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
>>
2017
>>
[2017] ZAGPJHC 344
|
|
Ekurhuleni Metropolitan Municipality v Grandbridge Trading 74 (Pty) Ltd and Others (40502/2014) [2017] ZAGPJHC 344 (28 March 2017)
HIGH
COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
Case
No: 40502/2014
In
the matter between:
EKURHULENI
METROPOLITAN
MUNICIPALITY
Applicant
and
GRANDBRISGE
TRADING 74 (PTY)
LTD
First
Respondent
ZINGARO
TRADE 6 (PTY)
LTD
Second
Respondent
BENONI
PLAZA (PTY)
LTD
Third
Respondent
Case
Summary:
Interlocutory
application - in terms of rule 30A of the Uniform Rules of Court - to
compel production of documents referred to in
founding affidavit of
the main application – the obligation on a party, who refers to
a document, to produce it, is subject
to certain limitations, one
being that a document which is irrelevant will not be subject to
production – documents in question
are relevant to primary
issues in the main application. Production order granted.
JUDGMENT
MEYER
J
[1]
This is an interlocutory application by the applicant, Ekurhuleni
Metropolitan Municipality (Ekurhuleni), in terms of rule 30A
of the
Uniform Rules of Court, to compel the third respondent, Benoni Plaza
(Pty) (Ltd) (Benoni Plaza), to produce certain documents
under rule
35(12) (the interlocutory application).
[2]
The first respondent, Grandbridge Trading 74 (Pty) Ltd (Grandbridge),
the second respondent, Zingaro Trade 6 (Pty) Ltd (Zingaro)
and Benoni
Plaza as the first, second and third applicants, instituted the main
application against Ekurhuleni as the respondent,
in which
application they seek an order interdicting Ekurhuleni from
terminating the electricity supply to a shopping mall, the
Benoni
Plaza, or, in the alternative, relief by way of the
mandament van
spolie
(the main application). In its replying affidavit in
the interlocutory application, Ekurhuleni abandoned its claim for
relief
against Grandbridge and Zingaro in the interlocutory
application. In this regard it is stated in paragraph 23 of the
replying
affidavit that-
‘
.
. . Ekurhuleni will not seek any order herein as against the First
and Second Applicants [Grandbridge and Zingaro].
Grandbridge
and Zingaro are accordingly entitled to their costs of opposing the
interlocutory application until 29 August 2016,
which is the day when
the replying affidavit was filed.
[3]
By the time the interlocutory application was argued, Benoni Plaza
limited its objection to produce the documents in question
to
irrelevancy. The obligation on a party who refers to a
document, to produce it, is subject to certain limitations, one
being
that a document which is irrelevant will not be subject to
production.
[4]
In
Centre for Child Law v The Governing Body of Hoërskool
Fochville
(156/2015)
[2015] ZASCA 155
(8 October 2015), Ponnan JA
said the following:
‘
[18] . . . For my part, I
entertain serious reservations as to whether an application such as
this should be approached on
the basis of an onus. Approaching the
matter on the basis of an onus may well be to misconceive the nature
of the enquiry. I thus
deem it unnecessary to attempt to resolve the
disharmony on the point. That notwithstanding, it is important to
point out that
the term onus is not to be confused with the burden to
adduce evidence (for example that a document is privileged or
irrelevant
or does not exist). In my view, the court has a general
discretion in terms of which it is required to try to strike a
balance
between the conflicting interests of the parties to the case.
Implicit in that is that it should not fetter its own discretion in
any manner and particularly not by adopting a predisposition either
in favour of or against granting production. And, in the exercise
of
that discretion, it is obvious, I think, that a court will not make
an order against a party to produce a document that cannot
be
produced or is privileged or irrelevant.’
[5]
Ekurhuleni owned the land on which the shopping mall was built.
In the founding affidavit in the main application it is
alleged that,
in terms of a head lease agreement to which Ekurhuleni is a party,
Benoni Plaza obtained the right to sublet parts
of the shopping mall
(the head lease agreement). In paragraph 10.3 thereof it is
inter alia
stated that-
‘
. . . the Third Applicant
[Benoni Plaza] has entered into lease agreements with all tenants who
occupy premises (shops) within the
shopping mall. As stated
previously these individual sub-tenants occupy approximately 33
tenements within the shopping mall
in terms of the lease agreements
with the Third Applicant.’
