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[2010] ZAGPJHC 109
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SP & C Catering Investments (Pty) Ltd v Da Cruz and Others (40746/2010) [2010] ZAGPJHC 109 (10 November 2010)
NOT REPORTABLE
SOUTH GAUTENG HIGH COURT, JOHANNESBURG
CASE NO
:
40746/2010
DATE:
10/11/2010
In
the matter between:
SP & C CATERING
INVESTMENTS (PTY) LTD
.............................
Applicant
and
MANUEL JORGE MAIA DA
CRUZ
........................................
First
Respondent
CASCAIS RESTAURANT
CC
...........................................
Second
Respondent
VENEZA COFFEE SHOP
CC
................................................
Third
Respondent
SERAB TRADERS
CC
........................................................
Fourth
Respondent
COZ WORLD DEALERS 3
CC
...............................................
Fifth
Respondent
ADEGA DE MONGE
RIVONIA
..............................................
Sixth
Respondent
______________________________________________________________
J U D G M E N T
______________________________________________________________
LAMONT, J
:
[1] The applicant brought an
urgent application seeking the ejectment of the two respondents from
certain premises. The applicant
had previously brought an
application for the ejectment of the respondents from the same
premises.
[2] In the earlier application
the applicant’s claim against the respondents became
crystallised in the declaration which
was delivered subsequent to
that application having been referred to trial. In that matter the
applicant claimed; that on 4 November
2009 had concluded two written
leases one with the first respondent under and in terms whereof the
first respondent leased Shop
B3 at a stated rental and one with
second respondent leasing shop B2 at a stated rental. It claimed
that each respondent had breached
the lease it had with such
respondent and that following the procedure prescribed in the lease
it had duly cancelled the lease.
The first and second respondents
filed identical pleas. Under and in terms of those pleas the first
and second respondents while
admitting they had signed the written
agreements of lease, pleaded that each had entered into an oral
agreement of partnership
under and in terms whereof one Pereira and
each respondent would become partners in each particular restaurant.
Under and in terms
of the partnership agreement Pereira would provide
certain capital; each respondent would contribute certain skill;
Pereira would
ensure a two month rent-free period, would ensure a
lower rental thereafter until Pereira had recovered his capital
investment
and only once the capital investment had been recovered
would the rental be adjusted to a market-related rental. The
respondents
sought rectifications of the contracts concluded.
[3] It is immediately apparent
that the first and second respondents each set up a right of
occupation of the premises each occupied
pursuant to a different
contract then that alleged by the applicant. It was presumably this
dispute of fact which led to the matter
being referred to trial. In
the matter referred to trial the pleadings have closed and a trial
date has been applied for.
[4] On 6 October 2010 the
applicant delivered similar letters to each respondent. For present
purposes the letters may be regarded
as identical. In those letters
the applicant set out that notwithstanding the delivery of letters of
cancellation dated 1 October
2010 cancelling the contracts it had
concluded on 4 November 2009 it withdrew those letters of
cancellation. The reason stated
for the withdrawal was that the
applicant had incorrectly calculated the total amount of rental due.
The applicant then set out
what its position was as far as each lease
was concerned that namely each respondent occupied the particular
shop pursuant to the
written leases which had been breached in
consequence whereof the applicant had cancelled the leases and the
particular respondent
was no longer entitled to occupation. The
letter thereafter set out that in terms of the version set out by the
respondent in each
case, each respondent would be required to have
paid certain rental. The amount of the rental is then calculated on
the basis of
that version, deductions constituting payments are made.
The nett balance derived appears in paragraph 10. The following is
then
stated:
“
11.
The total amount to be paid is accordingly R309 462,99 …
Although our client is
entitled to an eviction of both Cascais Restaurant and Veneza Coffee
Shop on the basis set out in paragraph
5 above should any of the
tenants pay the relevant amounts referred to in paragraph 10 hereof
timeously in terms of the demand,
our client will not take steps to
have such entity ejected from the premises on the basis of such
cancellation (i.e. the cancellation
referred to in paragraph 5.3).
We record however that our client retains the right to cancel the
leases on grounds of any subsequent
breach by either Cascais
Restaurant or Veneza Coffee Shop.
The issue as to what amounts are due by Cascais Restaurant and by
Veneza Coffee Shop and the entitlement of our client to have brought
proceedings against inter alia such entities will be disposed of in
the proceedings already brought and our client does not waive
any
rights in regard thereto. However, should the amounts demanded be
paid timeously our client will not seek to eject Cascais
Restaurant
and Veneza Coffee Shop on the basis of the entitlement which has
already accrued to it as referred to in paragraph
5.3 above.
In the event that:
Cascais Restaurant does not
pay the amount referred to in paragraph 10.1 above by the date
specified; our client will cancel
any lease that may exist between
it and Cascais Restaurant.
