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
>>
2011
>>
[2011] ZAGPPHC 147
|
|
Icegold Trading CC v Sandton Gold & Diamond Exchange (Pty) Ltd (38229/10A) [2011] ZAGPPHC 147 (6 May 2011)
NOT REPORTABLE
IN THE NORTH GAUTENG HIGH
COURT, PRETORIA
(REPUBLIC OF SOUTH
AFRICA)
Case number: 38229/10A
Date heard: 2011-04-19
Date of
judgment:06-05-2011
In
the matter between:
ICEGOLD
TRADING
CC
..........................................................................................
APPLICANT
and
SANDTON
GOLD & DIAMOND EXCHANGE (PTY)
LTD
...................................
RESPONDENT
JUDGMENT
Hiemstra
AJ
[1]
This is an application for the confirmation of the cancellation of a
written lease agreement, allegedly entered into between
the parties;
eviction of the respondent from the leased premises; and payment of
rentals. The premises concerned are known as Portion
1 of erf 1433
Parkmore, Johannesburg, situated at 96 Sandton Drive, Parkmore,
Sandton.
renew
it for a further period of three years. The rentals were fixed in
terms of a schedule for the period 1 August 2009 to 31 July
2013. The
parties to the lease agreement are reflected as the applicant and an
entity known as Sandton Gold & Diamond Exchange.
The respondent
is cited herein as Sandton Gold & Diamond Exchange (Pty) Ltd. As
appears later, the respondent denies that it
was a party to the lease
agreement.
The
relief sought
[3]
Eviction is sought in prayer 1 of the Notice of Motion. The rentals
claimed by the applicant are set out as follows in prayer
2: "2.1
the monthly rentals in the amount of:
2.1.1
R26 460 (excluding VAT) per month for the period 1 December 2009 to
July 2010 excluding the rent of February 2010 in the amount
ofR26
460.00 [tax invoice IG39];
2.1.2
R27 783 per month for the period 1 August 2010 to 31 July 2011;
2.1.3
R29 172.15 per month for the period 1 August 2011 to 31 July 2012;
until
date in which Respondent vacates the premises, pending the legal
action instituted under case number 38229/10;
[my emphasis] 2.2
all municipal charges levied on the property from 1 October 2009
until date on which respondent vacates the property
excluding the
refuse, sewerage, water and electricity consumed during December 2009
in the amount ofR3181.23 [tax invoice IG39]."
[4]
These prayers are confusing. The phrase "until date in which
Respondent vacates the premises, pending the legal action
instituted
under case number 38229/10" is confusing. The action under case
number 38229/10 is an action that the applicant
instituted
simultaneously with this application for identical relief (although
differently formulated). The relief sought by the
applicant in this
application is couched in the form of final relief. If that is the
case, it is unclear what is left to be decided
in the pending action.
Equally unclear is the purpose of the action. The confusion was
compounded by the Heads of Argument of Mr
D.M. Leathern SC, appearing
for the Applicant, in which he said that the applicant seeks interim
relief pending the outcome of
the action. However, he said at the
outset of the hearing that it was an error and that the applicant
seeks final relief. That,
of course, does not clear up the confusIng
phrase or the purpose of the action.
[5]
It is further unclear until when the applicant claims rentals. It may
claim rentals for the remainder of the term of the lease
as damages,
subject to its obligation to limit its loss by finding a new lessee.
However, such damages cannot be claimed in this
application. Damages
can only be determined after the applicant had taken steps to limit
its damages by finding a new lessee. As
appears from prayers 2.1.2
and 2.1.3, the applicant claims future rentals until 31 July 2012
regardless of when the respondent
vacates the property.
[6]
it seems to me that, should the applicant succeed in this
application, it would be entitled to arrear rentals and rentals only
until the date on which the respondent vacates the property.
Locus
standi
of the applicant
[7]
The applicant alleges that it is the registered owner of the property
described in paragraph [1] above. The deponent to the
Founding
Affidavit states that the applicant had ceded its right, title and
interest in and to the income in respect of the lease
agreement to
First National Bank Ltd (FNB) pursuant to a written cession document
dated 6 September 2006, but that First National
Bank had receded the
rights, title and interest in the lease agreement to the applicant on
22 June 2010. Copies of the cession
and re-cession are attached. The
significance of the date of re-cession will become apparent in due
course.
