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[2021] ZALMPPHC 50
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Accelerated Property Fund Limited v Coetzee and Another (1694/2020) [2021] ZALMPPHC 50 (5 July 2021)
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Certain
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
LIMPOPO
DIVISION, POLOKWANE
CASE
NO:
1694/2020
REPORTABLE:
YES/NO
OF
INTEREST TO THE JUDGES: YES/NO
REVISED.
DATE:
05 JULY 2021
DJP
SEMENYA M.V
In
the matter between:
ACCELARATE
PROPERTY FUND LIMITED
:
APPLICANT
And
GERHARDUS
COETZEE t/a IMPALA VLEISMARK
:
1
ST
RESPONDENT
IMPALA
VLEISMARK (PTY) LIMITED
:
2
ND
RESPONDENT
JUDGMENT
SEMENYA
DJP:
[1]
The applicant in this application is the owner of the property known
as G8-2 Bosveld Shopping Centre situated on [……..],
Bosveld, Bela Bela, Limpopo (the property). The applicant is seeking
the order in terms of which the 1
st
and/or 2
nd
respondents and anyone who is occupying the property through them are
ejected therefrom.
[2]
The applicant alleges that on the
24 June 2015
, the applicant
and the 1
st
respondent entered into a lease agreement in
terms of which the applicant leased the property to the 1
st
respondent. The applicant was duly represented by Grainger whilst the
1
st
respondent acted in person. The lease agreement was
for a period of five years,
i.e
from the
1 August
2015
and ending on the
31 July 2020
. The terms of the agreement are
embodied in a written contract annexed to the founding affidavit as
Annexure “LL2”.
It is an undisputed fact that the 1
st
respondent signed on page 19 of Annexure “LL2” and
initialed each page thereof on the 19 June 2015. The applicant
alleges that the agreement has been cancelled on account of breach on
the part of the 1
st
respondent.
[3]
It is common cause that there is action proceedings and joinder of
2
nd
respondent application in case No. 6801/2017 which is
pending between the applicant and the 1
st
respondent. In
the action proceedings, the applicant is suing the 1
st
respondent for arrear rental, ejectment and other ancillary orders.
The 1
st
respondent pleaded that it is the 2
nd
respondent and not him who is occupying the property. This defence
led to the launching of an interlocutory application in which
the
applicant seeks to join the 2
nd
respondent as a third
party, alternatively as a co-defendant. This application is opposed
on the basis that no lease agreement
was ever concluded between the
applicant and the 2
nd
respondent.
[4]
The respondents aver that apart from the litigation in the action
proceedings and the interlocutory application, the applicant
has
previously launched an urgent application against the 1
st
respondent for the attachment of the immovable property upon the
leased property which will be sufficient to satisfy arrear rental.
The parties agreed to postpone the application to the
6
March 2018
during the hearing of the
urgent application on the
2 March
2018
. The
reason thereof was to enable the parties to file the answering and,
if necessary, replying affidavits. The applicant was in
the meantime
ordered not to lock the property so as to prevent the respondent from
trading. The 1
st
respondent on the other hand was ordered not to remove the assets
from the property pending the hearing of the application. On
the
6
March 2018
the court ordered the
sheriff to attach the immovable assets on the property. The 1
st
respondent was in the interim interdicted from removing or causing
the removal of the movables pending finalization of the pending
action proceedings. The order in terms of which the applicant was
prohibited from locking the property was not included in the
order
dated the
6 March 2018
.
It is the respondents’ contention that a proper interpretation
of the order dated the
6
March 2018
is that it has not done away with that order and that they are
therefore permitted to trade from the property without the
applicant’s
pending finalization of the action proceedings.
[5]
The applicant does not deny that its representative has expressed the
desire to enter into the agreement with a registered company
instead
of the 1
st
respondent in person. It was for this reason
that the applicant and the 1
st
respondent agreed that the
1
st
respondent will register a company and the parties
will pursuant to that draw an addendum to the original agreement. It
is common
cause that although the 1
st
respondent had
indeed registered a company as agreed, the addendum was never drawn
and signed.
