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[2015] ZAGPJHC 81
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Lewis T/A Lewis Properties v Boudjemaa (2014/40973) [2015] ZAGPJHC 81 (15 May 2015)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG LOCAL DIVISION,
JOHANNESBURG
CASE NO: 2014/40973
DATE: 15 MAY 2015
In the matter between:
ALAN LEWIS t/a LEWIS
PROPERTIES
.............................................................................
Applicant
And
LYES
BOUDJEMAA
.............................................................................................................
Respondent
J U D G M E N T
MASHILE, J:
[1] This is an application for the
eviction of the Respondent from business premises described as 236
Johannesburg Road, La Rochelle,
Johannesburg (hereinafter “the
premises”) following an alleged infringement of a commercial
lease by the Respondent.
[2] A brief exposition of the facts in
this matter will assist to put the outcome of the judgment in
perspective. On 1 May 2014
at La Rochelle, Johannesburg, both
parties duly represented, concluded a written commercial lease
agreement, which was deemed to
have commenced on 1 January 2014.
[3] The lease agreement was in respect
of the premises as described in Paragraph 1 herein. Some of the
material terms and conditions
of the lease agreement were that:
3.1 The Respondent would pay monthly
rentals of R17 100.00 to the Applicant;
3.2 The Applicant let the premises to
the Respondent on the understanding that the latter would utilize
them for business purposes;
3.3 The Respondent would pay monthly
rentals to the Applicant in advance, without deduction or set-off, on
the first day of each
month;
3.4 The Respondent would not for any
reason be entitled to withhold or delay payment of any monies to the
Applicant in terms of
the lease agreement regardless of the
Applicant’s compliance with its obligations;
3.5 The Respondent undertook to be
responsible for the payment of all expenses, costs, and charges,
which the Applicant might incur
occasioned by the default of the
Respondent of any of the terms and conditions of the lease agreement,
including collection commission
at the ruling rate and all legal
costs as between attorney and client
3.6 No relaxation which the Applicant
might show at any time whatsoever in regard to the carrying out of
its obligations in terms
of the lease agreement shall prejudice any
of its rights under the lease agreement in any manner whatsoever or
be regarded as a
waiver of any of its rights in terms of this lease
agreement;
3.7 No alteration or variation of the
terms of this Lease including this clause or any alleged cancellation
by mutual consent shall
be of any force or effect unless reduced to
writing and signed by both parties or their duly authorized
representatives.
[4] Notwithstanding that the parties
only signed the lease agreement on 1 May 2014, the Respondent took
occupation on 1 January
2014 and continues to be to date hereof. It
is common cause that the Respondent defaulted to make his monthly
rentals on 1 September
2014 following which the Applicant caused a
letter of demand to be sent to the Respondent.
[5] In that letter of demand, the
Applicant gave the Respondent twenty days, reckoned from the date of
receipt, within which to
make payment of the arrear rental failing
which the Applicant threatened to cancel the lease agreement and to
take the necessary
action, including an application for the
respondent’s eviction and an action for damages.
[6] The Respondent’s default for
payment of the arrear rental persisted and on 13 October 2014, the
Applicant employed the
services of the sheriff who served the
Applicant’s letter terminating the lease agreement between the
parties. The Respondent
continues to remain in occupation of the
premises and according to the Applicant such occupation is unlawful
in view of its letter
dated 13 October 2014 cancelling the lease
agreement.
[7] The sole issue that stands for
determination is to establish whether or not the Applicant is under
the circumstances legally
entitled to evict the Respondent from the
premises. Put differently, is there any legal excuse that justifies
the Respondent’s
continued occupation of the premises his
failure to perform in terms of the lease agreement notwithstanding?
[8] The Applicant’s position is
that the Respondent signed the lease agreement thereby committing
himself to adhere to the
terms thereof. His failure to make payment
as envisaged in the lease agreement constitutes a contravention
thereof. The Applicant
has issued a letter demanding payment and the
Respondent has failed to perform. In consequence of the Respondent’s
failure,
the Applicant cancelled the lease agreement and has now
launched an application for his eviction.
[9] In response, the Respondent has put
forth, in the main, three defences that he thinks sanction his
persistent occupation of
the premises and these are:
9.1 Subsequent to the parties’
signature of the lease agreement on 1 May 2014, they entered into an
oral agreement in terms
of which the Applicant suspended payment of
the monthly rentals until the amount by which it had overcharged the
Respondent is
set-off;
9.2 Although during argument there was
an indication of an acknowledgment by Counsel for the Respondent that
the provisions of the
Prevention of Illegal Eviction Act No. 18 of
1998 Cannot find application under the circumstances of this case,
the defence is
nonetheless in the answering affidavit of the
Respondent and the court must therefore apply its mind to it; and
9.3 The Respondent has also intimated
that it has a counterclaim against the Applicant.
[10] The legal position regarding
eviction from commercial premises is not governed by the Prevention
of Illegal Eviction Act No.
