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[2017] ZAGPJHC 370
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Christian Family Church International v Black Shades Investments (Pty) Ltd (33693/2016) [2017] ZAGPJHC 370 (29 June 2017)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 33693/2016
In
the matter between:
CHRISTIAN
FAMILY CHURCH INTL
APPLICANT
And
BLACK
SHADES INVESTMENT (PTY) LTD
RESPONDENT
JUDGMENT
VICTOR
J
:
[1] The applicant is the
Christian Family Church International and the respondent is Black
Shades Investment (Pty) limited whose
director member of the
applicant church.
[2] The issue for
determination in this matter is whether the applicant is entitled to
evict the respondent in the light of the
respondent’s defences
that it has an improvement lien in respect of the improvements
effected to the property and whether
the applicant has locus standi
to bring this application.
[3] The applicant seeks an
order that leave is granted to it to supplement its founding
affidavit by incorporation therein of the
further supplementary
affidavit by John Bernard Slabbert; that the agreement of lease
concluded in writing on 23
rd
and 25
th
of May 2016 between the
applicant and respondent relating to shop 3 in the building situated
at Silver Wings Boulevard and Atlas
Road Park Kempton Park is
cancelled and that the respondent and all persons claiming title
under it or through it are to immediate
vacate the premises. In the
event that the premises are not occupied by any person, the applicant
in such event seeks an order
that the Sheriff is authorised and
empowered to take whatever steps necessary to unlock the premises and
to perform an inventory
of all movable items and that the applicant
be authorised to change the locks and remove all the movable items,
and that the costs
be paid by the respondent and Mr George Webb
jointly and severally, the one paying the other to be absolved on the
scale as between
attorney and client.
Background History
[4] This matter has a sad
history. The Christian church and its member are at odds about
premises that were let to the respondent,
who was supposed to set up
a restaurant for the churchgoers use.
[5] From the date of
conclusion of the lease to date the respondent has not opened up the
restaurant and it is for that reason that
the applicant seeks the
eviction of the respondent. The rental payable was nominal. The
respondent was required to pay the costs
relating to water and lights
and electricity and certain other costs.
Improvement Lien
[6] The respondent claims that
he has effected improvements to these premises in the amount in
excess of R500 000.00. He has
failed to put up any evidence of
what the improvements are or proof of costs. It is trite law that
where a party wishes to rely
on a right of retention the case must be
made out clearly. See FHP Management (Pty) Ltd v Theron NO and
Another
2004 (3) SA 392
(C). A lessee wants to prevent eviction
from its premises on the basis of an improvement lien, must set out
all the detail. However
the principal of an improvement lien has been
overtaken. The legal question whether there exists an improvement
lien in South African
law in respect of urban property has been dealt
with decisively.
[7] In the matter of
Business
Aviation Corporation (Pty) Ltd & Another v Rand Airport Holdings
(Pty) Ltd
2006
(6) SA 605
(SCA), Brand JA dealt with the question whether a
retention lien for improvements is applicable to urban property. This
was also
an action by the respondent for the eviction of the
appellants from an urban property owned by it. The appellants raised
the defence
inter-alia that they were entitled to retain the property
under an enrichment lien, as they had expended money on necessary and
useful improvements for which they had not been compensated. In
analysing the two placaten emanating from the Estates of Holland
in
the 17
th
century Brand JA he concluded
that while the placaeten were introduced into South African Law, they
were not applicable to urban
leases, and that the Article 10
placaeten raised in that case did not provide an answer to the
appellant’s reliance on an
enrichment lien. The respondent’s
defence on the enrichment lien must fail.
[8] The respondents have
raised a further defence, and that is that the applicant does not
have
locus
standi
to
bring application because it is not the registered owner. The
applicant is the Christian Family Church International, a church
which has been formed and established for the purposes of religious,
charitable, educational, philanthropic and benevolent purposes.
The
respondent incorrectly claims that the Title Deeds reflect the name
Family Harvest Church International. I have considered
the Title
Deeds, and quite clearly, although the original owner was the Family
Harvest Church, it is clear that the church changed
its name and
there is an endorsement on the Title Deed to the effect that the name
changed and it is now the Christian Family Church
International
Johannesburg. The respondent’s defence on this
locus
standi
point
must fail because quite clearly the applicant is correctly cited as
the owner of the premises.
