About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Kwazulu-Natal High Court, Pietermaritzburg
SAFLII
>>
Databases
>>
South Africa: Kwazulu-Natal High Court, Pietermaritzburg
>>
2023
>>
[2023] ZAKZPHC 83
|
|
Campbell v Venter and Others (AR 306/2022) [2023] ZAKZPHC 83 (18 August 2023)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Case
no:
AR 306/2022
In
the matter between:
NATALIE
TANIA CAMPBELL
APPELLANT
and
RUBEN
VENTER
FIRST RESPONDENT
KAREN
ELS
SECOND RESPONDENT
SCOTT
CAMPBELL
THIRD RESPONDENT
Coram
:
Mossop J, Hlatshwayo AJ
Heard
:
4 August 2023
Delivered
:
18 August 2023
ORDER
On
appeal from:
Pinetown Magistrates’ Court (sitting as the
court of first instance):
1.
Save to the
extent set out in paragraph 2 below, the appeal is dismissed with
costs.
2.
The order of
the court a quo:
(a)
That the
application is dismissed, is corrected to read that the action is
dismissed; and
(b)
Awarding costs
to the first and second respondents on the scale as between attorney
and client, is set aside and replaced with an
order that costs shall
be on the party and party scale.
JUDGMENT
Mossop
J (Hlatshwayo AJ concurring)
:
[1]
‘
Communio
est mater rixarum
.’
This maxim, namely that co-ownership is the mother of disputes,
appears to apply to the facts of this case although why
there is such
a dispute is not entirely clear.
[2]
The appellant
and the third respondent are married to each other out of community
of property but are in the process of divorcing.
They jointly own an
immovable property situated at 5[...] C[...] Avenue, Westville (the
property). The first and second respondents
currently occupy the
property by virtue of a lease agreement (the disputed agreement)
concluded with the third respondent. The
appellant contends that she
did not agree to the conclusion of the disputed agreement or its
terms and launched action proceedings
in the Pinetown Magistrates’
Court seeking an order that it be declared void. Additional relief
aimed at evicting the first
and second respondents from the property
was also sought by the appellant in the action but in terms of the
prayer to the particulars
of claim, this relief was to be adjourned
sine die by virtue of the applicability of the Prevention of Illegal
Eviction from and
Unlawful Occupation of Land Act 19 of 1998. The
appellant was unsuccessful in the court a quo and appeals to this
court.
[3]
On appeal, the
appellant was represented by Ms Beket and the first and second
respondents were represented by Mr Grunder. The third
respondent did
not participate in the action in the court a quo as no relief was
sought against him, he was joined merely as an
interested party, and,
logically, he has also played no part in this appeal. Both Ms Beket
and Mr Grunder are thanked for their
excellent heads of argument and
for their assistance to the court.
[4]
The appellant
pleaded in her particulars of claim in the court a quo that by virtue
of her lack of consent to the conclusion of
the disputed agreement,
it was void ab initio. To this, the first and second respondents
pleaded that the appellant gave the third
respondent express written
authority to conclude the agreement. They pleaded further that the
third respondent acted upon that
authority and created the impression
in the eyes of the first and second respondents that he had the
necessary authority. The first
and second respondents acted upon such
impression to their detriment and therefore pleaded that the
appellant was estopped from
alleging that the third respondent lacked
authority.
[5]
The parties
decided, for reasons best known to them, to place an agreed set of
facts before the presiding magistrate (the statement
of agreed facts)
in terms of the provisions of rule 29(5) of the Magistrates’
Court rules. That rule reads as follows:
‘
If
the question in dispute is a question of law and the parties are
agreed upon the facts, the facts may be admitted in court, either
viva voce
or by written statement, by the parties and recorded by the court and
judgment may be given thereon without further evidence.’