18 of 1998. It is quite apparent that
all the submissions of the Respondent pertaining to PIE are misguided
and stand to be disregarded
completely.
[11] The Respondent has hinted that it
has a counterclaim against the Applicant. The court has noted that
other than this bare
allegation that it has a counterclaim against
the Applicant, it has until the date of the hearing of the
application not formulated
such claim. In the result the court
cannot entertain it at all.
[12] A defence which perhaps requires
more attention is the one relating to the alleged conclusion of the
oral agreement. In this
regard, I need to remark that the Respondent
does not dispute that the lease agreement contains a ‘no
variation except in
writing clause’. Once this is the case,
the Respondent’s claim that the parties concluded an oral
agreement is preposterous
and should be dismissed as devoid of any
merit.
[13] For what it is worth, I should add
that an oral agreement and a ‘no variation except in writing
clause’ are like
chalk and cheese and cannot co-exist. The
existence of the ‘no variation except in writing clause’
in the lease agreement
is a complete bar to an oral agreement meant
to vary the lease agreement. In this regard the judgment in SH v GF
and Others
2013 (6) SA 621
(SCA) at [16] where Van der Merwe AJA said
the following should be helpful:
“[16] In any event the view of
Kollapen AJ that in the light of the oral agreement of variation of
the maintenance order
it would offend against public policy to
enforce the non-variation clause, cannot be endorsed. This court has
for decades confirmed
that the validity of a non-variation clause
such as the one in question is itself based on considerations of a
public policy, and
this is now rooted in the Constitution. See SA
Sentrale Ko-op Graanmaatskappy Bpk v Shifren en Andere
1964 (4) SA
760
(A) at 767A - C and Brisley v Drotsky
2002 (4) SA 1
(SCA)
(2002
(12) BCLR 1229
;
[2002] 3 All SA 363)
paras 7, 8, 90 and 91. SA
Sentrale Ko-op Graanmaatskappy BPK v Shifren
1964 (4) SA 760
(A); SH
v GF and Others
2013 (6) SA 621
(SCA); Affirmative Portfolios CC v
Transnet Ltd t/c Metrorail
[2008] ZASCA 127
;
2009 (1) SA 196
(SCA); Kovacs Investments
724 (Pty) Ltd v Marais
2009 (6) SA 560
(SCA); Academy of Learning
(Pty) Ltd v Hancock and Others
2001 (1) SA 941
(C); Pelser v Smith
1979(3) SA 687 (T); Brisley v Drotsky
2002 (4) SA 1
CSC A); Van
Tonder en ‘n Ander v Van der Merwe en Andere
1993 (2) SA 552
(W); HNR Properties CC and Another v Standard Bank of South Africa
Ltd
2004 (4) SA 471
(SCA); Cecil Nurse (Pty) Ltd v Nkola
2008 (2) SA
441
(SCA).”
[14] In Media 24 Ltd and Others v SA
Taxi Securitisation (Pty) Ltd (AVUSA Media Ltd and Others as Amici
Curiae)
2011 (5) SA 329
(SCA) para [35] Brand JA said:
“‘As explained in Brisley v
Drotsky
2002 (4) SA 1
(SCA) (para 8), when this court has taken a
policy decision, we cannot change it just because we would have
decided the matter
differently. We must live with that policy
decision, bearing in mind that litigants and legal practitioners have
arranged their
affairs in accordance with that decision. Unless we
are therefore satisfied that there are good reasons for change, we
should confirm
the status quo.’”
[15] I reiterate that in view of the
existence of the ‘no variation except in writing clause’
the Respondent’s
allegation of an oral agreement is completely
misplaced. The application to evict the Respondent must therefore
succeed.
[16] Perhaps this is an an appropriate
moment to mention that the Respondent launched two interlocutory
applications, one for the
postponement of the eviction application
and the other, that he be allowed to give viva voce evidence to
explain why his erstwhile
attorney withdrew as attorney of record.
This court dismissed both these applications and it promised to
furnish reasons during
the main judgment on eviction. These are now
the reasons for the dismissal of the two applications.
[17] To begin then with the application
for the postponement of the eviction application. A party seeking
postponement of a matter
must give sound reasons for doing so in
particular, show prospects of success of the case that he wants to
postpone. The Respondent
came to court not prepared to argue the
merits of the eviction application. He furnished two reasons for his
failure.
17.1 On 30 April 2015 he and his
erstwhile attorneys, Mabuza Attorneys, had a fallout that culminated
in the latter abandoning
him to proceed on his own;
17.2 He did not have sufficient
opportunity to peruse the file to be ready for argument on 7 May
2015.
[18] The Respondent knew since 7 April
2015 that the eviction application was set down for 4 May 2015 and
that if not heard on that
day it would nonetheless be during the
course of that week. On 28 April 2015, the registrar notified all
the parties, the Respondent
included, involved in the motion court
for the week that began on 4 May 2015 of the precise dates on which
their matters would
be heard. The Respondent therefore became aware
of the date of 7 May 2015 as the date of hearing on 28 April 2015.
