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[2020] ZAGPJHC 122
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Tshabalala N.O v Mia (2019/13913) [2020] ZAGPJHC 122 (12 May 2020)
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 2019/13913
In
the matter between:
MAKHOSONKE
TSHABALALA N.O
APPLICANT
(In
his capacity as Executor of the Estate
of
the Late Simon Mavuso Tshabalala No: 19324/96)
and
AMANULLAH
MIA RESPONDENT
(ID
NO: 630[…])
Judgment
THOMPSON AJ
[1]
The Applicant is the executor of the Estate
Late Simon Mabuso Tshabalala. He has been duly appointed as the
executor in the aforesaid
estate late and there is no dispute that he
has been so appointed. The Respondent is the occupant of Erf 54
Emoyeni Section, Tembisa,
more commonly known as 54 Emoyeni Section,
Cnr Mokwetje and Twala Streets, Tembisa (“the property”).
At the time that
these proceedings were launched, the Respondent
occupied the property by virtue of a written agreement of lease (“the
lease”)
which was entered into by the Applicant with the
Respondent in relation to the property.
[2]
The lease was entered into on 20 February
2014 whereby the Respondent leased the property from the Applicant
for a period of five
years calculated from 1
February 2014 to 31 January 2019. The Respondent was liable to pay
rental to the
Applicant in the sum of R13 000,00 per month for
the period 1 February 2014 to 31 January 2015, whereafter the rent
would
escalate at 9% per annum. The rental was payable by the
Respondent to the Applicant in advance on or before the first day of
every
month with effect from 1 February 2014 and thereafter on or
before the first day of each successive month.
[3]
The lease made provision therefore that the
Applicant will be responsible for the provision of municipal services
to the property
in respect of water, electricity, sewerage removal
and refuge removal. The lease does, however, provide that the
Applicant will
not be liable for any direct or consequential damages
suffered by the Respondent as a result of the disruption of the
services
for whatsoever reason. This latter clause was due, as
was submitted on behalf of the Applicant, to an oversight not relief
upon by the Applicant in its application. The lease further provided
that the Applicant will be liable for the payment of the municipal
rates at the property and the Respondent will be liable for the
payment of electricity and water consumed by it, payable on the
rendering of a statement by the local authority (for the electricity
supply) and demand by the Applicant (for the water supply).
[4]
The lease contains a rather peculiar clause
which is not ordinarily found in lease agreements. Clause 5.4 of the
lease provides
that the Applicant is indebted in a substantial sum to
the Ekhuruleni Metropolitan Municipality (“the municipality”)
in respect of arrear electricity, water, rates and taxes in respect
of the property. These arrears, the clause reads further, resulted
in
the municipality terminating the supply of electricity to the
property. The Applicant undertook and warranted in clause 5.4
of the
lease that immediately upon payment by the Respondent of the sum of
R62 000,00, which is an initial payment referred
to in a
settlement agreement between the parties, the electricity supply to
the property will be restored. Clause 5.4 further provides
that
should the supply of electricity not be restored within three days of
the initial payment being made by the Respondent to
the Applicant in
terms of the settlement agreement, that is to say the R62 000,00
payment, or in the event of the electricity
supply being terminated
again by the municipality as a result of the Applicant’s
non-compliance with its payment arrangement
with the municipality,
then the Applicant shall be entitled to withhold payment of rentals
until the electricity supply to the
property and premises had been
restored. I pause to point out that I am not called upon to
determine the arrear rental sum
in these proceedings.
[5]
The lease contains further terms which is
usually found in written lease agreements. It contains a breach
clause whereby, should
the Respondent be in breach of the lease by
failing to pay rentals or any other amount which is due in terms of
the lease on the
due date the Applicant may cancel the agreement in
which event the Applicant shall be entitled to immediate occupation
of the property.
This cancellation the Applicant may do without the
need for demand. The breach clause further provides that should there
be any
other breach then the Applicant will be required to place the
Respondent
in mora,
giving him seven days after written notice to remedy the breach. The
lease also contains an entire agreement clause whereby it
is
indicated that no amendments to the terms and conditions of the lease
shall be of any force and effect unless it is reduced
to writing and
signed by all the parties. The entire agreement clause also provides
that the lease serves to recall and replace
any previous verbal
agreements save as alluded to in the settlement agreement which
relates to former rentals that is executed
simultaneously with the
lease.
