods.
[15]
To my mind none of these facts gives rise to a reasonable inference
that any of the respondents were either dissipating or
secreting
assets, or any reasonable apprehension of such future conduct.
Accordingly the question as to whether such conduct was
accompanied
by an intention to defeat the appellant's claim, or there existed
exceptional circumstances which justified the grant
of the relief in
the absence of such intention, does not arise.
Similarly,
none of these facts indicate either dire urgency or a reasonable
apprehension that the relief sought would be frustrated
justifying
the bringing of the application ex parte. Furthermore it is difficult
to see how there could have been any justification
for seeking to
attach the costs order made in the second to fifth respondents favour
by Beasley AJ.
[16]
Both litigants and practitioners should take heed that both ex parte
orders, without notice to affected parties, and anti dissipation
interdicts are departures from fundamental rules. The first is a
departure from the rule of audi alteram partem. The second is
a
departure from the rule that an owner should be unfettered in the
management and exercise of control over his or her own assets.
These
orders are not to be had for the mere asking. Care must be taken that
the requirements for the orders are present before
approaching a
court for such orders.
[17]
Accordingly, the learned Judge was correct in setting aside the ex
parte order and refusing to confirm the attachment.
Personal
liability of members under section 23 of the Close Corporation's Act
[18]
Section 23(1)
of the
Close Corporations Act requires
the full name of
the close corporation and its registration number to appear on
notices, other official publications, bills of
exchange, promissory
notes, endorsements, cheques, orders for money, goods or services
purporting to be signed by or on behalf
of the close corporation as
well as letters, delivery notes, invoices, receipts and letters of
credit.
Section 23(2)
of the Act reads as follows:
" (2) If any member
of, or any other person on behalf of, a corporation-
(a) issues or authorises
the issue of any such notice or official publication of the
corporation, or signs or authorises to be signed
on behalf of the
corporation any such bill of exchange, promissory note, endorsement,
cheque or order for money; goods or services;
(b) issues or authorises
the issue of any such letter, delivery note, invoice, receipt or
letter of credit of the corporation
without the name of the
corporation, or such registered literal translation thereof, and its
registration number being mentioned
therein in accordance with
subsection (1)(b), he shall be guilty of an offence, and shall
further be liable to the holder of the
bill of exchange, promissory
note, cheque or order for money, goods or services for the amount
thereof, unless the amount is duly
paid by the corporation."
[19]
What is immediately apparent from the provisions of
section 23(2)
is
that where there has been a contravention of the provisions of
section 23(1)
in that the full name of the close corporation or its
registration number is not evident in any of the twelve instances,
there
is the potential consequence of a criminal offence. Secondly,
only in respect of four types of documents - a bill of exchange,
promissory note, cheque or order for money or goods and services - is
there the imposition of personal liability to the holder of
such
document. The imposition of a criminal sanction and a sanction in the
form of personal liability are factors which support
a restrictive
interpretation of the scope of the section.
[20]
The founding affidavit made a submission that the lease agreement and
the second agreement are both documents falling within
the ambit of
section 23(2).
In argument Mr Nowitz did not contend, correctly so,
that the second agreement fell within the class of documents of
section 23(2).
Mr Nowitz submitted that although the second and
fourth respondents were not signatories to the lease agreement, by
virtue of their
signature to the second agreement, in which reference
is made to the much earlier lease agreement, it can be said that the
second
and fourth respondents authorised the issue of the lease
agreement. In my view there does not seem to be any persuasive force
in
this submission but, for the reasons set out below, it is not
necessary to make a final determination as to whether or not some
act
of ratification after the fact can fall within the meaning of the
words "issues or authorises the issue" in
section 23(2).
[21]
The lease agreement clearly did not fit the description of a bill of
exchange, promissory note or cheque. Mr Nowitz however
argued that
the lease agreement constituted an order for services. Mr Nowitz was
unable to cite any authority for the proposition
that a lease
agreement falls within the description of an order for services. Mr
Nowitz based his submission on the contention
that regard should be
had to the purpose of the section which is to protect the public by
ensuring that it is not exposed to the
risk of being misinformed or
misled by requiring objective compliance in the document itself, see
Constantaras v BCE Foodservice
Equipment (Pty) Ltd
2007 (6) SA 338
(SCA) at 343, para 11.. This, it was submitted, was the reason for
giving wide meaning to the word "order" so as to include
any contract.
