About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2010
>>
[2010] ZAGPPHC 153
|
|
Phomella Property Investments (Pty) Ltd v JP Nitespot CC (74000/09) [2010] ZAGPPHC 153 (12 October 2010)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
NORTH DIVISION)
Case
No. 74000/09
DATE:
12/10/2010
In
the matter between
PHOMELLA
PROPERTY INVESTMENTS (PTY) LTD.
…................................
Applicant
and
JP
NITESPOT
CC
....................................................................................................
Respondent
CORAM
EBERSOHNAJ
DATE
HEARD 11 AUGUST 2010
DATE
JUDGMENT HANDED DOWN 12 OCTOBER 2010
JUDGMENT
EBERSOHN
AJ.
[1]
The applicant is Phomella Property Investments (Pty) Ltd., a private
company.
[2]
The respondent is JP Nitespot CC, a close corporation.
[3]
The prayers in the notice of motion read as follows:
"1,
That the respondent, and any person(s) occupying the undermentioned
premises under title of the respondent, is forthwith
evicted from the
premises known as Suite LG2, Lower Ground Floor, South African
Agricultural Union Building, situated at 255 Schoeman
Street,
Pretoria, Gauteng.
2.
That
the
respondent is ordered to pay the costs of this application.
3.
Further and/or alternative relief."
[4]
It is common cause that a body known as Agri Suid-Afrika entered into
a lease agreement as lessor with the respondent as lessee
of the
premises referred to in prayer 1 of the notice of motion. The lease
commenced on the lst August 2007 and would endure for
a period of
three years from the date of commencement thereof.
[5]
The applicant purchased the fixed property on which the 28 storey
office building in which the leased premises is located in
the lower
ground floor and took transfer of the fixed property.
[6]
Paragraph 4.16 of the lease agreement reads as follows (record p.
39):
"4.16
Vir geval die verhuurdc perseel of die gebou waarvan dit deel vorm,
geheel of gedeeltelik vernietig of onbewoonbaar gemaak
word deur
enige oorsaak buite beheer van die verhuurder of huurder sal die
verhuurder en huurder die reg he om hierdie huurkontrak
onmiddellik
te kanselleer en in so 'n geval sal die verhuurder en huurder geen
eis om skadevergoeding op gronde van kontrakbreuk
of andersins teen
die verhuurder of huurder he nie.
Vir
geval die verhuurder besluit om die verhuurde perseel of die gebou
waarvan dit deel vorm geheel of gedeeltelik te verbou of
te verander
of te herstel, sal die verhuurder die reg he om hierdie ooreenkoms,
met 'n kennisgewing van twee (2) maande op te skort
in welke geval
die huurder die reg sal he om die ooreenkoms te beeindig en sal die
huurder geregtig wees om in geval van 'n gehele
berowing van die
verhuurde perseel, aanspraak te maak op kwytskelding van die huurgeld
vir die uitstaande huurtermyn wat die huurder
van die gebruik en
besit van die verhuurde perseel beroof sal wees.
Gehele
of gedeeltelike berowing van okkupasie soos hierbo beskryf sal die
huurder nie die reg gee om hierdie ooreenkoms te kanselleer
nie en
die huurder sal onder sulke omstandighede geen eise teen die
verhuurder he nie, behalwe vir die kwytskelding of vermindering
van
huurgeld soos hierbo beskryf.
In
die geval van die kwytskelding of vermindering van huurgeld sal die
tydperk van nie okkupasie of gedeeltelike okkupasie nie in
ag geneem
word wanneer die tydperk van die huurkontrak bereken word nie."
In
order to be able to interpret subparagraph 14.6 and to be able to
establish the intent of the parties it is clear that the entire
subparagraph must be read and be taken into consideration and that
individual subsubparagraphs thereof should not be read and acted
upon
out of context and in the process ignoring the contents of the other
8.
During the suspension period no rent will be due to Phomella.
9.
Please take also note that you have the right, in terms of your lease
agreement, to terminate the lease agreement due to the
aforesaid
suspension.
10
Should you wish to terminate your lease agreement, please fax your
termination notice to Oil 511 5626, attention Clsabe Griesel
or
contact Ms Griesel on Oil 511 5335."
[8]
On the 4th August 2009 the then attorneys of the respondent,
Edelstein-Bosman Inc., addressed a letter (annexure VPN6 record
p.44)
to the applicant which letter reads as follows:
"Dear
Sirs
SOUTH
AFRICAN AGRICULTURAL UNION BUILDING/JP NITESPOT CC
Kindly
take note that we act on behalf of JP Nitespot CC ("our
client").
Kindly
further take note that we have been placed in possession of your
letter dated 20 July 2009 addressed to our client, wherein
you
advised our client that it is your intention to effect certain urgent
and extensive renovations to the entire building.
In
order to adequately reply to your letter dated 20 July 2009, we
kindly request that you identify with certainty what
alterations/renovations
you intend to make, and more particularly
what alterations/renovations you intend making to our client's leased
premises. Upon
receipt of the aforementioned information, we will be
in a position to adequately reply to your letter dated 20 July 2009,
where
after we submit it will be in the respective parties best
interests that a round table meeting be convened in order to discuss
this matter further, and we therefore request that together with your
detailed description of the alterations and renovations, that
you
also furnish ourselves with possible dates and times for said, round
table meeting.