[6]
The settlement agreement referred to
in the entire agreement clause has not been referred to in the
founding papers nor is it attached
to any of the affidavits submitted
by either party. The Applicant places no reliance on the terms of the
settlement agreement or
on the former rentals alluded to in the
entire agreement clause. Due to the aforesaid I therefore take no
heed of the unnecessary
allegation contained in the Applicant’s
heads of argument, with reference to the earlier settlement agreement
and the lease
that the Respondent “[
i
]
n
the Respondent’s signature style, he has once again breached
the lease …
” In the
absence of any reliance on the former rental in the settlement
agreement this allegation is nothing more than
an attempt at clouding
this Court’s judgment in relation to the Respondent and his
conduct, therefore amounts to an attempt
at entering character
evidence into the record, which is in any event inadmissible.
[7]
Without setting out how the quantum of the
alleged arrear rental in the sum of R248 614,87 is arrived at,
it is alleged that
the Respondent is in arrears in the aforesaid sum.
The Respondent does, to the assistance of the Applicant, admit that
he did not
make payment of rentals for a considerable time. In this
regard the Respondent relies on the provisions of clause 5.4 that he
needed
not pay rental in instances where the electricity supply to
the property has been terminated. The Respondent, in advancing this
version, goes further. He indicated that for a period up until two
years prior to the signature of the answering affidavit, which
answering affidavit was signed on 14 June 2019, the property had no
electricity. According to the Respondent for approximately
the last
two years prior to the signing of the answering affidavit, he
utilised prepaid electricity and therefore had a supply
of
electricity to the property for the last two years.
[8]
The Respondent does not, as one would have
expected him to do if he is not in arrears with the rental payments,
to disclose to this
Court the payments of rentals made for, at least,
the last two years prior to the signing of the answering affidavit.
The Applicant,
in an attempt to gainsay the defence raised by the
Respondent, annexes a schedule of rentals raised and payments made
since 1 February
2014 until 1 April 2019. Having regard to the vague
allegation by the Respondent as to when the electricity to the
property, on
his version, had been finally restored, I have, in
particular, perused the schedule from 1 July 2017 up until 1 April
2019. It
can be seen that no payments were received for July, August
or September of 2017. A bulk payment of R45 000,00 was then made
on the 21
st
September 2017. For the months of October, November, December 2017
and January 2018 no rentals were received. On 11 January 2018
a lump
sum of R35 000,00 was received. A basic calculation of the
rental sum of R16 835,38 for a period of seven months
amount to
the
aggregate sum
of
R117 847,66. Taking into consideration the two bulk payments the
arrear rental for that period amounts to the sum of R37 847,66.
[9]
No rental was paid for February or March
2018. A sum of R15 000,00, which is lesser than the
monthly rental sum and far
less than the aggregate rental due for
February and March 2019, was paid on 28 March 2018. No rental was
paid for April or May
2018, however on 28 May 2018 a lump sum of
R30 000,01 was paid by the Respondent. This latter sum does not
equate to the aggregate
rental due for the two months rental of April
and May 2018. For the period June, July, August and September 2018,
no rental payments
were made. A lump sum payment of R30 000,00
was made during on 11 September 2019. Having regard to the schedule
drawn up by
the Applicant there is no instance whereby the Respondent
had, in full, settled the arrears arising from the lease terms in
relation
to the payment of rental, between the period 1 July 2017 to
1 April 2019.
[10]
The
Respondent has not objected to the schedule annexed to the replying
affidavit nor has the Respondent sought leave to file a
further
affidavit to deal with the contents of the schedule. I am in any
event of the view that the schedule which is annexed to
the replying
affidavit constitutes nothing more than further corroborating
facts
[1]
and as such regard can
be had thereto. In my view the breach of the lease have been
established by the Applicant.
