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[2015] ZAGPJHC 1
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Zoo Lake Bowling Club v City of Johannesburg Property Company (Soc) Ltd and Others (23848/2013) [2015] ZAGPJHC 1 (14 January 2015)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG LOCAL DIVISION
JOHANNESBURG
CASE NO: 23848/2013
DATE: 14 JANUARY 2014
In the matter between
THE ZOO LAKE BOWLING
CLUB
..........................................................................
APPLICANT
And
CITY OF JOHANNESBURG PROPERTY
COMPANY (SOC) LTD
....................
1st
RESPONDENT
CITY OF JOHANNESBURG METROPOLOITAN
MUNICIPALITY
...............
2nd
RESPONDENT
CITY MANAGER, CITY OF
JOHANNESBURG
..............................................
3rd
RESPONDENT
KENAKO CONSULTING (PTY)
LTD
...............................................................
4th
RESPONDENT
DATE: 11 JULY 2013
J U D G M E N T
KATHREE-SETILOANE J:
[1] The applicant seeks interdictory
relief as a matter of urgency for an interdict restraining the first
to third respondents from
taking any steps to have the applicant
evicted from the premises situated on Portion 37 Braamfontein 53 I R,
which the applicant
currently occupies and on which it conducts its
activities as the Zoo Lake Bowling Club.
[2] The applicant also seeks to
interdict the first, second and third respondents from concluding a
lease agreement with the fourth
respondent in respect of the premises
which the applicant currently occupies pending the final
determination of review proceedings
to be instituted by the applicant
within 14 days of the granting of such order. The applicant is Zoo
Lake Bowling Club.
[3] On 14 June 2013 it received a
notice to vacate the premises by 14 July 2013. In the letter
requiring the applicant to vacate
the premises, the second respondent
informed the applicant that the facility was awarded to a successful
bidder, and that the applicant
was therefore required to vacate the
premises. Significantly, in this regard, is that the applicant had
also tendered for the lease
of the premises. On the same day, the
applicant addressed a letter to the second respondent seeking
information about the award
of the tender and calling upon the second
respondent to withdraw its notice to evict, pending a review of the
tender process.
[4] On 26 June 2013 the applicant
received a letter from the second respondent informing it that the
tender had been awarded to
the fourth respondent. The applicant was
also told that should it require further information regarding the
award of the tender
it was required to apply in terms of the
Promotion of Access to Information Act 2 of 2000, (“PAIA”).
[5] On 1 July 2013, the applicant sent
a letter advising the second respondent that it intended to bring an
application for an interdict
and that pending the finalization of
such application, the second respondent was required to desist from
taking any steps to evict
the applicant and to refrain from
concluding a lease agreement with the fourth respondent.
The second respondent replied on the
same day, stating that it had no intention of suspending the
conclusion of an agreement with
the fourth respondent or undertaking
not to evict the applicant from the premises.
[6] On 4 July 2013, as a matter of
extreme urgency, the applicant launched an application for an interim
interdict pending the review
of tender request for proposal RFP
16/2012. The matter was set down for hearing on 11 July 2013, and the
respondents were given
until Monday 8 July 2013 to file an answering
affidavit. The fourth respondent, against whom no relief or costs
were sought, and
to whom the tender was awarded, nevertheless filed
its answering papers on 10 July 2012 at 10:00 and first, second and
third respondents
filed their answer this morning at 10:00.
[7] It has become clear from the
answering affidavit of the first, second and third respondents that
the lease agreement with the
fourth respondent had already been
concluded on 4 July 2012 and this was communicated to counsel for the
applicant on 5 July 2013,
albeit informally by Mr Makhubela, the
attorney for the first, second and third respondents. Accordingly,
the relief sought by
the applicant in prayer 2.3 of the notice of
motion interdicting the first, second and third respondents from
concluding a lease
agreement with the fourth respondent has become
academic.
[8] This, notwithstanding the applicant
was never formally advised of this by the first, second and third
respondents’ attorney
prior to the hearing of the matter this
morning when the first, second and third answering affidavits were
handed up to the court,
even though as late as 8 July 2012, the
applicant’s attorney requested the first, second and third
respondents to confirm
whether a lease had in fact been concluded,
and when it was concluded - having been informed informally by Mr
Makhubela that he
believed that the lease had already been concluded
on 5 July 2013. In their letter of reply, dated 10 July 2013, the
first, second
and third respondents fail to respond to this request
despite knowing full well, by this date, that the lease with the
fourth respondent
had already been finalized on 4 July 2012.
[9] In the same letter of 10 July 2013
the first, second and third respondents denied that there was any
urgency in the matter
because despite the notice of eviction of 14
June 2013 to the applicant, it was made clear to the applicant that
they did not intend
to evict the applicant through extra judicial
means, i.e. without a court order.
[10] In the current constitutional
dispensation, section 26 of the Constitution makes it unlawful for a
party carrying out an eviction
to do so without a court order. This
principle, in my view, will apply equally to a commercial eviction
and an eviction of a non-profit
organisation or a public benefit
organisation from premises which they occupy, for the purposes of the
non-profit of public benefit
activities which they carry out.
Accordingly, and in view of the fact the eviction of the applicant is
not imminent, and that
the interdictory relief sought in relation to
the conclusion of the lease agreement by the fourth respondent has
become academic,
the applicant’s application for interim
interdictory relief must fail for lack of urgency.
[11] Mr Kung on behalf of the applicant
has strongly urged me not to make a costs order against the applicant
in the event of finding
that the application lacks urgency, firstly,
because the applicant is a public benefit organization with very
limited funds, and
secondly because of the first, second and third
respondents’ conduct in failing to apprise it of the requisite
undertakings
and information in relation to the conclusion of the
lease with the fourth respondent.
[12] On this score, I am of the view
that the applicant was entitled to seek the relief sought in prayer
2.3 of the notice of motion,
and the court may very well have
entertained argument on an urgent basis on the merits, and on the
relief sought in prayer 2.3
had the issue not become academic. The
court is accordingly of the view that the first, second and third
respondents had acted
irresponsibly and disingenuously in not
advising the applicant formally, before today, that the agreement
with the fourth respondent
had already been finalized on 4 July 2013,
the very day on which the application was launched on an urgent
basis.
[13] Therefore, I see no reason why the
applicant should be mulcted with the costs of this application, as it
was directed at vindicating
its constitutional rights to fair
administrative justice.
In the premises I make the following
order:
1.The application is struck from the
role for lack of urgency.
2.The first, second and third
respondents are ordered to pay the costs of the applicant jointly and
severally the one paying the
other to be absolved.
F KATHREE-SETILOANE
JUDGE OF THE HIGH COURT OF SOUTH
AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG
DATE OF HEARING: 11 July 2013
APPLICANT’S COUNSEL: Adv. S
Kuny
APPLICANT’S ATTORNEYS:
Schindlers Attorneys
FIRST, SECOND & THIRD
RESPONDENT’S
COUNSEL: Adv. P.G. Seleka
FIRST, SECOND & THIRD
RESPONDENT’S
ATTORNEYS: Mkhabela Huntley
Adekeye Inc.
FOURTH RESPONDENT’S ATTORNEYS:
Siva Chetty Attorneys
FOURTH RESPONDENT’S COUNSEL:
Adv. V Soni