[6]
Rule
29(5), which is similar to rule 33 of the Uniform rules, is intended
to assist in shortening legal proceedings where the facts
are not in
dispute and the only dispute is the legal consequences that flow from
those admitted facts. In dealing with such a matter,
the court is
required to accept the facts disclosed in the written statement as
being the true facts and may not take cognisance
of any other facts
beyond the admitted facts.
[1]
The court and the parties may refer to the entire contents of the
statement of agreed facts and any documents appended thereto
and ‘the
court may draw any inference of fact or of law from the facts and
documents as if they were proved at a trial’.
[2]
Tacit provisions that flow from the agreed facts may be read into the
stated case.
[3]
[7]
The facts
agreed upon by the parties were the following:
‘
1.
Plaintiff is married to Third Defendant.
2.
Plaintiff and Third Defendant are in process of divorce.
3.
On 26 March
2022 the Defendants purportedly entered into an Agreement of Lease
for 5[...] C[...] Avenue, Westville.
4.
A copy of the
Lease Agreement is attached, marked “A1 – A9”.
5.
Plaintiff
realised that the First Defendant was moving in on 31 March 2021.
6.
Plaintiff
caused a letter to be served on the First Defendant on 31 March 2021
to advise that she did not consent to such occupation.
7.
A copy of the
Sheriff’s Return of Service and a copy of the letter are
attached marked “B” and “C”
respectively.
8.
First
Defendant contacted Plaintiff’s Attorney to advise that he and
his wife were taking occupation in terms of an Agreement
of Lease.
9.
Plaintiff
(sic) Attorney took instructions and wrote to First Defendant on 1
April 2021 per email. A copy of the proof of transmission
is attached
marked “D1” and a copy of the email is attached marked
“D2”.
10.
First
Defendant proposed that he and the Second Defendant pay half of the
rent to Plaintiff. A copy of the email confirmation is
attached
marked “E”.
11.
Plaintiff
(sic) attorney wrote to First Defendant as appears from the letter
sent per email on 1 April 2021. A copy of the proof
of transmission
is attached marked “F1”. A copy of the email is attached
marked “F2”.
12.
On 1 April
2021 the First Defendant forwarded to Plaintiff (sic) Attorney an
email from the Third Defendant. A copy of the email
is attached
marked “G”.
13.
Plaintiff
(sic) Attorney responded. A copy of the proof of transmission is
attached marked “H1”.
14.
A copy of the
email is attached marked “H2”.
15.
Third
Defendant previously concluded an Agreement of Lease with Des and
Taryn Hughes on 1 August 2015. A copy of the Agreement is
attached
marked “I1 – 19”.
16.
The Third
Defendant concluded an Agreement of Lease with S Allen and E Barocsi
on 1 September 2016. A copy is attached marked “J1
- J9”.
17.
Third
Defendant concluded an Agreement of Lease with M Sibeko on 1 October
2017. A copy of the Agreement is attached marked “K1
- K18”.
18.
Plaintiff
wrote to Third Defendant per email on 4 February 2021. A copy of the
email is attached marked “L1 - L2”.
19.
The Third Defendant wrote to the Plaintiff
per email on 13 February 2021. Plaintiff replied to the
Third
Defendant on 16 February 2021. A copy of these emails are attached
marked as “M1 - M3”.’
[8]
After
considering those facts, the pleadings and argument from the
respective legal representatives, the presiding magistrate delivered
a written judgment, dated 1 July 2022. The order reads as
follows:
‘
1.
The application is dismissed;
2.
Costs of suit on the attorney and client scale, to be taxed.’
[9]
There was, in
truth, no application for the magistrate to determine. The magistrate
was required to determine the action, based
upon the admitted facts,
and the order ought therefore to have referenced the dismissal of the
action and not an application.
[10]
The
magistrate found that the appellant and the third respondent owned
the property in a relationship of free co-ownership. It was
found
that the exercise of a co-owner’s use rights of the commonly
owned property was governed by the principle of reasonableness.