We
trust you find the above in order and look forward to hearing from
you at your earliest possible convenience.
Our
client's rights remain reserved in toto."
[9]
On the 6th August 2009, the City Planning, Development and Regional
Services Department addressed
a
notice
(annexure VPN7 record p. 46) to the applicant which
notice
reads as follows:
"NOTICE
OF A CONTRAVENTION OF SECTION 14(4) OF THE NATIONAL BUILDING
REGULATIONS AND BUILDING STANDARDS ACT, 1977 (ACT 103
OF 1977)
PROPERTY
INFORMATION ERF NUMBER: 2908
SUBURB:
Pretoria Cental
STREET
NAME AND NUMBER: 255 Schoeman str
REGISTERED
OWNER OF PROPERTY NAME: VUYOKAZI PENELOPE NJONGWE (ID NO.
7212100870080) in her capacity as the director of PHOMELLA
PROPERTY
INVESTMENTS (PTY) LTD
ADDRESS:
255 SCHOEMAN STREET BUILDING INFORMATION
TYPE
OF BUILDING: Shops and Offices (SALU Building)
You
are herby notified that you have contravened Section 14(4) of the
National Building Regulations and Building Standards Act,
1977 (Act
103 of 1977), in respect of such building.
You
are hereby ordered in terms of Section 14(4) of the National Building
Regulations and Building Standards Act, 1977 (Act 103
of 1977),
forthwith to stop any use of such building or the permitting the
occupation or use of such building.
Failing
compliance with this notice, legal proceedings will in terms of
Section 14(4) of National Building Regulations and Building
Standards
Act, 1977 (Act 103 of 1977), be instituted against you without any
further notice.
MR
Maimane
BUILDING
CONTROL OFFICER."
[10]
Section 14(4) of the National Building Regulations and Building
Standards Act, 1977 (Act 103 of 1977) ("the Act")
reads as
follows:
"(4)(a)
The owner of any building, or any person having an interest therein,
erected or being erected with the approval of
a local authority, who
occupies or uses such building or permits the occupation or use of
such building or permits the occupation
or use of such building -
(i)
unless a certificate of occupancy has been issued in terms of
subsection (l)(a) in respect of such building;
(ii)
except in so far as it is essential for the erection of such
building;
(iii)
during any period not being the period in respect of which such local
authority has granted permission in writing for the
occupation or use
of such building or in contravention of any condition on which such
permission has been granted; or
(iv)
otherwise than in such circumstances and on such conditions as may be
prescribed by national building regulation, shall be
guilty of an
offence."
This
subsection must, however, be read in conjunction with subsection (1
A) of section 14 of the same act which subsection reads
as follows:
"(1A)
The local authority may, at the request of the owner of the
building
or any other person having an interest therein, grant permission in
writing to use the building before the issue of the
certificate of
occupancy referred to in subsection (1), for such period and on such
conditions as may be specified in such permission,
which period and
conditions may be extended or altered, as the case may be, by such
local authority."
The
reason why subsection (1A) was later introduced into the act was
clearly to avoid a crippling disruption of the businesses of
all the
tenants in a whole building where it was not necessary.
[11]
On the 13th August 2009 the applicant addressed a letter (annexure
VPN8 record p. 47) to the Municipality which letter reads
as follows:
"Dear
Sir
RF:
FRF 290S PRETORIA - KNOWN AS SA AT! BTTTTDTNG (herein
after
"the Building".) NOTICF TN
TERMS
OF SECTION 14(4) OF THF NATIONAL Rlill OINC. RFGIJI.ATIONS AND
RTITT,DFNG STANDARDS ACT
We
refer to the above notice delivered to the SAAU Building on 12 August
2009 as well as to the telephonic conversation between
yourself and
Chris Brunner of our offices.
During
the aforementioned conversation with Chris, you advised that the
following is required by yourselves in respect of the above
building:
1.
Fire Safety Certificate;
2.
Engineers Certificate due to the fire damage that was done to the
building a few years back;
3.
As Built plans on areas that were affected by the fire;
4.
A Glass Certificate; and
5.
An Electrical Compliance Certificate.
As
you are aware we recently became the owner of the building with
transfer date being 1 July 2009. In line with our due diligence
report, we plan to refurbish the building and the refurbishments
include the upgrade and repair of the following:
1.
the fire equipment and size;
2.
the air conditioning system;
3.
the fire detection system;
4.
the escalators;
5.
the elevators (lifts); and
6.
the electrical repairs and upgrade.
The
refurbishments have been scheduled to commence in September 2009 due
to the fact that there are tenants in the building. Letters
have been
sent to the tenants advising them of same and requesting that they
all vacate the building by 30 September 2009 at the
latest (copies
can be made available at your request). This was to provide the
tenants with sufficient notice to enable them to
find alternative
premises.
We
have already started setting the wheels in motion with regard to the
compliance concerns that your department has advised us
of, these
included the following:
1.
Requesting information and/or documentation from the previous owners
in respect of this matter;
2.
Fire safety - quotes have been requested and we are in the process of
arranging a meeting between relevant parties on site for
an
inspection to be done;
3.
Glass certificate - we are trying to source a glass company in order
to establish what is required in order to obtain a glass
compliance
certificate;
4.
