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[2022] ZAGPJHC 1004
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GTFOH (Pty) v KYOSTAX (Pty) Ltd and Others (6795/2022) [2022] ZAGPJHC 1004 (6 December 2022)
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG LOCAL
DIVISION, JOHANNESBURG)
Case
No: 6795/2022
(1) REPORTABLE: NO
(2) OF INTEREST TO
OTHER JUDGES: NO
(3) REVISED: NO
SIGNATURE:
DATE: 6/12/2022
In matter between:
GTFOH (PTY) LTD
APPLICANT
and
KYOSTAX (PTY)
LTD
1
st
RESPONDENT
WARREN
FRIEDLAND
2
nd
RESPONDENT
MONIQUE FRIEDLAND
3
rd
RESPONDENT
TAPIWA
MATAVIRE
4
th
RESPONDENT
MAMANE MOEKETSANE
5
th
RESPONDENT
JUDGEMENT
MOOKI
AJ
1
This judgement concerns whether the Court
is to make an order granted in terms of section 18(3) of the Superior
Court Act 10 of
2013 (“the Act”) “final.”
2
The material terms of the order in terms of
section 18(3) application by the applicant were as follows:
4
It is ordered, in terms of section
18(3) of the Superior Court Act 10 of 2013, and pending
the finalisation of the notice
of leave to appeal lodged by the
respondent and, pending any petition for leave to the Supreme Court
of Appeal or to the full bench
of this division, that:
4.1
The respondent is ordered to restore possession of shop 1[...] E[...]
D[…]
Shopping Centre, Bryanston, Johannesburg, to the
applicant forthwith.
The
respondent shall be entitled to evict the applicant on the
respondent presenting a court order authorising such eviction.
5
The respondent is ordered to pay the costs of the application
in
the application by the applicant in terms of section 18(3) of the
Superior Court Act 10 of 2013.
Background
5
The applicant conducted business at
premises leased from the first respondent (“the landlord”).
The applicant
instituted spoliation proceedings against the
landlord. The landlord raised as one of its defences that the
landlord had since
concluded a lease agreement with the fourth and
fifth respondents (“the new tenants”) and that the
applicant was
obliged to have joined the new tenants as
respondents.
6
The Court held that the applicant had
shown that it had been spoliated. The Court, as part of its
reasoning, found that the
applicant was not obliged to have joined
the new tenants because the rights or interests of parties are
irrelevant in spoliation
proceedings.
7
The landlord then brought an application
for leave to appeal. The applicant in turn brought an application
in terms of section
18 of the Act. Both applications were heard at
the same time. The Court refused the application for leave to
appeal and granted
the application in terms of section 18 of the
Act, ordering in part that:
4
It is ordered, in terms of section
18(3) of the Superior Court Act 10 of 2013, and pending the
finalisation of the notice of
leave to appeal lodged by the
respondent and, pending any petition for leave to the Supreme Court
of Appeal or to the full
bench of this division, that:
4.1
The respondent is ordered to restore possession of shop 1[...]
E[...] D[…]
Shopping Centre, Bryanston, Johannesburg, to the
applicant forthwith.
4.2
The respondent shall be entitled to evict the applicant on the
respondent presenting
a court order authorising such eviction.
5
The respondent is ordered to pay the costs of the application
in
the application by the applicant in terms of section 18(3) of the
Superior Court Act 10 of 2013.
8
The landlord appealed to the Full Bench,
pursuant to section 18(4)(2) of the Act. The Full Bench made the
following order:
1
The appeal is upheld.
2
The order of his Lordship Mr
Justice Mooki AJ granted on 29 July 2022, specifically, order 82.4
and subparagraphs and order
82.5 as it relates to costs of the
Section 18(3) application is set aside.
3
The application is remitted for
rehearing to the Court A quo in front of His Lordship Mr Justice
Mooki.
4
A rule nisi is hereby ordered
calling upon TAPIWA MATAVIRE and MAMANE MOEKETSANE to show cause at
the rehearing of this application
why an order in terms of the
notice of motion in respect of the Section 18(3) application should
not be granted.
5
This court order and all pleadings
filed of record in relation to the Section 18(3) application be
served upon TAPIWA MATAVIRE
and MAMANE MOEKETSANE within 2 days
from the date of this order;
6
TAPIWA MATAVIRE and MAMANE
MOEKETSANE are provided two days to enter a notice of intention to
oppose.
7
TAPIWA MATAVIRE and MAMANE
MOEKETSANE are provided 5 days to file an answering affidavit, if
any.
8
Appellant shall pay costs.
9
The Full Bench did not give reasons in
relation to its order. Counsel submitted that the substance of the
debate before the
Full Bench concerned whether Tapiwa Matavire and
Mamane Moeketsane should have been given an audience, by being
joined to the
proceedings.
