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 136
|
|
Linksfield Nursery CC and Another v Wickstrom and Others (34695/2014) [2015] ZAGPJHC 136 (8 July 2015)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 34695/2014
In the matter between:
LINKSFIELD
NURSERY
CC
First
Applicant
EBENHAESER
DE VILLIERS
Second
Applicant
and
AMANDA
WICKSTROM
First
Respondent
JAMES
ANTHONY WICKSTROM
Second
Respondent
SASHA
WICKSTROM
Third
Respondent
NICHOLIS
WICKSTROM
Fourth
Respondent
BASFOUR
3472 (PTY) LTD
Fifth
Respondent
THINUS
LABUSCHAGNE
Sixth
Respondent
J U D G M E N T
MAKUME,
J
:
[1] In this matter the Applicants seek a final
interdict against the Respondents interdicting them from demolishing
any structure
and/or removing any items fixed or unfixed on property
described as Portion 1 situate at Rietfontein 61 IR (the property)
and other
ancillary relief. The Respondents are opposing the
granting of the final order.
[2] This matter served before me in the Urgent
Court on Friday the 19
th
September 2014. On that occasion only the Sixth Respondent
entered appearance to oppose the application and filed a very
brief
affidavit in which he disassociated himself from the alleged actions
complained of in the Applicants’ founding affidavit.
The
Sixth Respondent said that he was only a legal advisor and consultant
of the Respondents. The Sixth Respondent requested
that the
application against him be dismissed with costs.
[3] Applicants’ counsel did not at that
stage ask that Applicants be given an opportunity to consider the
Sixth Respondent’s
answering affidavit. In the absence of
any contrary evidence I granted the Sixth Respondent’s request
and dismissed
the application against the Sixth Respondent with
costs.
[4] Shortly after granting the rule
nisi
the Applicant filed an extensive supplementary affidavit in which he
dealt with the Sixth Respondent’s involvement in the
business
affairs of the First, Second and Fifth Respondents. The affidavit
clearly placed the Sixth Respondent at the centre of
the happenings
of the 17
th
and the 18
th
September 2014. Despite the application having been dismissed
against him the Sixth Respondent filed a further answering
affidavit
which did not take the matter any further.
[5] It is my well-considered view that I should
not have dealt with the Sixth Respondent’s matter in isolation
and without
having granted the Applicants an opportunity to reply
thereto. I do not have the power to
mero
motu
join the Sixth Respondent in this
application. My order still stands until set aside.
[6] The rule
nisi
was extended several times to afford the Respondents an opportunity
to file their answering affidavit. The Second Respondent
eventually filed an answering affidavit on behalf of himself and the
other remaining Respondents. The Applicants subsequently
delivered their reply and the matter was set down for hearing in the
normal motion court roll. I must mention that I had
already
found on the 19
th
September 2014 that the matter was urgent.
BACKGROUND
FACTS
[7] The facts giving rise to this application and
which have a bearing on the question to be decided are largely not in
dispute.
I will narrate them as closely as possible as they
emerge from the papers before me.
[8] The Second Applicant is the sole member of the
First Applicant. He is duly authorised to depose to this
affidavit on behalf
of the First Applicant.
[9] On the 26
th
day of June 2001 and at Johannesburg the First Applicant entered into
a lease agreement with the Gauteng Provincial Government
in terms of
which the Provincial Government leased to the First Applicant Portion
1 situate at Rietfontein 61 IR (the property).
The property was
to be used by the First Applicant for purposes of conducting the
business of a nursery. It was a further
term of the agreement
that it was to run from the 31
st
January 2002 until the 31
st
December 2004 whereafter it would continue and remain valid on a
monthly basis. The Applicants are as at date hereof still in
occupation of the property by virtue of that lease agreement.
[10] During the latter part of 2001 into 2002
Second Applicant and the Second Respondent entered into a verbal
agreement whereby
they established an entity known as Linksfield
Nursery and Home Improvements CC as a partnership. The precise
terms and purpose
of that partnership are in dispute. The Second
Applicant says the purpose was to run a nursery business in
accordance with clause
5 of the lease agreement with the Provincial
Government. The Second Respondent James Wickstrom says that the
partnership
agreement entailed that he could of his own improve
the leased property with the consent of the lessor for this purpose
he
had plans drawn up to erect a coffee shop, a florist as well as
other buildings.
[11] It is common cause that after some time the
partnership was dissolved when the Second Applicant resigned from the
entity that
had been set up to conduct the partnership business. The
Second Respondent it would seem continued to conduct business for his
own account as a coffee shop and florist from the same property. In
other words the First Applicant conducted a nursery business
on the
property for which he had a lease agreement whilst the Second and
First Respondents conducted business of a coffee shop
and florist on
the property without a lease agreement. The Second Respondent
had out of his own funds erected
structures from
which he conducted his business. He says he did get the
approval of the lessor to do the improvements.