In
arriving at his decision, the magistrate relied heavily on
Pretorius
v Nefdt and Glas
[4]
and concluded that all the requirements of a valid lease agreement
were met and therefore the disputed agreement was not void
ab
initio
.
[11]
Before
us, Mr Grunder properly made several concessions. He conceded that
the magistrate’s finding regarding reasonableness
was not
supportable. He also conceded that the respondents could not rely on
estoppel as the appellant had not herself made any
representation to
the first and second respondents. He conceded that the magistrate
ought not to have relied upon
Pretorius
v Nefdt and Glas
.
Finally, Mr Grunder also properly conceded that the issue of the
co-owner’s rights was wrongly decided in the court a quo
and
that the commonly owned property could not be leased to a third party
without the unanimous consent of all the co-owners.
[5]
[12]
The only issue
thus remaining was whether consent had been given by the appellant to
the third respondent to enter into the agreement.
The appeal turns on
this issue.
[13]
Mr
Grunder argued that consent had, in fact, been given. That consent,
according to the particulars of claim, was express written
consent
and it was to be found in an email sent by the appellant to the third
respondent. This is a document referred to in the
statement of agreed
facts and is appended thereto.
[6]
The email is dated 16 February 2021 and is the appellant’s
response to an earlier email sent to her by the third respondent
on
13 February 2021. The third respondent’s email is also attached
to the statement of agreed facts.
[7]
In the third respondent’s email of 13 February 2021, he had
made certain proposals as to what he believed should occur with
the
property. In her response, the appellant copied and pasted the third
respondent’s proposals into her email and responded
by typing
her comments on each proposal below the pasted proposal. In the
extract below, the appellant’s comments are in
italics to
distinguish them from the proposals. The three most important
proposals upon which she commented were the following:
‘
A
new tenant should be found asap to avoid costs associated with the
house being vacant
-
I agree we
need to get a tenant for at least 6 months to rent the main house.
We
suggested a 6-month lease with a month-to-month after that
-
Yes, I
agree with this. But a new lease needs to be signed and I feel that
the money should be paid into another bank account, we
can then pay
your dad his share and the balance will remain in the account to pay
any other maintenance extra
To
continue to market the house for sale (agents to be agreed). We both
agreed that it is a burden for all parties
-
Yes, as
long as we get the price we think the house is worth
.’
[14]
Just over a
month later, on 26 March 2021, the disputed agreement was concluded
between the third respondent and the first and second
respondents.
The third respondent identified himself as being the lessor in that
document. The disputed agreement provided, inter
alia, that it would
comprise of an initial period of 12 months with a right of renewal.
The total cost to the tenant would be the
amount of R12 850 per
month, of which R12 000 was to be paid in respect of rent and the
balance would be paid, on behalf of the
third respondent, to third
parties who rendered services at the property.
[15]
It
is difficult to understand what the appellant objects to in this
arrangement. She stated in her email of 16 February 2021 to
the third
respondent that the contemplated lease should be for ‘at least
6 months’. ‘At least’ in its ordinary
meaning means
‘
not
less than’ or ‘at the minimum’.
[8]
A
lease with an initial rental period of 12 months meets that
requirement in that it is in place for at least 6 months. She also
required that a new lease agreement be signed. It was.
[16]
We inquired of
Ms Beket whether the appellant was dissatisfied with the amount of
the monthly rental agreed to by the third respondent.
After taking
instructions, the answer received was that there was no such
dissatisfaction. What the basis of the objection to the
disputed
agreement by the appellant is, is therefore not clear.
[17]
Ms Beket
submitted that the appellant had regarded her email correspondence
with the third respondent as being the opening discussions
on an
eventual journey to consensus over how the property was to be dealt
with and that the appellant only wanted the rental period
to be for a
maximum period of 6 months because of her marital difficulties with
the third respondent. This submission would ordinarily
have been made
based upon the oral evidence of a witness or witnesses. There was no
such oral evidence called because of the statement
of agreed facts.