Veneza Coffee Shop does not pay the amount referred to in
paragraph 10.2 above by the date specified our client will cancel
any lease that may exist between it and Veneza Coffee Shop.
15. Following upon any such
cancellation referred to in paragraph 14 our client proposes taking
immediate steps on the basis thereof
for the ejectment of whichever
party cancellation has been effected against.
”
[5] The letter required each respondent to pay the amount due by 11
October 2010. No payment was forthcoming and the applicant
cancelled
each lease on 11 October 2010 in the following terms:
“
1.
The letter of demand hand-delivered to you on 6
th
day October 2010 …
You were warned in such
demand that should you not discharge such amount on or before the
specified date, our client would cancel
any lease that may exist
between the parties. … such demand was predicated upon the
version advanced on your behalf
by Da Cruz, your alter ego and sole
member.
3. Despite the aforesaid
demand you have failed to discharge the said indebtedness, …,
and in the circumstances …
client hereby communicates to you a
cancellation of any lease that may exist …
”
[6] The present application is based upon that cancellation.
[7] There is no dispute between
the parties that assuming the lease alleged by the applicant between
itself and the respondents
being valid that it was duly cancelled and
that the respondents would not be entitled to occupation. I have
assumed for present
purposes that the withdrawal of the letter of
cancellation as set out in paragraph 4 of the letter dated 6 October
2010 does not
affect the right of the applicant to eject the
respondent. The right of the respondents to occupation is dependent
upon the right
claimed by the first and second respondents to
occupation as set in the plea.
[8] In this application the
applicant seeks to eject the first and second respondents from the
premises on the basis of the cancellation
of leases set up by the
respondents which it the applicant disavows. The question to be
answered is whether the applicant while
disavowing the existence of a
contract is entitled to rely upon it, demand payment in its terms,
deliver an interpellatio
, thereafter cancel it and then
seek relief based on the cancellation. (I have assumed that all the
parties to the lease are cited
and that if the partnership was the
tenant it is before court).
[9] The applicant made the
submission that the position was similar to that of a party to
litigation who pleads in the alternative.
It frequently happens that
a party to litigation pleads allegations in the alternative which
conflict with each other with a view
to setting up its claims which
may be based on conflicting facts or on conflicting scenarios. It is
open to a party to plead the
contract is A
alternatively
it
is B. It is also open to a party to plead that in consequence of the
existence of fact A a variety relief is available. See for
example
Jardin v Agrela
1952 (1)
SA 256
at 259 at following;
Custom
Credit Corporation (Pty) Ltd v Shembe
1972 (3) SA 462
at 470 (AD).
[10] In pleading this way a party
to litigation raises different legal issues which are to be decided
on the basis of the facts
which are ultimately found to be proven at
the end of the trial. The present situation is distinguishable. In
the present situation
no facts are proven in that the applicant
disavows the facts upon which it relies (as being the respondent’s
facts) and is
unable to establish its own facts as those facts are
disputed and form the subject-matter of the trial which is to be
heard in
due course. Accordingly the court is not called upon to
decide facts and therefore determine which legal contention based on
which
factual matrix provides the appropriate relief for the
applicant.
[11] It is this feature of the
case which is the flaw-in the applicant’s argument.
[12] In the present matter not
only is a Court not called upon to decide the factual issue but the
applicant while disavowing the
terms of a contract seeks to invoke
its terms. The applicant in the 6 October 2010 letter purports to
conditionally abandon the
cancellation it made of the contracts it
claims existed. Nonetheless it claims rights under the application
referred to trial
[13] The resultant position
creates an absurdity:
The applicant has cancelled the contract it claims existed.
It conditionally abandons the cancellation yet it persists in its
action which is based upon the cancellation.
It disavows the existence of
the contract the respondent sets up.
It seeks to enforce the terms of
that contract thereby claiming rights it disavows.
It cancels the contract it disavows.
[14] There are further issues
which arise namely: What were the terms of the contract pursuant to
which the interpellatio
was issued? Was it a
term that breaches required notice of a reasonable period? Was it a
term that breaches to be dealt with
in terms of particular clauses
with particular time-limits and methods of cancellation? There is
simply no answer to these questions
and apparent absurdities which
arise if the applicant is entitled to rely on a contract it claims
does not exist.
[15] This being so the applicant
was not entitled to demand payment in terms of the lease which it
does not accept existed and
was not entitled to cancel it. In
addition there is the technical difficulty that the applicant has
failed to establish how the
cancellation would be effected by proving
an appropriate term.
[16] It follows then that the
application falls to be dismissed with costs. The order which I make
is:
“
Application
dismissed with costs.
”
_____________________________
C
G LAMONT
JUDGE OF THE SOUTH GAUTENG
HIGH COURT, JOHANNESBURG