Background
[8]
The lessee, whoever it may be, fell into arrears with the rentals and
the applicant purported
1
to cancel the agreement for the first time on 30 July 2008. The
matter was, however, settled and the applicant and the respondent,
represented by Mr Djordje Mihaljevic (Djordje), entered into an
addendum to the lease agreement, in terms of which the lease
agreement
was reInstated on the terms set out in the addendum. This
time, the parties are reflected as the applicant and the respondent,
Sandton Gold and Diamond Exchange (Pty) Ltd. The respondent undertook
to continue paying rentals and municipal charges in terms
of the
lease agreement. The respondent further acknowledged and agreed that
in the event of a breach of any term or condition of
the lease
agreement or addendum on the part of the lessee, that the lessor may
claim payment of any arrears, eviction of the lessee,
cancellation of
the lease agreement and addendum, damages and costs at a scale as
between an attorney and client.
[9]
The respondent again fell into arrears and the applicant again
purported to cancel the lease agreement and also the addendum
for the
second time on 31 August 2008 and sued for confirmation of the
cancellation, eviction of the respondent, arrear rentals
and other
charges.
[10]
It appears from a reconciliation of the respondent's indebtedness,
attached to the Founding Affidavit, that further rental
payments were
made after the cancellation of 31 August 2008. The inference is that,
despite the cancellation and the summons, the
parties continued to
perform in terms of the agreement and addendum. Although the
applicant never withdrew this action, it seems
that it had reinstated
the lease and abandoned the proceedings.
[11]
The applicant purported to cancel the agreement and addendum for the
third time on 30 October 2009 on the ground of alleged
non-payment of
rentals and sued for confirmation of the cancellation, eviction and
rentals. According to the reconciliation, the
respondent again made
subsequent payments of rentals and was again not evicted.
[12]
The present application was instituted when the respondent allegedly
again failed to pay rentals and other charges in terms
of the
agreement and addendum. The applicant purported to cancel the
agreement for the fourth time on 14 May 2010.
The
respondent's answering affidavit
[13]
The answering affidavit was deposed to by Mirjana Mihaljevic
(Mirjana), who is the mother of Djordje. She alleged that Djordje
had
represented his father, Miso Mihaljevic (Miso) in entering into the
agreement and had signed it on his behalf, since Miso was
not
sufficiently proficient in English.
[14]
It is inexplicable why the answering affidavit is deposed to by
Mirjana, instead of Djordje or Miso. They deposed to confirmatory
affidavits confirming the contents of Mirjana's affidavit "insofar
as they relate and/or refer to me." Some aspects of
Mirjana's
affidavit relate or refer to Miso and/or Djordje, but the bulk of the
affidavit deals with the facts and argues the case
of the respondent
without reference to either Miso or Djordje. Mirjana did not state
the basis on which she has personal knowledge
of the events and the
issues. This is a highly unsatisfactory way of placing evidence
before the Court. There is no explanation
why either Djordje of Miso
could not have deposed to the answering affidavit. Counsel for the
applicant, Mr Leathern, submitted
that it was done deliberately to
shield them from charges of perjury on their part. As appears later,
I find that the answering
affidavit is replete with patent untruths.
The suspicion therefore looms large that this may indeed be the case.
Mr Leathern, however,
did not take the issue further and argued the
case as if the answering affidavit constituted admissible evidence.
[15]
The respondent raised a number of defences, none of them to the
effect that it had paid the rentals in accordance with the
agreements. I shall deal with them under separate headings.
The
respondent was not a party to the lease agreement [16] The respondent
denied in the answering affidavit that the respondent
was a party to
the lease agreement. As I have already said, it is alleged that
Djordje had negotiated and signed the agreement
on behalf of his
father, Miso. The reason is said to be that Miso was not sufficiently
proficient in English.
[17]
There are various reasons why this defence should not be sustained.
Perhaps, the strongest reason is this. The action instituted
by the
applicant under case number 38229/10, referred to above, is based on
similar facts. The respondent entered appearance to
defend, whereupon
the applicant applied for summary judgment. The respondent and not
Miso as the proprietor of Sandton Gold &
Diamond Exchange, filed
an opposing affidavit, deposed to by Djordje. He stated that he was a
director and shareholder of the defendant
(respondent herein). The
entire affidavit is based on the contention that the applicant had
incorrectly charged the respondent
for certain municipal charges
levied against the leased property. Djordje never alleged that the
respondent had not been a party
to the lease agreement.
