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[2012] ZAECPEHC 54
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Transnet Ltd v Oceans 11 Seafoods Take Out CC (1288/2012) [2012] ZAECPEHC 54 (10 August 2012)
NOT
REPORTABLE
IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE, PORT ELIZABETH)
Case No: 1288/2012
In the matter between:
TRANSNET LIMITED
................................................................................
First
Applicant
LE TAP CC
...........................................................................................
Second
Applicant
And
OCEANS 11 SEAFOODS TAKE OUT CC
...................................................
Respondent
Coram:
Chetty, J
Heard:
2 August 2012
Delivered:
10 August 2012
Summary:
E
jectment
–
Claim based on ownership – Onus –
Landlord and tenant – Owner alleging respondent in unlawful
possession –
Lease agreement prohibiting sub-lease –
Owner unaware of existence of sub-lease – Owner entitled to
possession
________________________________________________________________
JUDGMENT
________________________________________________________________
Chetty, J
[1] The first applicant, a state owned
corporation, is the owner of erf 5638 (the property), situate within
the confines of the
Port Elizabeth harbor. More than a decade ago it
leased the only building erected thereon to the second applicant in
terms of an
agreement of lease which was renewed on subsequent
occasions and endures to the present. Currently housed therein is a
seafood
take out business which, it is common cause, operates under
the name and style of
Oceans
11
. In order to place this
application in proper perspective it is necessary to traverse the
factual matrix which has engendered the
dispute between the parties
and what follows is either common cause or not in dispute. During the
latter portion of 2011 the second
applicant commenced construction of
additional premises on the same erf virtually abutting
Oceans
11
. It now houses a seafood
take out styled
“
This
is eat”
and the two
businesses operate in direct competition with each other. The enmity
generated thereby has ushered the second applicant
and the respondent
through the portals of this court on several occasions, the present
application yet another chapter in the ongoing
saga.
[2] The construction of
“
This
is eat”
struck a
discordant note in the familial relationship which had hitherto
endured between the members of the second applicant and
the
respondent. During November 2011 the second applicant instituted
urgent motion proceedings (the initial proceedings) against
the
respondent in which it sought its eviction from the property.
Although the first applicant was cited as the second respondent,
no
relief was sought against it absent opposition. The respondent
unsuccessfully opposed the application and was ordered to vacate
the
premises. The learned judge, Revelas J, found that the respondent had
no entitlement in law to occupy the premises given the
express terms
of the lease agreement concluded between the first and second
applicants prohibiting subletting. The learned judge
however, for
equitable considerations, refused to order ejectment forthwith but
granted the respondent a reprieve until the end
of January 2012 to
vacate the premises.
[3] Aggrieved at the eviction order,
the respondent sought leave to appeal on the basis that as a matter
of law, the right to eject
a sub tenant occupying in breach of a
prohibition clause, vested in the lessor and not a lessee and that,
in any event, the first
applicant had consented or acquiesced in the
sub-lease and would accordingly, in any contemplated proceedings for
eviction by it
against the respondent, be estopped from relying upon
the prohibition clause in the agreement of lease. Leave to appeal was
granted
and the appeal is pending before the Full Court. In the
interim
Oceans 11
and
This
is eat
continue to operate,
albeit with heightened enmity.
[4] On 20 February
2012 the Nelson Mandela Metropolitan Municipality issued a notice to
the first applicant to vacate the property
by reason of what it
contended was a deviation from the approved building plans
1
,
which it identified as,
“
No
link between the two buildings”
.
The notice carried the rider that the transgression should be
rectified in conformity with the approved plans but occupation could
nonetheless continue on receipt of a “occupancy certificate”
from the municipality. The first applicant’s attempts
to comply
with the notice aforesaid by commencing the construction of the
stipulated link was thwarted by the respondent seeking
an interdict
against it based, ostensibly, on the fact that the second applicant’s
conduct, was in breach of paragraph 2
2
of the order issued
by Revelas J. By agreement between the parties however the matter was
postponed
sine
die
and
second applicant undertook to cease construction of the link. A
subsequent attempt to recommence construction elicited a threatened
contempt of court application and once more construction ceased. On
16 April 2012, the Nelson Mandela Metropolitan Municipality
issued a
further notice to the first applicant lamenting its failure to adhere
to the previous notice and ordered it to vacate
the property by 8
a.m. on 23 April 2012. This notice precipitated this application,
filed on 24 April 2012.
