About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: South Gauteng High Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: South Gauteng High Court, Johannesburg
>>
2015
>>
[2015] ZAGPJHC 128
|
|
Ukubekezela Logistics v Umzobanzi Coal & Energy (2014/45450) [2015] ZAGPJHC 128 (23 June 2015)
REPUBLIC
OF SOUTH AFRICA
SOUTH
GAUTENG HIGH COURT
JOHANNESBURG
CASE
NO: 2014/45450
DATE:
23 JUNE 2015
In
the matter between:
UKUBEKEZELA
LOGISTICS
...............................................................................................
Applicant
And
UMZOBANZI
COAL &
ENERGY
......................................................................................
Respondent
J
U D G M E N T
FISHER
AJ:
[1]
This application involves the validity of a written lease agreement
concluded between the parties in respect of a property in
Emalehleni
(“
the property”
),
on which an opencast coal mine is situated.
[2]
The facts as they emerge from the papers are as follows:
1.
The property is owned by the State and falls under the control of the
Ehalehleni Municipality and the Mphumalanga Provincial
Government.
2.
During August 2013 the Respondent obtained a mining permit in terms
of section 27 of the Mineral & Petroleum Resources Development
Act, 2002, to mine for coal on the property.
3.
The mining permit allowed,
inter alia
,
for a crushing and screening plant to be constructed on the property.
4.
On 20 August 2014 the parties entered into the written lease
agreement, which is in issue in these proceedings.
5.
The salient terms of the lease agreement are as follows:
5.1
the lease would endure for a period of 12 months, commencing on 20
August 2014 and terminating on 20 August 2015;
5.2
there was an option to renew the lease period for a further 24
months;
5.3
the lease was “
designed
”
to endure for “
the life of mine
and exclusive right of the coal
”;
5.4
the rental was an amount of R4 104 000, which was to be
paid “
upfront
”
by no later than 48 hours after the signing the lease;
5.5
the property would be used by the Applicant only for the purposes of
crushing, screening, coal blending; and distribution.
5.6
after the expiry of the lease period it would continue as a monthly
tenancy, terminable by either party giving to the other
two calendar
months written notice.
5.7
The monthly rental for the monthly tenancy was calculated in terms of
a formula that related in some manner to tonnage of coal.
[3]
The amount on R 4 104 000.00 was paid under the loan agreement by
the Applicant.
[4]
The Applicant states that that it has, since the conclusion of the
lease agreement, come to its attention that the Respondent
is not the
owner of the property or the holder of some title thereto. On this
basis the Applicant contends that:
1.
because the Respondent enjoys no right, title or interest over the
property it could pass no title to occupy the property and
the lease
agreement is thus invalid;
2.
the Respondent should have disclosed to the Applicant that it had no
such right to conclude a valid lease and had it done so,
the
Applicant would not have signed the lease agreement;
3.
the failure so to disclose constituted a fraudulent misrepresentation
by the Respondent.
[5]
The Applicant claims the following relief:
1.
that the lease agreement be declared a nullity;
2.
that the Respondent be ordered to repay to the Applicant the amount
of R4 104 000.00 together with interest thereon
on the
basis of such invalidity;
3.
that the Sheriff attach sufficient coal at the mine to satisfy the
judgment debt and that the Court provide directions as to
the
execution to be levied in relation to the coal so attached.
[6]
The Applicant launched the application on what it terms a
“
semi-urgent
”
basis. The case which it seeks to make out for urgency is that the
Respondent’s only asset is the coal that is being
mined on the
property and the coal reserves are being depleted at a rapid rate. It
contends that, if the matter were heard in the
normal course, all the
coal will have been mined and there would be no asset to attach in
execution of the debt.
[7]
There is no indication that there has been any attempt by any person
to evict the Applicant from the property or to disturb
its occupation
in any manner. The case of the Applicant is based on the premise that
a lessor is required by law to be the holder
of some right, title or
interest over the property and that, if this requirement is not
fulfilled, the lease is invalid.
[8]
Mr Tshavhungwa, on behalf of the Respondent, submitted that there was
no relevance in this case to be accorded to the fact that
the
Respondent was not the owner of the property or the holder of some
title thereto. In this he is correct. A main obligation
of a
lessor is to make available the undisturbed use and enjoyment of the
property and to warrant against eviction [see:
Southernport
Developments (Pty) Ltd v Transnet Ltd
2005(2)
202 at para [6] (SCA)]
.
To
conclude a valid lease, a lessor is neither required to be the owner
or holder of some title to the property nor does he warrant
that he
has such right as an essential term of the lease agreement. In
this matter it was not the Applicant’s case
that there was a
term of the lease agreement that went further than providing the
usual warranty against eviction.
[9]
Accordingly, the lease is not a nullity and neither has any
misrepresentation or non-disclosure on the part of the Applicant
been
established.
[10]
It bears mention that the Applicant would not have been entitled to
the attachment of the coal even if it had been successful
in
establishing its claim for the money judgement. It has not even
attempted to make out a case for anti-dissipatory relief
–
which, in essence, is what is asked for in seeking such attachment.
It has furthermore not gone any way to establish a
basis on which the
matter should be dealt with as one of urgency. This application
is ill-founded on every aspect of the
relief claimed.
[11]
In the circumstances I make the following order:
1.
The application is dismissed.
2.
The Applicant is to pay the costs of the
application.
DC
FISHER
Acting
Judge of the High Court
APPEARANCES
:
For
the Applicant
:
Mr
Z Omar, instructed by Zaheer Omar Attorney, c/o Swanepoel Attorneys
(Tel:
011-333 1715; ref: J Swanepoel)
For
the Respondent
Adv
T C Tshavhungwa, instructed by PGR Attorneys
(Tel:
011-2435027; Ref: A Petini/MAT1308)
DATE
OF HEARING 20 May 2015
DATE
OF JUDGMENT
23 June 2015