As built drawings - same has been requested from the previous owners
and we are awaiting their feedback herein;
5.
Engineer's certificate - same has been requested from previous owners
and depending on their feedback we will look into the possibility
of
employing the services of a independent engineer to compile and
engineer's report; and
6.
Electrical compliance - we have received a quote for the
rectification and correction of the electrical installation and will
be attending to same.
Our
program indicates that the work will take some
3-4
months to
rectify.
In light of the aforementioned, we hereby request the following;
1.
An urgent meeting between all the parties (yourselves, previous owner
and ourselves) in order to establish all that is required
and how we
proceed from this point; and
2.
An extension of a period of 120 (one hundred and twenty) days in
order to enable us to attend to the above.
We
look forward to your favourable response herein."
[12]
On the 17th August 2009 the applicant addressed a letter (annexure
VPN9 record p. 49) to Edelstein - Bosman Inc. which letter
reads as
follows:
"Dear
Sirs
BEl
SAAU
RITII
DINC, - .IP NITFSPOT CC
We
refer to the above matter and to your letters dated 4 August 2009 and
14 August respectively.
Please
be advised that we have received a notice of contravention in terms
of section 14(4) of the National Building Regulations
and Building
Standards Act from the City of Tshwane's Planning, Development and
Regional Services Department.
In
terms of the aforementioned notice we are required to immediately
stop any use of the building or permitting the occupation or
use of
the building. Failure by us to comply with such notice will result in
legal proceedings being instituted against us by the
City of Tshwane
(a copy of the letter and our response thereto is attached hereto).
Our
letter of response to City of Tshwane sets out all the
renovations/alterations that we intend to effect in respect of
aforementioned
building.
The
effect of the above is that we are required to vacate the building on
an urgent basis. We are in discussions with the relevant
department
at City of Tshwane with regard to possible extension being granted so
that the tenants have at least until 30 September
2009 to vacate.
Unfortunately
at this stage we have no choice but to comply with the notice given
to us by City of Tshwane and hereby request that
your client start
making the necessary arrangements so that the leased premises is
vacated by no later than 30 September 2009.
A
meeting can be arranged between ourselves and your client in order to
discuss this matter further, please advise on possible dates
for the
aforementioned meeting.
We
trust that you find the above in order and will keep you abreast of
further
developments in this matter."
[13]
It must be pointed out that the letter of Edelstein - Bosnian Inc. of
the 14th August 2009. was not included as an annexure
to the founding
papers.
[14]
On the 1
st
September 2009 Edelstein - Bosnian Inc. addressed a letter (annexure
VPN10 record p. 51) to the applicant which letter reads as
follows:
■
SOUTH
AFRICAN AGRICULTURAL UNION BUILDING / JP NITE SPOT CC
Your
letter for 17 August 2009 refers.
In
terms of the Agreement of Lease you warrant that our client is
entitled to occupy the building and the fact that you have not
kept
the building in good order and maintenance, or that you have been
requested by the City Council to cease trading in the building
is of
no consequence to our client. We will more fully deal with this
aspect in due course, should it become necessary.
Until
such time as we have negotiated some form of clarity on this matter,
our client will not be moving out on 30 September 2009.
We
are available on the following dates for a meeting: Monday, 7
September 2009, at lOhOO or Tuesday, 8 September 2009, at lOhOO.
Kindly
advise us where the meeting will take place and which of the dates
are acceptable to yourselves."
[
15] The proposed meeting took place on the 18th September 2009 and on
the 23rd September 2009 Edelstein-Bosman Inc. addressed
a letter
(annexure VPN11 record p. 52) to the applicant's attorneys Messrs.
Ebersohn of Randburg which letter reads as follows:
"JP
NITESPOT CC / PHOMELLA PROPERTY INVESTMENS /SAAU BUILDING
We
refer to the above matter and to the meeting which took place on 18
September 2009.
Further
to the above, we enclose herewith;
1.
Our client's liquor licence.
2.
The inventory
3.
A copy of the power of attorney signed by Mr WJ Jacobs which was
given to the City Council in regard to the new gambling licence
granted to our client.
Should
your client invoke the clause in terms whereof our client must vacate
the premises, the premises in the interior will be
left as is, ie.
only the alcohol and other consumables will be removed. For the rest,
the restaurant will be closed and locked
and we shall be pleased if
you will kindly advise us what is the anticipate day that the said
restaurant can be re-opened.
We
shall be pleased during the rebuilding period, as our client will not
be trading there and that as there is the possibility that
your
workmen may cause damage, that you will ensure that there is
insurance in respect of the replacement value of all the items
in our
client's premises, which we believe is approximately Rl ,750,000.00."
[16]
The liquor licence for the year 2009 was issued by the Gauteng
Provincial Government to the respondent on the 2nd December
2008 and
was issued in terms of the (Gauteng) Liquor Act, 1989, and in terms
of the provisions of the act the licence may only
be issued if
everything, premises included, is in order in and on the leased
premises. I shall in more detail deal with the provisions
of the
(Gauteng) Liquor Act, 1989,
infra
.
