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2024
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[2024] ZAECQBHC 31
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Changing Tides 91 (Pty) Ltd and Others v Azam & Friends (Pty) Ltd t/a Urban Roti (1194/2024) [2024] ZAECQBHC 31 (24 April 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, GQEBERHA)
Case
no: 1194/2024
In
the matter between:
CHANGING
TIDES 91 (PTY) LTD
1
st
Applicant
BOARDWALK
MALL (PTY) LTD
2
nd
Applicant
FLANAGAN
& GERARD INVESTMENTS 3
(PTY)
LTD
3
rd
Applicant
and
AZAM
& FRIENDS (PTY) LTD
t/a
URBAN ROTI
Respondent
JUDGMENT
GQAMANA J
[1]
This is an urgent application brought by the applicants
[1]
(herein referred to as “the Consortium”) for eviction of
the respondent Azam &Friends (Pty) Ltd
t/a
“Urban
Roti”, from the leased premises at the Boardwalk mall.
The relationship between the Consortium and the
respondent is purely
a commercial one arising from a lease agreement concluded between the
parties.
[2]
[2]
The Consortium’s case hinges on the cancellation of the
aforementioned lease agreement
and the respondent’s continuous
unlawful occupation of the leased premises.
[3]
The application is opposed by the respondent. At the heart of its
opposition is the validity
of the cancellation of such agreement.
[4]
The foundational facts which underpins this application and the
issues at hand are largely
common cause. Early 2022, the Consortium
and the respondent concluded a commercial lease agreement (the first
lease agreement)
wherein the latter leased premises at Boardwalk Mall
for purposes of operating restaurant business. The respondent fell
into arrears
with the payment of rental and other amounts dues in
terms of that lease agreement. Such lease agreement was
cancelled in
June 2023 and the Consortium also instituted legal
proceedings in the High Court, Johannesburg against the respondent
claiming
arrear rental and other sums due. That litigation culminated
in a settlement agreement wherein the parties agreed that a new lease
agreement would be concluded. The settlement agreement led to the
conclusion of the lease agreement referred to in paragraph one
above. The aforementioned lease agreement was concluded in
October 2023.
[5]
The Consortium contends that the respondent breached the terms of
such lease agreement in
that, it failed to make timeous payment of
the rental due or other charges for the months of October, November,
December 2023 and
January 2024. Consequently, the Consortium
cancelled the lease through a letter dated 12 January 2024.
[3]
The Consortium also cut the electricity supply to the leased premises
on 9 February 2024.
[6]
To protect its business interests, the respondent instituted an
urgent application in this Court against the Consortium.
Relevant
herein is that, amongst the relief sought by the respondent was an
order for the immediate restoration of the electricity
supply to its
premises and also a declaratory order that cancellation of the lease
agreement by the Consortium constitutes a repudiation
which was not
accepted by it. The urgent application was opposed, however a rule
nisi
was granted on 15 February 2024.
[7]
Despite the pending legal proceedings the Consortium concluded a
lease agreement with Galxboy
(Pty) Ltd (“Galxboy”) on 28
February 2024, for the same premises.
[4]
The commencement date of such lease agreement is 01 June 2024,
subject to the provisions of clause 3.3 therein. Clause 3.3 reads:
“
3.3
If for any reason whatsoever the LESSOR shall be unable to make the
premises available to the LESSEE
on the beneficial occupation date
the LESSEE shall nevertheless be bound and hereby undertakes to
accept occupation upon such later
date as the LESSOR may advise the
LESSEE in writing that the PREMISES shall be available for such
occupation. In the event of such
a delay the period the period of the
Lease shall remain and the date of commencement and termination of
the Lease shall be extended
accordingly. The LESSEE shall not be
entitled to claim damages or cancellation of the Lease by reason of
the delay in obtaining
such occupation and commencement.”
[8]
On the return date, the matter was argued and subsequent thereto a
judgment was delivered
on 26 March 2024, discharging the rule
nisi.
At paragraphs 53 and 54 of the judgment the court said the
following:
“
[53]
In my view the respondent
[the
consortium]
has complied with the terms
of the lease agreement in cancelling the contract. This court
is unable to make a declaratory
order that the respondent’s
cancellation of the current contract of lease between the parties on
12 January 2024 is invalid,
as it appears in prayer 3.1 of the Rule
Nisi issued.
