About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Western Cape High Court, Cape Town
SAFLII
>>
Databases
>>
South Africa: Western Cape High Court, Cape Town
>>
2010
>>
[2010] ZAWCHC 545
|
|
Club Mykonos Resort Managers (Pty) Ltd v Hobie Beach Bar CC and Another (23322/10) [2010] ZAWCHC 545 (11 November 2010)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE HIGH COURT, CAPE TOWN)
CASE
NO:
23322/10
In
the matter between:
CLUB
MYKONOS RESORT MANAGERS (PTY) LTD
…...............................................
Applicant
And
HOBIE
BEACH BAR CC
….................................................................................
First
Respondent
CORDUS
GOBRECHTS
…............................................................................
Second
Respondent
APPLICATION
FOR LEAVE TO APPEAL & COUNTER APPLICATION FOR LEAVE
TO
EXECUTE ORDER
JUDGMENT
DELIVERED ON 11 NOVEMBER 2010
CLOETE,
AJ
[1]
There are two applications before me, one by respondents for leave
to appeal against the order which I made on 29 October
2010, and the
other by applicant for leave to execute such order. For sake of
convenience I will deal firstly with the application
for leave to
appeal and thereafter the application for leave to execute.
[2]
It is trite law that in order to succeed in their application for
leave to appeal the respondents (i.e. the applicants in
the
application) have to persuade me that there is a reasonable prospect
of success on appeal (see, inter alia,
Pharmaceutical
Society of South Africa v Tshabalala-Mslmang
2005
(3) SA 238
(SCA) at 262D).
[3]
The respondents rely on eight grounds in their notice of application
for leave to appeal. In argument, however, respondents'
counsel
(correctly in my view) limited his submissions to two "main
grounds", namely, the non-joinder of Calypso Villas
(Pty) Ltd
("Calypso Villas") and whether Calypso Villas had in fact
committed an act of repudiation based on the letter
of Mr Hugo dated
26 August 2010.
[4]
On the issue of non-joinder, it is clear that this is one which is
not real but artificial. Whilst respondents' counsel submitted
in
answer to a question posed by this court that Mr Hugo on behalf of
Calypso Villas might not have had the time "to intervene
as a
third party due to the application being urgent", he certainly
had the time to furnish instructions to respondents'
attorneys to
vigorously oppose the application on their behalf and to depose to
an answering affidavit of some 18 pages (without
annexures) in
support of such opposition. In any event, a reading of the answering
affidavit of Mr Hugo makes it abundantly clear
what the defences
would have been to any application to which Calypso Villas was
formally joined as a party. Such defences are
comprehensively dealt
with in the answering affidavit, to such an extent that the court
came to the irresistible conclusion that
Mr Hugo is clearly the
"directing mind" of both Calypso Villas and first
respondent. Indeed, during the course of argument,
respondents'
counsel (again, correctly in my view) did not seriously suggest
otherwise.
[5]
On the issue of repudiation, much has been made by respondents of
the interpretation of Mr Hugo's letter of 26 August 2010.
However,
respondents are still unable to satisfactorily explain the contents
of the letter of Geldenhuyse Inc of 1 October 2010,
nor are they
able to satisfactorily explain the assignment of the lease which is
the actual repudiation. This issue has already
been dealt with in
the reasons furnished by this court on 3 November 2010 (at paras
[19] and following) and need not be repeated
here.
[6]
Having read the notice of application for leave to appeal, having
heard the submissions of the respondents and after careful
consideration of the application for leave to appeal as a whole, I
am satisfied that no new facts or submissions have been placed
before me that would raise doubt in my mind whether the order which
I made on
29
October 2010 was correct. In my view, there is no merit in the
application for leave to appeal, which seems to have been brought
as
nothing other than an attempt by the respondents to continue to
occupy the premises in question until at least the end of
the
profitable holiday season.
[7]
I have thus arrived at the conclusion that there is no reasonable
prospect of success on appeal.