Whether the appellant held that view and whether she really favoured
a shorter lease, despite the wording in her
email of 16 February
2021, are not questions of law but are questions of fact. They are,
however, not facts agreed to and are not
included in the statement of
agreed facts. They must therefore be disregarded.
[18]
Attached
to the statement of agreed facts were three lease agreements that
preceded the disputed agreement.
[9]
All three lease agreements pertained to the property and bear only
the name of the third respondent as the lessor. The first lease
agreement covered a period of 36 months with a commencement rental
fixed at R11 500 per month; the second lease agreement
covered a
period of 12 months with a monthly rental fixed at R13 200; and the
third lease agreement covered a period of 12 months
at a monthly
rental amount of R16 275 (the third lease agreement). The
disputed agreement largely conforms with the terms
of these prior
lease agreements. The rental amount due in respect of the disputed
agreement may have diminished slightly relative
to the third lease
agreement, but as the appellant points out in her email of 16
February 2021, the property had not been well
maintained and that may
explain the reduction in rental in this instance. In any event, the
quantum of the rental amount was not
an issue to the appellant, so
this cannot be the reason why she objected to the disputed agreement.
[19]
The wording of
the appellant’s email dated 16 February 2021 unequivocally
demonstrates a willingness to rent out the property.
There can be no
doubt that the appellant embraced that course of conduct. That she
ultimately did consent, both to the leasing
of the property to the
first and second respondents and the terms on which such lease was to
occur, appears from what next occurred.
[20]
After
writing to the first and second respondents on 31 March 2021 advising
them that the appellant did not consent to their occupation
of the
property, the appellant’s attorney wrote a letter to them again
on 1 April 2021. That letter forms part of the statement
of agreed
facts.
[10]
In his letter, the
appellant’s attorney stated, inter alia, the following:
‘
Unfortunately,
you do not have a lease from the “Landlord”. The property
is owned by our client as well as the party
that signed the lease. He
signed the lease without our client’s authority or consent. In
fact, she expressly prohibited him
from agreeing to any lease.
Therefore the agreement does not bind our client.
The
only basis upon which our client may re-consider her position is if
you provide a copy of the lease and agree to pay half the
deposit and
rent to our client.’
[21]
Upon
being informed by the first respondent by email on the same day that
he and the second respondent were quite willing to pay
half of the
rental to each co-owner each month, the appellant’s attorney
responded in writing as follows:
‘
We
confirm that you will furnish to us a copy of the lease either per
email or to the writer by “Whatsapp” on mobile
number …
We
confirm that you have agreed to pay 50% of the rent to our client.
This is acceptable to her. Her banking details are as follows:
… ’
.
[22]
Two issues
arise out of this letter. Firstly, there was no evidence that the
appellant expressly prohibited the third respondent
from agreeing to
a lease in respect of the property. No such allegation appears in the
statement of agreed facts. Secondly, the
statement of agreed facts
appears to misstate the true position regarding the splitting of the
monthly rental payments between
the appellant and the third
respondent by the first and second respondents. The statement of
agreed facts stipulates that:
‘
First
Defendant proposed that he and the Second Defendant pay half of the
rent to Plaintiff.’
That
is not borne out by the attorney’s letter of 1 April 2021: the
appellant proposed that the payments be split between
her and the
third respondent, to which the first and second respondents acceded.
[23]
The
appellant indicated in this correspondence that she would reconsider
her opposition to the disputed agreement if she was provided
with a
copy of that document and if the first and second respondents agreed
to pay her half of the rental income. This they agreed
to do. Even if
the appellant was dissatisfied with the conclusion of the disputed
agreement, it appears to me therefore that the
appellant reconciled
herself with its existence and acquiesced in its implementation. She
cannot now claim that she did not agree
to it. The appeal must
consequently fail.