[54] As correctly
pointed out by the respondent it is clear the remainder of the
interdictory relief sought in paragraph 3.2
falls away because if the
cancellation is valid, there is no basis to interdict or restrain the
respondent from evicting the applicant.
Alternatively, the parties
may still re-negotiate another contract as previously proposed by the
respondent.”
[9]
The respondent has since filed an application for leave to appeal
against such judgment.
That application is still pending and
has not been heard as yet.
[10]
Two days after the delivery of the aforementioned judgment, the
Consortium issued a letter of demand
to the respondent to voluntary
vacate the leased premises on or before 12 April 2024. Cut to the
chase, the aforesaid demand yielded
no positive results and the
Consortium lodged this urgent application on 9 April 2024. In the
notice of motion, the respondent
was given one day apart to file its
notice of opposition (i.e. 10 April 2024) and also one day to file
its answering affidavit,
(i.e. 11 April 2024).
[11]
The answering affidavit and the annexures thereto consisting of 117
pages in total was served on the
Consortium attorneys on 15 April
2024 and only made available to me when the matter was called at
court. That necessitated the
court to stand-down the matter to the
end of the roll in order to read the answering affidavit. The
respondent in its opposition,
lack of urgency became a sore thumb
issue. There were also other grounds of opposition. However, I intend
to consider the issue
of urgency first.
[12]
In terms of Rule 6(12) of the Uniform Rules of Court, an applicant is
required to set forth
explicitly,
the circumstances which it avers render the matter urgent and the
reasons why it claims that it cannot be afforded substantial
redress
at a hearing in due course.
[5]
A proper case for urgency must be made out in the founding
affidavit. Urgent applications are not there for the taking.
[13]
It has been settled that commercial interests may justify the
invocation of sub-rule 6 (12).
[6]
[14]
The grounds upon which the Consortium views
the matter to be urgent are set out at
paragraph
45 (inclusive of the sub-paragraphs thereof) and
46 of the founding affidavit. The Consortium’s case is that, it
has concluded
a new lease agreement with Galxboy, and it is obliged
to give beneficial occupation to the latter by 1 May 2024. The
commencement date
of
the that lease agreement is
1 June 2024.
The new lease agreement provides for 30 days’
beneficial occupation, a period which the new tenant requires to fit
out the
premises based on its business model.
[15]
Further, the Consortium states that, prior to the new tenant being
provided beneficial occupation,
it requires approximately two weeks
to restore the leased premises to a suitable \ condition. Because
the respondent remains
in unlawful occupation of the premises it
would be unable to meet its obligation to provide beneficial
occupation to Galxboy. In
addition, the Consortium stands to suffer
financial prejudice in the form of loss of rental, if there is any
delay in the commencement
of the trading by Galxboy.
[16]
The Consortium also contends that; it stands to suffer reputational
harm because Galxboy is a tenant
of national interest and there are
other possible lease agreements that could be concluded between it
and Galxboy in relation to
its other properties.
[17]
Aside of financial losses, the Consortium also argued that it would
not be afforded substantial redress
at a hearing in due course and
its likely to lose the lease with Galxboy if it is unable to meet its
obligations and to provide
timeous occupation.
[18]
Ms
Ntsepe
counsel for the respondent (appearing together with Ms
Masiza
)
argued that, the Consortium has failed to set forth explicitly the
circumstances which it avers render the matter urgent and that
it
would not be afforded substantial redress in a hearing in due course.
[19]
As indicated above the cancellation of the respondent’s lease
agreement was hotly contested by the
respondent.
[20]
As indicated in paragraph 2 above, there was litigation pending
between the parties and a rule nisi
that was granted on 15 February
2024. The Consortium although it was acutely aware of such
factual situation, it proceeded
as if its business as usual and
concluded the lease with Galxboy on 28 February 2024 on the terms and
conditions as set out in
annexure “FMS9”. In terms
of such lease agreement the commencement date is 01 June 2024 and the
Consortium has
to provide 30 days’ beneficial occupation. On
its own volition the Consortium concluded the new lease with such
time period.
