Transnet SOC Limited v Schoemanpark Golf and Recreational Club (3855/2021) [2022] ZAFSHC 48 (10 March 2022)

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[2022] ZAFSHC 48
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Transnet SOC Limited v Schoemanpark Golf and Recreational Club (3855/2021) [2022] ZAFSHC 48 (10 March 2022)

IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case number:
3855/2021
In
the matter between:
TRANSNET SOC
LIMITIED
Applicant
SCHOEMANPARK
GOLF AND RECREATIONAL CLUB
Respondent
HEARD
ON:
18 NOVEMBER 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 14h00 on 10 March 2022.
[1]
On 7 September 2011 the parties concluded a four year written lease
agreement
expiring on 28 February 2015 in terms of which the
respondent leased the applicant’s business premises situated at Sub
83 Bloemfontein
number 654 as well as portion of remainder of erf
1964 in Bloemfontein for purposes of operating a golf club for
recreational purposes.
[2]
The lease agreement provided the applicant with an option to treat
the lease
as a month to month tenancy upon its expiry, terminable by
the applicant on a one month’s prior notice to the lessee.
[3]
In this opposed application, the applicant seeks the eviction of the
respondent
from the said premises on the grounds that the lease
agreement is defunct, it was cancelled on 30 October 2018 on account
of the
respondent’s breach of the agreement by failing to pay the
monthly rental in the amount of R9 406 851.80. Annexure
“T2”
is a copy of the applicant’s letter of demand for payment
dated 23 August 2018 and Annexure “T3” is the cancellation notice
which required the respondent to vacate the premises within 30 days
of receipt of the said notice.
[4]
It is the applicant’s case that notwithstanding the cancellation of
the
lease the respondent remains in occupation of the premises
therefore, the respondent and all those who occupy the premises
through
the respondent must be evicted from the premises.
[5]
The application is opposed on
the ground of
lis
pendens,
the
invalidity of the cancellation of the
lease and that the debt
is
disputed. In the respondent’s answering affidavit, a
counterapplication is incorporated in
terms of which an order is sought that the applicant must provide the
applicant with the record
of proceedings and the reasons for its
decision to terminate the lease agreement.
Lis alibi
pendens
[6]
It is the respondent’ case that there is pending litigation between
parties
involving exactly the same cause of action and the relief
sought by the applicant. During 2020 the applicant issued summons
against
the respondent under case number 2891/2020 for arrear rentals
and ejectment. The action was defended and it is currently pending.
[7]
Annexed on the said summons is a rule 41A(2)(a) notice in terms of
which
the applicant proposed the referral of the dispute to mediation
on the basis that it was capable of being settled.  Mediation
did not succeed due the applicant’s failure to honour the process.
[8]
The respondent further states that by agreement between the parties,
the
dispute was referred to arbitration. In the applicant’s
statement of claim filed in the arbitration proceedings the applicant
seeks
an award declaring that the respondent is in breach of the
lease agreement and that the lease is cancelled. An order rectifying
certain
provisions of the lease agreement and payment of arrear
rentals together with arbitration costs is also sought.
[9]
The Arbitration proceedings are also pending and it is in that
regard, that
the respondent submits that this application is
lis
pendens
it ought to be dismissed merely on that score.
[10]
On the other side, the applicant in its replying affidavit denies
that the application
is
lis pendens
merely on the basis that
in this application the applicant seeks the ejectment of the
respondent from the leased premises while in
the statement of claim
filed in the arbitration proceedings the applicant seeks payment of
the arrear rentals therefore, the relief
sought in these two matters
do not arise out of the same cause of action.
[11]
I disagree with the applicant’s contentions.
It
is not in dispute that the proceedings in this application involve
the same parties that are also embroiled in the arbitration
proceedings.
Despite having taken the
liberty of attaching a copy of the arbitration statement of claim to
the replying affidavit (Annexure “RA1”),
the applicant has
deliberately overlooked the fact that the cause of action relied upon
by the applicant in the said claim is the
respondent’s alleged
breach of the lease agreement which is a similar
causa
in these proceedings. Furthermore, in both
these proceedings the applicant seeks declaratory orders for the
cancellation of the lease
agreement. See prayer 1 of the notice of
motion and prayer 2 of the arbitration’s statement of claim.
Ejectment is an ancillary
relief pursuant to the cancellation of the
lease.
[12]
It is also important to note that the fact that there are other
pending proceedings
arising from a summons issued by the applicant
based on the same cause of action and seeking a similar relief, to
wit: the ejectment
of the respondent is not in dispute.   I’m
thus persuaded that
the
proceedings
that are pending in the action and also in the arbitration
proceedings do not only involve the parties involved in this
application but the proceedings are also based on the same cause of
action and in respect of the same subject matter.
[13]
It
is trite that the
underlying
principle of the doctrine of
lis
alibi pendens
is
that
where
a dispute involving the same parties is litigated elsewhere it must
be finalized in that forum and not replicated in another
forum as
that may result in different courts
pronouncing
on the same issue with the risk that they may reach differing
conclusions.
[1]
In
the circumstances, I decide the objection of
lis
pendens
in
favour of the respondent.
[14]
In my view this
ruling is dispositive of the
matter. The costs shall follow the result.
[15]
The following order is made:
1.
The application is dismissed with costs.
NS DANISO, J
APPEARANCES:
Counsel
on behalf of the Applicant:

Adv. X. Hilita
Instructed
by:
McIntyre van der Post Attorneys
BLOEMFONTEIN
Counsel
on behalf of the Respondent:
Adv. SJ Reinders
Instructed
by:
Van Wyk & Preller Inc.
BLOEMFONTEIN
[1]
C
aesarstone
Sdot-Yam Ltd v The World of Marble and Granite CC
2013
(6) SA 499 (SCA)
paras
18-30.