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[2018] ZAECPEHC 8
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Algoa Bay Yatch Club v Transnet Soc Limited t/a National Ports Authority (540/2018) [2018] ZAECPEHC 8 (27 February 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION, PORT ELIZABETH)
CASE
NO.: 540/2018
In
the matter
between:
THE
ALGOA BAY YATCH CLUB
Applicant
And
TRANSNET
SOC LIMITED t/a THE NATIONAL PORTS
AUTHORITY
Respondent
JUDGMENT
BESHE
J
:
[1]
The applicant has approached this court on an urgent basis for an
order in the following terms:
1.
Dispensing with the Rules of the above Honourable Court to notice and
service and allowing this application to be heard as a
matter of
urgency in accordance with Rule 6(12) of the said Rule;
2.
A
Rule Nisi
do hereby issue, calling upon the Respondent to
show cause, if any, on the
27
th
March
2018
, at
9.30 am
, why an Order in the following terms
should not be granted, namely that:
2.1
the Respondent be interdicted from issuing a Warrant of Eviction
against the Applicant to evict the Applicant from the premises
described as the Algoa Bay Yacht Club Port Elizabeth Harbour, pending
the award of a tender referred to in paragraph 2.2 below;
2.2
the Applicant be entitled to continue to occupy the premises known as
the
Algoa Bay Yacht Club
, at a rental determined by the
Regulator, in terms of the National Ports Act, at a hearing to be
held on the 23
rd
March 2018, pending the outcome of a
lawful tender process conducted by the Respondent, in terms whereof a
new Tenant has the right
to occupy the Algoa Bay Yacht Club premises;
2.3
the Respondent bear the costs of this Application.
3.
the provisions of paragraph 2.1 operate as an interim interdict
pending the return day.
[2]
The background to this application appears to be that: Action was
instituted by the respondent against the applicant in October
2014
wherein respondent sought cancellation of the Lease Agreement between
the parties, eviction of the applicant, payment of arrear
rental as
well as interest and costs. It appears that standoffs or disputes
between the parties have a long history. According
to the applicant a
rental dispute was referred to the Ports Regulator in 2009 and again
in 2011.
[3]
The trial of the action referred to in the preceding paragraph was
set down for the 22 August 2017. On that day negotiations
between the
two parties took place which culminated in an order in the following
terms being taken by agreement between the parties
on the 23 August
2017 before
Goosen J
. The order that was issued reads as
follows:
“
Having
heard Advocate Ntsepe, Counsel for the Plaintiff and Advocate
Beyleveld, Counsel for the Defendant and having read the documents
file of record
IT
IS ORDERED
:
(By Agreement)
1.
That the lease agreement/s entered into between the parties is hereby
cancelled.
2.
That the Defendant undertakes to vacate the Plaintiff’s
property described as ERF 1051 (“the property”) in
the
Port of Port Elizabeth, on the 28
th
February 2018,
provided that if the Plaintiff procures another Tenant for the
property prior thereto, the Plaintiff shall afford
the Defendant two
(2) calendar months’ notice to vacate, provided further that
the defendant may, during this period, give
two (2) calendar months’
notice to vacate prior to 28
th
February 2018.
3.
That for so long as the Defendant occupies the property, the
Defendant shall pay rental in the amount of R49 977.60 (Forty Nine
Thousand Nine Hundred and Seventy Seven Rand and Sixty Cents) being
the current monthly rental inclusive of VAT.
4.
That the Defendant must pay the rental amount on or before the 1
st
day of each and every month, commencing 1
st
September
2017, provided that the Plaintiff shall provide the defendant with a
TAX Invoice by the 25
th
of each month in advance.
5.
That in the event of the defendant not making payment of the rental
in paragraph 3 above timeously, the Plaintiff shall be entitled
forthwith and without notice to issue a Warrant of Eviction against
the Defendant.
6.
That the quantum of the arrear rental and the Plaintiff’s claim
for arrear rental is postponed
sine die
.
7.
That the Defendant undertakes to pay the Plaintiff’s wasted
costs on the scale as between party and party, as taxed or
agreed,
within fourteen (14) days from date of
allocator
.”
[4]
It is common cause that that order that was issued was drafted by
those representing the respondent who was the plaintiff in
the
action. Prior to that, a draft order had been crafted by those
representing the applicant (defendant at the time). This draft
order
sought to cater for applicants’ occupation of the property post
28 February 2018, should respondent not have secured
an alternative
tenant by then. According to the applicant this had been agreed upon
during the settlement negotiations between
the parties. That part of
the draft order did not find its way to the order that was ultimately
issued by the court. The parties
cite different reasons for the
exclusion of this aspect. According to the applicant, they were
advised by those representing the
respondent, in particular their
attorney
Mr
Vandayar
that respondent’s head office wanted a “clear cut”
order. But that it was agreed that notwithstanding the curtailment
of
the form of the draft order crafted by applicants’ attorneys,
the agreement entered into earlier during the negotiations
would not
be affected.