[17]
The inventory (record pp. 55-58) referred to in annexure VPN11 runs
to four pages wherein items were specified under various
headings and
from the inventory it is clear that the night
club/restaurant/gambling venture of the respondent constituted in
fact
a large and substantial enterprise. The inventory contains
subheadings with items specified under each subheading. It commenced
with the heading "Office" wherein the usual office items
were specified in. The next subheading is "Restaurant"
wherein there were about 41 tables and about 100 chairs, with sofas,
linen cupboards etc.. The next subheading was "Reception"
wherein the usual items to be found at a reception area were
specified. Under the subheading "Bar Entrance" 10 Bar
stools
were specified with liquor fittings and racks, a sofa, a safe
and many items like mirrors, a coffee machine, glasses, a TV set
etc.. Under the subheading "Main Entrance" a table with a
cash register backlights and slings were specified. Under the
subheading "Club-Main Bar" two undercounter bar
refrigerators, another loose standing refrigerator, a freezer, and
many
sundry items were specified. Under the subheading "Wash-up
area" two tables. 3 drying trays and basins were specified.
Under the subheading "Store Room" a wine refrigerator, a
portable Bain Marie, a deep freezer and two liquor cabinets
were
specified. Under the subheading "Club Smaller Bar" one
undercounter refrigerator, 1 cash register, a counter refrigerator,
fittings, a counter, cupboards and racks were specified. Under the
subheading "DJ Box and Dance Floor" no separate items
were
specified. Under the subheading "Club Main Area" two coin
operated pool tables. 50 tables, about 160 chairs and
bar stools, 4
bar chairs, airconditioners. a gambling area partition and
gambling
machines plus a loudspeaker box were specified. Under the subheading
"Passage Kitchen" a liquor cold room 3x3
metres, an ice
machine, a box freezer and two basins were specified. Under the
subheading "Kitchen" 3 stainless steel
water cycle
canopies, a ventilation fan, an extractor fan, 1x5 door undercounter
refrigerator, a 5 division Bain Marie, a gas stove
and oven, two
chest freezers, one Ideas double hot plate, 1 nine griller burner,
stove charcoal, 1 three flat grillers, one fryer,
cling wrap roller,
3 small steel tables, 2 big steel tables, a toaster, a uniform
cupboard, a microwave oven, a portable gas stove
and crockery
cupboards were specified. Under the subheading "Salad/Fountain
Kitchen" one three door under counter bar
fridge, 2 chest
freezers, one filter coffee machine, 1 table, fittings and cupboards,
a Pineware kettle, 3 single basins and one
double basin were
specified. Under the subheading "Preparation Kitchen" three
stainless steel tables, a potato peeler,
a chip cutter, a dishwasher,
a meat cold room (3x4 metres), 2 scales, pots, pans, storage bins,
cutlery, crockery and glasses,
a double sink washer, a single sink
washer, one single fryer, and one double fryer, were specified. Under
the heading "General"
ten 48 kg kitchen gas cylinders were
specified. Under the heading "Fire equipment" neon signs, 9
fire extinguishers,
2 hoses and reels, a fire blanket and 5 emergency
lights were specified. Under the subheading "Licences and
Certificates"
were specified:
Gas
permit,
Eco
Mist (Termite) certificate, SABS Approved Fire Certificate, Liquor
Licence,
Kitchen
Extractor Service Licence SAMRO, Food Licence - Dept. of Health,
Business Licence - City Council, and Gambling Licence."
The
contents of the inventory was not challenged by the applicant.
[18]
The items referred to in paragraph 17 show that various instances,
including the Police acting in terms of the (Gauteng) Liquor
Act, the
Municipal Fire Brigade and the Municipal Health Department regularly
inspected and approved the premises leased by the
respondent which
premises was in a good state of repair as was borne out by the
photographs attached to the answering affidavit
as annexures
JPV2-JPV9 (record pages 105-109). The "Certificate of
Acceptability for Food Premises" (annexure JPV1 record
p. 102)
issued by the Department Health and Social Development, Division
Health Services, Section Municipal Health Services of
the
Municipality on the 26th May 2009,
inter
alia
reads
as follows:
"C.
CERTIFICATION AND RESTRICTION
It
is hereby certified that the above mentioned food premises comply
with the provisions of Regulations 5 and 6 in terms of Government
Notice no. R 918 of 30 July 1999, in respect of the handling of food
in the manner specified.
RESTRICTIONS,
CONDITIONS OR STIPULATION IN TERMS OF REGULATION 3(1)(B) (Blank
space)
D.
ENDORSEMENTS/EXEMPTIONS IN TERMS OF REGULATION 15:
Sanitary
conveniences in accordance with the National Building Regulations."
[19]
The liquor side of the applicant's business is regulated by the
(Gauteng) Liquor Act, No. 27 of 1989. In terms of the provisions
of
the act nobody may deal in liquor unless it is done under and by
virtue of a licence issued under the act. Chapter 3 of the
act
regulates the kinds of licences which may be issued. In terms of
section 140 a designated police official shall in respect
of every
prescribed application for a licence made in terms of the act report
to the Liquor Board, and after the licence was granted
in respect of
every yearly renewal thereof, on such matters as may be prescribed
and in terms of section 141 file a report regarding
the business to
the Liquor Board and in terms of section 143 enter the premises at
any time and search the premises and to report
on any contraventions
to the Liquor Board.
[20]
It is clear that many official bodies had a keen interest in the
reigning conditions in the leased premises with inspectors
and police
officers making regular visits to the leased premises and its
contents to inspect it. The respondents denied that any
defects
existed in the leased premises and the applicant made no allegations
regarding any defects in and to the leased premises.
