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[2014] ZAGPJHC 329
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City of Johannesburg Municipality and Another v Zoo Lake Bowling Club (42055/13) [2014] ZAGPJHC 329 (13 May 2014)
IN
THE HIGH COURT OF THE REPUBLIC OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO. 42055/13
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.