[22]
The word "order" in
section 23
has been the subject matter
of judicial consideration. In G & C Construction v De Beer en 'n
Ander
2000 (2) SA 378
(T) Du Plessis J held that the word order was
an instruction or direction ("opdrag"). An order for goods
has been considered
in the context of section 50(3) of the Companies
Act, 1973 which is the equivalent provision relating to companies
although an
order for services is not included in section 50(3). In
this context it was held in Van Lochen v Associated Office Contracts
(Pty)
Ltd
2004 (3) SA 247
(W) at 251 that an order means a "command
or direction". I agree with the plain meaning attributed to the
word order
in these cases.
[23]
By reason of the penalties imposed in section 23(2) and the existence
of a remedy under
section 63(a)
of the
Close Corporations Act which
is capable of application to contracts generally, I find no reason to
disagree with the ordinary meaning attributed to the word
order as
being a command or direction. Accordingly, there is no basis to hold
the second, third, fourth and fifth respondents personally
liable for
the obligations of the first respondent in terms of the lease. That
being so it is unnecessary to decide whether or
not some act of
ratification after the fact can fall within the meaning of the words
"issues or authorises the issue"
in
section 23(2).
The
claim for payment
[24]
The appellant sought a final order for the payment by way of motion
proceedings. In this regard there are two principles that
are
relevant. Firstly, it is trite that motion proceedings are not
appropriate for the resolution of material disputes of fact.
Should a
factual dispute arise which is incapable of being resolved in the
papers there is a risk of a dismissal of the application
should the
court, in exercise of its discretion, not refer the matter for trial
nor direct that oral evidence be heard on specified
issues, Tamarillo
(Pty) Ltd v B NAitken (Pty) Ltd
1982 (1) SA 398
(A) and Gounder v Top
Spec Investments (Pty) Ltd
[2008] ZASCA 52
;
2008 (5) SA 151
(SCA). A court will
exercise a discretion to dismiss the application if the applicant
ought to have foreseen, or in fact did foresee,
when launching his
application, that a serious dispute of fact, incapable of resolution
on the papers was bound to develop, Room
Hire Co (Pty) Ltd v Jeppe
Street Mansions (Pty) Ltd
1949 (3) SA 1153
(T) and Adbro Investment
Co Ltd v Minister of the Interior
1956 (3) SA 345
(A).
[25]
The second principle is that motion proceedings are not appropriate
to pursue illiquid claims for damages, Room Hire Co at
1161. The
appellant's claim for payment of monies can be divided broadly into
two parts. First is the payment of arrear rentals
and charges in
respect of municipal services. The second part is a claim for damages
from the date of cancellation.
[26]
In respect of the first part of its claim, the appellant claimed that
there were arrears to September 2008 in the sum of R167
578,03. This
amount was calculated on the basis of the acknowledgement in the
second agreement of an amount of R213 100,00 less
a payment received
thereafter of R45 521,97.
[27]
The appellant's founding affidavit did not provide any breakdown of
how the amount of R213 100,00 was arrived at. The founding
affidavit
anticipated, from the first abortive application proceedings, a
dispute in this regard. The appellant's challenge to
the schedule
provided by the fifth respondent was that there was only one payment
in February 2008 whereas the schedule reflected
two months of
payments, that there had been no payments since 12 August 2008.
[28]
It is correct that the annexure does not reflect payments beyond 12
August 2008 and are in the fifth respondent's own showing,
as at
September 2008 and in respect of rent the first respondent was
approximately two months in arrears including the rent due
at the
beginning of September 2008. In relation to the challenge to the
amount reflected for February 2008, although it is correct
that only
one deposit slip was annexed, the fifth respondent attached a bank
statement which reflected two identical amounts being
paid on the
same day with different cheque numbers totalling the amount of the
first respondent's schedule.
[29]
The founding affidavit makes no attempt to explain why the
appellant's letter of demand dated 4 September 2008 is for monies
for
arrear rental, municipal charges, compressor rental and security
guards was in aggregate of only R132 260,00 yet the amount
outstanding at 10 September 2008 was R213 000,00. The founding
affidavit argues if the amount of R213 100,00 was not due, it begged
the question as to why the second, third and fourth respondents
affixed their signatures to the second agreement admitting liability
for such amount. The appellant, both the author of the demand and
party to the agreement of 10 September 2008, fails to furnish
any
fact explaining how this demand is to be reconciled with the sum of
R213 100,00 agreed, with the second, third and fourth respondent,
a
mere six days later.
