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 553
|
|
Kloof Investment 2004 CC v Isaacs (23305/2010) [2010] ZAWCHC 553 (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before me indicating that such matters were in fact withdrawn.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)
1155 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
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE HIGH COURT, CAPE TOWN)
Case
No.:
23305/2010
In
the matter between:
KLOOF
INVESTMENT 2004 CC
Applicant
and
GARY
ISSACS Respondent
MIA
AJ
:
I
have heard counsel for the applicant and the respondent herein. I
have also had the benefit of perusing the record herein.
I
am not persuaded that there are reasonable prospects that another
court may come to a different conclusion.
The
applicant's application for leave to appeal is dismissed with costs.
MIA,
AJ