[6]
The applicant alleges that it had to lock the property on the
28
January 2020
in order to establish who of the two respondents is
in actual occupation of the property. The 1
st
respondents
regarded this conduct as harassment on the basis that he had already
deposed to a number of affidavits in which he
had stated that it is
the 2
nd
respondent who was in occupation. However, on the
same date, the 1
st
respondent’s attorney addressed a
letter to the applicant complaining about the action taken by the
applicant. The said letter
is annexed to the founding affidavit as
Annexure “LL9”. The heading of the latter reads as
follows:
“
ACCELERATE
PROPERTY FUND LIMITED // GERHARDUS COETZEE t/a IMPALA VLEISMARK".
It is stated in the
letter that the client, being the 1
st
respondent, is aware
that the shop has been locked with a chain and lock and that a
security guard has been placed at the entrance
to prevent the 1
st
respondent from entering the property. It is further stated that the
locking of the gate constitutes spoliation and that the 1
st
respondent will approach the court should possession not be restored
by
9:00
on the date of the letter.
[7]
The respondents raised two points
in limine
in opposition to
the present application
.
The first point is that of
lis
alibi pendens
. The respondents allege that the relief claimed in
the action proceedings is similar to that claimed in this
application. It is
further alleged that the parties in this
application are the same as in the action proceedings and the
interlocutory (joinder)
application. The cause of action as well as
the subject matter of the litigation are also the same. It is the
respondents’
submission that this application should be stayed
until the final determination is made with regard to the issues
raised in the
action proceedings. The second point is that of
misjoinder of the 1
st
respondent in that the applicant is
fully aware that the premises are occupied by the 2
nd
respondent.
[8]
The applicant contended that the point of law of misjoinder is
misplaced in that, firstly, it is the 1
st
respondent who has signed the lease agreement. Secondly, that it is
the 1
st
respondent who instructed his attorneys to write a letter in which
the restoration of the property to the 1
st
respondent was demanded. The respondents contended that Annexure
“LL2” does not constitute a lease agreement. It is
their
contention that it is a proposed lease agreement. The respondents
aver that it appears clearly from paragraph 1, 2 and 13
that the
lease was to be concluded between the applicant and a legal person
with the 1
st
respondent binding himself jointly and severally as surety and
co-principal debtor and in
solidum
with the debtor. The respondents aver that a separate lease agreement
was supposed to be entered into with the legal person. As
already
stated elsewhere above, such addendum was for some reasons never
drawn.
[9]
The applicant stated in reply that it is evident from the
respondents’ answering affidavit that they do not have a
defence
to the merit of the applicant’s claim. I am in
agreement with the applicant’s contention that the respondents’
reliance on the court order dated the 2
nd
and
6
th
March 2018
to claim the right to occupy the property is
misplaced. The issues in that case concerned the attachment of the
respondent’s
immovable properties that are in the applicant’s
property. The order of the
2
March 2018
was granted pending the filing of the answering and replying
affidavit affidavits. The matter was eventually argued on the 6
March 2018
and the court did not include the order that
interdicted the applicant from locking the doors to the property in
the order made
on the 6
th
. The 1
st
respondent
denies that he has entered into a lease agreement with the applicant.
It follows from this denial that if that was the
case, he, on his own
version could not claim the right to occupy the property. The 2
nd
respondent cannot, on the respondents’ version, claim the right
to occupy the property in that an addendum was never drawn.
