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[2017] ZAECPEHC 32
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Clemlen Investments No. 10 (Pty) Ltd v Recycle Yourself (Pty) Ltd (1328/2017) [2017] ZAECPEHC 32 (13 June 2017)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION, PORT ELIZABETH)
Not
reportable
CASE
NO: 1328/2017
In
the matter between:
CLEMLEN INVESTMENTS NO. 10 (PTY)
LTD
REGISTRATION NO.
1997/017109/07
APPLICANT
and
RECYCLE YOURSELF (PTY) LTD
REGISTRATION NO.
2013/190254/07
RESPONDENT
JUDGMENT
GQAMANA,
AJ
[1]
This is an application brought by the applicant against the
respondent seeking an order that the respondent be directed to comply
with its contractual obligations arising from a lease agreement
concluded between the parties on 3 May 2016. The applicant
is
the registered owner of an immovable property situated at 137
Grahamstown Road, Deal Party, Port Elizabeth, consisting of a
warehouse and an office. Certain portions of the applicant’s
premises are rented out to a number of tenants for business
purposes
including the respondent.
[2]
Central to this application is the lease agreement
[1]
concluded between the parties.
[3]
In terms of the aforesaid lease agreement, the respondent has leased
premises for recycling of cardboard and paper products.
Further, the lease is for the period of three years and two months
commencing from 1 May 2016 until 30 June 2019.
[4]
The lease agreement contains the following special conditions:
“
ADDITIONAL
CONDITIONS
Ø
The front yard area of the warehouse may be
utilised for staff and visitor parking and loading and off-loading of
trucks only;
Ø
All stock in trade to be worked with and stored
internally. The external yard area is to remain clean and tidy
at all times.
Ø
No Purchase of cardboard or paper products shall
be allowed from people (smouse) off the street at the premises at all
times.”
[5]
The applicant contends that the conduct of the respondent is in
direct breach of clause 29 of the relevant lease agreement in
that,
the respondent has on several occasions stored,
inter alia
,
large metal bins, shipping containers, bales of recyclable material
and baling machines in the yard area in front of the premises.
To substantiate and support its case it has attached photographs
depicting recyclable material and large metal bins in the front
yard
of the leased premises.
[6]
This application was brought on an urgent basis for hearing on 25
April 2017. However, on the said date the matter was
postponed
to 9 May 2017 with costs reserved. Again, on 9 May 2017, the
application was postponed to 25 May 2017. The
application was
issued and served on 13 April 2017. In the Notice of Motion the
respondent was called upon to file the answering
affidavit on or
before 21 April 2017. It was, however, served and filed on 24
April 2017.
[7]
Although the application was brought on an urgent basis, there was no
certificate of urgency filed.
[8]
Further, Rule 6 (12) (b) of the Uniform Rules requires an applicant
in an urgent application to set forth explicitly the circumstances
which render the matter urgent. Therefore an applicant must in
its founding affidavit set out the circumstances on which
it relies
to render the matter urgent and the reasons why it claims that it
cannot be afforded substantial relief at a hearing
in due course.
[2]
[9]
Counsel for the applicant correctly in my view conceded that there
was no certificate of urgency filed accompanying the application
and
that the founding affidavit falls foul of Rule 6 (12). However,
he advanced argument that the issue of urgency has since
been
overtaken by events. As I understand him, on 25 April 2017
parties reached an agreement postponing the matter so as
to allow the
applicant to file replying papers and for the parties to explore the
possibility of resolving the matter between themselves.
Further
he argued that the matter is now ripe for hearing and the date of the
hearing was then given to them by the Registrar.
In my view the
issue of urgency remains valid only insofar as the costs that were
reserved on 25 April 2017 and I will deal with
that in paragraph 16
below.
[10]
The respondent is disputing that its conduct is in contravention of
clause 29 of the relevant lease agreement. Its version
is that
it never stored recyclable material externally in breach of the lease
agreement. Further, it contends that having
regard to the
nature of its business, the recyclable material is transported in
bins or shipping containers which are off-loaded
from trucks and
loaded onto trucks and that has to occur outside as provided for in
the lease agreement. The bottom line
of its defence is that,
the presence of the shipping containers as evident in the photographs
attached in the founding papers is
reasonably incidental to the
agreed loading and off-loading process. A further argument
advanced by the respondent was that
the yard area where the large
metal bins and shipping containers were placed is not in the front
part of the leased premises but
at the back. According to the
respondent, the placement of bins and shipping containers at the rear
end of the warehouse does not
offend clause 29 of the relevant lease
agreement.
[11]
It is trite law that, in an interdict application, for an applicant
to succeed all the well-known requirements for the final
interdict
relief must be met.
