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[2010] ZAGPJHC 54
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Zevenfontein Beleggings (Pty) Ltd v Morgan-Jones and Others (51254/2009) [2010] ZAGPJHC 54 (18 May 2010)
IN THE SOUTH GAUTENG HIGH COURT OF SOUTH AFRICA
JOHANNESBURG
CASE NO
: 51254/2009
DATE
: 2010-05-18
In the matter between
ZEVENFONTEIN BELEGGINGS (Pty)Ltd Applicant
and
CEDRIC MORGAN-JONES 1
st
Respondent
DIANE MORGAN-JONES 2
nd
Respondent
CORENZA MORGAN-JONES 3
rd
Respondent
_________________________________________________________
J U D G M E N T
_________________________________________________________
WILLIS, J
:
[1] This is an application for the eviction of the respondents from
the property of the applicant. The application was initially
brought
as an urgent application in terms of the provisions of Section 5
of the Prevention of Illegal Eviction from an
Unlawful
Occupation of Land Act 19 of 1998 and was set down for hearing
on 11 December 2009.
[2] The matter was heard before my brother Kgomo J on 11
December 2009. It appears that he was of the view that the
application
substantially complied with the requirements of the
Prevention of Illegal Eviction from and Unlawful Occupation of Land
Act ,
No. 19 of 1998 (PIE) and granted an eviction order on the
basis that the applicant is the owner and the respondents are in
unlawful
occupation of the property.
[3] The learned judge granted an eviction order, but allowed the
respondents to show cause on 4 February 2010 why the
previous order should not be made final. He also allowed the
respondents to file answering affidavits by 14 December 2009
and further allowed the applicants to file a replying affidavit, if
any, by 28 December 2009.
[4] On the 14 December 2009 the respondents delivered a
notice of application for leave to appeal against the whole judgment
granted by Kgomo J and this notice, of course, suspended the previous
order. It appears that there were difficulties in reconstructing
the
file, which went missing and in Kgomo J’s reasons have been in
the process being reconstructed.
[5] In any even,t the parties agreed that the application would be
re-enrolled and that the respondents would withdraw the application
for leave to appeal and that the matter would be adjudicated on the
merits in the motion court for this week. That agreement was
reached
before my sister, Nicholls J.
[6] The applicant is indeed the owner of the immovable property. The
respondents operate an Equestrian Centre on this property.
The
applicant has received an attractive financial offer to sell the
property. The purchaser requires vacant possession and, for
this
reason, the applicant seeks the eviction of the respondents.
[7] The respondents have resisted the application for eviction on the
basis that there was a prior oral agreement concluded between
Mr Keith Van Der Spuy, who acts on behalf of
Zevenfontein Beleggings, and the respondents in terms of
which
they could occupy the property. The argument of the respondents is
that this agreement is still extant. I might point out
that the
respondents, it is common cause, have paid no rental whatsoever.
[8] The difficulty for the respondents is that the written
agreement, which is not in dispute, and which was attached to the
papers was concluded by Keith Van Der Spuy,
Cedric Morgan-Jones, the 1
st
Respondent and
Zevenfontein Beleggings (Pty) Ltd, the applicant in these
proceedings records that:
“This agreement constitutes the entire agreement between the
parties and supersedes all prior written or verbal agreements
or
understandings or representations by or between the parties regarding
the subject matter of this agreement and the parties will
not be
entitled to rely in any dispute regarding this agreement on any
terms, conditions or representations not expressly contained
in this
agreement”.
The agreement also provides that:-
“This agreement is the entire agreement between the parties and
the parties record that save for what is contained herein
there are
no understandings, warranties or conditions agreed to between them.
In particular the parties record that no warranty
relating to the
turnover or potential profitability of the business has been given.”
And:
“No amendment to or cancellation of agreement shall be valid
and binding unless reduced to writing and signed by all the
parties”.
And:
“No relaxation or indulgence that either party may grant to the
other in respect of such obligations in terms hereof shall
in any way
prejudice or constitute a waiver or novation of such parties’
rights in terms of this agreement”.
[9] In my view, the agreement between the parties is as clear as one
can reasonably hope to find in as much as it excludes the
possibility
of there being an oral agreement that prevailed over this written
agreement in terms of which, it is common cause,
the respondents no
longer have any right to occupy the property.
[10] I may record that I am unimpressed by Mr
Hollander’s
submissions that the case of
Affirmative Portfolio CC
v
Transnet Ltd T/A Metro Rail
2009 (1) SA 196 (SCA)
provides an opportunity for the respondents to escape the
consequences of the written agreement.
This written agreement was
quite clear and all embracing. Accordingly, it seems to me to be
clear that the respondents have no
right in terms of any lease
agreement to continue occupying these premises at all.
