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[2014] ZAGPJHC 312
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Ensemble Hotel Holdings (Pty) Ltd v Identity Development Fund (Pty) Limited and Another; InRe: Identity Development Fund (Pty) Limited v Greennovate Counsulting And projects Primary Co-operative Limited (25501/2014) [2014] ZAGPJHC 312 (4 November 2014)
REPUBLIC OF SOUTH
AFRICA
SOUTH GAUTENG
HIGH COURT
JOHANNESBURG
CASE
NO: 25501/2014
DATE:
04 NOVEMBER 2014
In the matter
between:
ENSEMBLE HOTEL
HOLDINGS (PTY)
LTD)
...............................
Applicant/Intervening
Party
And
IDENTITY
DEVELOPMENT FUND (PTY)
LIMITED
.....................................
First
Respondent
GREENOVATE
CONSULTING AND PROJECTS
PRIMARY
CO-OPERATIVE
LIMITED
......................................................
Second
Respondent
In re:
IDENTITY
DEVELOPMENT FUND (PTY)
LIMITED
...............................................
Applicant
And
GREENOVATE
CONSULTING AND PROJECTS
PRIMARY
CO-OPERATIVE
LIMITED
.................................................................
Respondent
JUDGMENT
WEINER J:
1. The applicant
(“Ensemble”) seeks leave to intervene in the application
(“the perfection application”)
which Identity Development
Fund (“IDF”) launched against Greenovate Consulting and
Projects Primary Co-operative Limited
to obtain perfection of a
notarial bond (“the bond”) over goods which were at the
premises situated at Shop 2, 2nd
floor, Laico Isle, corner of Rivonia
Road and Daisy street in Sandton (“the premises”). In
addition, it seeks rescission
of the perfection order and that IDF be
ordered to disclose the whereabouts of the goods that were removed
and return all the goods
that were removed by it to the premises.
2. In terms of the
perfection application, IDF sought an order (“the perfection
order”) which was granted, with the
consent of Greenovate, that
the notarial bond registered in favour of IDF over the assets of
Greenovate, be perfected.
3. It is common
cause that, in the perfection application, IDF was cited as the
applicant, but the notarial bond was registered
in favour of Identity
Isivande Development Fund (Isivande) and not IDF.
4. Ensemble is the
lessor of premises at which Greenovate conducted business.
Background to these
proceedings
5. On the 30th of
January 2013, Ensemble and Greenovate concluded a lease agreement.
6. On the 30th of
October 2013 the notarial bond was registered in favour Isivande.
7. On the 22nd of
February 2014, a letter was sent to Ensemble informing it that the
movables belonging to Greenovate were subject
to a notarial bond in
favour of Isivande.
8. On or about the
8th of July 2014, Ensemble addressed a letter to Greenovate stating
that Greenovate was in breach of its lease
agreement as its rental
was in arrears.
9. As a result
thereof, Ensemble:
9.1. Caused its
attorneys of record to deliver a letter of demand to the respondent
on 8 July 2014, claiming payment of the outstanding
amounts and
placing Greenovate in mora.
9.2. On the 21st of
July 2014, cancelled the lease as it was entitled to do;
10. IDF, upon
hearing of the aforesaid, instructed its attorneys to apply for the
perfection of the notarial bond which it had registered
over the
assets of Greenovate.
11. On the 16th of
July 2014, the Sheriff Sandton accompanied by IDF’s attorney,
Ezra Matlala, attended at the premises, introduced
themselves, and
advised that they were there to remove the contents of the premises.
When Ensemble’s personnel enquired as
to what was transpiring,
the Sherriff handed them a copy of the perfection order and in due
course continued with removing the
contents of the shop.
12. On the 21st of
July 2014, Ensemble’s attorneys issued a rent interdict
summons, in the Randburg Magistrates court inter
alia;
12.1. Claiming the
outstanding amounts;
12.2. Giving notice
of the cancellation of the lease;
12.3. Setting out
its intention to rely on its “landlord’s tacit hypothec”.
13. Ensemble had no
knowledge of the existence of the notarial bond and the application
for perfection until the Sheriff arrived
at the premises.
Accordingly, Ensemble contends that it had no choice but to comply
with the perfection order and allowed the goods
to be removed.
The present
rescission application
14. The rescission
application of Ensemble is based upon the following:-
14.1. The incorrect
party (IDF) was cited as the applicant in the perfection application
and perfection order;
14.2. Ensemble has
an interest in the proceedings in that it seeks to perfect its
unperfected tacit hypothec.
15. IDF opposed the
application on the basis, firstly, that the applicant has no locus
standi in the matter on account of its unperfected
hypothec and,
secondly, that no case for rescission is made out.
16. IDF contends
that Ensemble does not have locus standi, in that it does not have
the necessary legal interest to intervene in
the application for
rescission. In terms of Rule 42(1)(a) of the Rules of Court, dealing
with rescission of judgments, an intervening
party must have “an
interest in the subject-matter of the judgment or order sufficiently
direct and substantial to entitle
him or her to have intervened in
the original application upon which the judgment was given or
granted” and “a legal
interest in the subject-matter of
the action which could be prejudicially affected by the judgment of
the court”. (Erasmus
Superior Court Practice page B1-308)
17. The interest
upon which Ensemble relies is its landlord tacit hypothec. IDF
contends that Ensemble has no legal interest because,
having not
exercised its rights in terms of its landlord’s hypothec, it
can no longer do so once the goods have been removed.