[5] The relief sought by the first and
second applicants is separate and distinct. The first applicant’s
claim for the ejectment
of the respondent from the property is based
on the
rei vindicatio
.
The principal allegation relied upon in the founding affidavit,
deposed to by its attorney, is that, as the owner of the property,
it
is entitled, as a matter of law, to be restored to possession of the
property. The relief sought by the second applicant, predicated
upon
the provision of Rule 49, is for the enforcement of the eviction
order granted by Revelas J, notwithstanding the pending appeal.
[6] It is not in issue that the first
applicant is the owner of the property. Consequently the onus rests
upon the respondent to
establish the basis upon which it claims an
entitlement to remain in occupation of
Oceans
11
. To discharge the onus
it has advanced a two pronged defence – firstly,
lis
alibi pendens
and secondly,
the existence of a tacit lease between it and the first applicant.
The defence based on
lis
alibi pendens
[7] The requisites for the successful
invocation of a plea of
lis alibi pendens
are that the two
actions must have been between the same parties or their successors
in title, concerning the same subject matter
and founded upon the
same cause of complaint. As to the parties, although the first
applicant was cited as the second respondent
in the initial
proceedings, it was clearly not a party to those proceedings. In
order to surmount the obstacle posed by the first
requisite Mr
Beyleveld submitted that the first applicant’s election not to
file opposing papers in the initial proceedings
coupled to the fact
that in those proceedings the second applicant had alleged that the
application was brought with “the
blessing” of the first
applicant ineluctably compelled the conclusion that it was, albeit by
conduct, a party to the initial
proceedings. The submission is
untenable. The fact of the matter is that no relief was sought
against the first applicant. Furthermore,
whatever ideas the second
applicant might have entertained arising from the first applicant’s
omission to file opposing papers
is peculiar to it alone and in no
way impacts negatively upon the first applicant. The mere citation of
the first applicant as
a respondent is wholly insufficient to trigger
the operation of the defence raised. On this ground alone the plea of
lis alibi pendens
cannot be sustained. It was moreover
submitted on behalf of the respondent that the subject matter in
these proceedings is the
very question to be determined in the appeal
noted against the judgment of Revelas J. The argument completely
overlooks the disparate
relief sought by the first applicant in this
application and that sought and granted to the second applicant in
the initial proceedings.
[8] The relief which the first
applicant seeks, based on the
rei vindicatio
, is one for
restoration of the property and not, as counsel for the respondent
contends, one for eviction. The mere fact that eviction
is incidental
to the order sought cannot affect the essential character of the
relief sought – the subject matter in this
application is
distinct from that in the pending appeal. The defence based on
lis
alibi pendens
can accordingly not avail the respondent.
Tacit lease
[9] In order to discharge the onus
resting upon it to prove a right to possession of the property, the
deponent to the opposing
affidavit alleges that -
“
10.1 Despite the
Respondent’s lease agreement being with the Second Applicant,
the First Applicant has since 2002 been fully
aware that the
Respondent occupies the premises, which occupation was with the
blessing of the First Applicant. Up until 2008,
the Respondent paid
its rental in respect of the premises directly to the First
Applicant, after which the Second Applicant began
to invoice the
Respondent directly for rental and other charges. This could only
have been by arrangement between the First and
Second Applicants. In
addition, my family had direct dealings with Mr Pitout, the First
Applicant’s area manager in Port
Elizabeth, regarding
renovations to the premises when a fire broke out in the restaurant.
Moreover, many employees of the First
Applicant are regular patrons
of the Respondent’s restaurant as its main office building is
very close to same.
10.2 The Respondent has
always complied with the terms of the sublease.
10.3 In light of the
First Applicant’s aforesaid knowledge, the First Applicant
consented or acquiesced to the Respondent
remaining in occupation in
terms of the sub-lease and is estopped from relying on the
prohibition clause against sub-letting in
the lease agreement, more
particularly as the Respondent has acted to its detriment by
accepting the acquiescence of the First
Applicant and occupied and
traded from the premises. The First Applicant at the time through it
representatives, represented to
the Respondent that it was entitled
to occupy the premises pursuant to a valid sublease. Alternatively,
the First Applicant waived,
in favour of the Respondent, any
non-compliance with the clause relating of subletting.”