[11] There was a further string to the bow of the respondents,
namely that they claimed a
jus retentionis
by reason of
certain useful improvements, which they claimed they had effected on
the property, which enhance its value. Until
this morning the value
of these useful improvements was very vaguely set out. Furthermore,
the amount that had actually been expended
by the respondents on
making these useful improvements was not set out.
[12] There is a supplementary affidavit that was filed this morning
suggesting that the value of these useful improvements is some
R1,6 million. The applicants have, however, tendered to pay
this sum into a trust account consequent upon the sale proceeding
to
be held as security subject to certain conditions provided that the
respondents institute an action for the recovery of the
expenditure
relating to the useful improvements.
[13] Of course, it is trite law that not only must the respondents
have spent money on making useful improvements, but that the
value of
the property must have been increased. This is disputed by the
applicants, but the law is that the person effecting the
useful
improvements recovers whichever is the lesser of the expenditure or
the improvement in the value of property.
[14] I was referred by both parties to the case of
Rekdurum (Pty)
Ltd
v
Weider Gym Athlone (Pty) Ltd
1997
(1) SA 646
(C). Counsel for the applicants emphasised the point
appearing at 654 C that:
“The logical consequence of the finding is that the respondent
by utilising the premises for the purpose of conducting a
health and
fitness centre business thereon is wrongfully infringing the
applicant’s
dominium minus plenum.
It is that
infringement which the applicant seeks to restrain by means of an
interdict.”
[15] I was also referred to the case of
Brooklyn House
Furnishers (Pty) Ltd
v
Knoetze And Sons
170 (3) SA 264
(A) and I myself found the case of
Fletcher and
Fletcher
v
Bulawayo Waterworks Co Ltd
1915 AD
636
particularly instructive. In that case Solomon JA delivering a
judgment with which the Chief Justice and Maasdorp JA concurred
(in
those days it was common for all the judges hearing an appeal to
deliver their separate judgments) indicated after a reference
to the
Digest (6,1,36) that, ultimately, a court must make an order that if
fair to all the parties and must ensure that that order
is not unfair
to the owner of the land.
[16] After all, the purpose of a
jus retentiois
is not to
enable an occupier of premises to use this as a guise to continue to
remain occupying property in respect of which the
occupier is not
paying a rental or in respect of which it has no claim to ownership
or possession, but rather to ensure that it
is not left empty-handed
in respect of useful improvements that it may have effected
bona
fide
.
[17] The applicants in this matter have addressed this concern by, as
I have already indicated, agreeing that the court may order,
subject
to certain conditions, an amount to be paid over into a trust account
as security for any claim, which the respondents
may have in respect
of useful improvements.
[18] Mindful of the fact that the respondents have been in occupation
of this property on which there is an equestrian centre for
a long
time, I do not think that it would be appropriate that they be
evicted today or tomorrow. They should be allowed a reasonable
time
in which to vacate the premises. The applicants have apparently
conferred with the purchaser of the property and can afford
the
respondents 30 days in which to vacate the property. They have also
offered alternative accommodation on a temporary basis
to the
respondents in their personal capacity. This also will be reflected
in the court order. The respondents have sought an
order that the
applicants will not, in the interim, pending the vacation of the
premises frustrate or undermine the operation of
the respondents’
business in the meantime. This also seems to me to be a reasonable
element to be included in the order
of the court.
[19] Against this background I have asked the parties to settle a
draft order, not on the basis that it is made by consent, but
simply
that it fairly, after debate with counsel, reflects the intentions of
the court, which have already been conveyed to the
parties. This
draft order will be given to me at 14:00 this afternoon, after the
court now takes the normal adjournment. Provided
there are no serious
mishaps, an order will be made in terms of that draft as “X”.
COURT ADJOURNS
COURT RESUMES
WILLIS J
:
[21] In the Zevenfontein Beleggings v Morgan-Jones matter, a short
while before the 13:00 adjournment, I said I would hand down
the
order which, I wish to emphasise, was not agreed between the parties.
I afforded the parties an opportunity to design a properly
crafted
order which, nevertheless, would ensure that my intentions were
fairly reflected. The draft handed up to me now does
indeed meet
these requirements.
[22] For the sake of completeness, I wish to add the following: not
remotely and not under most radical, revolutionary, most far
reaching
interpretation of PIE, can the respondents be considered to be the
poorest of the poor and the kind of persons deserving
of any kind of
special protection from eviction.
[23] I did not understand Mr
Hollander
to argue as much. I
wish to add that if anyone suggests that one should, in a case such
as this, call upon the municipality to
provide a report as to why the
respondents should not be evicted from this Equestrian Centre, my
mind may well snap.
[24] An order is made in terms of the draft marked “X”.
Counsel for the applicant: Advocate A Vorster.
Counsel for the respondents: Advocate L Hollander.
Attorneys for the applicant: Horak Inc.
Attorneys for the respondents: Botha and Bekker.
Date of Hearing: 18 May 2010.
Date of Judgment: 18 May 2010.
.