The
case as advanced in this hearing
10
The
applicant and the new tenants exchanged pleadings pursuant to the
order by the Full Bench. Each of the fourth and fifth
respondents
filed affidavits, to which the applicant replied.
11
The
new tenants say they previously conducted business from premises
close to those used by the applicant. The landlord approached
them
during the first week of July 2022, advising them that the shop
right next to where the new tenants previously conducted
business
may become available and that the new tenants “would have to
move fast if it became available.”
12
The
landlord subsequently informed the new tenants that the landlord
had given the applicant notice and that the applicant would
be
vacating the shop on 14 July 2022.
13
The
landlord advised the fourth and fifth respondents in the evening of
14 July 2022 that the shop was theirs and that they
should meet a
representative of the landlord on the morning of 15 July 2022. They
met with a representative of the landlord
on 15 July 2022. The
representative advised them that the applicant had absconded or
vacated the shop. The representative then
gave them a lease to
sign, which they did.
14
A
representative of the landlord, after the signing of the lease,
opened the shop for the fourth and fifth respondents; showed
them
around and gave them the keys. The fourth and fifth respondents,
after being shown around, locked the restaurant and “have
since been working tirelessly to open the restaurant in an upgraded
form in the premises.”
15
The
fourth and fifth respondents say they made commitments and that it
was impossible for them not to use the premises.
Their
previous premises were no longer available. They have started
moving their things across from their previous premises.
They had
drawings prepared for how the new restaurant would look. They used
a small portion of the premises for Uber Eats.
16
The
fourth and fifth respondents say they were unaware of the dispute
between the applicant and the landlord when they took
occupation;
they were in peaceful and undisturbed possession in terms of a
valid lease; they put in vast amounts of money into
the new shop;
they would be in the street if they have to leave; the landlord
could not unilaterally cancel the lease, and
that they did not
breach the lease and could not abandon the lease because it would
result in their financial ruin.
17
The
applicant replied to averments by the fourth and fifth respondents
as follows: the applicant denied giving the landlord
any indication
that the applicant would be vacating the premises mid-July;
occupation by the fourth and fifth respondents was
not bona
fide; the fourth and fifth respondents were aware, before 27 July
2022, that the applicant did not leave the
premises voluntarily;
they were aware, as early as 27 July 2022, of the court order that
the landlord restore occupation to
the applicant; they were aware
on 27 July 2022 that the premises were in the same condition as on
15 July 2022. The fourth
and fifth respondents were aware of the
dispute between the applicant and the landlord.
18
The
applicant points out that the fourth and fifth respondents, had
they viewed the premises, would have noticed that the applicant
had
not removed any of its business goods from the premises; the fourth
respondent and the director of the applicant were known
to each
other; their respective businesses were adjacent to each other; the
fourth respondent’s failure to contact the
applicant about
business goods in the premises was indicative that the fourth
respondent knew that the applicant had been spoliated
and that the
fourth respondent sought to capitalise on that event.
19
The
applicant further contended that prejudice to the fourth and fifth
respondents “is not a feature of a section 18 (3) application”;
there was no specificity to the contention by the fourth and fifth
respondents that they had been working tirelessly to open the
restaurant. The applicant contends that the fourth and fifth
respondents incurred expenditure at their own peril because they
acted in bad faith.
Submissions on behalf of
the parties
20
Mr.
Venter submitted that the Court had to consider whether implementing
the order would cause each of the landlord, the fourth,
and fifth
respondents irreparable harm. He submitted that the fourth and fifth
respondents will be evicted; cannot return to their
previous
premises; had done work on the premises; had not breached the lease
and would be put on the street and their business
would close if the
order is implemented.
21
He
further submitted that the fourth and fifth respondents had taken
steps to use the premises and that they could not be expected
to
accomplish everything overnight. They did not have a long lead time,
because they were offered the premises on 14 July 2022
and moved in
on 15 July 2022.
22
He
submitted that it was not the case that the fourth and fifth
respondents acted in bad faith. That was because they were informed
on the evening of 14 July 2022 that the applicant had absconded. They
moved in on 15 July 2022. The fourth and fifth respondents
were
not to take sides in the dispute between the applicant and the
landlord.
23
Mr.
Venter submitted that the fourth and fifth respondents had presented
the court with new facts, which the court ought to consider
regarding
the issue of irreparable harm as it pertained to the landlord. He
submitted that it was clear that the landlord could
not restore the
applicant; and that the landlord would have to evict the fourth and
fifth respondents if the landlord were to restore
the applicant. He
further submitted that the applicant had not discharged the burden in
section 18(3) of the Act by not showing
the absence of irreparable
harm both to the landlord and the fourth and fifth respondents.