[8]
Notwithstanding the failure of the respondents' application for
leave to appeal, I am still obliged to deal with the application
in
terms of r 49(11). In
Airy
v Cross-Border Road Transport Agency
2001
(1) SA 737
(TPD) at 743B-C, the court stated as follows:
"As
to the competence to grant rule 49(11) relief where leave to appeal
is refused: the power to grant such relief arises,
inter alia,
'(w)here ...an application for leave to appeal ... has been made' in
such a case a party may make application for
a direction that the
operation and execution of the order in question should not be
suspended. The rule does not limit the right
of a party to make such
an application to cases where an application for leave to appeal has
been successfully made. Once the
application for leave to appeal has
been made, the jurisdiction to grant rule 49(11) relief arises.
Whether it is appropriate
to grant such relief will depend on the
facts of each case."
[9]
On their version and at best for the respondents, they would be
entitled to remain in occupation of the premises for a period
not
exceeding three calendar months from the date upon which notice to
vacate is furnished.
[10]
The first occasion on which the respondents made allegations
relating to employees was in the answering affidavit of Mr Hugo
filed in opposition to the r 49(11) application on 10 November 2010.
The respondents allege that they have two permanent employees
and
five casual employees. The replying affidavit of Mr Winkler
indicates that the so-called permanent employees are the second
respondent and Mr Hugo's wife, although no employment contracts in
respect of either have ever been presented to this court.
As is
conceded by the respondents, the other "employees" are
casual. The allegation that the respondents are now suddenly
put to
hardship as a result must be discounted: it is common cause that
they were afforded notice to vacate on 27 September 2010.
The
respondents further agreed that, in the event that this court was
disposed to grant the initial relief sought by the applicants,
they
could vacate by Friday, 5 November 2010.
[11]
The respondents complain that they have made disbursements for
reservations and marketing for performing artists for the
season. I
agree with applicant that they had no business to do so in light of
the notice to vacate addressed to them on 27 September
2010.
Similarly, they should not have taken any bookings for end of year
functions well-knowing that they might not be able to
honour them.
It is also noted that these allegations were not made in the court a
quo in the answering affidavit of Mr Hugo filed
in opposition to
that application. These actions would accordingly appear to have
taken place after Mr Hugo deposed to his previous
affidavit. In the
circumstances, the respondents must be seen to be the authors of
their own misfortune.
[12]
Again, for the first time in these proceedings, the respondents
allege that Calypso (not them) has made improvements to the
premises. These allegations also stand to be entirely discounted,
since the Calypso lease specifically provided that any alterations
or additions of any nature may only be made with the consent of the
landlord, and the cost of the alterations or additions would
be for
the account of the tenant, who would, on termination of the lease
remove
at
its cost
any
alterations or additions made to the premises should the landlord so
require, (my emphasis) Accordingly, neither the respondents
nor
Calypso (to the extent that this is relevant) enjoy any claim for
improvements made.
[13]
The respondents do not seriously dispute the ease with which they
can move out of the premises. As pointed out by Mr Winkler
in his
replying affidavit, the allegations that there is a large deck, and
that the premises can accommodate 50 guests, have
no bearing upon
the ease with which the respondents can vacate.
[14]
On the other hand, the applicant, by contrast, is the owner of the
property. The harm to the applicant as owner of the property
is
presumed as its claim is vindicatory: see inter alia
Fey
N.O. v Van der Westhuizen & Others
2005
(2) SA 236
(C) at 250C-D where the court stated as follows:
"(Counsel
for the respondent) argued, moreover, with reference to another Knox
D'Arcy case, namely, Knox D'Arcy Limited and
Others v Jameson &
Others
1995 (2) SA 579
(W) that the applicant was required to prove,
in addition to a prima facie case, a well grounded apprehension of
irreparable
loss if the interdict was not granted, which he had not.