[12] The Applicant alleges that they continued
their businesses in this fashion until during the year 2008, when
Second Respondent
walked out of the property and relinquished all his
rights and obligations in the partnership. Applicant says this
was at
the time when First and Second Respondents were engaged in
divorce proceedings. He says further that in the year 2010 the coffee
shop and florist were closed. He does not know why.
[13] The Second Respondent whilst admitting that
he closed the coffee shop in the year 2010 says the reason was
that the Second
Applicant reneged on an earlier verbal agreement to
sell to him the nursery business. He says that thereafter their
relationship
soured in that the Second Applicant started to undermine
his business by interfering with his customers. He would for
instance
lock the gates leading into the property whilst the
Respondents’ customers were still on the premises. He
concludes
by saying that after numerous fights he was forced to leave
the business.
[14] It is further common cause that during the
year 2008 the Fifth Respondent whose sole director is the Second
Respondent concluded
an agreement of sale with the Gauteng Provincial
Government in terms of which the Provincial Government sold to the
Fifth Respondent
the property which in the deed of sale is described
as Portion 1 of the Farm Rietfontein 61 IR (Extension 1) held by
virtue of
Title Deed No 7/1998.
[15] It is not in dispute that the property that
was being sold by the Provincial Government to the Fifth Respondent
is the same
property on which the First Applicant had a lease
agreement which was still running albeit on a monthly basis.
[16] The salient terms of the deed of sale are the following:
“
(3)
PURCHASE
PRICE
The Purchase Price for the property is the
amount of R18 700 000,00 (Eighteen Million Seven Hundred Thousand
Rand) excluding Value
Added Tax.
(4)
TERMS OF PAYMENT
The Purchase Price shall be payable as set out hereunder into the
undermentioned bank account namely:
ABSA BANK
ACCOUNT NAME:
ACCOUNT NUMBER: [……….]
BRANCH: GHANDHI SQUARE
BRANCH CODE: [………]
(9)
SUSPENSIVE CONDITIONS
This agreement is subject to the following
suspensive conditions and in the event of the failure of any of these
conditions this
agreement shall be of no force and effect:
9.1
The
Purchaser shall furnish to the Seller a bank guarantee in respect of
the sum of R21 318 000,00 (Twenty One Million Three Hundred
and
Eighteen Thousand Rand) within 180 (One Hundred and Eighty) days of
signature of this deed of sale expressed to be payable
on the date of
transfer of the property into the name of the Purchaser.
9.2
The
signature by the Seller to the Resolution marked “B”
hereto and
9.3
The
division of the land in respect of Portion 1 of the farm Rietfontein
IR as referred to in the Resolution annexed hereto marked
B and
referred to in paragraph 10.2 above.
(10)
BREACH
In the event of the Purchaser committing any
breach of any of the provisions of this agreement and failing to
remedy same within
14 (Fourteen) days of having been given written
notice calling upon the Purchaser to do so, the Seller shall be
entitled; without
prejudice to any other rights which it may have at
law and/or in terms hereof to:
10.1
Cancel
this agreement and claim from the Purchaser such damages as the
Seller may have sustained and pending the determination of
such
damages (whether by agreement and/or by a court of law) to retain on
account thereof all monies paid by the Purchaser on account
of the
purchase price or
10.2
Claim immediate payment of the whole of the purchase
price and costs and fulfilment of all the terms and conditions
hereof
whether or not the due date for performance shall otherwise have
arrived.
”
[17] The present status of the property is that
it is still owned by the Provincial Government. The purported
sale as pleaded
by the Second Respondent became a nullity when Fifth
Respondent failed to pay the purchase price. This evidence that the
property
is still owned by the Provincial Government was confirmed by
the MEC of the Department of Infrastructure Development on the 19
th
September 2014.
[18] The Second and Fifth Respondents have been
disingenuous and not frank with the truth. Second Respondent went
about in circles
in trying to explain why transfer of the property
had not taken place even going as far as blaming it on the
maladministration
within the Provincial Government. However at
no stage and nowhere in his affidavit does the Second Respondent tell
the court
that the purchase price was paid into the “
suspect
”
banking account mentioned in the deed of sale. As I see it the
version of the Respondents did not even attempt to answer
the central
case made by the Applicants but they sought to envelope this whole
matter in a fog which distorts the truth.
[19] In my view the above facts set the matrix for
the consideration of the issue which is dispositive of the present
application,
that issue is appropriately captured in the Applicants’
heads in the following words:
“
The Applicant maintains that the
Respondents do not have any rights to engage in any building
activities or operations at the nursery
or even be on the property.
The Applicant submits that there is a valid lease agreement in effect
that precludes the Respondents
from having any right to the property.