[10] In the replying affidavit,
deposed to by the first applicant’s area manager, Mr
Evert
Phillipus Pitout
(
Pitout
),
the latter disputes the allegation not only that he had knowledge of
the sub-lease concluded between the second applicant and
the
respondent but emphatically denied that the first applicant either
consented to or acquiesced in the respondent remaining in
occupation
of
Oceans 11
.
This denial precipitated the filing of supplementary heads by
respondent’s counsel advancing the argument that the matter
be
referred for the hearing of oral evidence. In argument before me, Mr
van Rooyen
submitted that upon a proper analysis
of the affidavits, there is no dispute of fact warranting a referral
of the matter for the
adduction of oral testimony. I agree. Although
there are differences in the factual accounts deposed to, these
relate to peripheral
issues. The material facts are not in dispute
and the matter is capable of resolution on the papers.
[11] In the answering affidavit,
Mohamed Jameel Hassim
(Hassim)
, in an attempt to
invest the first applicant with knowledge of the respondent’s
occupation of the property, relies predominantly
upon the fact that
it paid the rental directly to it. This is a non
sequitur
.
It is wholly sufficient to infer that thereby, the first applicant, a
huge parastatal, had knowledge of the respondent’s
occupation.
Furthermore the change in the rental payment regime does not justify
the inference contended for. The first applicant’s
new payment
method was communicated to its lessee, the second applicant and the
reasons fully explained in the letter addressed
to the second
applicant’s managing member,
Patel
,
as far back as 2007. It is inconceivable that the letter would have
been sent to
Patel
if the first applicant was aware, not
only that the respondent occupied the premises, but, moreover, paid
the rental to it.
Pitout’s
evidence is that he labored under the
impression that
Hassim
and his family were running the
business on behalf of the second applicant. He furthermore decried
all knowledge of the existence
of a sub-lease and referred to
discussions he held with
Hassim’s
mother wherein she denied the
existence of a sublease.
[12] Although
Hassim
deposed to a further supplementary
affidavit, ostensibly in response to
Pitout’s
replying affidavit, the latter’s
evidence went unchallenged.
Pitout’s
account of the meeting between himself
and
Hassim’s
mother was specifically adverted to in
paragraph 20 wherein he stated as follows –
“
20. At about
this time or shortly afterwards, Naeema called on me at my office and
told me that Mr Patel intended evicting them
from the premises. I was
somewhat surprised at this information and immediately asked her
whether there was a sub-lease in place,
to which she responded that
there was not. On another occasion subsequent to that, the date of
which I cannot now recall, I again
asked Naeema whether there was a
sub-lease in place and she denied it.”
Hassim’s evidence concerning the
tacit lease is, upon a proper appraisal of his affidavits, clearly
contrived. It is clear
that the second applicant and the respondent,
with full knowledge of the prohibition against subletting, colluded
in concluding
a sub-lease without the knowledge of the first
applicant who remained blissfully unaware of the true state of
affairs until the
meeting with
Patel
and his attorney.
Consequently the defence based upon estoppel cannot avail the
respondent.
[13] It follows from the aforegoing
that the defences raised are without merit and the first applicant is
entitled to the orders
sought. This finding renders nugatory the
relief sought by the second applicant. In the result the following
orders will issue
–
The respondent is ordered to
forthwith restore possession of the business premises, operated by
it on Erf 5638, Port Elizabeth,
to the first applicant.
The respondent is ordered to pay
the costs of this application.
D.
CHETTY
JUDGE
OF THE HIGH COURT
On behalf the Applicants: Adv R.P
van Rooyen S.C instructed by Friedman Scheckter, 75 – 2
nd
Ave, Newton Park, Port Elizabeth; Tel: 041-395 8412; Ref: G Friedman
On behalf of the Respondent: Adv A.
Beyleveld S.C / Adv Bands instructed by Fredericks Incorporated, 109
Westview Drive, Mill Park,
Port Elizabeth; Tel: 041-363 8506; Ref: T
Fredericks
1
These
plans were submitted to the first applicant by the second applicant
as far back as April 2008 and depicted the proposed
new construction
linked to the existing building..
2
Continued
occupation until the end of January 2012.