[18]
Furthermore, Djordje signed the Addendum to the lease agreement. In
the addendum the parties are reflected as the applicant
and the
respondent. The following is recorded in the Addendum:
[18.1]
that it is an addendum to the memorandum of agreement dated 27 August
2007 (the lease agreement) made and entered into by
the applicant and
the respondent;
[18.2]
that it is entered into between the respondent company, represented
by Djordje, who alleged that he was authorised to do
so and warranted
that he was;
[18.3]
that the parties entered into the lease agreement on 27 August 2007;
[18.4]
that the lessee has breached the terms and conditions of the lease
agreement in that it failed to make rental payments; [18.5]
that the
parties desire to reinstate the lease agreement;
[18.6] that the Addendum
revives the lease agreement;
[18.7]
that the lessee, which is defined as the respondent company, will
make payment of arrear rentals, municipal charges and the
rental for
the month of August 2008 as well as legal costs;
[18.8]
that should the lessee (as defined) breach any term or condition of
the lease agreement, the applicant shall immediately
without notice
cancel the lease agreement and issue summons in the High Court;
[18.9]
that the addendum forms part of the lease agreement, and the lease
agreement and the addendum shall for all purposes be regardedas
one
agreement.
[1
9] The lease agreement was signed after having been submitted to the
respondent's attorneys of record and after they had written
a letter
to the applicant wherein they:
[19.1]
record that they act on behalf of Sandton Gold & Diamond Exchange
(Pty) Ltd;
[19.2]
refer to a telephonic discussion held between the applicant's
attorney and "their client's managing director, Mr Djordje
Mehaijovic"
These
and other recordings in the letter clearly indicate that their client
is the
respondent
and not Miso.
[20]
For these reasons, I have no hesitation in rejecting the contention
that the lease agreement had been entered into between
the applicant
and the respondent, despite the incomplete citation of the lessee in
the agreement of lease.
Lis
alibi pendens
[21]
As appears from the background discussion above, the applicant had
purported to cancel the agreement several times previously
and had
instituted action for confirmation of the cancellation, eviction of
the respondent and for arrear rentals. These actions
have not been
withdrawn and are still pending. For a defence of lis alibi pendens,
the respondent will have to prove (a) that the
litigation is pending;
(b) between the same parties; (c) based on the same cause of action;
and (d) in respect of the same subject
matter.
2
The pending matters comply with (a), (b) and (d), but not (c). The
cause of action in this case is another breach of the lease
agreement
and another cancellation of the lease agreement.
[22]
In any event, these actions have been abandoned. The parties acted as
if the lease agreement had not been cancelled and continued
to
perform in terms of the agreement. The respondent made payment of
rentals. The lease was clearly revived by continued compliance
with
the terms.
[23]
The actions are furthermore stillborn. The cancellation of the lease
in each of the cases was invalid. As set out in paragraph
[7] above,
the applicant had ceded its right, title and interest in and to the
income in respect of the lease agreement to First
National Bank,
which later receded to the applicant. The applicant purported to
cancel the lease agreement in each case after its
right, title and
interest had been ceded, but before it had been re-ceded. Only FNB
could have cancelled the agreement at those
times.
[24]
It is trite that the Court has a discretion whether or not to uphold
a special plea of lis alibi pendens.
3
In Stanita v ABSA Bank Ltd & Another
4
,
Andre Gautchie AJ said:
"It
is true that such a position would afford a defendant the right to
raise the defence o/ lis alibi pendens, which is invariably
done by
way of a special plea. But the defence is merely a dilatory one,
since if it is upheld the usual practice is to stay the
proceedings
in the one matter. The court has a discretion whether to uphold the
defence, and could refuse to do so in a proper
case. Ordinarily the
plaintiff would simply withdraw one of the actions. The mere fact
that there are at any point in time two
extant summonses does not
render one or both of them invalid or inoperative."
Since
the other actions are dead in the water, this is a proper case to
exercise my discretion not to uphold a defence of lis alibi
pendens.
