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[2017] ZAGPJHC 88
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O v O (2015/8185) [2017] ZAGPJHC 88 (22 March 2017)
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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION,
JOHANNESBURG
CASE
NO:
2015/8185
Reportable: No
Of interest to other judges: No
Revised.
22/3/2017
In the matter between:
O,
R
Applicant
and
O,
I
Respondent
JUDGMENT
MAKUME,
J
:
[1] In this application the Applicant
seeks an order more or less in the following terms:
1.1
That the Respondent be interdicted from conducting any form of
business at the residential property known as Erf […]
Montgomery Township, Registration Division IQ, Province of Gauteng
situated at […] Drive, Montgomery Park, Johannesburg
(“
the
property
”).
1.2
That the Applicant and/or his duly authorised agents be granted
access to the property to enable them to renovate a certain
portion
of the property which is being used as business premises and to alter
it into residential living quarters.
1.3
That the Respondent be ordered to pay the costs of this application.
[2] The Applicant relies on his
ownership in and to the property to establish the
prima facie
right required for the temporary relief and the clear right for
the permanent relief. That right is disputed by the Respondent
on the following grounds:
2.1 The Respondent instituted action
in this Court wherein she asserts that a universal partnership had
been established between
the parties since their marriage in 1994
until they divorced and as such the property is in fact jointly owned
by the Applicant
and the Respondent.
2.2 That the Respondent paid for part
of the renovations and extensions to the property in particular the
portion on which she conducts
her business as a Market Researcher.
2.3 That the business that she
conducts is her only source of income to fend for herself and her
three children two of whom are
still minors.
[3] The Respondent further argues that
the Applicant has failed to satisfy the requirements for a final
interdictory relief.
[4] It is necessary at this stage to
set out a brief narrative of the facts and circumstances that gave
rise to this litigation
which bear on the question to be decided in
this application.
[5] The parties were married to each
other on the 9
th
January 1994 in terms of the tenets of
Islamic law. That marriage which was out of community of property
came to an end on the
20
th
June 2014.
[6] Three children were borne out of
that marriage two of whom are still minors and reside on the property
with the Respondent.
The Applicant on his own will vacated the
property on the 14
th
April 2014.
[7] During or about the year 2010 the
Respondent registered the company “
Research 247
”
and commenced trading under that name from the property as a Market
Researcher. The Applicant was at that time still
resident on
the property and the business of Research 247 was commenced with his
full knowledge and blessing.
[8] The Applicant insists that the
Respondent commenced the business during 2012 and not 2010 as alleged
by the Respondent.
In my view nothing turns on this date. What
is of importance is that the business was commenced with whilst the
Applicant lived
on the property and he gave his consent that it be
conducted from there.
[9] During or about 2012 the
Respondent with the consent and full cooperation of the Applicant
caused renovations to be made to
the property which renovations
included the extension to the garage to facilitate the growth of the
business. The Applicant
denies that the Respondent made any
formal contributions to such renovations however once again nothing
turns on that dispute as
it will most certainly feature prominently
in the upcoming action for declaration of universal partnership.
What is pertinent
and crucial in this matter is the fact that he the
Applicant also paid for the renovations. It is unthinkable that
such renovations
would have been undertaken without his cooperation
since the submission of building plans must have his signature.
[10] If there were no approved plans
as Applicant would like this Court to believe then the Municipality
would have long ordered
that such unauthorised extensions be
demolished. This has not happened notwithstanding the fact that
an officer of the Johannesburg
Municipality has been to the property.
It is also strange that Applicant has not sought confirmation from
the Municipality that
the building extensions and renovations were
never authorised. All that the Applicant says in his replying
affidavit is that
he intends to investigate the matter further. He
has not done so for a period of 4 years now.
[11] During 2014 the relationship
between the Applicant and the Respondent came to an end what then
followed thereafter was an era
of acrimonious conduct between the
litigants which included amongst others the Applicant seeking to
terminate water and electricity
services to the property. The
Respondent ultimately applied to this Court which granted an order
against the Applicant prohibiting
him from entering the property
without the consent of the Applicant.
[12] It is that court order that the
Respondent obtained against the Applicant on the 15
th
December 2014 that in my view spurred the Applicant to launch this
application. His intention in my view is to achieve an eviction
of
the Respondent and the children from the property and to do so he now
hides behind the so-called illegal business being conducted
from this
property.
[13] The Applicant seeks a final order
in this matter interdicting the Respondent from earning a living from
the property on the
basis that the Municipality has not granted the
Respondent the right to use the property or part thereof as a
business in contravention
of the Johannesburg Town Planning Scheme of
1979.
[14] Before this relief can be granted
I must be satisfied that the requisites which are necessary to be
proved in this type of
application are present. Such requisites
are the following:
14.1 A clear right on the part of the
Applicant.
14.2 An injury actually committed on
the part of the person to be interdicted or a well-grounded
apprehension that such an injury
will be committed.
14.3 That there is no other ordinary
remedy available to the Applicant.
14.4 That the balance of convenience
favours the granting of the relief.
CLEAR
RIGHT
[15] I have already in this judgment
alluded to the fact that there is a dispute about ownership of the
property.
