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[2014] ZAGPJHC 317
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City of Johannesburg Metropolitan Municipality and Another v Zoo Lake Bowling Club (42055/1) [2014] ZAGPJHC 317 (13 May 2014)
IN
THE HIGH COURT OF THE REPUBLIC OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO. 42055/1
DATE:
13 MAY 2014
In
the matter between:
CITY OF
JOHANNESBURG METROPOLITAN
MUNICIPALITY
................................................................................................................
1
st
Applicant
CITY OF
JOHANNESBURG PROPERTY COMPANY (SOC)
LD
...............................
2
nd
Applicant
And
THE ZOO LAKE BOWLING
CLUB
................................................................................
Respondent
JUDGMENT
MONAMA
J
[1] The first
applicant is the City of Johannesburg Metropolitan Municipality. It
is established in accordance with
Section 2
of the
Local Government:
Municipal Systems Act 32 of 2000
. Its principal place of business is
at Loveday Street, Johannesburg.
[2] The second
applicant is the City of Johannesburg Property Company SOC Limited, a
company registered and incorporated in accordance
with the laws of
South Africa, with its principal place of business situated at Forum
II Building, Braampark, Braamfontein.
[3] The
respondent is the Zoo Lake Bowling Club, a public, non-profit
voluntary association which is conducting a bowling club at
the
premises situated at Prince of Wales Drive, Parkview, Johannesburg.
[4] The above
property forms the subject matter of this eviction application.
[5] The
applicants are the owners of the premises. The premises are occupied
by the respondent. The respondent conducts a
bowling club
thereon and has been doing so for a period of excess of 81 years. The
premises are not used for residential purposes
except that there is a
restaurant operating thereon
[6] The
applicants seek the following relief, namely:
6.1
that the respondent and all those who are in occupation on
arrangement with it, be ejected from the premises situated
at
Prince of Wales Drive, Parkview, Johannesburg, and
6.2
that the respondent, and all those who are in occupation under it
and/or on arrangement with the respondent, should vacate the
premises
within 14 (fourteen) days from the date of this order.
The
application is based on the right of ownership. It is vehemently
opposed. The respondent’s defence is that there is a
pending
review application it has launched against the allocation by the
applicants.
[7] The
respondent has been in occupation of the premises for a period of 82
years. They occupied the premises in terms of two lease
agreements.
The first agreement governed the relationship from 1932 until 2000.
[8] During the
middle of 2000 the parties concluded a new lease agreement. This is
the second lease which was for a fixed period.
The said lease
agreement was terminated during 2013 by effluxion of time.
[9] Upon the
termination of the lease agreement, the applicant issued a tender for
the new lease. The respondent participated in
the process but was
unsuccessful. The tender was given to a third party. As a result, the
respondent was unhappy and has now launched
a review application to
set aside the applicants’ decision to award the tender to a
third.
[10] Since the
termination of the lease the applicants have requested the responded
to vacate the premises but have been unsuccessful.
The respondent has
steadfastly refused to vacate the premises. It continues in its
unlawful occupation.
[11] The
following mentioned facts are common cause and have not been
disputed.
11.1
that the respondent’s lease has expired and no new lease was
granted to it; and
11.2
that the applicants are the owners of the premises in question.
The
applicant’s case is based on ownership, they contend that the
respondent is in unlawful occupation. The respondents has
rais as a
defence the review application proceedings it has launched against
the applicants’ decision to award the tender
for the property
to a third party.
[12] The issue
therefore is whether the defence so raised is sustainable in law.
[13] The
applicants are the owners of the property or the premises.
Ipso
facto,
their rights to this property are absolute. The right
entitles them to enforce it against the whole world. This right
operates against
the respondent as well.
[14] The
alleged defence raised is bad in law. The termination of the lease
agreement between the parties has, with certain exceptions,
terminated the legal relationship between them. The exception may be
in respect of arrear rentals or damages to the property. However,
in
the current matter such exceptions have not as yet surfaced.
[15] The
review application and the allegations therein raised do not assist
the respondent in the present application. In
National
Treasury v Opposition to Urban Tolling Alliance
[1]
the Constitutional Court decided on a matter which was a subject of a
pending review
[2]
.
Therefore, the purported defence is nothing but red herring.
And so is any reliance placed upon the fact that the respondent’s
bowling club is a brand.
[16]
During the argument, counsel for the respondent relied on
further submissions including interdict and the decisions
dealing
with liquor licences. The extension of the principles of the
interdict proceedings and the rational in the licence decisions
[3]
to the present facts is misplaced. The liquor licence cases are
distinguishable. They dealt with the lapsed liquor licences, which
could be extended or surcharge levied on them. Even in those
circumstances the court was cautious. It dealt with them on the basis
of hardship which could have resulted.
In
casu
, we deal
purely with commercial arrangements. It will be wrong to grant the
relief sought by the respondent. This court cannot
create a lease
agreement for the parties.
[17] The
respondent’s counsel further submitted that there is a need to
preserve the “greens”. This argument is
without merit. It
loses sight of the legal principle of accession. In
Unimark
Distributors (Pty) Ltd v Erf 94 Silvertondale (Pty) Ltd
it was
held that:
“
-
The permanent attachment or annexation of structures such as
buildings, walls and other fixtures or fittings to land, is denoted
by the term
inaedificatio,
a form of
accession. In accordance with common-law rules or principles such as
superficies
solo cedit
and omne quod
inaedificatur
solo cedit
such
structures become the property of the owner of the land or premises
on which they have been built or erected.
’
[4]
The
“greens” constitute property of the applicants by
accesio
.
In principle the applicants are at liberty to deal with the property
as they wish.
[5]
[18] The
applicant’s counsel submitted that this eviction proceedings
are based on straight forward facts. The submission
is correctly
made. However, such submission has a direct bearing on the question
of costs. The applicants have engaged the services
of two counsel. In
my view that was unnecessary. The matter is not complicated to
justify two counsel.
[19] In the
circumstances I make the following order:
1.
The respondent is ordered to vacate the
premises on or before 31 August 2014;
2.
Should the respondent fail to vacate the
premises as ordered in order 1 above, the sheriff of Johannesburg
North is hereby authorised
to remove the respondent; and
3.
The respondent is ordered to pay the costs
of one counsel
RE
MONAMA
JUDGE
OF THE HIGH COURT
GAUTENG
LOCAL DIVISION
Appearances
Counsel for the
applicant: Adv. N.H Maenetja SC
Adv. PG Seleka
Instructed by: Mkhabela
Huntley Adeyeke Inc, Sandton
Counsel for the
respondent: Adv. M Oppenheimer
Instructed by:
Schindlers attorneys, Melrose Arch, Johannesburg
Date of hearing: 9 May
2014
Date of judgment: 13
May 2014
[1]
2012(6) SA 223 CC.
[2]
2012(6) SA 223 CC at 230 F-G
and 233 B-C..
[3]
Airoadexpress (Pty) Ltd v
Chairman, Local Road Transportation Board, Durban and Others
1986
(2) SA 633
(A); Winkelbauer and Winkelbauer t/a Eric’s
Pizzeria and Another v Minister 1995(2) SA 571 TPD; and Du Plessis
N.O. v Voorsitter
van Die Drankwinkelraad en Ander 1995(2) SA 486
OPA.
[4]
1990 (2) SA 986
TPD at 997
I-J.
[5]
Glen v Glen
1979 (2) SA 1113
TPD at 1129 E-F.