[30]
I accept that the lease was cancelled in September 2008. The
appellant was entitled to in terms of the lease to cancel same
forthwith for non payment. Furthermore the second agreement was
signed by the second, third and fourth respondents who are members
of
the close corporation. Notwithstanding the allegation, which must be
accepted for purposes of motion proceedings, that the fifth
respondent was the managing member of the first respondent, the
provisions of
section 54(1)
of the
Close Corporations Act
nevertheless
operate to attribute the signature of the second, third
and fourth respondents, members of the first respondent, as
signifying
agreement on behalf of the first respondent. The admission
of the sum due and payable however stands in a different footing.
This
is merely an admission of a factual state of affairs as opposed
to a juridical act. As such, whatever the prima facie evidential
value of such an admission might be, it is nevertheless open to the
first and fifth respondents to adduce evidence of the true
state of
affairs. In this regard the fifth respondent's affidavit sets out
evidence supporting his averments sufficiently to raise
a bona fide
dispute.
[31]
It is not necessary to find as a matter of fact that the fifth
respondent's calculation of arrears owing by the first respondent
in
the sum of R38 961.47 was correct. It suffices for present purposes
that there was a bona fide dispute in this regard. Having
regard to
the admitted and acknowledged receipt of payment of the sum of R45
521,97, there was no undisputed balance of arrears
owing for rent at
the time of the bringing of the application.
[32]
In relation to the claim for arrear municipal charges the appellant
adduced no evidence as to the existence or quantification
of such
charges other than its say so. A dispute as to the installation of
meters, an acknowledged problem relating to a water
leak and a claim
by the fifth respondent that the electricity had in fact been cut
together with the inability of the appellant
to adduce any evidence
as to the existence and quantification of municipal charges rendered
it impossible for the court a quo to
grant a money judgment in that
regard.
[33]
Where a landlord has cancelled a lease the tenant is liable to
evacuate occupation of the premises and is liable for damages.
Principles which govern quantification of such damages is that the
sufferer of a breach should be placed in a position it would
have
occupied had the contract been performed so far as could be done by
the payment of money without hardship to the defaulting
party, (see
Victoria Falls and Transvaal Power Co Ltd v ConsolidatedLanglaagte
Mines Ltd
1915 AD 1
at 22). The application of this principle where a
landlord has terminated a tenant's lease is that the landlord is
entitled to
the amount of rent less any amount the landlord has in
fact received by re-letting or would have received if the landlord
had taken
advantage of reasonable opportunities to re-let the
premises, see Tos v Angelo Outfitting Stores
1915 TPD 22
at 24-25 and
Smith v Weeks
1922 TPD 235
at 237-238. Where a landlord is not in a
position to re-let the premises because the tenant has not vacated
same, then the landlord's
claim includes damage from the wrongful
retention of the occupation of the premises. This is the market
rental value of the premises
for the period of the unlawful
occupation, no credit need be given for any surplus the landlord
might achieve if the property is
at a higher rent after the tenant
has vacated, Sandown Park (Pty) Ltd v Hunter Your Wine & Spirit
Merchant (Pty) Ltd and Another
1985(1) SA 248 (W) at 256 I.
[34]
Ordinarily, and in the absence of evidence to the contrary, the
reasonable market rental value of the premises will be assumed
to be
the rent paid under the lease, see Cooper, Landlord and Tenant 2 Ed
1993 p 234. Nevertheless, the prima facie assumption
that the rental
payable under the lease is a reasonable market rental does not alter
the principle that the landlord's damages
are limited to the
reasonable market rental of the premises. This is illustrated in the
Sandown Park case where the reasonable
market rental was proved to be
higher than the rental that would otherwise have been payable under
the lease. That being so, the
claim for damages was not liquidated
but constituted an illiquid claim for damages.
[35]
In Worcester Court (Pty) Ltd v Benatar 1982 (4) 714 (E), a claim for
damages for holding over was granted on motion. An appeal
to the full
court was dismissed but was confined only to the existence of a
defence under Rent Contract Act, 1976, Benatar NO v
Worcester Court
(Pty) Ltd
1983 (4) SA 126
(C). In the motion proceedings Comrie AJ
held:
"While damages are
invariably assessed after hearing oral evidence (Sekgota v South
African Railways and Harbours; Ramotseo
v South African Railways and
Harbours
1974 (3) SA 309
(A); New Zealand
Insurance Co Ltd v Du
Toit
1965 (4) SA 136
(T)), I can see no reason in principle why they
should not be fixed in motion proceedings. Nor do the Rules of Court
preclude this
course. The difficulty is in a sense a procedural one.