[16] In paragraph 14 of the answering
affidavit the Respondent makes it very clear that she has launched an
action for a declarator
that a universal partnership had been
established between her and the Applicant. In his reply the
Applicant simply denies
the existence of a partnership agreement.
There is a difference between a partnership agreement and a claim
based on the existence
of universal partnership. The latter is
based on the existence of some form of a marriage whilst a
partnership agreement
is not.
[17] The Applicant has in my view
failed to prove a clear right in the face of what the Respondent has
put up as a defence to the
existence of that right and in applying
the Plascon-Evans Rule I am persuaded to accept the version put up by
the Respondent.
[18] When the Applicant consented to
the Respondent to commence business on the property he waived his
right to later object to
the Respondent conducting the business. He
the Applicant has no
locus standi
to bring any action to stop
the Respondent to continue with the business. It is only the
Local Authority that has powers
to prevent the Respondent from
continuing to do business on the property.
[19] In any case the Respondent tells
the court in her affidavit at paragraph 7.3 that after a discussion
with an official of the
City Council Mr Rammala she was told to get
the permission of the Applicant so that application can be made for
consent to do business.
Thereafter the City Council has not
taken any action and it can safely be argued that they are awaiting
receipt of the application
and in the meantime by their silence do
not have a problem in the Respondent conducting the business from the
property.
[20] The Respondent continues to say
that she has reduced the floor space of the portion on which she is
conducting the business
and accordingly that she is complying with
the requirements. In his replying affidavit the Applicant in
paragraph 50 concedes that
he is unable to prevent the contravention
of the by-laws by the Respondent. This is further confirmation that
he has no clear right
to protect and as a result this application
must fail.
AN
INJURY ACTUALLY COMMITTED
[21] In the matter of
Setlogelo v
Setlogelo
1914 AD 221
at 227 it was held that the words “
injury
actually committed or reasonably apprehended
” means and are
used to describe an act of interference with or an invasion of the
Appellant’s rights and resultant
prejudice.
[22] This application is directed at
preventing the Respondent from conducting business on the property
and yet in attempting to
establish that an injury in being visited
upon him the Applicant says that he wants to sell the property and
secondly that he has
no place to live and as a result he is suffering
hardship. The Applicant has failed to demonstrate any harm or injury.
Firstly,
the sale of the property cannot take place prior to a
decision on the application for a declaration of a universal
partnership.
Secondly, the Applicant himself concedes that he
is the owner of three other residential properties where he could
stay whilst
the domestic violence protection order stands against
him.
BALANCE
OF CONVENIENCE AND ALTERNATIVE REMEDY
[23] The Applicant has in my view
failed to present any evidence that the balance of convenience
favours the granting of the relief
in that the harm he would suffer
if the relief is not granted outweighs the harm that the Respondent
and the three children would
suffer if the relief is granted.
[24] In my view the Applicant has not
been open with the truth. He does not tell the court what his
income is despite admitting
that he is the owner of three properties
which he rents out. He has not been living in the property
since the year 2014.
He cannot suddenly come up with a story that he
has no place to stay. On the other hand the Respondent lives on
the property
with three children of the marriage and has been
maintaining them singlehandedly since 2014 out of the proceeds of the
business.
It will not be in the best interest of the children
to suddenly deprive them not only of accommodation but also of a
source of
maintenance by their mother. Section 28 of the
Constitution of the Republic of South Africa guarantees certain basic
rights
for all children.
[25] The Applicant is not without an
alternative remedy depending on what he wants to achieve with his
interdict. It is clear that
this interdict is aimed at eventually
achieving an eviction of the Respondent and the minor children.
If that be the case
then he should follow the procedure in terms of
the PIE Act. If his intention is to stop the Respondent from
conducting the
business this cannot be achieved through motion court
proceedings as there is a dispute of fact. The Respondent has
established
a business and to prevent her from doing so will in my
view amount to arbitrary deprivation of property in contravention of
Section
25 of the Constitution of South Africa.
[26] The Applicant is losing nothing
by allowing the Respondent to conduct her business from the property
as she has been doing
so for the past five years. His alternate
remedy lies in the outcome of the application for a declaration of a
universal
partnership.
[27] It follows that this application
stands to be dismissed. Accordingly I make the following order:
27.1 The application is dismissed with
costs.
DATED at JOHANNESBURG this the day of
MARCH 2017.
__________________________________________
M A MAKUME
JUDGE OF THE HIGH COURT OF SOUTH
AFRICA
GAUTENG LOCAL DIVISION,
JOHANNESBURG
DATE OF
HEARING
22
nd
FEBRUARY 2017
DATE OF
JUDGMENT
MARCH 2017
COUNSEL FOR THE APPLICANT
ADV DENCHAUD
INSTRUCTED
BY
ZIYAAD HAFFEJEE ATTORNEYS
21 Bree Street
Fordsburg
Tel: (011) 492 2553
Ref: Z Haffejee/0004/14
COUNSEL FOR THE RESPONDENT
ADV E BISSCHOFF
INSTRUCTED
BY
CARTER SMITH ATTORNEYS
17
th
Floor Schreiner Chambers
94 Pritchard Street
Johannesburg
Tel: 083 669 3087 / 011 375 4022
Ref: Mr Ewan Smith/011