[11]
The Applicant, quite unnecessarily in my
view, placed the Respondent
in mora
for
the non-payment of the rental by way of a letter dated 8 February
2019 from his attorneys. This letter of demand was served
by the
Sheriff on 18 February 2019 at the property upon a cashier identified
as Nizar Kahn. Although the
mora
letter was, in my view, unnecessary, no response thereto was
received. As a result, the Applicant’s attorneys caused a
letter
of cancellation of the lease, dated 26 February 2019, to be
served on the Respondent at the property by way of service on a
supervisor
identified as Allendin Kahn. The Respondent
indicates that he cannot not dispute that the letters may have been
served on
an employee at the property, but denies having received the
letters. He does, however, dispute that Nizar Khan is employed
by him at the property whilst, at the same time admitting that Nizar
Khan is employed by him but at another business of his in
Tembisa.
[12]
It
is a trite principle of law that a return of service by a Sheriff
constitutes
prima
facie
evidence of the matters therein stated.
[2]
As the return of service constitutes strong
prima
facie
proof
[3]
of the contents
thereof, I am of the view that the Respondent’s denial that he
did not receive the letter of cancellation
is bald, vague and
unsubstantiated. For example the return of service for the service of
the cancellation letter indicates that
the service was affected at
8:45 on 19 March 2019 and the Respondent was temporarily absent from
the property at that stage. In
order to overcome the
prima
facie
prove, the Respondent could have explained at what time the business
opened, why he would not have been absent from the property
or, in
the event of his absence, who he would have left in charge at the
property on that particular day. This is of particular
importance as he does not deny that Allendin Khan is employed by him.
In my view, the termination of the lease was duly and
properly
communicated to the Respondent.
[13]
Even if I am incorrect in the aforesaid, at
the time that the application was before me the lease had,
ex
facie
the amended terms of the lease,
automatically terminated due to the effluxion of time. The
Respondent contended that this
was not so. According to the
Respondent the lease made provision for the renewal of the lease for
a further period of four years.
The difficulty for the Respondent in
this regard is that the entire portion dealing with the existence of
the option was deleted
and initialled by both parties to the
agreement. According to the Respondent the only portion thereof that
should have been deleted
was the indicated period of five years and
that it should have been substituted with the period of four years.
At least three difficulties
arise for the Respondent in this regard.
[14]
Firstly there is no claim for rectification
for the lease. In light of the entire agreement clause, the parties
are bound by the
express terms of the lease and, absent a claim for
rectification, additional terms cannot be read into the lease.
Secondly the
Respondent does not deny that he signed the lease at the
portion that was deleted. In this regard the Respondent does not
explain
why he signed where the entire portion had been deleted.
Lastly the insertion of the number and word “four”
appears
nowhere at the deletion to remotely give credence to the
allegation proffered by the Respondent.
[15]
I must mention that the wording of the
deleted portion is discernible. The deleted portion makes specific
provision that the option
to renew can only be exercised if the
Respondent is not in breach of any material term of the lease. At the
time that the option
was purportedly exercised, 3 October 2018, the
Respondent was already in breach and therefore precluded from
exercising the option.
The Respondent does not even begin to
attempt to deal with this difficulty to his claim that he exercised
the option.
[16]
Ultimately,
in the absence of a claim for rectification of the lease, I am bound
to follow the express wording of the lease
[4]
.
[17]
This brings me to the next defence that has
been raised by the Respondent which, in my view, is the high
watermark of the Respondent’s
opposition to the relief claimed
by the Applicant. It is undisputed that the deceased held the
property in terms of a site permit
conferred to him in terms of
Government Notice R.1034 of 14 June 1968, but that he was not the
owner of the property. In this regard
the Respondent formulated his
opposition in his answering affidavit as follows:
“
It
is trite that rights conferred on Black persons until the opening of
a township register amounted to de jure a right of leasehold
and not
ownership. I submit that in the absence of any further evidential
material, ownership in the property, vests with the State.
I
further submit that annexure “D” without further
evidence, cannot and does not properly confer rights of ownership
in
the property to the Applicant.”