[21]
In any case, on the 2nd October 2009, a firm of attorneys Ebersohn
Attorneys of Randburg, came on record on behalf of the applicant
and
addressed the following letter (annexure VPN12 record p.62) to
Edelstein - Bosman Inc.:
"PHOMFT
I A PROPERTY INVE
STMENTS
fPTY) LTD / .IP NITFSPOT
CC
1.
We confirm that we act on behalf of Phomella Property investments
(Pty) Ltd, the owner of the SALU-Building
(hereafter
referred to as "our client").
2.
We refer to your letter dated 23 September 2009, received on 25
September 2009, as well as the meeting held on 17 September 2009
at
your offices as well as the telephone conversation on 30 September
2009 between writer and your Warran.
3.
We confirm that our client has already invoked the provisions of
clause 4.16 of Annexure "A" to the lease agreement,
namely
that it gave your client notice that the lease agreement will be
suspended with effect of two months from receipt of the
said notice.
4.
It is our instructions that your client received the said notice on
or about 27 July 2009.
5.
As such your client must vacate the premises.
6.
We confirm that your Warran telephonically indicated to writer on 30
September 2009 that your client will vacate the premises
by 30
September 2009, but that your client will leave the items in the
restaurant, as stated in your letter.
7.
Please take note that as the terms of the lease agreement are
suspended in terms of clause 4.16 of Annexure "A" to
the
lease agreement, your client must vacate the entire leased premises
by removing all items from the said leased premises.
8.
It is therefore our instructions to demand, as we hereby do, that
your client removes all items from the leased premises and
unlocks/opens the leased premises BY NO LATER THAN CLOSE OF BUSINESS
ON WEDNESDAY, 7 OCTOBER 2009.
9.
Should your client fail, refuse and/or neglect to comply with the
aforesaid demand, our client will have no option but to apply
for an
eviction order in order to carry out the extensive renovations
contemplated in our client's letter dated 20 July 2009 and
as
discussed at the aforesaid meeting.
10
In view of the fact that the SALU building requires extensive
renovations especially in order to comply with the National Building
Regulations and Standards Act, our client envisages that it will need
approximately 6 months to renovate the building. Failure
by tenants
to vacate the building, will result in eviction applications being
launched, which will delay the commencement and the
finalization of
the said renovations. Our client cannot therefore, at this stage,
provide your client with an anticipated day as
requested."
[22]
It must be noted that the said letter was extremely vague in that it
did not
specifically
specify whether the "all items" in paragraph 8 thereof
meant only "movables" like chairs tables,
bottles of liquor
and whether it also included "all fixed items" like
built-in fridges, counter fridges etc.. This aspect
eventually
becomes very crucial in view of the threat contained in paragraph 8
of the said letter.
[23]
Paragraph 9 of the letter indicated that in the event of the
respondent not complying with the demand in paragraph 8, that
an
eviction order would be sought. The contents of paragraph 10 of the
letter makes very interesting reading, not for what is stated
therein
but for what was omitted therefrom namely for instance what was to be
done and/or renovated in the leased premises, why
was it required
that "all items" be removed from the leased premises, if,
for instance, nothing was to be done to and/or
no renovations were to
be effected in and to the leased premises. Up to that stage and even
to the stage the matter was argued
in court, the applicant and its
counsel, did not indicate to the respondent and/or to the court, what
renovations etc. were to
be effected to and/or in the leased
premises. When one adds to that the demand that the premises be
unlocked and kept unlocked
the legality of the demand then becomes a
legal issue which will be dealt with later herein.
[24]
The applicant also did not up to that stage and even thereafter,
disclosed what it discussed with the Municipality and whether
or not
any representations were made to have the respondent permitted by the
Municipality to keep on occupying the leased premises
as apparently
there was nothing to be renovated it the leased premises and there
were no structural issues in the whole building
at stake.
[25]
Edelstein - Bosman Inc. on the 5th October 2009 addressed a letter
(annexure VPN13 record p.66) to Ebersohn Attorneys which
letter reads
as follows:
"JP
NITESPOT CC/PHOMELLA PROPERTY INVESTMENTS / SAAU BUILDING.
Your
telefax of 2 October 2009 refers.
Our
client has stopped trading and removed most of that which it can.
Obviously, our client cannot remove its fixtures and fittings.
The
lease does not provide that these must be removed and, by the very
nature of our client's business, this would be impossible.
In any
event, our client does not believe that you need access to our
client's premises in terms whereof everything needs to be
removed.
You have, in any event, never indicated what it is your clients wish
to do and for which they require access to our client's
premises
which requires everything to be removed. Should you bring an
application our client w ill, obviously,
oppose
same.
We
place on record that our client has ascertained that there has been
no occupation certificate issued to that building for over
20 years.
Our client is considering its position and, in all probability, may
institute an action for damages shortly."
[26]
Ebersohn Attorneys on the 13th October 2009 addressed a letter
(annexure VPN 14 record p. 67) to Edelstein - Bosnian which
letter
reads as follows:
"LETTER
OF CANCELLATION
PHOMFI
1 A PROPERTY INVESTMENTS fPTV) LTD // .IP N1TFSPOT CC
1.