24
Ms.
Lipshitz submitted that section 18(3) did not concern prejudice to
the fourth and fifth respondents. She further submitted that
there
was no irreparable harm in relation to the fourth and fifth
respondents; including that they could sue for damages and that
they
had not started trading. She pointed out that the fourth and fifth
respondents had pleaded tersely regarding what they had
done
concerning the premises.
25
Ms.
Lipshitz further submitted that the fourth and fifth respondents did
not say what they had done or when they started in relation
to the
premises, apart from referencing the use of a small portion of the
premises for Uber Eats. She pointed out that there
were no
changes to the premises on 27 July 2022; with the applicant having
been denied access since 15 July 2022. The fourth and
fifth
respondents were aware on 27 July 2022 of the dispute between the
applicant and the landlord, and acted at their own peril.
She further
submitted that there had been no meaningful occupation by the fourth
and fifth respondents on 27 July 2022, by when
they were aware of the
court order in favour of the applicant.
26
She
further submitted that the fourth respondent knew that the applicant
was the tenant. The fourth and fifth respondents would
have seen that
the applicant still had its goods in the shop. This was known because
the fourth and fifth respondents conducted
their business adjacent to
the premises then occupied by the applicant. She continued that the
fourth and fifth respondents were
not
bona
fide
because they knew on 15 July 2022 that the applicant still had its
goods in the shop. They never enquired with the applicant about
those
goods. She contended that the lease agreement relied upon by the
fourth and fifth respondents was concluded to frustrate
a potential
spoliation.
Analysis
27
The
Full Bench did not explain why the circumstances of the fourth and
fifth respondents had to be considered for purposes of a
section
18(3) application. This is more so because the applicant sought
relief for being spoliated.
28
Mr.
Venter submitted that the applicant was obliged to show that the
fourth and fifth respondents will not suffer irreparable harm
and
that the applicant would suffer such harm, which the applicant failed
to do. He submitted that the application be dismissed
on this
account.
29
Section
18(1) of the Act deals with the suspension of a decision pending an
application for leave to appeal or pending an appeal.
Section 18(3)
prescribes the conditions under which a court may order that a
decision be implemented notwithstanding an application
for leave to
appeal or an appeal.
30
This
Court has already determined that the applicant met the requirements
in section 18(3) in relation to the landlord’s application
for
leave to appeal. The current proceedings do not revisit that finding.
I conclude, in any event, that there are no new facts
that warrant
the Court revisiting its prior finding that the applicant met the
requirements for relief in terms of section 18(3)
of the Act. For
example, the Court took into consideration that the fourth and fifth
respondents made it known to the landlord
that they were holding the
landlord to the lease agreement.
31
Section
18(1) and section 18(3) apply as between a party that seeks leave to
appeal, a party that has been permitted to appeal,
and a party in
which favour a decision was made. The sections do not consider
persons outside this relationship.
32
The
fourth and fifth respondents are not parties to the application for
leave to appeal by the landlord. I agree with the submission
by Ms.
Lipshitz that section 18(3) of the Act does not pertain to the fourth
and fifth respondents. This appears from the language
of the section.
33
Section
18(3) requires a party that seeks to implement an order pending an
application for leave to appeal or pending an appeal
to “…,
in addition [prove] on a balance of probabilities that [the party]
will suffer irreparable harm if the court
does not so order and that
the other party will not suffer irreparable harm if the court so
orders.”
34
Section
18(3) does not operate as between persons who are not parties to an
order that is the subject of an application for leave
to appeal or an
appeal. The fourth and fifth respondents are not parties to the
landlord’s application for leave to appeal;
or any similar
process.
35
I
find that there is no basis in law for the fourth and fifth
respondents to be entertained in relation to an order made pursuant
to section 18(3) of the Act, in that the fourth and fifth respondents
were not parties to the application for leave to appeal by
the
landlord.
36
I
also find, in the event that the above finding be in error, that the
fourth and fifth respondents have not, in any event, made
out a case
why the relief referred to in paragraph four of the order by the Full
Bench should not be granted.
37
My
overall impression is that the fourth and fifth respondents acted in
concert with the landlord regarding the premises.
38
The
landlord did not, in the various affidavits on its behalf, say that
it approached the fourth and fifth respondents, telling
them that the
premises might become available during the first week of July 2022,
that the fourth and fifth respondents would have
to move fast if the
premises became available; that it told the fourth and fifth
respondents that it gave the applicant notice;
that it approached the
fourth and fifth respondents “late” on 14 July 2022 that
the premises were theirs if they wanted
them.
39
The
fourth and fifth respondents say they signed a lease with a
representative of the landlord on 15 July 2022; after which they
were
shown the premises, which they then locked. The fourth and fifth
respondents are then saying that they signed the lease without
first
having inspected the premises. This is absurd.