[10]
The 1
st
respondent contended that the property is occupied by the 2
nd
respondent and that joining him to the proceedings therefore
constitute misjoinder. It was held in YB v SB
[1]
that different principles govern a non-joinder dispute where the
court must determine the right of a defendant to demand the joinder
of another party or the court’s duty to order such joinder as
opposed to a misjoinder dispute, involving a plaintiff’s
right
to join parties as co-defendants in an action. The applicant
contended that this point
in
limine
must be dismissed on the following grounds. Firstly, that it has
already been shown that Annexure “LL2” was signed
by the
1
st
respondent in his personal capacity. Secondly, it is the 1
st
respondent who instructed an attorney to write a letter to complain
about the locking of the property and to threaten legal action
if
possession of the property is not restored to him. Thirdly, the
application for attachment of properties was granted against
the 1
st
respondent only. The name Impala Vleismark appear in both Annexures
“LL2” and “LL9”. It is not denied that
the
1
st
respondent is the ‘client’ referred in Annexure “LL2”.
The 1
st
respondent contended that he is trading as Impala Vleismark (Pty) Ltd
and not Impala Vleismark. It is however common cause that
Impala
Vleismark was not yet registered as a company on the date on which
Annexure “LL2” was signed. His denial is
without merit.
The 1
st
respondent is the sole director of a company which according to his
version is in occupation of the property. He therefore has
substantial interest in the matter. This point
in
limine
of misjoinder is dismissed.
[11]
With regard to the point
in limine of lis alibi pendens
, the
applicant argued that there is no pending action based on
rei
vindication
and cancellation of the lease agreement between the
parties. The applicant submitted that this court should exercise its
discretion
to hear the application despite the alleged pending action
on the basis of the consideration of fairness and convenience. It was
submitted that the court should prevent the respondents, who do not
have a
bona fide
defence to the applicant’s claim, from
continuing to occupy the premises and to conduct business therefrom
without paying
rent. The applicant argues that there can be no
lis
alibi pendens
with regard to the 2
nd
respondent as
there is no action pending between it and the applicant. I shall
return to this issue later on in this judgment.
[12]
The 1
st
respondent alleges that his lawyers have written
letters to the applicant and has further deposed to affidavits in
which the applicant
was informed that it is the 2
nd
respondent who is occupying the property. He regards this application
as vexatious for that reason. The 1
st
respondent fails to
state the reasons and circumstances under which the 2
nd
respondent came to occupy the applicant’s property. He further
does not state the reasons why the applicant is not entitled
to eject
him and the 2
nd
respondent from the property in the face
of his denial of the existence of a lease agreement. The 1
st
respondent seems to be claiming that he and the 2
nd
respondent are in occupation of the on the basis of the court order
date the
6 March 2018
. I am of the view that this defence is
unfounded. This view has already been rejected.
[13]
The 1
st
respondent relies on the email dated the
25
June 2015
and the
29 June 2015
in support of the argument
that it has always been the intention of the parties that the lease
agreement be entered inti with a
legal person and not with him.
However, it is stated in the email of the 25
th
that a
lease agreement will be entered into with him in his personal
capacity with a company to be formed. I am of the view that
the
absence of the addendum does not in any way affect the terms of the
existing agreement.
[14]
Returning to the defence of
lis
alibi pendens
,
in
Ceasarstone
Sdot-Yam Ltd v The World of Marble and Granite 2000 (CC) and
Others
[2]
(Ceasarstone) it was held that:
“
As
its name indicate, a plea of lis alibi pendens is based on the
proposition that the disputes (lis) between the parties is being
litigated elsewhere and therefore it is inappropriate for it to be
litigated in the court in which the plea is raised. The policy
underpinning it is that there should be a limit to the extent to
which the same issue is litigated between the parties and that
it is
desirable that there be finality in litigation. The courts are also
concerned to avoid a situation where different courts
pronounce on
the same issue with the risk that they may reach different
conclusions. It is the plea that has been recognized for
many years.”
The applicant seeks
ejectment of the 1
st
respondent in the main action. It is
contended that the action at this stage has been instituted against
the 1
st
respondent as the 2
nd
respondent has
not yet been joined to the action proceedings. The applicant argued
on this basis that the parties in the action
proceedings are not the
same as in this application. This argument is fallacious in that the
applicant has launched an interlocutory
application to join the 2
nd
respondent and that application is still pending.