This however does not apply in (quasi) vindicatory claims where the
apprehension of irreparable harm is, in fact, presumed until the
contrary is shown, and therefore does not have to be proved as
suggested."
[15]
The disturbing developments subsequent to the order of this court of
29 October 2010 relating to the conduct of Mr Hugo (as
set forth in
the founding affidavit of Mr Winkler) and which Mr Hugo sought to
explain in his answering affidavit (to my mind,
without success),
lend credence to the applicant's submission that it will suffer harm
if the respondents are allowed by this
court to remain in occupation
of the premises. The applicant stands to be deprived of the use of
its premises over the season.
The opportunity to place a new tenant
who will improve the premises is every day more jeopardised.
[16]
In considering an application in terms of r 49(11) the court
exercises a wide discretion. It has regard to:
[16.1.]
Whether irreparable harm will be caused to the respondents if the
judgment is executed;
[16.2.]
The prospects of success on appeal, bearing in mind that where an
appeal will be an exercise in futility, reliance on
r 49(11) by an
appealing party to suspend an order would be an abuse of process;
[16.3.]
The balance of convenience, if there is potential for irreparable
harm to both the applicant and the respondents.
See
Lubambo
v Presbyterian Church of Africa
1994
(3) SA 241
(SE) at 245I-J;
Absa
Bank Ltd v Olivia Properties
1999
(4) SA 554
(W) at 555G-H
[17]
To my mind, every consideration of convenience and justice dictates
that I should come to the relief of the applicant. No
potential
prejudice to the respondents, other than that with which I have
dealt above, has been suggested or comes to mind. However,
in order
to cater for any potential prejudice which the respondents might
suffer as a result of my order, I shall provide therein
for the
possibility that the respondents may be successful in any
application which they may make for leave in the Supreme Court
of
Appeal for leave to appeal..
[18]
In making provision for any potential prejudice, I have had regard
to the following:
[18.1.]
Whether I should require applicant to provide security. At paragraph
5 of the founding affidavit of Mr Winkler, it is
stated that "the
applicant is a very substantial entity well able to meet the costs
of any such damages". Other than
a passing reference to "die
inhoud hiervan word ontken" in paragraph 28 of Mr Hugo's
answering affidavit, he does not
deal at all with the financial
wherewithal of the applicant, and I must accordingly accept that
this is admitted by the respondents.
In the circumstances, I do not
believe it necessary to order the applicant to furnish security;
[18.2.]
I have taken note of the applicant's undertaking that it will ensure
that accurate records are kept of the premises' trade
over the
season in order to assist in quantifying the respondents' loss if
any such need arises, and that such damages as could
be suffered by
the respondents could therefore be quantified with ease (paragraph 5
of the founding affidavit of Mr Winkler).
I have also taken note of
the applicant's undertaking that, if this court were inclined to
grant the respondents leave to appeal,
the applicant will not
conclude a long term lease agreement with any third party until the
final determination of any such appeal.
[19]
In all the circumstances I make the following order:
1.
The application for leave to appeal is dismissed with costs.
2.
The order of this court of 29 October 2010 ("the Order")
shall be operative with immediate effect, and notwithstanding
any
appeal procedures followed by the respondents;
3.
The applicant is granted leave to execute the Order;
4.
The provisions of 2 and 3 above shall be subject to the following
conditions:
(a)
The applicant shall not conclude a long term lease agreement with
any third party until the final determination of any subsequent
application for leave to appeal to the Supreme Court of Appeal;
(b)
Applicant shall ensure that accurate records are kept of the
premises' trade from date of occupation of the new tenant until
28
February 2011 in order to assist in quantifying the respondents'
loss if such need arises;
5.
Subject to 6, the costs of the application in terms of r 49(11)
shall be costs in the respondents' appeal;
6.
In the event of the failure of the respondents to follow any further
appeal procedures, the costs of the application in terms
of r 49(11)
shall be borne by the respondents on the scale as between party and
party as taxed or agreed.
JI CLOETE, AJ