[24]
A further
issue, namely whether the matter is rendered moot by the fact that
the initial term and the renewal period of the disputed
agreement
have run their course was also raised by Mr Grunder. By virtue of the
finding to which I have come, it is not necessary
to consider this
point.
[25]
Finally,
something must be said about the order of costs granted in the court
a quo. Those costs were awarded against the appellant
on the scale as
between attorney and client scale. The papers make it clear that the
first and second respondents did not seek
an order for costs on that
scale. In my view, there is no basis for the awarding of a punitive
order for costs.
In
Plastic
Converters Association of South Africa on behalf of members v
National Union of Metalworkers of SA
:
‘
[t]he
scale of attorney and client is an extraordinary one which should be
reserved for cases where it can be found that a litigant
conducted
itself in a clear and indubitably vexatious and reprehensible manner.
Such an award is exceptional and is intended to
be very punitive and
indicative of extreme opprobrium.’
[11]
There
was no reprehensible or disgraceful conduct on the part of the
appellant that would have merited such an order.
[12]
While the order granted by the court a quo must be set aside, the
appellant has largely been unsuccessful in this appeal and must
therefore bear the costs of the appeal.
[20]
In the result, I would propose the following order:
1.
Save to the
extent set out in paragraph 2 below, the appeal is dismissed with
costs.
2.
The order of
the court a quo:
(a)
That the
application is dismissed, is corrected to read that the action is
dismissed; and
(b)
Awarding costs
to the first and second respondents on the scale as between attorney
and client, is set aside and replaced with an
order that costs shall
be on the party and party scale.
MOSSOP
J
I
agree:
HLATSHWAYO
AJ
APPEARANCES
Counsel
for the appellant:
Ms N
S Beket
Instructed
by:
Browne
Brodie Attorneys
Ground
Floor
5
Sinembe
Sinembe
Office Park
La
Lucia Ridge
Counsel
for the first and second respondents:
Mr R
W Grunder
Instructed
by:
DMH
Attorneys
30
Kenilworth Road
Musgrave
Durban
Date
of argument:
4
August 2023
Date
of Judgment:
18
August 2023
:
[1]
It
is equally true that an appeal court will not consider anything not
contained in the statement of agreed facts:
Mighty
Solutions t/a Orlando Service Station v Engen Petroleum
Ltd
and another
[2015] ZACC 34
;
2016 (1) SA 621
(CC) para 63.
[2]
A
C Cilliers
et
al Herbstein and Van Winsen: The Civil Practice of the High Courts
and the Supreme Court of Appeal of South Africa
5
ed (2009) at ch42-p1414. See also
Plit
v Imperial Bank Ltd
[2006] ZASCA 161
;
2007 (1) SA 315
(SCA) at 318-319.
[3]
Naboomspruit
Munisipaliteit v Malati Park (Edms) Bpk
1982 (2) SA 127
(T) at 131D.
[4]
Pretorius
v Nefdt and Glas
1908
TS 854.
[5]
Pretorius
v Botha
1961 (4) SA 722 (T).
[6]
It is annexure ‘M1’ to the statement of agreed facts.
[7]
It
is annexure ‘M2’ to the statement of agreed facts.
[8]
Tonyela
and others v National Union of Metalworkers of SA
[2022]
ZALCJHB 67; (2022) 43 ILJ 1895 (LC) para 17.
[9]
They
were marked as annexures ‘I’, ‘J’ and ‘K’
respectively.
[10]
It
is annexure ‘
D2’
to the statement of agreed facts.
[11]
Plastics
Convertors Association of SA on behalf of members v National Union
of Metalworkers of SA and others
[2016]
ZALAC 39
;
(2016) 37 ILJ 2815 (LAC) para 46.
[12]
Tjiroze
v Appeal Board of the Financial Services Board and others
[2020] ZACC 18
;
2021 (1) BCLR 59
(CC) paras 23-24.