[18]
The Respondent developed the aforesaid
submission in the heads of argument filed on his behalf under the
heading “
Ownership vesting with
the State
”. In this
regard the Respondent undertook a short discourse of the history of
legislation governing ‘black’
urban areas in the heads of
argument filed on his behalf. Following upon the history of the
relevant legislation, the Respondent
formulated its opposition to the
Applicant’s title as follows:
“
Although
leasehold constituted stronger rights than the other permits, it
remained a limited real right only and still did not confer
ownership. Instead ownership of the land remained with the relevant
local authority…
It
follows then that if the property were not to fall into the estate of
the
[the deceased]
the
State would be the owner of the property and the authority to
institute eviction proceedings would only vest with the State.
…
The
Respondent does not with respect challenge the Applicant’s
right to occupy the property as alleged, whether ownership
vests with
the State or the Applicant however is a pertinent dispute which may
very well require the matter to be dismissed or
oral evidence to be
tendered”
[19]
It is therefore evident that the Respondent
challenges the
locus standi
of
the Applicant on the basis that the deceased is not the owner of the
property and as a result the Applicant, as the custodian
and person
in control of the deceased estate, has no
locus
standi
to seek the Respondent’s
eviction from the property as the property, so the dispute at the
instance of the Respondent goes,
does not necessarily fall within the
deceased estate.
[20]
This
argument, in terms of settled law, is misplaced. It is common cause
that the Respondent entered into the lease with the Applicant.
That
the Applicant could enter into a valid lease with the Respondent
relating to the property does not rest on the Applicant having
any
title to the property. Unless a Lessor expressly agrees thereto, a
Lessor does not warrant that he is entitled to let the property
to a
Lessee. This has the effect of the establishment of a rule in our law
that when a Lessee is sued for eviction at the termination
of a
lease, a Lessee cannot raise, as a defence, that the Lessor has no
right to occupy the property. The rule is clear. Ultimately,
the
Respondent, as Lessee, cannot rely on the defence that the Applicant,
as Lessor, lacks title in order to resist the eviction
upon the
termination of the lease.
[5]
[21]
In any event, despite the Applicant, in his
founding affidavit, creating a heading termed “
Ownership
”
,
the Applicant at no stage alleges that
either he or the deceased is the owner of the property. The Applicant
does no more than allege
that the deceased was the lawful holder of
the property by virtue of the site permit that is attached to the
founding affidavit.
As further information the Applicant points out
that the property is in the process of being transferred to the
estate of the deceased
by the Gauteng Department of Human Settlement.
The Respondent in its opposition in his answering affidavit confines
himself to
a challenge to the ownership of the property, however the
admission is made that the deceased had
the
de jure
right
of occupation of the property,
which admission is reiterated in the Respondent’s heads of
argument.
[22]
As
the Applicant need not show that he is the owner of the property
being let to the Respondent and the failure to do so will not
affect
the validity of the lease entered into between him and the
Respondent
[6]
and, at the end of
the lease, the Respondent is obliged to restore vacant possession of
the property to the Applicant and further
that as the Applicant has a
contractual right to demand the ejectment of the Respondent at the
end of the lease, irrespective of
whether the Applicant has any real
or personal right entitling it to occupation, I am of the view that
the Respondent’s opposition
in this regard should fail.
[23]
Lastly the Respondent alleges that he has a
claim for damages against the Applicant. The Respondent does not rely
on a
lien
that would entitle him to seek the temporary prevention of his
eviction until such time that security for the
lien
has been given. The Respondent also does not seek that these
proceedings be stayed pending the institution and finalisation of
an
action for damages. In my view, should the Respondent be evicted that
will not preclude him from pursuing a damages claim, if
any, in due
course.
[24]
I
am therefore of the view that the point
in
limine
that the Respondent commenced his answering affidavit with, namely
the existence of irresolvable disputes of fact on the papers
cannot
be sustained. I am of the view that the Respondent’s version
consists of bald and uncreditworthy denials and assertions,
raises
fictitious disputes of fact and is untenable to the degree that I am
justified to rejecting the Respondent’s opposition
merely on
the papers.