[5]
According to the respondent that clause did not make its way into the
order that was issued by the court because it was simply
not accepted
by the respondent, hence the crafting of a new order which was in
essence the one ultimately issued by
Goosen
J
.
[6]
Applicant contends that the matter is urgent because it only became
aware on the 16 February 2018 a Friday, that respondent
expected it
to vacate the premises on the 28 February 2018 and this application
was launched on Monday 19 February 2018.
[7]
Applicant’s claim to a
prima
facie
right is that it has a right to occupy the premises, pending the
lawful awarding of a tender for the lease of the property it is
presently occupying, as per agreement with the representatives of the
respondent.
[8]
Applicant asserts that “it was expressly agreed that
notwithstanding the curtailment of the draft order that the agreement
referred to in Annexure ASI, (Friedman Draft Order) would not be
affected”. In the same breath applicant states that
respondent’s
legal representative’s position was that
there was no need to incorporate the additional terms of the
agreement, given that
the order would relate to the termination of
the lease,
the
date for vacating the property
and the rental to be paid during that period. (My underlining).
[9]
Applicant asserts that it is favoured by the balance of convenience
given that the tender has not yet been awarded and the premises
will
remain vacant should the applicant vacate them on the 28 February
2018.
[10]
In a supplementary affidavit
Mr
Alan Straton
,
who also deposed to the founding affidavits, alludes to the
irreparable harm the applicant will suffer if required to vacate the
property on the 28 February 2018. In that, if applicant were to
comply with the call for it to vacate the property that will result
in the instantaneous death of the applicant as an organisation. The
deponent continues to catalogue other hardships that applicant
will
suffer, loss of jobs, drying up of membership fees, harm to the
yachting community and so on. Applicant claims that it has
no
alternative remedy other than to approach the court for the relief it
seeks.
[11]
In opposing the application the respondent raise three points:
1.
That the application lacks urgency.
2.
The relief sought is not competent and
3.
That the applicant has not established the requirements for an
interim or final interdict.
And
seeks an order for costs at an attorney and own client scale on the
basis that the application is not
bona
fide
and is an abuse of the court process and seeks to override an
existing court order.
[12]
The Regional Legal Manager of the applicant,
Mr
Justin Jeremy Uren
deposed to the opposing affidavit. He confirms having engaged into
without prejudice and informal discussions with applicant’s
legal representatives on the trial date (August 2017). That he
explained to them that he had no mandate or delegation to make a
final decision regarding the settlement of the dispute between the
parties, but would canvass their settlement proposal with the
respondent’s General Manager: Legal Services. Lo and behold,
when the draft order that was prepared by
Friedman
was presented to the respondent, it was not rejected. A draft order
was then crafted by the respondent’s counsel. Same was
accepted
by the applicant and the parties took that order by agreement.
[13]
Uren
confirms that a letter was addressed to the applicant on the 16
February 2018 confirming that the terms of the order of the 23
August
2017 will be fully enforced. The 16 February 2017 was on a Friday.
This application was launched on the following Monday
the 20 February
2018. But as rightly pointed out by the respondent, applicant knew as
far back as the 23 August 2017 that it will
be required to vacate the
property on the 28 February 2018.
[14]
It is common cause that there are parallel proceedings involving the
parties in this matter before the Ports Regulator which
are concerned
with the amount of rental the applicant is expected to pay from as
far back as 2009. It is during the course of correspondence
concerning these proceedings that on the 16 February 2018, the
respondent confirmed that the applicant is expected to vacate the
premises on the 28 February 2018.
[15]
The respondent takes the view that the proceedings before the
Regulator have nothing to do with the occupation of the property
by
the applicant beyond the date of the cancellation of the lease
agreement. In another skirmish between the parties, that took
place
in October 2017 before the Regulator, where the applicant sought to
interdict the awarding of a tender in respect of the
property in
question, respondent’s position was made clear, even at that
stage, that applicant had agreed to vacate the premises
by no later
than 28 February 2018. In my view, if there was any doubt of the part
of the applicant’s as to respondent’s
expectations, that
was the time to seek clarity or resort to litigation.
[16]
I am therefore inclined to agree with the respondent that the urgency
was created by the applicant. Be that as it may, in case
I am wrong
in this regard – the next question to answer is whether the
applicant has a legally recognised right to be protected
–
whether the relief sought is competent. Related to this question is
whether applicant has a
prima
facie
right.
[17]
The answer to these questions, in my view lies in the order that was
issued on the 23 August 2017. It is apposite to recount
what
respondent’s claim was at the 2017 trial and the resultant
order. It is common cause that applicant sought the following
relief:
-
cancellation of the lease agreement.
-
eviction of the respondent fom the property.
-
payment of arrear rental.
-
interest on arrear rental amount.
-
costs.
The
order that was issued by agreement between the parties as stated
earlier is the following:
“
1.
That the lease agreement/s entered into between the parties is hereby
cancelled.
2.
That the Defendant undertakes to vacate the Plaintiff’s
property described as ERF 1051 (“the property”) in
the
Port of Port Elizabeth, on the 28
th
February 2018,
provided that if the Plaintiff procures another Tenant for the
property prior thereto, the Plaintiff shall afford
the Defendant two
(2) calendar months’ notice to vacate, provided further that
the defendant may, during this period, give
two (2) calendar months’
notice to vacate prior to 28
th
February 2018.