Cession
and re-cession
[25]
The respondent attacked the applicant's particulars of claim
5
,
on the ground that it had not attached the written cession of its
right, title and interest in and to the income in respect of
the
lease agreement. The respondent requested a copy of the cession and
when it was eventually produced, it turned out to be the
wrong
document. The applicant then furnished another document purporting to
be the cession. However that document does not contain
such a
cession.
[26] In making this
submission, the respondent ignores the fact that the applicant
(plaintiff) amended its particulars of claim
and attached the cession
to
FNB
to the amended particulars of claim. The applicant also filed a
supplementary affidavit to its founding affidavit in this matter,
to
which the same document is attached. This is a proper re-cession and
a copy of the re-cession is attached to the founding affidavit.
Lease
Agreement cancelled while the applicant's rights had been ceded to
FNB
[27]
The applicant alleges that it had cancelled the agreement of lease on
14 May 2010. The re-cession of the applicant's right,
title and
interest was signed by the parties on 14 June 2010 and 22 June 2010
respectively. The applicant could therefore not have
cancelled the
agreement of lease in May 2010 since it had no right, title or
interest therein. However, the applicant as plaintiff
in the action,
stated in paragraph 10 of the particulars of claim that it had
cancelled the agreement of lease, alternatively hereby
cancels the
Lease as it is entitled to." This is a valid cancellation of the
agreement of lease.
Incorrect
charging for "assessment rates''
[28]
The respondent alleges that the applicant had, in conflict with the
agreement of lease, charged for municipal "assessment
rates".
According to the answering affidavit, Djordje had noticed for the
first time that the applicant had been invoicing
the respondent for
municipal "assessment rates" when he considered the
applicant's particulars of claim under one of
the previous summonses
(under case number 67852/09).
[29] Clause 6(1) of the
lease agreement provides as follows:
"THE LESSEE
SHALL:
(o)-(k) ...................
(I) Ensure that all
municipal charges levied on the property are paid in full at ail
times during the duration of the lease and
during the duration of the
renewal option period."
Clause
9 provides for the cancellation of the lease in the event of the
lessee failing to pay the rent and municipal charges.
[30]
According to the answering affidavit, municipal charges do not
include rates and taxes (or assessment rates) levied against
the
owner of the property. The respondent had made a similar allegation
in its answering affidavit to the applicant's application
for summary
judgment under case number 67852/09. On strength thereof, the
applicant anticipated this allegation and attached to
its Founding
Affidavit all the tax invoices and statements from the date of
commencement of the lease until May 2010 according
to which the
applicant had consistently charged the respondent for "assessment
rates". It is hard to believe that Djordje
would not have
noticed that the applicant had charged for assessment rates. The
rental was always a round fixed amount, as specifically
agreed in the
lease agreement, to which "eletricity", "assessment
rates", "water", "sewerage"
and "refuse"
were added. The assessment rates were consistently Rl 060.83.
[31]
According to the respondent an average of R3 000.00 per month over
the period 43 months (R129 000.00) should be deducted from
the
outstanding amount in respect of undue assessment rates. As stated
above, the assessment rates were Rl 060.83 per month. In
view of the
tax invoices that are attached to the Founding Affidavit, it is
inexplicable where the respondent got the amount of
R3 000.00 per
month from.
[32]
To add to the confusion, the respondent alleges that a further amount
of approximately R95 000.00 should be deducted from any
arrears in
respect of payments made in error for assessment rates.
[33]
Apart from the bland statement that "on a proper construction of
douse 9 of the lease agreement" assessment rates
are not
included under "municipal charges", the respondent made no
attempt to elaborate on this submission, or explain
why assessment
rates should not have been included.
[34]
This submission is contradictory, confusing and devoid of substance.
Repairs,
maintenance and improvements
[35]
The respondent alleged that the applicant had, in breach of its
obligations in terms of the lease agreement, failed to carry
out any
maintenance of the interior or exterior of the property, and that
Miso had carried out this maintenance instead. It is
stated that the
invoices in respect thereof could not be retrieved, but that they
were in excess of R100 000.00. Clause 6(e) and
(i) of the lease
agreement provides that the lessee shall: "(e) Keep the property
clean, habitable and tidy and care for and
maintain the property.