[7]
[25]
That leaves the issue of costs. The
Applicant has prayed in his notice of motion that the Respondent is
to pay the costs of the
application on an attorney and client scale.
This is permitted in terms of clause 14.3 of the lease. Clause 14.1
entitles the Applicant
to institute proceedings in either the
Magistrate’s or Regional Court having jurisdiction over the
Respondent whilst further
providing that the Applicant is not obliged
to so institute proceedings in either the Magistrate’s or
Regional Court. The
Respondent has made no submissions as to why this
application should have been brought in any Court other than this
Court. As a
matter of fact, taking into consideration the complexity
of, at least, the ownership issue as raised by the Respondent, I am
of
the view that this matter was properly justiciable in this Court.
There is no reason, in my view, why I should not enforce the
contractually agreed term of attorney and client costs in this
matter.
[26]
In the premises I make the following Order:
1.
Amanullah Mia (“the Respondent) is
ordered to vacate Erf 54, Emoyeni Section, Tembisa, situated at 54
Emoyeni Section, Cnr
Mokwetje and Twala Streets, Tembisa (“the
premises”) forthwith;
2.
The Respondent and all persons claiming any
right or interest of occupation through the Respondent, be evicted
from after 7 (SEVEN)
days of the granting of this Order if the
Respondent does not voluntarily vacate the property within such 7
(SEVEN) day period;
3.
In the event that the Respondent and all
persons claiming any right or interest of occupation through the
Respondent fail to vacate
the premises as ordered in paragraph 1
hereof, the Sheriff be and hereby is authorised and directed to evict
such persons from
the premises;
4.
The Respondent is to pay the costs of the
application on the attorney
and client scale.
____________________________
C
E THOMPSON AJ
[Acting
Judge of the High Court,
Gauteng
Local Division,
Johannesburg]
For
the Applicant: Adv.
J C Viljoen
Instructed
by: McKenzie
Van Der Merwe & Willemse
For
the Respondent: Adv.
L Leeuw
Instructed
by: Sarlie
& Ismail Inc.
Date
of Hearing: 11
May 2020 (matter decided
on the papers)
Date
of Judgment: 12
May 2020
***JUDGMENT
DELIVERED BY UPLOADING ONTO CASELINES***
[1]
eBotswana
(Pty) Ltd v Sentech (Pty) Ltd and Others
2013(6) SA 327(GSJ) at para 28
[2]
Section
43(2) of the Superior Court’s Act 10 of 2013
[3]
Pienaar
v TLB Transport CC
(10521/2017)
[2018] ZAGPJHC128 (10 May 2018) at para 4
[4]
Mohamed’s
Leisure Holdings (Pty) Ltd v Southern Sun Hotel Interests (Pty) Ltd
(183/17) [2017] ZASCA176; 2018(2) SA314 (SCA) (1 December 2017) at
para [23]
[5]
Mighty
Solutions CC t/a Orlando Service Station v Engine Petroleum Limited
and Another
(CCT211/14) [2015] ZACC34; 2016(1) SA621(CC); 2016(1) BCLR 2008 (CC)
(19 November 2015) at para [28] and [33]
[6]
Mpange
and Others v Sethole
(07/7063)
[2007] ZAGPHC202 (22 June 2007) at para [24]
[7]
National
Director of Public Prosecutions v Zuma
[2009]
ZASCA1; 2009(2) SA277 (SCA) at para [26]
“
Motion
proceedings, unless concerned with interim relief are all about the
resolution of legal issues based on common cause facts.
Unless the
circumstances are special they cannot be used to resolve factual
issues because they are not designed to determine
probabilities. It
is well established under the Plascon Evans Rule that where in
motion proceedings disputes of fact arise on
affidavits, a final
order can only be granted if the facts averred by the Applicant’s
affidavits, which have been admitted
by the Respondent, together
with the facts alleged by the latter, justifies such order. It may
be different if the Respondent’s
version consists of bold or
uncreditworthy denials, raises fictitious disputes of fact, is
palpably implausible, farfetched or
so clearly untenable that the
Court is justified in rejecting them merely on the papers.”