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2024
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[2024] ZAECQBHC 13
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Azam and Friends (Pty) Ltd v Boardwalk Mall Consortium (423/2024) [2024] ZAECQBHC 13 (15 February 2024)
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE
DIVISION, GQEBERHA)
CASE NUMBER.:
423/2024
In
the matter between:
AZAM
AND FRIENDS (PTY) LTD
Applicant
And
BOARDWALK
MALL CONSORTIUM
Respondent
JUDGMENT
Beshe
J
[1]
Applicant who is a tenant at the Boardwalk
Mall, Gqeberha where he runs a business at one of the shops
in the
mall approached this court on an urgent basis for an order in the
following terms:
‘
1. Condoning the
applicant’s non-compliance with the Rules of this Honourable
Court as regards the time limits, forms and
service and disposing of
this matter as one of urgency.
2. That a rule
nisi
hereby issued whereby the respondent is called to show cause on +++
at
09h30
as to why an order in the following terms should not
be made:
2.1 That the respondent
is ordered to immediately restore the electricity to shop number
SH10L044A and shop number SH10L043 at the
Boardwalk Mall,
Summerstrand, Gqeberha.
2.2. The applicant’s
undertaking to forthwith make payment of R17 037.93 in respect of the
outstanding utility account for
shops numbers SH10L044A and SH10L043,
at the Boardwalk Mall, Summerstrand, Gqeberha, and to forward proof
of such payment to the
general manager at the Boardwalk is noted.
2.3. A declaration that
the respondent’s cancellation of the current contract between
the parties as alleged on 12 January
2024 constitutes a repudiation,
which is not accepted by the applicant.
2.4. That the respondent
is hereby interdicted and restrained from evicting the applicant from
shop number SH10L044A and/orSH10L043,
at the Boardwalk Mall,
Summerstrand, Gqeberha, until:
2.4.1. The respondent
renders an account of all outstanding money owed by the applicant to
the respondents, a debatement of such
an account, and an inability of
the applicant to pay such account within one month of the final
agreement of the correct outstanding
amount.
2.4.2.
Alternatively,
to sub-paragraph 2.4.1. and in the event that the parties cannot
reach an agreement on the outstanding amount
, then on the
finalisation of an action to be instituted by the applicant within 30
days of such debatement, to determine such outstanding
amount, if
any, in conjunction with the determination of the validity of certain
clauses in the agreement which the applicant contends
are against
public policy and unlawful.
2.5. Costs of the
application, only in the event that the respondent opposes.
2.6. Such further or
alternative relief as this Honourable Court deems necessary.
3. That sub-paragraph
2.1. above shall operate as an interim interdict pending the
finalisation of the application.
4. That the applicant is
granted leave to supplement his founding papers if so advised.
5. Granting such further
and/or alternative relief as this Honourable Court deems
appropriate.’
[2]
The issuing of the rule nisi is opposed by
the respondent.
[3]
It was contended on behalf of the respondent
that the applicant has not made out a case for urgency
and for that
reason the matter should be struck off the roll or application
dismissed. It being alleged that the matter lacks urgency
or the
urgency is self-created. Applicant having been served with a notice
or letter that the lease agreement between the parties
has been
cancelled on 12 January 2024.
[4]
Applicant complains that he did not get 14
days’ notice that the electricity will be disconnected
due to
the fact that the email in question did not come to his attention. I
do not propose getting into the details of why he did
not read the
email that was sent to him in this regard. This, in view of the fact
that prayer 2 of the notice of motion has since
fallen away because
electricity has since been restored at applicant’s business.
[5]
In so far as this has a bearing on urgency,
applicant makes the point that an application for the restoration
of
electricity is always urgent but more so in this case because: The
absence of electricity prevents the applicant from trading
and his
workers from earning a living; their supplies comprising of food is
rotting; they cannot prepare food, in any event it
is too hot in the
shop for the customers.
[6]
Furthermore, in a letter addressed to the
applicant dated 8 February 2023, which is annexed to the
founding
affidavit as annexure AM2, the following is recoded:
‘
The lease
agreement was duly cancelled, effective from 12 January 2024;
Applicant is required to vacate the leased premises by no
later than
8 March 2024.’
In my view, these factors
justified the application being heard as an urgent one. According to
the applicant, it was only after
the electricity was cut off on 9
February 2024 that he set out to check whether there has been
communication regarding the disconnection
from the respondent. He
thereafter sprang into action by launching the application.