[9] The respondent further
contends that the delay in opening the restaurant was as a result of
the delay caused by the applicant,
more particularly the conflict
between it and the church, the respondent being run by Mr Webb, that
there is an intractable dispute
between them. The relationship has
broken down irretrievably. This caused delay in opening the
restaurant in various ways as there
was a lack of communication. This
defence must fail as it cannot shield a recalcitrant tenant.
Costs
[10] Mr Webb, despite knowing
about the
locus
standi
point,
pressed on. He was forced to argue the matter himself because he
could not find legal representatives to argue his matter.
The matter
has a long history of postponements, and the postponements reflect
the number of opportunities the applicant and indeed
the court has
granted to Mr Webb to try and find legal representatives.
[11] The legal representatives
that he did find seemed to go on and off record for a number of
unknown reasons. The court allowed
the matter to stand down for two
days while he sought legal representation. The matter was heard on
the 15
th
of May 2017, where a final
postponement was granted by my brother Reynecke A.J., and Mr Webb was
warned at that stage that he was
to make sure that he had legal
representation. When the matter came before me Mr Webb said that he
had been in hospital for eight
days. I then directed that he should
bring a certificate to that effect. He came back to court on the next
day, and was unable
to produce a certificate. I had placed him on
terms that if he did not produce a medical certificate or come to
court with legal
representation, he would have to argue the matter,
which he did, and he did so coherently, and he based his arguments on
the Heads
of Argument that one of the firms of attorneys had lodged
for the purposes of the opposed application.
[12] Unfortunately the Heads
of Argument that he used did not take into account the case that I
have referred to about the placaeten
being adopted into an urban
lease. The retention argument also fails on a further basis, in that
Mr Webb has failed to detail the
improvements that he has made, the
cost thereof and exactly what they consist of.
[13] At some stage security
for the improvements was tendered by the applicant. He refused to
accept that security. By the time
this matter was argued the tender
of security was withdrawn.
[14] In the result the
respondent’s defences fail. Mr Webb has progressed this matter
unnecessarily particularly on the locus
standi point when a copy of
the Title Deed was attached to the supplementary founding affidavit.
[15] There have been numerous
appearances, and it has been submitted that the respondent is a
proprietary limited company, has no
assets and it is not trading. He
was placed on notice some months ago that a cost order would be
sought against him personally
because of the lack of detail as to
whether the respondent is solvent, and whether it can pay its debts.
Mr Webb submitted without
any proof, that he had, that the respondent
was trading, that it was solvent and that it could pay any costs
order in due course.
I am not persuaded by that argument, and no
documentation was placed before me, and it is for that reason that
the costs order
is to be paid by the respondent company and Mr George
Webb jointly and severally.
[16] I have allowed the
admission of the further supplementary founding affidavit attaching
the Title Deed, the Constitution of
the applicant as well as extract
of a minute resolving that Pastor Slabbert be the person who
negotiated the lease and to deal
with the breaches of the lease by
the respondent. The reasons are as follows. The limitation on
introducing new matter in reply
is not the ‘law of the Meads
and Persians’ – see
Hexvallei
Besproeingsraad en ‘n Ander v Geldenhuys NO en Andere
[2008] ZASCA 69
;
2009
(1) SA 547
SAC at 553E para 22. The limitation does not apply to an
element of a cause which should not been placed in dispute in the
first
instance such as the ownership of the property as the Title
Deed is clear. A respondent cannot sit back and laconically dispute
the applicant’s ownership of the property when it signed a
lease agreement with the applicant. In addition the respondent’s
claim that the applicant does not set out any legal personality is
nonsensical. The founding affidavit is clear as to the legal
personality of the applicant.
In the result I make an order
in terms of the draft marked X, which deals with the cancellation of
the lease and the eviction of
the respondent from the premises.
M VICTOR
JUDGE OF THE HIGH COURT
GAUTENG
LOCAL DIVISION
Appearances
Counsel for Applicant: Adv D
Vetten
Appearance for the Respondent:
Mr Webb in person