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[2020] ZAECPEHC 31
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Moosa NO and Others v Kotze (200/2020) [2020] ZAECPEHC 31 (1 September 2020)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION, PORT ELIZABETH
Case No.: 200/2020
Date Heard:1 September 2020
Date Delivered:1 September 2020
In
the matter between:
ANWAR
HOOSEN MOOSA
N.O.
First
Applicant
NASSER
MOOSA
N.O.
Second Applicant
MOHAMED
SHABEER MOOSA N.O
. Third
Applicant
and
PIERRE
KOTZE
Respondent
JUDGMENT
RONAASEN
AJ:
Introduction
[1]
The applicants in their capacities as trustees of the Ridge Trust
(“the trust”) seek the eviction of the respondent and any
persons occupying through him from the immovable property
situated at
14 Darby Road, Deal Party, Port Elizabeth (“the premises”).
The trust is the owner of the premises.
[2]
In January 2018 the trust and the respondent concluded a written
agreement of lease in respect of the premises (which are commercial
premises) in terms of which:
2.1.
the trust let to the respondent the premises for a period of 12
months, commencing on 8 January 2018 and terminating on 7 January
2019;
2.2.
the monthly rental was in the sum of R9 000.00 plus VAT.
[3]
It is not in dispute that the respondent remained in occupation of
the premises after 7 January 2019. On the applicants’
version his continued occupation of the premises was unlawful.
It is also not in dispute that after 7 January 2019 the respondent
paid no rental or other consideration for his continued occupation
of
the premises.
[4]
It appears that attempts were made to resolve the impasse created
by
the respondent’s continued occupation of the premises, without
success. That lack of success caused the launching
of the
present application, which was opposed by the respondent on various
grounds. Given the latest turn of events, with
which I deal
below, it is not necessary for me to deal in any detail with the
respondent’s contentions as to why he was entitled
to remain in
occupation of the premises, other than to the extent that such
contentions may have a bearing on my findings.
[5]
The matter was due to serve before me on the opposed motion roll
on
30 July 2020. It was however contended by the respondent that
the the matter had been irregularly enrolled for hearing
on that
date. In order to avoid the matter becoming unduly protracted
by interlocutory disputes I postponed the application
for hearing on
1 September 2020, a date which was convenient to counsel for the
parties.
[6]
The respondent in heads of argument filed on his behalf has advised
that he has elected not to contest the applicants’ right to an
eviction order and that he thus consented to an order that
he be
evicted from the premises. He has accepted liability for the
costs of the application, save for the costs occasioned
by the
proceedings on 30 July 2020, and has tendered to pay such cost on the
scale as between party and party.
[7]
The respondent, furthermore, has filed a supplementary affidavit
in
which he seeks a suspension of any eviction order I will make against
him for a period of two months, i.e. until 31 October
2020, saying
that this extended period is required to allow him sufficient time to
move his property from the premises and to secure
altenate premises.
[8]
Thus, the following issues remain to be determined:
8.1.
whether I have a discretion to suspend my order for eviction and,
if
so, whether I should exercise such discretion in favour of the
respondent and, further, if so, for what period I should postpone
the
eviction;
8.2.
who is to be liable for the costs of the proceedings on 30 July
2020;
8.3.
the scale on which I am to direct the respondent to pay the
applicants’
costs of this application.
Does
a court have a general discretion to postpone or suspend an eviction
order?
[9]
Glover in
Kerr’s Law of Sale and Lease
, fourth edition
(2014) at 587, under the heading “Suspension of an ejectment
order” confirms that our courts have still
not provided a legal
justification for delaying the enforcement of an eviction order.
[10]
The debate as to whether a court has a discretion to postpone or
suspend an eviction
order, in the context of commercial property, has
conveniently been set out and cogently discussed in the detailed
judgment in
AJP Properties CC v Sello
2018 (1) SA 535
(GJ).
[11]
I respectfully align myself with the views expressed in the
AJP
Properties
matter and accept that I do have a discretion to
postpone or suspend an eviction order, which discretion must be
judicially exercised.
This is in line with the discretion
afforded to the court in terms of Uniform Rule 45A to suspend
execution of its orders.
Eviction is a species of execution.
[12]
The facts in this matter, of course, differ vastly from those in the
AJP Properties
matter. The respondent in this matter is
hardly in a position to equate his position to that of the tenant in
AJP Properties
. The principle underlying that judgment is that
the cancellation of a lease should not, where the tenant has complied
with its
terms, result in the demise of the tenant’s business.