18. In Webster v
Ellison
1911 AD 73
, the removal of the goods from the landlord’s
property was discussed in various scenarios. It is trite that a
hypothec, before
attachment, has no force against third parties.
(Webster at page 88). In addition, the tacit hypothec “is a
right, however,
which is always subject to be defeated by the removal
of the goods from the leased premises. From this point also, I think
the
law is clear that the hypothec is lost so soon as the goods are
removed.” (Webster at 94).
19. There are,
however, instances when this may not be so. For instance, if the
lessee removes the goods from the leased premises
with the object of
defeating the landlord’s lien, a court would not hesitate to
order the return of the goods, unless third
parties had, in the
meanwhile, obtained rights to them. (Webster at 105).
20. In terms of Rule
42 “(1) the court may, in addition to any power it may have,
mero motu or upon the application of any
party affected, rescind or
vary an order or judgment erroneously sought, or erroneously granted,
in the absence of any party affected
thereby.”
21. The words “any
party affected” refers to a party who has “an interest in
the subject matter of the order sufficiently
direct and substantial
to entitle him or her to have intervened in the original application,
upon which the judgment was given
or granted” (emphasis added).
(United Watch and Diamond Company Proprietary Limited and Others v
Disa Hotels Limited and
Another
1972 (4) SA 409
(C)).
22. It is clear
that, based on the facts of this matter:-
22.1. Ensemble has
the required interest – once the goods are returned, it may
very well be entitled to perfect its hypothec
if the goods were
removed fraudulently, for example. It is not necessary for this court
to decide this issue at this stage. The
residual interest which
Ensemble has in these goods and in its right to perfect its hypothec
is sufficient.
22.2. The order was
erroneously sought and granted (this appears to be common cause).
22.3. The IDF’s
contention that the documents relating to the notarial bond refer
both to IDF and Isivande, that therefore
the citation was a mere
error and that perfection order should simply be amended is untenable
for various reasons. Inter alia,
Isivande is not even a party to
these proceedings.
22.4. It is quite
clear that an order granted in favour of one party, which had no
locus standi in the first place, cannot simply
be amended to refer to
the correct party, more particularly when third party interests are
involved.
23. Once the court
holds that an order or judgment was erroneously sought or granted, it
must, without further enquiry, rescind
or vary the order and it is
not necessary for a party to show good cause for the sub-rule to
apply. (Naidoo v Somai
2011 (1) SA 219
KZD at 220F-G).
24. It is clear that
once a judgment has been rescinded, the consequences thereof (for
example, the perfection of the notarial bond)
falls to be set aside
as well. (Naidoo v Somai (supra) at 221G-H).
25. For these
reasons, an order is granted in terms of the draft order which is
attached hereto and marked “X”.
WEINER J
Counsel for
Ensemble: Adv AJ Venter
Ensemble’s
Attorneys: Shapiro-Aarons Inc.
Counsel for IDF:
Adv N Gama
IDF’s
Attorneys: Ezra Matlala Attorneys
Date of Hearing:
7 October 2014
Date of Judgment:
4 November 2014
IN THE SOUTH
GAUTENG HIGH COURT
(JOHANNESBURG)
CASE
NO: 25501/2014
In the matter
between:
ENSEMBLE HOTEL
HOLDINGS (PTY)
LTD
.........................................................
Applicant/Intervening
party
And
IDENTITY
DEVELOPMENT FUND (PTY)
LIMITED
............................................................
First
Respondent
GREENOVATE
CONSULTING AND PROJECTS
PRIMARY
CO-OPERATIVE
LIMITED
............................................................................
Second
Respondent
In re:
IDENTITY
DEVELOPMENT FUND (PTY)
LIMITED
....................................................................
Applicant
And
GREENOVATE
CONSULTING AND PROJECTS
PRIMARY
CO-OPERATIVE
LIMITED
.....................................................................................
Respondent
DRAFT ORDER
Before the
Honourable Judge Weiner on 4 November 2014.
Having heard counsel
for the Intervening party (Ensemble Hotel Holdings (Pty) Ltd) and
Identity Development Fund (Pty) Ltd. and
having read the
documentation filed of record, an order is granted in the following
terms:
1. The intervening
party (Ensemble Hotel Holdings (Pty) Ltd) is granted leave to
intervene in the application.
2. The order granted
by the Honourable Justice Wepener on the 15th of July 2014 is set
aside and rescinded.
3. Identity
Development Fund (Pty) Ltd. is ordered to:-
a. Disclose the
whereabouts of the goods removed by it on the 16th day of July 2014
from Shop 2, 2nd floor, Laico Isle situated
at the corner of Rivonia
Road and Daisy Street (the premises).
b. Return all goods
removed by it on the 16th day of July 2014 from the premises.
4. Should Identity
Development Fund (Pty) Ltd. not do so within 24 hours of this order
being served on it, the Sheriff is authorised
to collect and return
all goods removed by it on the 16th day of July 2014 from the
premises.
5. Identity
Development Fund (Pty) Ltd. is to pay Ensemble Hotel Holdings (Pty)
Ltd.’s costs.
BY ORDER
REGISTRAR