40
It is equally absurd of the fourth and
fifth respondents to say that they were shown around the premises
whereafter they locked
the premises and started their preparation to
operate a restaurant from the premises. The fourth and fifth
respondents do not dispute
that the applicant had its work equipment
in the premises on 15 July 2022. The fourth and fifth respondents
could not have inspected
the premises without remarking about that
equipment. This is more so because the fourth respondent and the
director of the applicant
know each other.
41
The
fourth and fifth respondents could not have been unaware from 15 July
2022 onwards of the dispute between the landlord and the
applicant
regarding the premises. They could not have failed to ask why the
premises were locked and what had happened to the applicant.
This is
more so because the fourth and fifth respondent conducted their
business at premises adjacent to premises used by the applicant.
42
The
fourth and fifth respondents, on the evidence, did nothing regarding
the premises as between 15 July 2022 and 27 July 2022.
That is
because the premises were in the same condition on 27 July 2022 as on
15 July 2022. The fourth and fifth respondents did
not dispute that
an employee of the applicant inspected the premises on 27 July 2022
and that nothing had changed since 15 July
2022.
43
I
do not accept that the fourth and fifth respondents “worked
tirelessly”, since 15 July 2022, to open a restaurant
in an
upgraded form at the premises. For example, nothing was done in
relation to the premises at least between 15 July 2022 and
27 July
2022. The fourth and fifth respondents could not have worked on the
premises whilst the goods of the applicant remained
on the premises.
The fourth and fifth respondents are silent in relation to these
goods. The goods would have been an obvious hindrance
to their use of
the premises. The fourth respondent would have been expected to have
raised the subject with the director of the
applicant.
44
The
fourth and fifth respondents, if they were in occupation as they say,
failed to explain why they kept silent regarding the goods
of the
applicant as between 15 July 2022 and 27 July 2022. The fourth
respondent, at a minimum, would have been expected
to have enquired
with the director of the applicant about goods left in the premises.
That did not happen. This is inconsistent
with a tenant who had
concluded a lease on a sought-after lot and who intended to improve
that lot as a restaurant.
45
The
fourth and fifth respondents say they have spent money on the
premises. There was no evidence to support this claim. There was
no
proof that the premises were being used. Their best case in this
regard is that they were using a small portion of the premises
for
Uber Eats.
46
I
am persuaded that the fourth and fifth respondents knew of the court
order, on 27 July 2022, that the landlord restore the premises
to the
applicant. Nothing had been done in relation to the premises as at
that date. The fourth and fifth respondents, such
knowledge
notwithstanding, did nothing to protect their interests. They made no
enquiries with the applicant. They knew at that
time, if not much
earlier, that they were at risk in relation to the premises. They did
nothing other than to assert a binding
lease agreement with the
landlord. Their assertion, given the circumstances, was consistent
with the landlord having locked the
applicant out of the premises.
Their respective interests coincided; hence the Court referencing an
accommodation between them
and the landlord.
47
The
fourth and fifth respondents adopted a supine approach despite being
aware, early on, of the dispute between the applicant and
the
landlord. I do not accept the submission by Mr. Venter that the
fourth and fifth respondents had a binding lease and that they
were
not to take sides in the dispute between the applicant and the
landlord.
48
The
Court has previously set-out the respects in which the applicant will
suffer irreparable harm in relation to the landlord. The
contentions
by the fourth and fifth respondents do not alter that finding.
49
The
applicant has shown, as between the applicant and the fourth and
fifth respondents, that the applicant will suffer irreparable
harm,
unlike the fourth and fifth respondents, should the order that the
landlord restore the premises to the applicant not be
implemented.
This is on account of the same considerations as those in relation to
the landlord.
50
The
landlord told the fourth and fifth respondents that the applicant had
absconded from the premises. The landlord was aware of
the falsity of
this representation. The fourth and fifth respondents ought to look
to the landlord for recourse, should the fourth
and fifth respondents
be aggrieved at their having acted pursuant to a representation made
to them by the landlord.
51
I
conclude that the order as referred to in paragraph 4 of the order by
the Full Bench be granted.
52
I
make the following order:
(a)
The order in terms of the notice of motion
in respect of the Section 18(3) application is granted.
(b)
The fourth and fifth respondents, jointly
and severally, are ordered to pay the costs associated with the
hearing on 11 November
2022.
Omphemetse Mooki
Judge of the High
Court (Acting)
Heard on: 11 November
2022
Delivered on: 6 December
2022
For the Applicant: T
Lipshitz
Instructed by: Preshnee
Govender Attorneys
For the Fourth and Fifth
Respondents: A J Venter
Instructed by: Witz
Inc. Attorneys