3.
That for so long as the Defendant occupies the property, the
Defendant shall pay rental in the amount of R49 977.60 (Forty Nine
Thousand Nine Hundred and Seventy Seven Rand and Sixty Cents) being
the current monthly rental inclusive of VAT.
4.
That the Defendant must pay the rental amount on or before the 1
st
day of each and every month, commencing 1
st
September
2017, provided that the Plaintiff shall provide the defendant with a
TAX Invoice by the 25
th
of each month in advance.
5.
That in the event of the defendant not making payment of the rental
in paragraph 3 above timeously, the Plaintiff shall be entitled
forthwith and without notice to issue a Warrant of Eviction against
the Defendant.
6.
That the quantum of the arrear rental and the Plaintiff’s claim
for arrear rental is postponed
sine die
.
7.
That the Defendant undertakes to pay the Plaintiff’s wasted
costs on the scale as between party and party, as taxed or
agreed,
within fourteen (14) days from date of
allocator
.”
Clearly
in terms of the order all but one of respondent’s claims were
granted in its favour. With the determination of the
claim for
arrears postponed
sine
die
.
[18]
No case was made in the founding affidavit, or allegation assailing
the meaning to be imputed to order of the 23 August 2017.
In his
argument counsel for the applicant
Mr
Beyleveld
suggested that the order cannot be interpreted to mean that applicant
is required to vacate the premises on the 28 February 2018.
He
submitted however that the main thrust of applicant’s case was
that the parties had agreed that the applicant will be
entitled to
occupy the premises as long as a new tenant has not been secured. He
acknowledged that there is a dispute between the
parties whether
there was an agreement between the parties that applicant will be
entitled to remain in the property until a tender
has been awarded.
Respondent’s assertion is that this was applicant’s
proposal and that it was rejected by the respondent
whose
representatives drafted an order to which the applicant agreed and
was accordingly made an order of the court.
[19]
It is trite that in motion proceedings, where a dispute of facts
exists, the court id required to accept the respondent’s
allegations unless they are clearly untenable.
[1]
Given the terms of the 23 August 2017 which to me are clear and
unambiguous, respondent’s allegations in this regard are
not
untenable. One has to ask oneself what the significance of the 28
February 2018 is, if the parties had agreed that the date
of vacation
would be dependant or conditional upon an award of a lawful tender.
That the respondent was not interested in an order
with conditions
and qualifications is clear from what according to applicant was
communicated to it by respondent’s representatives
–
namely that the respondent required a “clear cut” order.
[20]
In
Eka v Parsons
2016 (3) SA 37
(CC)
the following was stated
regarding the status of a settlement agreement:
“
[31]
The effect of a settlement order is to change the status of the
rights and obligations of the parties. Save for litigation
that may
be consequent upon the nature of the particular order, the order
brings finality to the lis between the parties, the lis
became res
judicata (literally, “a matter judged”). It changes the
terms of the settlement agreement to an enforceable
court order. The
type of enforcement may be execution or contempt proceedings.”
It
is my considered view that the order of the 23 August 2017 did
exactly that. Not having been set aside it is therefore valid
and
enforceable. The terms therefore are clear and unambiguous. The
applicant does not have a
prima
facie
right deserving of being protected in the circumstances and the
application stands to be dismissed.
[21]
I have been urged on behalf of the respondent that in dismissing the
application, I should order that applicant pays costs
on an attorney
and own client scale for the reason I have already outlined. The
suggestion being that I should mark the court’s
disapproval of
the conduct of the applicant. Although there might be a suspicion
that the applicant is trying at all costs or by
all means to remain
in the premises as long as it can, I am not persuaded that there are
special grounds why I should order costs
on an attorney and own
client scale.
[22]
Accordingly the following order will issue:
The
application is dismissed with costs.
_______________
NG
BESHE
JUDGE
OF THE HIGH COURT
APPEARANCES
For
the Applicant
:
Adv: A
Beyleveld SC
Instructed
by
:
FRIEDMAN SCHECKTER ATTORNEYS
75 Second Avenue
Newton Park
PORT ELIZABETH
Tel.: 041 – 395
8412
Ref.: Mr
Friedman/ps/L09177
For
the Respondent :
Adv: Ntsepe
Instructed
by
:
NASH
VANDAYAR & ASSOCIATES
1
st
Floor, Govco House
522 Govan Mbeki Avenue
North End
PORT ELIZABETH
Tel.: 041 – 487
0730
Ref.: NV/ss/AL7
Dates
Heard
:
23 February
2018
Date
Reserved
:
23
February 2018
Date
Delivered
:
27
February 2018
[1]
Plascon-Evans Paints Ltd v Van Riebeeck Paints
(Pty) Ltd
1084 (3) SA 623
(A), National Scrap Metal (Cape Town)
(Pty) Ltd and Another v Murray & Roberts Ltd and Another
2012
(2) SA 300
SCA.