We refer to your letter dated 5 October 2009, received on 6 October
2009.
2.
In view of the fact that your client refuses to unlock/open the
leased premises and refuses to remove its items from the leased
premises, your client clearly repudiates the terms of the contract,
alternatively is in breach of the terms of the lease agreement.
3.
As such our client hereby accepts such repudiation and cancels the
lease agreement.
4.
It is therefore our instructions to demand, as we hereby do, that
your client unlocks/opens the premises and removes all its
items from
the said premises BY NO LATER THAN CLOSE OF BUSINESS ON FRIDAY, 16
OCTOBER 2009."
[27]
A new attorney, namely Mr. Andre de Klerk, came on record on behalf
of the respondent and wrote on the 15th October 2009 a
letter to
Ebersohn Attorneys (annexure VPN15 record p.70) which reads as
follows:
"JP
NITESPOT CC // AGRI S.A. / PHOMELLA PROPERTY INVESTMENTS (PTY) LTD
We
write to you on behalf of our client, J P Nitespot CC who is the
tenant of Suite LG2, lower ground floor of the S.A. Agricultural
Union Building situated at 255 Schoeman street, Pretoria.
We
record the following:
1.
From the correspondence placed to our disposal your client
purchased
said building from Agri S.A. and became the registered owner thereof
on 1 July 2009.
2.
In terms of paragraph 2 of clause 4.16, of annexure "A" to
the lease agreement between Agri S.A.and our client, you
have given
our client two months notice that our client's lease will be
suspended in order to carry out certain substantial renovations
to
the building and that our client should vacate the leased premises by
not later than 30 September 2009.
3.
We do understand that our predecessor mr Alan Edelstein of Edelstein
- Bosman Inc have held a round table meeting with you to
attempt to
reach some solution for our client's predicament with the suspension
of the lease agreement.
4.
You should be fully aware that our client's term of lease only
expires on 31 July 2010 with the option to lease the premises
for a
further two years as from 1 August 2010.
5.
Our client was never informed about the sale of the building prior to
your client's letter dated the 20
th
of July 2009.
6.
Our client conducted a very lucrative Restaurant and Pub from the
premises and it has spent many thousands of rand in the improvement
of the premises. The last being the installation of two slot gambling
machines which had a tremendous potential for generating
additional
income.
7.
From the notice received from the Department of Building Control of
the City of Tshwane dated 6 August 2009 addressed to your
client, it
is obvious that Agri S.A. as well as your client should have been
aware of the contravention of Section 14(4) of the
National Building
Regulations and Building Standards Act.
8.
Your client should surely also have investigated the suitability of
the building prior to it being purchased and transferred
into your
client's name.
9.
Mr Alan Edelstein has according to our instructions indicated to you
at a round table meeting that our client's business has
been fatally
affected.
10.
The provisions of paragraph 4.16 and 5.2 are with respect not
applicable to our client in view of the fact that:
10.1
Your client and its predecessor, Agri S.A. were at all relevant times
before the receipt of the notice from Building Control
of the City'
of Tshwane dated 6 August 2009 aware of the defect of the building
and in particular that no occupancy certificate
has been issued for
at least the last 20 years.
10.2
Neither was the situation described in the first paragraph of 4.16
outside the control of Agri S.A and subsequently
also
your client;
10.3
It is explicitly disputed that our client has no claim
against
Agri S.A. as stipulated in paragraph 4.16 as well as in paragraph
5.2;
11.
Our client's view is that Agri S.A. and your client are jointly and
severally responsible for the fact that our client is unable
to
continue its business activities;
12.
Our client has a claim against your client and/or Agri S.A. for any
wilful and/or negligent action and/or misrepresentation
concerning
the habitability of the building as well as the non-existence of an
occupation certificate;
13.
Our client has suffered damages as the result of your client's and
Agri S.A.'s unlawful actions amounting to at least R2.5 million
as
indicated to you by rar Alan Edelstein at the round table meeting,
14.
Our client is still in occupation of Suite LG2, lower ground floor of
the building and will not vacate it without it being fully
compensated for the damages set out above.
Any
action you might institute against our client for a threatened
eviction will be opposed."
[28]
A letter was apparently addressed by Ebersohn Attorneys to Edelstein
-Bosman Inc. on the 13th October 2009 but it was not attached
by the
applicant to the founding papers. On the 16th October 2009 Mr. Andre
de Klerk addressed a letter to Ebersohn Attorneys (annexure
VPN16
record p.73) which letter reads as follows:
"JP
NITESPOT CC / AGRI S.A. / PHOMELLA PROPERTY INVESTMENTS (PTY) LTD
We
acknowledge receipt of your letter dated 13 October 2009 which was
facsimiled to Edelstein Bosman Inc today.
We
confirm our telephonic conversation between your Dr Gerrie Ebersohn
and Mrs Snyman today when you informed her that you have
in fact
received our letter dated 15 October 2009.
Our
client disputes that it has repudiated any contract and that your
client is entitled to cancel the lease agreement. Your client
is not
even a party to the lease agreement.
Our
client refuses to unlock, open the premises and remove all its items
unless it is properly compensated for its loss of occupancy
as set
out in our letter to you dated 15 October 2009.
Should
you decide to bring an urgent application you may serve such process
on us. We have authority to accept the service on our
client's
behalf."