The First to Fifth Respondents appear to argue that they have a right
to the property by
virtue of an agreement of sale entered into
between Basfour and the Gauteng Provincial Government. Our submission
is that the Respondents
have failed to show any real or personal
rights to the property.
”
CLEAR
RIGHT OF THE APPLICANTS
[20] The first requisite to be established by the
Applicants in order to succeed in being granted a final order is a
clear right.
[21] The Respondents admit that the Applicants
entered into a lease agreement with the Gauteng Provincial Government
which ran from
the 31
st
January 2002 until the 31
st
December 2004. The Respondents’ case is that the lease
agreement terminated in December 2007 alternatively that it
came to
an end on the 28
th
April 2013 in accordance with the notice of termination addressed to
the Applicants by the Gauteng Provincial Government dated
the 28
th
February 2013.
[22] It is so that notwithstanding the said
letter the Applicants remained in occupation of the property beyond
the 28
th
April 2013 and is still in occupation. The Applicants remain
monthly lessees in accordance with clause 1 of the lease agreement
dated 26 June 2001. There is nothing in the papers before me to
suggest that the lease agreement ceased to exist.
[23] The Respondent has failed to prove a better right over the
property than the Applicants. It is only the Applicants who
have a right to occupation of the property in terms of an existing
monthly lease.
AN
INJURY ACTUALLY COMMITTED OR IS REASONABLY APPREHENDED
[24] It is trite law that in order to succeed with
an application for a final interdict an injury actually
committed or reasonably
apprehended must be proved
[25] The evidence in this matter reveals that the
First and Second Respondents vacated the property in the year 2010
leaving the
Applicants to continue running the nursery business. They
returned in September 2014 to commence demolishing of structures
built
on the property. The Applicants say that the action of the
Respondents is preventing his customers from accessing the nursery as
there are broken paving stones in the driveway as a result he is
losing business every moment that customers fail to access the
nursing premises.
[26] The Respondents’ defence is that what he is breaking
belongs to him is legally not correct for in terms of the law such
fixtures have now accrued to the owner of the land being the Gauteng
Provincial Government. His Lordship Howie P writing for the
majority
in the matter of
V & A Waterfront Properties (Pty) Ltd and
Another v Helicopter & Marine Services (Pty) Ltd and Others
2006 (1) SA 252
(SCA) at page 258 paragraph [23] says the following:
“
[23] In the present case
therefore the threatened invasion of the first appellant’s
rights under the lease constituted
proof of reasonably apprehended
injury. It was not necessary for the appellant’s success
to show that the Helicopter
was unairworthy or what the chances were
of a fatal or destructive crash.
”
NO
OTHER ALTERNATIVE REMEDY
[27] The Respondents chose not to deal with this requirement and
rested their case on the first and second requirements of a final
interdict. The alternative remedy must:
(a) be adequate in
the circumstances;
(b) be ordinary and
reasonable;
(c) be a
legal remedy;
(d) grant similar
protection.
[28] In general an applicant will not obtain an
interdict if he can obtain adequate redress
through
an award of damages. Evidence is that the First
Respondent is an insolvent. The Second Respondent was at the
time acting
as a Director of the Fifth Respondent a deregistered
company. It is clear that to wait to prove damages against the
Respondents
will involve complex and worn out proceedings whilst in
the meantime the injury will be perpetuating.
[29] I am satisfied that the Applicants have succeeded in proving the
third requirement for a final interdict against First to
Fifth
Respondents subject to what I have earlier alluded to in respect of
the Sixth Respondent. I accordingly make the following
final order:
(a) The First,
Second, Third, Fourth and Fifth Respondents or any person in their
employment or contracted
by them are interdicted from demolishing any
structure and/or removing any items fixed or unfixed on the property
described as
Portion 1 situate at Rietfontein 61 IR (the property).
(b) The Respondents
are ordered to repair or to bear the fair and reasonable costs of
fixing or restoring
damage done on the property.
(c) The
Respondents are ordered to return all items unlawfully removed by
them or their employees
from the property, by them.
(d) The Second to
Fifth Respondents are ordered to pay the costs of the application on
a party and
party scale.
DATED at JOHANNESBURG on this the 8th day of JULY
2015.
___________________________________________
M A MAKUME
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
DATE OF HEARING
13
th
April 2015
DATE OF JUDGMENT
8
th
July 2015
FOR THE APPLICANTS
ADV P A WAYBURNE
INSTRUCTED BY
LARRY MARKS ATTORNEYS
SCS House, No 77 – 5
th
Avenue
Alberton
Tel: (087) 351 6532
Ref: Mr L Marks / OLM / D128
FOR THE RESPONDENTS
ADV S VAN ASWEGEN
INSTRUCTED BY
T SMIT ATTORNEYS
Boksburg