[3]
On anyone’s reading of clause 29, the front yard area of the
warehouse is reserved only for visitors and staff parking
and loading
and for loading and off-loading of trucks. In addition, all
stock in trade has to be worked with and stored internally
and the
external yard area has to remain clean and tidy at all times.
As indicated above, the respondent disputes that its
conduct offends
the provisions of clause 29, but the evidence produced by the
applicant in the form of photographs which were taken
over a period
of time and on different days supports the applicant’s case.
It is evident from these annexures that
shipping containers,
recyclable materials and bales are stored on the outside of the
warehouse. These are huge shipping containers
and there is no
evidence that they were there for purposes of loading and off-loading
when these photographs were taken.
Huge number of shipping
containers with recyclable bags next to them are clearly visible from
the photographs.
[4]
Therefore, the respondent’s contention that it has not
conducted its business in contravention of clause 29 of the lease
agreement is paralysed, having regard to all the evidence produced by
the applicant.
[12]
The applicant has further made allegations which are not seriously
disputed by the respondent that as a result of its conduct
it has
suffered financial losses because it could not secure further leases
and that the conduct of the respondent is hazardous.
[13]
In resisting the application it was also argued on behalf of the
respondent that the interdict relief is not the only appropriate
remedy available to the applicant. The respondent’s
argument was that the applicant could cancel the lease agreement
as
provided for in clause 21.1 of the lease if it contends that the
respondent has committed a breach of any terms of the lease.
The crux of this argument is that cancellation of the lease is an
alternative suitable remedy available to the applicant.
In my
view this argument cannot succeed because the applicant is entitled
to enforce the respondent not to act contrary to the
terms of the
lease agreement. This view is fortified by the judgment of the
Supreme Court of Appeal in
V
& A Waterfront Properties v Helicopter and Marine Services
[5]
where it was stated that:
“…
the
respondents submitted that an interdict was not the only appropriate
remedy. It was said that the first appellant could
sue for
damages or cancel the lease. This argument cannot prevail.
The first appellant is entitled to enforce its bargain:
to
obtain the lessee’s promised rental while preventing the latter
from conducting itself in a manner that involves breaking
the law.
The only ordinary remedy which provides it with the necessary
protection is an interdict. Cancellation will
be quite the
opposite of that to which the first appellant is entitled.”
[14]
In my view even if provision for cancellation is available in the
lease agreement but if the respondent is conducting itself
in breach
of the lease agreement, that does not bar the applicant from binding
the respondent to the terms of the agreement without
resorting to the
cancellation. The applicant has elected not to cancel the lease
but approach this court for an interdict
remedy and to prevent the
respondent from conducting itself in a manner that involves breaking
the terms of the lease agreement.
[15]
Having regard to all the facts and evidence before me, I am satisfied
that the applicant has established and met all the requirements
for
an interdict. It therefore follows that the application must
succeed.
[16]
On the issue of the reserved costs on 25 April 2017, although
primarily the postponement was caused by the applicant because
it had
rushed to court on truncated time periods and when it was faced with
an answering affidavit, it sought time to file replying
papers.
But having found that the respondent has indeed acted and conducted
its business in breach of clause 29 of the lease
agreement, fairness
in my view dictates that each party must pay its own costs occasioned
by this postponement.
[17]
In the result the following order is issued:
1. The respondent is hereby directed
to remove any and all large metal bins, shipping containers, bales of
recyclable material and
baling machines from the front yard area of
the warehouse situated at 137 Grahamstown Road, Deal Party, Port
Elizabeth, within
five (5) days of service of this order.
2. The respondent must refrain from
placing large metal bins, shipping containers, bales of recyclable
material and baling machines
in the front yard area of the warehouse
of the leased premises.
3. The respondent is directed only to
use the front area of the warehouse of the premises for staff and
visitor parking and for
the loading and off-loading of trucks.
4. The respondent must ensure that the
front yard of the warehouse on the premises is kept clean and tidy at
all times.
5. The respondent is ordered to pay
the costs of this application as between attorney and client scale.
6. Insofar as the reserved costs of 25
April 2017, each party must pay its own costs.
_____________________________
NW
Gqamana
Acting
Judge of the High Court
Appearances
:
Adv
AC Barnett
Counsel
for applicant
Instructed
by Liston Brewis and Company
35
Albany Road
North
PORT
ELIZABETH
Adv
L Kroon
Counsel
for the respondent
Instructed
by Annali Erasmus Inc
7
Bird Street
Central
PORT
ELIZABETH
Date
heard: 25 May 2017
Date
delivered: 13 June 2017
[1]
Annexure “A”, Index pp 16 – 32.
[2]
Cekeshe v Premier Eastern Cape
1998 (4) SA 935
(Tk) at 948 F
[3]
Setlogelo v Setlogelo
1914 AD 221
at 227
[4]
Annexure “B4”, Index p 42
[5]
2006 (1) SA 252
(SCA) at para 23