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[2010] ZAWCHC 551
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Kloof Investment 2004 CC v Isaacs (23305/2010) [2010] ZAWCHC 551 (12 November 2010)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE HIGH COURT, CAPE TOWN)
CASE
NUMBER
:
23305/2010
DATE
:
12
NOVEMBER 2010
In the matter between:
KLOOF
INVESTMENT 2004 CC
….........................................................
Applicant
and
GARY
ISAACS
….............................................................................
Respondent
JUDGMENT
MIA,
AJ
:
This
is an application for ejectment of the respondent from the premises
described as Shops 11C and 11D, Palm Hof Centre, Kloof
Street,
Gardens, Cape Town and a further order directing the respondent to
pay the costs of this application on an attorney and
own client
scale. There were a number of issues that the parties had disputes
with regard to. However, when the matter came before
me, the parties
indicated that there was no opposition to the issue with regard to
condonation for the late filing of the opposing
papers© With
regard to the further aspects, the parties indicated that there were
no further outstanding issues. The request
was that this Court only
consider the application of clause 4.6 of the agreement between the
parties and its application to this
matter.
Briefly,
the background to this matter is that the respondent and the
applicant entered into a lease agreement for premises for
the period
1 January 2008 until 31 December 2012. It appears that during the
course of 2010 there was an averment that the respondent
had not been
paying rentals herein and a demand was sent to the respondent.
Following on the respondent's failure to make payment
in terms of
demand, a summons was issued out of the Cape Town Magistrate's Court.
At
the time of commencing hearing this matter, I was informed that in
order to succeed in this matter, the applicant would withdraw
the
matters pending in the Magistrate's Court. There was nothing placed
before me indicating that such matters were in fact withdrawn.
Having
regard to the papers, there are a number of disputes that have been
raised between the parties which disputes ought to have
been
addressed by way of action. On the papers, neither of the parties
have indicated that they request that this matter be addressed
by
oral evidence.
Ordinarily,
having regard to the founding and opposing affidavits, in the event
that there are disputes, either the respondent may
call for the
deponents to be cross-examined in terms of Rule 6(5)(g) of the
Uniform Rules of Court. This was not in fact done so
in this matter.
The Court is thus faced with the position that there are disputes in
this matter. The respondent relies on
compensatio,
indicating
that there are a number of claims that it has against the applicant
in this matter, specifically for the lack of storage
space for
refuse, the lack of access to parking bays and the leaking roof.
The
respondent places an amount of R1 000,00 value to each parking bay
and the respondent then also calculates its loss of 25 metres
square
use of the premises as a result of the lack of a storage facility for
refuse, and avers that in view of that lack of 25
metres square,
there is an amount of overpayment for rentals due and due to this
that there was an overpayment for rental for the
previous years,
which places them in credit with the applicant herein.
In
instances where there appears to be disputes, I refer to the case of
Room
Hire Company Property Limited v Jeppe Street Mansions Property
Limited
1949(3)
1 155 at 1163 where the Court refers to various disputes of fact
which may arise. In the present case, the dispute of fact
that is
applicable in this matter, is where the respondent disputes the
averments made by the applicant in the matter. The Court
in the Room
Hire Case refers to Rule 9 (5) (applicable Rule at the time) of the
Uniform Rules of Court and indicated that the respondent
may have the
option of calling for the deponents to be crossexamined, and
that such cross-examination would be sufficient
to safeguard the
respondent.
In
the Room Hire Case at 1164 the Court said the following: "...
the Court should ordinarily decline to decide the dispute,
purely on
the probabilities as disclosed in the affidavit and should, at its
discretion, select the most suitable method of employing
viva
voce
evidence
for the determination of the dispute." In this instance, as I
have indicated, the parties have not availed themselves
of that
instance. The Court says at 1165 that "in other circumstances,
the Court's discretion may well be exercised in the
direction of
either dismissing the application or of sending the parties to trial
with such direction as to costs and of filing
pleadings as it deems
fit. Whatever particular course should be taken, depends on the
circumstances of each case, and that it is
undesirable to lay down
any rule of exercise of the Court's discretion."
Now
having regard to the rule applied in
Plascon
Evans Paints v Van Riebeeck Paints
1984(3)
SA 623, I have had regard to the versions that have been placed
before the Court. The applicant knew full well at the stage
when it
launched this application that the respondent had raised a defence on
material aspects in the Magistrate's Court. The respondent
had
indicated that he was not indebted to the applicant and why he had
not breached the agreement of lease. The applicant thus
accordingly
knew that a real or a genuine or
bona
fide
dispute
of fact would have been raised in this court and despite this
knowledge, the applicant proceeded to bring this claim by
way of
application.
The
issue of the respondent's alleged indebtedness on the breach, are
material and should be ventilated in an action in due course.
The
issue of
compensatio
which
is raised by the respondent herein and which the applicant indicates
that the Court should not have reference to with regard
to clause 4.6
of the agreement signed between the parties, which is found at page
24 of the pleadings herein, is not capable of
determination without
having regard to the aspects that are raised with regard to the
parking bays, the reduction of space for
refuse disposal and with
regard to the leaking roof.
Thus
having regard to the above, I find that there are
bona
fide
disputes
of material facts which are not farfetched and that makes this
application incapable of succeeding on the papers. The applicant
ought to have proceeded by way of action and I accordingly
DISMISS
THE APPLICATION WITH COSTS
.
MIA,
AJ