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[2022] ZAFSHC 2
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Parys-Aan-Vaal Woonstelle (Pty) Ltd and Another v Plexiphon 115 CC (3489/2021) [2022] ZAFSHC 2 (20 January 2022)
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,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 3489/2021
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
In
the matter between:
PARYS-
AAN- VAAL WOONSTELLE (PTY) LTD
1
st
Applicant
[Reg
No. 1973[…]]
ROBFAIR
INVESTMENTS No. 162 CC
2
nd
Applicant
[Reg
No. 2002[…]]
And
PLEXIPHON
115 CC
Respondent
[Reg
No. 2010[…]
HEARD
ON:
14 OCTOBER 2021
JUDGMENT
BY:
DANISO, J
DELIVERED
ON:
This
judgment was handed down electronically by circulation to the
parties' representatives by email and by release to SAFLII. The
date
and time for hand-down is deemed to be 16H00 on 20 January 2022.
[1]
The first applicant is the owner of a shopping complex Grootfontein
Shopping Centre in Sasolburg
(“the premises”). The
respondent leased one of the shops from the second applicant the
previous owner of the shopping
complex for use as a liquor shop for a
period of three years 1 August 2019 to 30 July 2022.
[2]
On 30 November 2020 the first applicant relying on clause 17 of the
lease agreement cancelled
the lease on the grounds that it intends to
demolish and renovate the premises. Clause 17 provides thus:
“
RE-BUILDING
17.1. The
landlord may terminate this lease or any renewal thereof by giving
the Tenant six (6) months written notice to
such effect,
alternatively negotiate a rent free period for any time that the
building work or reconstruction takes place, if and
when such
instances occur in all or any of the following circumstances:
17.1.1.
should the Landlord wish to demolish the building or the premises;
or
17.1.2.
should the Landlord wish to reconstruct and/or redevelop and/or
renovate
the building or the premises, provided always that such
reconstruction and/or redevelopment and/or renovation be of a
substantial
and/or major nature.”
17.2. The
landlord shall, however, have the right at any time to commence the
Reconstruction and/or development and/or
renovation of the building,
other than the premises, and these operations may proceed while the
Tenant is in occupation of the
premises, provided the Tenants
business is not unreasonably interfered with.
17.3.
Notwithstanding the implementation of any work as contemplated in
17.2 above, the Tenant shall have no right to
object to such work or
to claim any rebate of rental during the period in which the said
work may be in progress nor shall the
Tenant have any claim for
damages of whatsoever nature by reason of the earlier termination of
this lease as provided for in 17.1
above.”
[3]
In terms of the cancellation notice the respondent was required to
vacate the premises by 31 May
2021. Notwithstanding the cancellation
the respondent remains in occupation of the premises.
[4]
The applicants seek the respondent’s eviction from the premises
contending that all other
tenants with the exception of Checkers an
anchor tenant have duly accepted the cancellation and vacated their
respective shops.
The applicants submit that in response to the
cancellation the respondent merely alleged that the cancellation is
unlawful as it
is motivated by the applicants’ intention to
establish another liquor shop at the premises, there is no proof that
the renovations
are extensive to warrant the cancellation and if they
are, the respondent is entitled to renew or continue with the lease
agreement
after the renovations.
[5]
The applicants state that the demolitions and renovations commenced
in June 2021. Annexures “FA71”
to “FA73” of
the founding affidavit are photographs depicting the respondent’s
shop surrounded by construction
equipment and rubble of the
demolished shops therefore there is no merit to the respondent’s
contentions that there is no
proof that the renovations are of a
substantial nature. The lease agreement was validly cancelled the
respondent and all those
who occupy the premises through the
respondent must be evicted from the premises.
[6]
The application is opposed by the respondent. In the answering
affidavit the respondent avers
that the lease was terminated on
unlawful and on discriminatory grounds the applicants are thus not
entitled to invoke the provisions
of clause 17.
[7]
The respondent disputes that the renovations and re-constructions are
of a substantial nature
as to make the continuous occupation of the
premises impossible and this is evidenced by the fact that Checkers
is still trading
on the premises. The respondent further states that
the applicants were requested to furnish proof in this regard but
they have
since failed to do so. There is accordingly a clear dispute
of facts on this issue which can only be resolved by oral evidence.
The applicant should have foreseen that a dispute of fact would arise
and should have proceeded by way of action proceedings and
not
application proceedings. The application ought to be dismissed on
that score.
[8]
As regards the cancellation of the lease the respondent contends that
the applicants have unfairly
discriminated against the respondent.
The other tenants whose lease agreements were cancelled on the same
grounds were invited
to submit re-letting proposals in respect of
their re-occupation of the premises after the renovations. The
applicants have refused
to extend this invitation to the respondent.
[9]
Furthermore, in terms of clause 17.2 the lessor may in the
alternative to cancelling the lease
re-negotiate with the tenant a
rent free period during the time of the reconstruction. The
applicants have instead chosen the most
intrusive action of
cancelling the respondent’s lease and the only reason for this
unfair treatment could be that the applicant
intend to replace the
respondent’s business with a Checkers Liquor shop. The
applicants are not
bona fide
, their actions are discriminatory
and unlawful they are thus not entitled to the eviction order. The
application must be dismissed.
[10]
The applicant’s replying affidavit raises three points
in
limine
that: the respondent’s answering affidavit is
invalid because the certification of the commissioner of oaths does
not specify
the gender of the deponent, the deponent has no
locus
standi
to depose to the affidavit, the affidavit was filed late
and no condonation for the late filing has been sought.
Identification
of a deponent of an affidavit
[11]
The objection is essentially premised on non-compliance with
Regulation 4 (1) which governs the administration
of Oaths or
Affirmation.