[19] The disagreement with his
erstwhile attorney conveniently did not occur until the very last
day, 30 April 2015. Moreover,
while he states that his erstwhile
attorneys withdrew, evidence demonstrates that Mabuza Attorneys only
served and filed a Notice
of Withdrawal as Attorneys of Record on 7
May 2015, the date on which the matter was to be heard. Similarly,
the present attorneys
of record could not have come on record until
the withdrawal had been effected.
[20] This raises the suspicion that no
fallout ever existed between the Respondent and his erstwhile
attorneys on 30 April 2015
because if it did, his erstwhile attorneys
would have at the earliest available moment ensured that they
withdrew and would have
notified the attorneys of Applicant
accordingly. If the attorney failed to do that then the Respondent
must explore means of ameliorating
his current position against him
because his actions amount to failure to execute his mandate. .
[21] This whole matter about an
argument between the Respondent and his attorneys on 30 April 2015 is
reminiscent of a gambit that
is designed to persuade the court to
grant a postponement. The court rejects it as being false.
[22] If one adopts the attitude, as
this court does, that the fallout between his erstwhile attorney and
himself is a ploy, there
is no reason why the Respondent could not
have been ready to argue this matter on 7 May 2015. What is more is
that he did not
even prepare heads, which shows that even if this
matter was set down on a different date he still would not have been
ready to
proceed.
[23] The Respondent’s application
for postponement cannot be considered in isolation from the prejudice
that would ensue to
the Applicant if it were to be allowed. The
default occurred in September 2014 and the Respondent has since not
been paying any
rentals whatsoever, his excuse for doing so being a
feeble allegation based on the conclusion of an oral agreement that
allowed
him to continue occupation without payment. Needless to
point out that the Applicant will suffer severe prejudice if this
matter
is delayed any further.
[24] In addition, the fact that there
did not appear to be any prospects of success against the eviction
application weighed heavily
against the granting of the postponement.
I have already pointed out that, for reasons furnished above, PIE
cannot avail the
Respondent under these circumstances.
[25] Furthermore, the Respondent
himself conceded that the lease agreement contains a ‘no
variation except in writing’
clause’. It is
inconceivable that, given the defences raised by the Respondent, he
is still contemplating to overcome all
these hurdles in the event
that this court grants him the indulgence.
[26] A postponement of this matter will
be nothing but a further gratuitous delay, which will indubitably
prejudice the Applicant.
For those reasons, the application for the
postponement of the application was refused.
[27] The next and probably the last
application, also launched by the Respondent after the postponement
was declined, is one where
he requested this court to allow him to
adduce viva voce evidence to explain why there was a fallout with his
erstwhile attorneys.
[28] In this respect it should be
instructive to to refer to the case of Quartermark Investments (Pty)
Ltd v Mkhwanazi and Another
2014 (3) SA 96
(SCA) where Theron JA
stated as follows para [13] at 100, 101:
“[13] “.....It is trite
that in motion proceedings affidavits fulfil the dual role of
pleadings and evidence. They serve
to define not only the issues
between the parties but also to place the essential evidence before
the court. They must therefore
contain the factual averments that are
sufficient to support the cause of action or defence sought to be
made out. Furthermore,
an applicant must raise the issues as well as
the evidence upon which it relies to discharge the onus of proof
resting on it, in
the founding affidavit.” Also see the
remarks of Cloete JA in Minister of Land Affairs & Agriculture v
D & F Wevell
Trust
2008 (2) SA 184
(SCA) para [43] at 200.
[29] The Respondent elected not to
explain the difficulty that he had with his erstwhile attorneys in
his affidavit. Proceedings
by way of application are not meant to
accommodate viva voce evidence except in deserving circumstances and
this is not one of
them.
[30] In the result, the application for
the eviction of the Respondent succeeds and I make the following
order:
1. The Respondent is evicted from the
premises and must vacate within 14 court days of date of this
judgment;
2.If the Respondent does not vacate the
premises within the 14 day period referred to in 1 above, the Sheriff
of the Court is hereby
authorised and required to carry out the
eviction order on or after the aforesaid date by removing from the
premises the Respondent
and all persons who occupy the premises by,
through or under him;
3. The Respondent is to pay the costs
of the Applicant as at the scale between attorney and client.
B A MASHILE
JUDGE OF THE HIGH COURT OF SOUTH
AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG
DATE OF HEARING : 07 MAY 2015
DATE OF DELIVERY : 15 MAY 2015
COUNSEL FOR THE APPLICANT : Adv. J K
DRIVER
INSTRUCTED BY : RYAN D LEWIS
ATTORNEYS
COUNSEL FOR THE RESPONDENT : Adv.
ADV. ZWANE
INSTRUCTED BY :VUZA BIYAYA &
ASSOCIATES