[29]
On the 20th October 2009 Ebersohn Attorneys addressed a letter to Mr.
Andre de Klerk (annexure VPN 17 record p. 74) which letter
reads as
follows:
PHOMFI
I A PROPERTY INVESTMENTS (PTY) I.TO //.TP N
ITFSPOT
CC
1.
We hereby acknowledge receipt of-
1.1
your letter dated 15 October 2009, received on 16 October 2009; and
1.2
your letter dated 16 October 2009, received on 16 October 2009.
2.
We do not intend to deal with each and every allegation contained in
your letters and our failure to do so should not be construed
as an
admission thereof. Our client's rights to respond in full, at a later
stage, are hereby reserved.
3.
We confirm that our letter dated 13 October 2009, by means of which
our client cancelled the lease agreement between it and your
client,
was faxed to Edelstein Bosman Attorneys on 13 October 2009 and not 16
October 2009 as indicated in your letter dated 16
October 2009.
4.
As such the lease agreement has already been cancelled.
5.
In the event that the High Court finds that our client's cancellation
of the lease agreement was defective for whatever reason,
which we
contend will not happen, our client hereby again cancels the lease
agreement on the basis that your client disputes and/or
denies that a
lease agreement existed/exists between our client and your client,
which constitutes repudiation of the said lease
agreement and which
repudiation our client hereby accepts.
6.
The eviction application is being drafted and will shortly be served
on your client.
7.
Please take note that we do not intend to litigate by means of
correspondence and hence we do intend to debate the above."
[30]
The founding affidavit was deposed to on the 10th November 2009 and
the notice of motion was signed on the 16th November 2009,
was issued
by the registrar on the 3rd December 2009 and served on the 3rd
December 2009 by affixing it to
the
front door of the leased premises and served on the 4th December 2009
on Mr. Andre de Klerk, the respondent's attorney. The
notice of
intention to oppose was served on the 10th December 2009. On the 6th
January 2010 a notice of set down on the opposed
roll for the 10th
August 2010, was served by Ebersohn Attorneys.
[31
] The answering affidavit was served on the 3rd February 2010 and a
replying affidavit was served on the 17th February 2010.
[32]
The applicants in the founding papers relied on two alleged
"cancellations" of the lease agreement the first being
an
alleged repudiation contained in the letter of Edelstein - Bosman
Inc. dated the 5th October 2009 (annexure VPN 13 quoted in
[25]
supra)
which repudiation was allegedly accepted by the applicants and the
"acceptance" was conveyed in the letter by Ebersohn
Attorneys (annexure VPN14 quoted in [26]) and the second alleged
"cancellation" was based on the sentence which reads
as
follows in annexure VPN 16 which was quoted in extenso in [28]
siipm:
"Your
client is not even a party to the lease agreement.".
[33]
The respondent addressed its inability to comply with the applicant's
demand that all items be removed from the leased premises
in
paragraph 21 of the answering affidavit which reads as follows:
"21.
AD PARAGRAPH 25:
21.1
The receipt of Annexure "VPN12" is acknowledged.
21.2
As stated already above, the respondent was unable to remove all
items form the leased premises especially the fixed built-in
fixtures. The only movable items left behind are the tables and
chairs that were moved to one side out of the way and two large
cold
drink fridges. These items can be moved within the premises to allow
for the renovations.
21.3
The applicant was grossly unreasonable to demand the removal of the
fixed fixtures for the reasons as previously stated."
[34]
The applicant in the replying affidavit did not respond to paragraph
21.1 of the answering affidavit and with regard to paragraphs
21.2
and 21.3 stated the following:
"AD
PARAGRAPH 21.2 OF THE OPPOSING AFFIDAVIT
72.
I deny the allegations that the respondent was unable to remove all
items from the premises.
73.
I admit that tables and chairs were left in the premises by the
respondent and that these items are still in the premises.
74.
Legal argument will be addressed to the Honourable Court in due
course that the lease agreement clearly contemplated that the
respondent had to remove all its movable property and had to unlock
the premises in order to comply with its contractual obligations,
namely to give vacant possession.
AD
PARAGRAPH 213 OF THE OPPOSING AFFIDAVIT
75.
The applicant's letter of demand dated 2 October 2009 clearly
contemplated that the respondent had to remove all items that
could
be removed from the premises.
76.
The content of this paragraph is therefore denied and legal argument
will be addressed to the Honourable Court in due course."
[35]
The respondent also addressed the problems it had in paragraph 34 of
the answering affidavit as follows:
"34.
AD PARAGRAPH 39:
34.1
It is denied that the provisions of the National Building Regulations
and Building Standards Act entitles or obliges the applicant
to seek
eviction from the premises, to the extent that even built-in fixtures
had to be removed.
34.2
It is submitted that all that was required, was that the respondent
ceased to occupy the premises by no longer conducting the
business of
a restaurant/night club from the premises. This has been complied
with, since the respondent stopped trading before
the 30
th
of September 2009.
34.3
It is evident that the applicant wanted to remove the respondent from
the building at all cost in order to eventually achieve
a
cancellation of the lease. When the respondent chose not to cancel
the lease as a result of the
extreme
inconvenience caused
by
the
applicant's decision
to
effect "extensive renovations and refurbishment", the
applicant
hastened to cancel the lease itself, without a valid reason."