Having done so, but it took no further steps to
ensure that it would be able to meet its obligations. It was
only a month
later, i.e. on 28 March 2024 that a letter of demand was
sent to the respondent’s attorneys. When that demand did not
yield
the desired outcome, the respondent and its legal
representatives were given extremely short period of time, a day
apart to give
the notice of intention to oppose and to file the
answering affidavit. Such time frames gave no due and proper respect
to the respondent
and its lawyers.
[21]
To avoid the risk of the judgment being given by default, the
respondent filed its answering affidavit. As
indicated above the
answering affidavit was handed up in court and as result, I had to
stand-down the matter in order to read the
answering papers. The
Consortium had no respect for the court and to the respondent’s
lawyers when it gave such extremely
short time periods in a matter
which raises interesting and challenging questions of law.
[22]
The court’s discretion to abridge the times prescribed by the
rules and to accelerate the hearing
is guided by three factors, the
prejudice which an applicant may suffer by having to wait for a
hearing in due course, the prejudice
the other litigants may suffer
if an applicant is given preferences and the prejudice the respondent
might suffer by the abridgments
of prescribed times.
[7]
[23]
The time periods imposed on the respondent were in no way justified
by degree of urgency of the matter.
The respondent was required
to prepare its answering affidavit and obtain services of counsel for
the hearing in great haste.
The Consortium has not explained
why, despite clause 3.3 of the new lease agreement with Galxboy, it
deemed necessary to rush to
court with such drastically truncated
time frames.
[24]
If for any reason the Consortium fails to make the premises available
within the agreed time period,
the new lease agreement would remain
extant. This is so because of the wording in clause 3.3 of such lease
agreement. There would
be no reputational harm or financial loss to
the Consortium. Furthermore, as long the respondent is in
occupation of the
leased premises, its financial obligation to the
Consortium to pay the rental and other dues in terms of the lease
agreement concluded
in October 2023 as mentioned in paragraph one
above, remains. The Consortium’s anxiety that it would
not be afforded
substantial redress in a hearing in due course has no
merit in light of clause 3.3 of the lease agreement with Galxboy.
[25]
On the facts herein, the matter is neither urgent nor are there
reasons why the Consortium would not
be afforded redress at a hearing
in due course. Even though the respondent managed to produce and file
substantive answering affidavit
but the Consortium should not be
allowed to jump the queue. The alleged loss that it contends it
would suffer is not the
kind of loss that justifies the disruption of
the court’s roll and the resultant prejudice to other
litigants. There
are also other deserving matters which have
waited for their turn in the court roll.
[26]
For all the above reasons, the matter lacks urgency and it stands to
be struck from the Roll with
costs. The respondent argued
for the costs of two counsel on the basis that the matter involves
issues of complexity. Although
the matter raises interesting
questions of law, but the employment of two Counsel was unnecessary.
[27]
Tempting as it maybe, it is unnecessary for me to consider the other
interesting grounds of opposition
raised by the respondent in light
of my findings.
[28]
In the result the following order is issued:
1.
The application is struck from the Roll with costs.
N
GQAMANA
JUDGE
OF THE HIGH COURT
APPEARANCES:
Counsel
for the Applicants
Adv
G J Gajjar
Instructed
by
Van
Heerden Attorneys Inc.
Gqeberha
Counsel
for the Respondent
Adv
N L Ntsepe and Adv A N Masiza
Instructed
by
Kuban
Chetty Attorneys
Gqeberha
Dates
heard on
16
April 2024
Judgment
Delivered on
24
April 2024
[1]
The
three applicants are Changing Tides 91 Pty Ltd, Boardwalk Mall (Pty)
Ltd and Flanagan &Gerard Investments 3 (Pty) Ltd.
[2]
A
copy of the lease agreement is at pages 27 to 93 i.e. Annexure
“
FMS1
”.
[3]
The
cancellation letter Annexure “
FMS2
”.
[4]
Annexure
“
FMS
9
”.
[5]
Luna
Meubel Vervaardigers (EDMS) BPK v Makin t/a Makins Furniture
Manufacturers
1977 (4) SA 135
(W) at 137.
[6]
Bandle
Investment (Pty) Ltd v Registrar of Deeds 2001 2 SA 203 (SE).
[7]
IL
& B Marcow Caterers (Pty) Ltd v Greatermans SA Ltd
1981 (4) SA
108
(C) at 112H – 113A.