[6]
In its affidavit in response to Ekurhuleni’s notice in terms of
rule 35(12) and in its answering affidavit in the interlocutory
application, Benoni Plaza explained that it authorised Assetlink
Investments (Pty) Ltd (Assetlink) to administer, enter into
agreements
of lease, collect rentals and conduct the business affairs
of the shopping mall. It also appears that Benoni Plaza is a
subsidiary
of Assetlink. Ekurhuleni presently seeks the
production of the lease agreements referred to in paragraph 10.3 of
the founding
affidavit in the main application.
[7]
In the main application, Benoni Plaza relies heavily on clause 22 of
the head lease agreement, which provides as follows:
‘
THE CORPORATION (Benoni Plaza)
shall be liable for and shall promptly on the due date thereof pay to
the Council [Ekurhuleni] all
municipal fees for water, electricity,
sewerage, sanitary and refuge removal supplied or rendered to or for
the leased premises
at such tariffs as shall from time to time be
applicable other than for the following:
(a)
Charges for electricity
supplied to any tenant of a shop of the CORPORATION, for whom a
separate meter has been installed by the
CORPORATION to measure the
electricity supplied to such tenant.’
(b)
Charges for electricity
consumed or water use in the parking bays sub-let to the COUNCIL, in
accordance with separate meters installed
by and at the cost of the
CORPORATION to measure such electricity and water.
(c)
Charges for refuge removal from
the Parking bays sub-let to the COUNCIL.’
[8]
The case put up by Benoni Plaza is that it indeed installed separate
meters for all the tenants of the shopping mall, and that
Ekurhuleni,
therefore, is contractually bound to read the individual meters of
each tenant and to bill the tenants separately for
electricity
usage. Instead, so Benoni Plaza avers, Ekurhuleni ‘. . .
had unilaterally and of its own accord elected
to install some sort
of a bulk meter in respect of the entire mall and was now holding the
Third Applicant [Benoni Mall] liable
for the entire charges
outstanding on such bulk meter’ and that, according to
Ekurhuleni, an amount of R2 307 347.89 was
outstanding ‘on such
account’. Benoni Mall disputes its liability to
Ekurhuleni for payment of that amount.
[9]
From a reading of the affidavits in the interlocutory application,
the primary issues in the main application seem to be whether
there
were indeed separate metres installed for all the tenants and whether
there was a shifting of liability for the payment of
electricity
charges from Benoni Plaza to the individual tenants. I agree
with Ekurhuleni that the provisions of particularly
clause 22 of the
head lease agreement, the provisions of the individual lease
agreements with tenants relating to electricity charges
and the
applicable legislation, including Ekurhuleni’s by-laws,
inter
alia
those
relating to the liability for and the recovery of electricity
charges, are all relevant to these issues.
[10]
In the result, the following order is made:
(a) The third respondent
is to comply with the applicant’s notice in terms of rule
35(12) of the Uniform Rules of Court, dated
31 August 2015, within a
period of ten days of the date of delivery of this order to the
offices of the third respondent’s
attorneys of record.
(b) In the event of the
third respondent failing to comply with paragraph (a) of this order,
the applicant is given leave to enroll
the matter on notice, on the
same papers as duly supplemented, for an order striking out the third
respondent’s claim in
the main application under case number
40502/2014 to which this application is interlocutory.
(c) The third respondent
is to pay the applicant’s costs of the interlocutory
application, except the costs pertaining to
the first and second
respondents’ opposition.
(d) The applicant is to
pay the first and second respondents’ costs incurred in
opposing the interlocutory application until
and including 29 August
2016.
P.A.
MEYER
JUDGE
OF THE HIGH COURT
Date
of hearing: 28 October 2016
Date
of judgment: 28 March 2017
Counsel
for applicant: N Felgate
Instructed
by: KM Mmuoe Attorneys, Hyde Park, Johannesburg
Counsel
for respondents: JH v d B Lubbe
Instructed
by: Sarlie & Ismail Inc., Bezuidenhout Valley, Johannesburg