[36]
The applicant in the replying affidavit did not respond to paragraph
34.1 of the answering affidavit and with regard to paragraphs
34.2
and 34.3 stated the following:
"AD
PARAGRAPH 34.2 OF THE OPPOSING AFFIDAVIT
88.
with regard to the allegations that the respondent ceased trading
from the premises before 30 September 2009,
1
refer
the Honourable Court to what is stated above.
89.
The remainder of this paragraph is denied, and legal argument will be
addressed to the Honourable Court in due course."
[37]
The applicant also attached to the replying affidavit, as annexure F
(record pp.166-169) with 18 pages of photographs (record
pp. 170-186)
an alleged "Due Diligence SALU building Pretoria" which was
allegedly compiled by one Brunner. an employee
of the applicant
already in 2008 and before the applicant purchased the property from
Agri SA on the 4th December 2008 (deed of
sale Annexure C record pp.
144-159). Brunner's verifying affidavit was attached as annexure "G"
(record pp.187- 188).
It was noted that Brunner's qualifications to
draft such an expert document were not stated.
[38]
Through neglect and/or by design no particulars as to what happened
to the tenants in the SALU bulding on the other 27 floors
were
provided by the applicant. The applicant also through neglect and/or
by design neglected to take this Court into its confidence
and
informed this Court of the following:
a)
what exactly was to be done to the leased premises by way of
renovations and/or whatever which was not already in order as the
many inspections by officials of many Departments proved in the past
and recent past when the 2009 licences were taken out by the
respondent and permits were issued to the respondent:
b)
how, the not stated and kept secret renovations and/or whatever,
necessitated that the respondent remove "all items"
from
the leased premises; and
c)
what extensions and for which period the applicant applied for
from
the Municipality in terms of the provisions of section 14(1A) of the
National Building Regulations and Building Standards Act,
No. 103 of
1997, and for which period with regard to
i)
the leased premises;
ii)
the other premises in the SALU building.
[39]
Upon a reading of clause 4.16 of the lease agreement (record p. 39)
it is abundantly clear that the applicant could only adopt
the stance
it took regarding the respondent having to give vacant possession in
the event of the building or part thereof being
destroyed or became
uninhabitable ("onbewoonbaar") "deur enige oorsaak
buite beheer van die Verhuurder of Huurder".
From the
afore-going, especially the Due Diligence report by Brunner even
before the applicant purchased the property, the applicant
and Agri
SA knew that on certain floors of the building repairs were to be
made but the building definitely was neither destroyed
nor became
uninhabitable to "enige oorsaak buite beheer van die Verhuurder
of Huurder." It is clear that as the relief
in terms of section
14(1 A) of Act 103 of 1997 was to be had and which in all probability
would have been granted with respect
to the leased premises on the
application of either the applicant or the respondent, who could also
approach the Municipality in
terms of the section, in view of the
excellent condition the leased premises were. In this regard it must
also be pointed out that
Mr. Brunner's report (annexure F) did not
identify any defects and/or unsatisfactory aspects relating to the
leased premises and
none of the photographs on the 18 pages depicted
anything amiss in the leased premises. It is clear that on the basis
the applicant
brought the applicant namely the alleged cancellation
of the lease the applicant has made out no case against the
respondent. It
is clear that with regard to the alleged first
''cancellation" the applicant was not entitled to cancel the
lease as it misread
the contents of clause 14.1 of the lease
agreement and with regard to the second alleged "cancellation"
the applicant
wilfully misread the sentence relied upon. It is clear
that the contents of the sentence was factually correct namely the
applicant
was not a signatory to the lease agreement but never did
the respondent disputed that the applicant
ex
lege
stepped into the shoes of the original lessor when the applicant
purchased the premises. The application was pertinently based
on the
alleged cancellation of the lease and the eviction w^as asked for on
that ground. It must therefore fail and costs must
follow the event.
The parties will have to address the issue of the occupation
certificate and relief with regard to the leased
premises in terms of
section 14(1A) of Act 103 of 1997 with the Municipality. In terms of
the wording of the particular section
the respondent can on its own
approach the Municipality
[40]
The respondent maintained that the applicant acted most unreasonably
merely to attempt to obtain a cancellation of the lease
agreement
regarding a lucrative business which could then be had for free. That
may be so but that is not for this court to decide
and another court
will have to decide that issue.
[41]
For peculiar reasons late filings of documents and non-compliance
with court rules were opposed which just escalated the costs
and did
not contribute to the finalisation thereof and in so far as may be
necessary the late filing of documents and non-compliance
with the
court rules by either of the parties is condoned and each party will
have to bear its own costs in connection therewith..
[42]
I accordingly make the following order:
"1.
The late filing of documents and non-compliance with the court
rules by either party is condoned and each party is to
pay its own
costs with regard thereto.
2.
The main application itself is dismissed with costs."
P.Z.
E EBERSOHN
ACTING
JUDGE OF THE HIGH COURT
Applicant's
counsel Att. G. Ebersohn
Applicant's
attorneys Kritzinger Attorneys
Ref.
Dr. Ebersohn/GE356 Tel. Oil -791 1104
Respondent's
counsel Adv. R, Venter
Respondent's
attorneys Andre de Klerk
Ref.
A. de Klerk Tel. 012 - 365 2512