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[2013] ZAGPJHC 81
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Media Cube (Pty) Ltd v Vividend Income Fund Ltd (2132/13) [2013] ZAGPJHC 81 (7 March 2013)
IN THE HIGH COURT OF SOUTH
AFRICA (
SOUTH GAUTENG
)
JOHANNESBURG
CASE NO
: 2132/13
DATE
: 07.03.2013
In
the matter between
THE
MEDIA CUBE (PROPRIETY) LIMITED
Applicant
And
VIVIDEND
INCOME FUND LIMITED
Defendant
J U D G M E N T
WILLIS, J
:
[1] This is an application in terms of
which the applicant seeks to assert a lease agreement under the
principle of
huur gaat voor koop
. The applicant relies upon a
lease agreement in respect of which it was not a party. Furthermore,
it relies upon this agreement
to enforce it against a successor in
title to the original owner who entered into the agreement upon which
the applicant relies.
[2] The agreement relates to what the
applicant has more accurately described, in its founding affidavits,
as ‘advertising
structures’ rather than what appears in
the actual agreement itself as simply ‘structures’. The
site on which
the structures exist is a building known as 158 Jan
Smuts Avenue, Rosebank, Johannesburg.
The property
in question is portion 1 or erf 182, remainder erf 171
the remainder of 181, portion of erf 171 Rosebank, part of which
building
is also in Walter Avenue, Rosebank.
[3] The agreement in question was
entered into between Interspace Media (Pty) Ltd and Vusani Property
Investments (Pty) Ltd. Vusani
Property Investments (Pty) Ltd was the
landlord and Interspace Media (Pty) Ltd was the lessee in respect of
the advertising structures.
It is important to emphasise at this
early stage in the judgment that the lease does not relate to the
whole property in question
but merely certain advertising structures
that have been erected thereupon. The agreement in question to which
I have referred
was entered into in March 2008.
[4] The applicant makes out the case,
in its founding affidavit, that it has spent a considerable amount of
money on these structures
and also a lot of time and money in
maintaining them. That much I certainly accept.
[5] The applicant claims that this
lease agreement was ceded to it in terms of an oral agreement. It is
correct that the agreement
provides that the agreement may be ceded
without the permission of Vusani, the landlord, but it also contains
a standard non-variation
clause stipulating that any variations must
be recorded in writing.
[6] The respondent has relied very
strongly on the fact, that in terms of the agreement to purchase the
property, which was concluded
on 6 October 2011 with Vusani (that is
Vusani Property Investments (Pty) Ltd) there is an express warranty
given that there were
no lease agreements in existence and that there
was nothing of the kind, which could in any way prejudice its own
interests.
[7] Mr
Subel
, who appears for
the applicant, has repeatedly emphasised that this point is relevant
in as much as the respondent would then have
a claim against Vusani
rather than as a defence against the applicant. It is correct, to a
degree, that the relevance of the warrantees
applies
inter se
between the seller of the property and the respondent as purchaser
but there is another aspect of significance which needs to be
highlighted when one comes to the law and that is that there is
nothing on the papers to indicate that the respondent knew of the
agreement in question, never mind that the agreement in question
applied with the applicant as a party. This is critical when it
comes
to an evaluation of the application of the
huur gaat voor koop
principle.
[8] Furthermore the respondent has
alleged in the answering affidavits in two places that the signage in
question was vacant at
the relevant time. It is true that there is an
argument that can be presented that this protestation about this
signage being vacant
could apply in a somewhat different context.
Nevertheless, the probabilities are that it has to have applied at
the time when the
purchase agreement was entered into on 6 October
2011 and furthermore the applicant has not, in any way, asserted the
fact that
the signage contained a display of advertising at the time.
[9] Mr
Subel
has repeatedly
emphasised that the signage would have been visible. Of course this
is correct. The signage would have been visible,
but that is not the
point as far as I can see in this particular case. The question is
whether there was advertising on the signage,
which would have put
the respondent on enquiry as to whether someone else had an interest
therein.
[10] As I have said, the applicant
relies on the fact that the lease agreement was ceded to it. To my
mind, the non-variation clause
requiring that any variations be in
writing would entail that this assertion be recorded in writing, even
though the consent or
approval of Vusani Property Investments (Pty)
Ltd may have been required.
[11] I should also recall I am
doubtful whether signage structures of the kind in question build on
immovable property constitutes
a kind of lease that would have been
envisaged in Roman/Dutch law when the
huur gaat voor koop
principle
was developed. I need not make any final decision on
that matter. I merely raise it as a question mark but as I have put
it to
Mr
Subel
by way of analogy (and I accept that analogies
can be very dangerous), if one was walking down the Prinzengracht in
Amsterdam in
the 17
th
Century, interested in buying a
building and one saw a flagpole without any flag hanging from it, I
do not think that the common
law would have expected a purchaser to
be put on enquiry as to whether somebody was renting that flagpole
with a right to hang
a flag therefrom. It may be entirely different
if the flag, in big bold letters indicated, for example, that the
flagpole or the
right to hoist flags therefrom belonged to the Dutch
East India Company but the owner of the property was not the Dutch
East India
Company but some other merchant trading operation.
[12] Be that as it may I will now come
to the important point of the huur gaat voor koop as set out in the
well know case of
Kessoopersadh en
Andere
v Essop en
Ander
1970 (1) SA
275
(AD). In order for the
huur gaat voor koop
principle or
rule of law to operate against a purchaser of immovable
property, the purchaser must either have been made aware
of the
existence of the tenancy (that, of course, is not the case here and I
do not understand that to be the applicant’s
case), or the
purchaser should have been put on enquiry by reason of the fact that
there were facts to indicate or suggest to it
that someone else had
an interest of the kind in question.
[13] That on the facts before me is
not the case here. The applicant has not made out a case that the
respondent knew, at the time
of purchasing the property in question,
of either the applicant’s interest in the signage or any other
person’s interest
in the signage as a matter of enforceable
right against it, the purchaser. Accordingly, the application falls
to be dismissed.
[14] Although this might seem, at a
glance, not to be a matter involving the expertise of two counsel it
certainly is, upon closer
examination. There are complex points of
law and this advertising signage space is clearly in one of the
golden miles of the golden
city.
Accordingly, the costs of two counsel will be allowed.
[15] The following is the order of
this court:
The application is dismissed with
costs, which costs are to include the costs of two counsel.
---oOo---
Counsel for the applicant: Adv A Subel
SC, (with him Adv L Hollander)
Counsel for the respondent: Adv F
Snyckers SC (with him Adv P Bosman)
Applicant’s attorneys:
Tugendhaft Wapnick Banchetti and Partners,
Attorneys for the respondent: Fluxmans
Inc.