If respondent contests the quantum alleged, and puts up some contrary
evidence,
a Court in motion proceedings would normally have to accept
the respondent's allegations, with the result that the applicant
would
prove either no loss at all or a loss much smaller than he
claims to have suffered. The alternative is for the Court to hear
oral
evidence or refer the matter to trial, a practice which is not
encouraged. For these reasons illiquid claims for damages are
invariably
advanced by way of action. Non constat that damages cannot
be proved on affidavit".
[36]
This case was cited with the approval in Havenga v Parker
1993 (3) SA
724
(T) in the context of receiving evidence by way of affidavit in
default judgment proceedings commenced by way of summons.
[37]
In Vogel NO v Volkersz
1977 (1) SA 537
(T), the Full Court of the
Transvaal Provincial Division dealt with an appeal in a dispute
between a purchaser and seller of immovable
property. The seller had
brought application proceedings to reclaim occupation of the
immovable property and damages for wrongful
occupation by a
purchaser. The purchaser's defence related to a claim for
rectification of the agreement which was the subject
matter of the
factual dispute. The court referred the factual issue concerning the
purchaser's entitlement to rectification but
declined to refer the
claim of the seller relating to the reasonable value of occupation of
the premises. This it did on the grounds
that the allegation as to
occupational value and claim for payment thereof was akin to a claim
for damages by holding over which
should not normally be put forward
in motion proceedings, at 560 A - B.
[38]
In Meyer v Barnardo & another
1984 (2) SA 580
(N), an application
by the owner and seller of a property under a lapsed sale agreement
was made for the eviction of the purchaser.
The respondent purchaser
counter-claimed for repayment of the deposit paid in respect of the
purchase price of the lapsed sale.
The seller was not permitted to
raise as a defence in motion proceedings the value of a claim for
holding over on the basis that
it was a claim for damages in all
probability in the lesser amount which at that stage was not
determined or formulated at 590
H.
[39]
Whether or not the rule in Room Hire that unliquidated damages ought
not ordinarily to be brought in motion proceedings still
holds true
and whether the decision in Worcester Court is an exception to the
rule in Room Hire or a new and preferable rule is
something we need
not decide. In the present case there is a dispute as to whether the
property enjoys the supply of Municipal
services and thus fit for
purpose. Accordingly in these circumstances, the ordinary presumption
that the agreed rental is prima
facie evidence of the reasonable
value of occupation holds true or can be relied upon. In these
circumstances the facts of the
present case do not warrant a
departure from the long established practice. The damages, if to be
pursued, ought properly to be
pursued by way of action.
Conclusion
[40]
For the reasons set out above, the Court a quo was correct to set
aside the attachment order and to refuse to confirm the attachment.
The Court was correct in refusing to grant an order for the payment
of monies against the respondents. There was no basis to visit
personal liability on the second to fifth respondents and there was
no undisputed or liquidated claim for money capable of being
granted
in motion proceedings.
[41]
In relation to costs, it is to be noted that the second, third and
fourth respondents never opposed the application nor did
they
participate in the appeal. Although some opposition was offered at
the hearing in the court a quo by the first and fifth respondents,
they did not participate in this appeal. Nevertheless all the
respondents were cited as parties and, although not participating
in
the appeal, may have incurred some costs in being served with and
considering the documents in the appeal. To the extent that
they are
able to demonstrate these to the satisfaction of the taxing master,
they ought not to be deprived of their costs.
[42]
Accordingly I would make an order that the appeal is dismissed with
costs.
J
R PETER ACTING JUDGE
SOUTH
GAUTENG HIGH COURT, JOHANNESBURG
I
agree
T
M Masipa
JUDGE
SOUTH
GAUTENG HIGH COURT, JOHANNESBURG
I
agree
R
S Mathopo
JUDGE
SOUTH
GAUTENG HIGH COURT, JOHANNESBURG
Appearances:
For
the appellant: M Nowitz,
Instructed
by Nowitz Attorneys, Johannesburg
No
appearance for the respondents.
Date
of argument: 6 April 2011
Date
of judgment: 14 June 2011