[1]
The commissioner
of oaths certified the affidavit as follows:
“
I certify that
the Deponent has acknowledged that he/she knows and understands the
contents of this affidavit, which was signed
and sworn to before me
at NIGEL on this 15 day of SEPTEMBER 2021, the regulations contained
in Government Gazette Notice R1258
dated 21
st
July 1972 (as amended) and Government Notice Number R1648 dated 19
th
August 1977 (as amended) having been complied with
.”
[12]
The commissioner of oaths has omitted to delete the inapplicable
gender. It is the applicant’s case
that
ex facie
the
affidavit it is unclear whether the deponent is a male or female. The
deponent has merely been described as a manager and on
the
certificate by the commissioner of oaths the deponent is identified
as a “
he/she
.” The applicant argues that in the
light of the afore-mentioned defects the court would be unable to
give effect to the presumption
of regularity for the purposes of
assuming that the oath was sworn to and signed in the presence of the
commissioner of oaths.
There is no proper affidavit the
applicant is accordingly entitled to the order as prayed for in the
notice of motion.
[13]
In response to the applicant’s objection the deponent filed a
supplementary affidavit in which he avers
that it is evident from the
papers he is a male.
[2]
He
further states that the omission by the commissioner of oaths Ms
Pretorius to delete the word “she” in the certification
was a
bona
fide
error
her confirmatory affidavit in that regard will be submitted to court
at the hearing of the matter.
[3]
According to the respondent the error does not render the
respondent’s affidavit fatally defective the point
in
limine
should
be dismissed.
[14]
Regulation 4(1) provides that:
“
Below the
deponent's signature or mark the commissioner of oaths shall certify
that the deponent has acknowledged that he knows
and understands the
contents of the declaration and he shall state the manner, place and
date of taking the declaration
.”
[15]
The provisions of regulation 4(1) are directory not peremptory in
that failure to comply can be condoned
at the discretion of the court
where it is clear from other indications in and on the document that
an oath was in fact administered
by the commissioner of oaths.
[4]
[16]
In the exercise of my discretion whether to condone the respondent’s
affidavit I deem it appropriate
to have regard to the peremptory
requirements of rule 6(5) (d) (ii) of the Uniform Rules of the Court
which provides that any person
who opposes the grant of an order
sought in the notice of motion must deliver an answering affidavit in
response to the applicant’s
case.
[17]
An affidavit has been described as a written statement sworn to by
the deponent in the presence and before
a commissioner of oaths.
[5]
In this matter, the gender of the deponent is not even stated in the
affidavit. The deponent merely alleged that:
“
I am manager
(sic) of the business known as Oasis Bottle store trading from and/or
conducting business from Shop 13, Grootfontein,
Centre, Sasolburg,
the party whose eviction is sort (sic) in the application. As such
duly authorised to depose to this affidavit.
”
[18]
The affidavit falls short of the requirements contemplated in rule
6(5) (d) (ii) and the fact that the gender
of the deponent does not
appear anywhere in the affidavit supports the inference that the did
not appear in person before the commissioner
of oaths.
[19]
I’m not persuaded that there has been
substantial compliance with the requirements of Rule 4(1). I
hold
that the affidavit was not properly commissioned. The point
in
limine
is accordingly upheld. I don’t deem it necessary to
deal with the remaining points in
limine.
[20]
As a result of the above, I now have to consider the applicant’s
case with the exclusion of the respondent’s
opposition.
[21]
On the facts germane to this matter the terms of the lease agreement
are not in dispute. The lease agreement
[6]
entitles the applicant to cancel the lease on a six months’
written notice for the purpose of demolishing or re-constructing
the
premises.
[22]
It is evident from the facts averred by the applicant that the
renovations and re-constructions are of a
substantial nature. Except
for the shop of the anchor tenant (Checkers) all other shops have
been demolished. (see also annexures
“FA71” to “FA73”).
The applicant has complied with the terms of the contract
[7]
by providing the respondent with the required cancellation notice.
[23]
In the premises, I’m satisfied that the applicant has made out
the case its seeks in the notice of
motion. The lease was validly
cancelled.
Costs
[24]
There is no reason why the costs should not follow
the result. According to the applicant
the opposition is
malicious the respondent should therefore be ordered to pay the costs
on a punitive scale.
[25]
Except that the respondent’s papers were negligibly drafted I’m
not persuaded that the respondent’s
opposition was motivated by
malice.
[26]
In the premises, I hereby make the following order:
1.
The respondent and all those who occupy the
premises trough the
respondent are ordered to vacate the premises at shop 13,
Grootfontein Shopping Centre, Sasolburg on or before
28 February
2022.
2.
The respondent to pay the costs of this application.
NS
DANISO, J
APPEARANCES:
Counsel
on behalf of Applicants:
Adv.
GSJ van Rensburg
Instructed
by:
Symington
& De Kok Attorneys
BLOEMFONTEIN
Counsel
on behalf of Respondent:
Adv.
J. Ferreira
Instructed
by:
Bezuidenhouts
Inc.
BLOEMFONTEIN
[1]
Government
Notice R1258 dated 21 of July 1972 (as amended) promulgated in terms
of the Justices of the Peace and Commissioners
of Oaths Act 16 of
1963.
[2]
Paragraph
5 of the supplementary affidavit.
[3]
Paragraph
8 & 9 of the supplementary affidavit.
[4]
Nkondo
v
Minister
of Police and Another
1980 (2) SA 362
(O) at 365C.
[5]
Swissborough
Diamond Mines (Pty) Ltd v Government of the Republic of South Africa
1999
(2) SA 279
(T) at 336A-B.
[6]
Clause
17.1.2.
[7]
Clause
17.1.