[13]
For the following reasons I cannot accede to the respondent’s
request that
he be allowed a period of two months within which to
vacate the premises:
13.1.
there were no discernible legal grounds for the respondent to remain
in occupation
of the premises after 7 January 2019;
13.2.
the respondent delayed conceding the applicants’ right to an
order for eviction
until the last minute;
13.3.
the reasons for the respondent wishing to delay the eviction are all
tailored solely
to his convenience;
13.4.
the respondent has not offered any consideration for his continued
occupation of
the premises;
13.5.
the value of the improvements allegedly effected by the respondent to
the premises
do not equate to the value of the beneficial occupation
of the premises he has enjoyed without the payment of any
consideration,
since 7 January 2019;
13.6.
the respondent’s eviction from the premises will not lead to
the demise of
any business he is conducting at present. On his
version the premises are used purely for storage and he has not
contended
that his eviction will lead to the demise of any business.
[14]
In my view if the eviction of the respondent were to be obtained
through the offices
of the sheriff, this process would probably from
a practical point of view take approximately a month. In the
circumstances,
in the exercise of my discretion, I consider it
appropriate to afford the respondent one month from the date of this
order to remove
himself and his property from the premises.
This would eliminate the substantial costs attached to an eviction
obtained through
the offices of the sheriff, both for the trust and
the respondent.
The
scale on which the respondent must be directed to pay the applicants’
costs of this application.
[15]
Clause 9.3 of the agreement of lease concluded between the parties
provides that
in the event of the trust instructing its attorneys to
take measures for the enforcement of any of the trust’s rights
under
the agreement the respondent would pay the trust such
collection charges and other legal costs on an attorney and client
basis.
[16]
The respondent did not exercise an option to renew the lease (to the
extent that
that it was open for him to do so). Thus, in terms
of the agreement it was his obligation to vacate the premises after 7
January 2019 from which date the trust had the right to re-occupy the
property. In breach of this obligation he remained in
unlawful
occupation of the premises for a substantial period. As stated,
there are no discernible legal grounds on which
he could have
remained in occupation.
[17]
When concluding the agreement of lease the respondent willingly
agreed to the provisions
of clause 9.3 of the lease. There is
no reason why I should not hold him to his obligations in terms of
this clause and direct
him to pay the costs of this application on
the scale as between attorney and client. Even if I am wrong in
this regard his
continued unlawful occupation of the premises after 7
January 2019, on untenable grounds, offers sufficient justification
for me
to award costs against him on a punitive scale.
The
costs occasioned by the postponement on 30 July 2020
[18]
The applicants have admitted to a number of procedural errors with
regard to the
enrolment of this matter on the opposed motion roll for
30 July 2020 in respect of which condonation would be required.
The
respondent seized on these with alacrity. Rather than going
into the extent, if any, to which the respondent was prejudiced
by
these procedural lapses I deemed it expedient to postpone the matter
to an agreed date in order to avoid unnecessary and protracted
disputes over interlocutory issues.
[19]
In the circumstances I deem it appropriate to direct that the parties
will be responsible
for their own costs of the proceedings on 30 July
2020.
Order
[20]
Thus, I make the following order:
1.
The eviction of the respondent and all persons occupying through the
respondent
from the premises situated at 14 Darby Road, Deal Party,
Port Elizabeth (“the premises”) is hereby authorised;
2.
The operation of the eviction order is suspended for a period of one
month from
the date of the order to allow the respondent and all
those who occupy the premises through him the opportunity to vacate
the premises
within the said period of one month from the date of the
order;
3.
Should the respondent and all persons occupying the premises through
the respondent
fail to vacate the premises within one month from the
date of this order the sheriff is hereby authorised and directed to
take
such steps as are necessary to evict the respondent and all such
persons from the premises;
4.
The parties will be responsible for their own costs in respect of the
proceedings
on 30 July 2020;
5.
Save as aforesaid, the respondent is directed to pay the applicants’
costs
of this application on the scale as between attorney and
client.
O
H RONAASEN
ACTING
JUDGE OF THE HIGH COURT
Appearances:
For
Applicants: Adv I
Bands instructed by Henwood Britter and Caney c/o
Kaplan Blumberg, Port Elizabeth
For
Respondents: Adv A Beyleveld SC instructed by
Fouché Paul, Port
Elizabeth