[7]
In my view, the applicant has made out a
case for the granting of prayer 1 of the notice of motion.
[8]
The remaining prayers concern the
cancellation of the lease agreement. As I understand its case, on
the
basis that the cancellation was unjustified because applicant does
not owe any monies to respondent or there is a disagreement
about
what applicant owes or what is due in terms of the contract. He
denies that he is in breach of the contract. Asserting that
it is
respondent who repudiated the contract, which repudiation is not
accepted by the applicant.
[9]
One of the prayers under 2.4.2 applicant
contemplates action to inter alia determine the validity of
certain
clauses in the agreement Mr Azam contends are against public policy
and unlawful. In the founding affidavit, the applicant
does not state
which clauses of the agreement are impugned and why it is contended
such are contrary to public policy. Submissions
were made in this
regard during argument. But a point is also made that the applicant
was not provided with a copy of the agreement.
Submissions were made
after applicant’s counsel became privy to the contract which
was annexed to respondent’s answering
affidavit. The contract
annexed by the respondent to the answer has a missing page. The one
provided to applicant’s counsel
has two missing pages. I am of
the view that this justifies the request by applicant to be allowed
to supplement its papers.
[10]
This has prompted the respondent to submit that no
evidence, no allegations to support the assertion that some
of the
clauses of the agreement are contrary to public policy and therefore,
the applicant has not made out a prima facie case
justifying the
issue of a rule nisi in this regard. But we now know that applicant
was not provided with a copy of the contract.
[11]
It is my considered view that on the face of it the
applicant has made out a case for the issue of the rule nisi
as
sought. I have already made a determination that the matter is
sufficiently urgent to be heard as such.
[12]
Accordingly, there will be an order in the following
terms:
1. Condoning the
applicant’s non-compliance with the Rules of this Honourable
Court as regards the time limits, forms and
service and disposing of
this matter as one of urgency.
2. It is recorded that
the applicant’s electricity was restored by the respondent at
or about 14h45 on 12 February 2024 after
the payment of R17 037.93.
3. That a rule
nisi
hereby issued whereby the respondent is called upon to show cause on
5 March 2024
at
09h30
as to why an order in the
following terms should not be made:
3.1 A declaration that
the respondent’s cancellation of the current contract between
the parties as alleged on 12 January
2024 constitutes a repudiation,
which is not accepted by the applicant.
3.2 That the respondent
is hereby interdicted and restrained from evicting the applicant from
shop number SH10L044A and/or SH10L043,
at the Boardwalk Mall,
Summerstrand, Gqeberha, until:
3.2.1. The respondent
renders an account of all outstanding money owed by the applicant to
the respondents, a debatement of such
an account, and an inability of
the applicant to pay such account within one month of the final
agreement of the correct outstanding
amount.
3.2.2.
Alternatively,
to sub-paragraph 2.4.1. and in the event that the parties cannot
reach an agreement on the outstanding amount
, then on the
finalisation of an action to be instituted by the applicant within 30
days of such debatement, to determine such outstanding
amount, if
any, in conjunction with the determination of the validity of certain
clauses in the agreement which the applicant contends
are against
public policy and unlawful.
3.3. Costs of the
application.
3.4. Such further or
alternative relief as this Honourable Court deems necessary.
4. The respondent
undertakes to provide the applicant with a copy of the contract on or
before 15 February 2024.
5. The applicant is
granted leave to supplement its papers on or before 20 February 2024.
6. The respondent will
deliver its answering affidavit, if any, on or before 29 February
2024.
7. The applicant will
deliver its replying affidavit, if any, on or before 4 March 2024.
8. Costs of today are
reserved.
N G BESHE
JUDGE OF THE HIGH
COURT
APPEARANCES
For
the Applicant
Adv:
E. Crouse
Instructed
by
KUBAN
CHETTY INC.
163
Cape Road
Mill
Park
GQEBERHA
Ref:
Jenna/Natasha
Tel.:
041 – 373 1407
For
the Respondent
Adv:
I. Lambrechts
Instructed
by
REAAN
SWANEPOEL INC
C/o
VAN HEERDENS ATTORNEYS
147
Cape Rd
Glendinningvale
GQEBERHA
Tel.:
041
- 007 0923
Date
Heard
13
February 2024
Date
Reserved
13
February 2024
Date
Delivered
15
February 2024