(i)
Be responsible for the maintenance, repair, upkeep and/or decoration,
as the case may be, of the interior of the property, including
all
ceilings, all wall and floor coverings, all doors and windows, all
cooking, heating, cooling, lighting, plumbing and air-conditioning
installations (and any part of any such doors, windows and
installations), all other fixtures, fittings furnishings and any
machinery
and equipment in or on the property, the cost of which
shall be borne by the Lessee."
[36] These clauses
conclusively put paid to this submission. Consumption charges
[37]
The respondent alleges that Miso had on numerous occasions paid the
local council for "consumption charges" because
the
applicant had failed to pay them with the result that municipal
services were about to be terminated. This submission is
unambiguously
contradicted by clause 6(1) of the lease agreement,
which I have quoted in paragraph [29] above.
Improvements
[38]
Miso had allegedly carried out various repairs and improvements to
the property, including high tech security; replacement
of doors with
re-enforced security features; retiling and refurbishment of the
reception area; installation of a counter with bullet-proof
glass;
and creation of a strong room/safe; and "in general all other
steps to modify the premises."
[39]
Clause 6(f) of the lease agreement provides that the lessee shall
"(f)
Not make structural or other alterations, addition to or
improvements in the property without the written consent of
the
Lessor, the cost of which shall be borne by the Lessee." This
submission therefore has no substance.
[40]
Apart from the above reasons for dismissing the respondent's claims
for undue payments, deductions for maintenance, repairs
and
improvements, the respondent has not attached a shred of documentary
proof for any of the alleged expenditures.
Disputes
of fact
[41]
Despite the numerous contradictions between the versions of the
applicant and the respondent, there are in this case no genuine
factual disputes. The version propounded by the respondent contains
so many inherent contradictions and unexplained contradictions
of
previous versions under oath that it cannot be regarded seriously. It
is simply patently dishonest. I am therefore not prepared
to refer
the matter for oral evidence.
6
In
the result I make the following order:
1. The respondent and all
persons occupying on its behalf the property known as Portion 1 of
erf 1433 Parkmore, Johannesburg Township,
Registration Division IR,
Province Gauteng, situated at 96 Sandton Drive, Parkmore, Sandton are
evicted from the said property.
2. The respondent is
ordered to pay to the applicant the following:
2.1 The monthly rentals
in the amount of:
2.1.1
R26 460.00 (excluding VAT) per month for the period 1 December 2009
to 31 July 2010, excluding the rent for February 2010
in the amount
of R26 460.00;
2.1.2
R27 783.00 per month for the period 1 August 2010 to 31 July 2011;
2.1.3 R29 172.15 per
month for the period 1 August 2011 to 31 July 2012, alternatively
until the respondent vacates the premises,
whichever occurs first.
2.2 all municipal charges
levied against the said property from 1 October 2009 until the date
on which the respondent vacates the
premises excluding the refuse,
sewerage, water and electricity consumed during December 2009 in the
amount of R3 181.23.
3.
Costs on the scale as between an attorney and client.
J.
HIEMSTRA
ACTING
JUDGE OF THE HIGH COURT
Date
of hearing: 2011-04-19
Date
of Judgment: 2011-05-04
Counsel
for the applicant:D.M. Leathern SC
Attorney
for the applicant: Van Rensburg, Koen & Baloyi Attorneys
Counsel
for the respondent: B.K. Pincus SC
Attorney
for the respondent: Biccari Bollo Mariano Inc
1
It
will appear later why I say that the applicant had "purported"
to cancel the agreement.
2
Dreyer
and Others v Tuckers Land and Development Corporation (Pry) Ltd
1981
(1) SA 1219 (T) at 1231
3
Loader
v Dursot Bros (Pty) Ltd
1948
(3) SA 136 (T) at 138;
Nordbak
(Pty) Ltd
v
Wearcon
(Pty) Ltd & Others
2009
(6) SA 106 (W)
and
several other decision.
4
2010
(3) SA 443 (GSJ) at 446, paragraph {7]
5
In
the action instituted simultaneously with this application
6
See
Buffalo
Freight Systems (Pty) Ltdv Crestleigh Trading (Pty) Ltd and
Another20
11
(1) SA 8 SCA, and in particular pages 131 - 14J