[15]
On the cause of action, the applicant contended that there can be no
danger that the issues to be decided in this application
will overlap
with those in the pending action. It was argued that the validity or
otherwise of the lease agreement and payment
or non- payment of rent
is not relevant where
rei vindicatio
is claimed. On paragraph
[12] of Ceasarstone it was stated that:
“
[12]
… In addition, the cause of action, whilst revolving around
the same issue, is necessarily different – in the
one case
based on a lawful cancellation of the agency action, whilst revolving
in the other on a repudiation of that agreement
– as the relief
sought. If the statement by Zulman AJ is definitive of the scope of
the plea of it is fatal to Ceasarstone’s
case.
”
[16]
The above paragraph supports the applicant’s contention. The
cause of action in this case, as in Ceasarstone, revolves
around the
same issue. However, the applicant is seeking the ejectment of the
respondents on the basis of its ownership of the
property and not on
any agreement that the parties may have entered into. The applicant
is also not seeking payment of arrear rental.
The respondents on the
other hand are not raising any valid entitlement to occupy the
property. I agree that the cause of action
is not the same as the
issue in this application.
[17]
The absence of a lawful entitlement to occupy the property brings
this court to another argument raised by the applicant, being
the
discretion of the court to decide to proceed with this application
while the action is still pending. The applicant relies
on the
decision in
Geldenhuys
v Kotze
[3]
as referred to in
Nordbak
(Pty) Ltd- v Wearcon and Others
[4]
(Norbak). The court in Norbak found that both convenience and equity
required that the application be dealt with and that the defence
of
lis
pendens alibi
not be acceded to. The court relied on the following in the exercise
of its discretion:
1.
Firstly, as to convenience I am
in as good a position to decide this matter at this stage as
the trial court will be in the
action. I have reviewed numerous
amounts of paper, heard lengthy argument. The facts set out in the
founding affidavit are not
contested. It is therefore convenient for
the court to dispose of this matter at this stage.
2.
Secondly, as to equity the equity
scream out in favour of the applicant in this case. The applicant is
the victim of a delict, perhaps
a fraud. So far the applicant has
recovered no compensation by way of damages. The applicant has had to
chase after its rights
in more than one proceeding in more than one
court. There is no reason why the applicant’s remedy should not
be withheld
from it at this stage.
3.
Thirdly, the facts of this case
are very unusual. At this stage there is no dispute that the
applicant is entitled to the relief
that it seeks in prayer 1.1. I
specifically asked counsel for the respondent and he conceded that he
did not contest the applicant’s
right to relief under prayer
1.1 and that it accorded exactly with the intent of the with
prejudice offer made in the prior proceedings.
4.
Fourthly, there is accordingly in
the present situation no dispute about the applicant’s right to
the main relief it seeks
in this application. A postponement will
only keep the applicant out of its rights that much longer.
5.
The respondents have not offered
up any defence or even a summary of a defence, either in this
application or in the main action.
In fact, the with prejudice tender
amounts to a concession of the applicant’s claim on this
particular issue in the main
action.
6.
The applicant was not in a
position to move for a final interdict on undisputed facts until
after it had initiated the action. This
is because it did not have at
its disposal the evidence and the with prejudice offer that the
applicant now relies upon. These
new developments entitle the
applicant to come to court.
7.
The determination of this issue
at this stage will relieve the parties as well as the court of the
obligation to hear extensive
evidence traversing the same subject
matter as was traversed in this application. I note again that
notwithstanding that the respondents
conceded with prejudice the
applicant was entitled to interdictory relief, they did not amend
their plea to make the necessary
admissions and put the issue beyond
doubt for the purposes of trial.
8.
I am convinced given the history
of mendacity by the respondents as enumerated at length in the
founding affidavit it is essential
that the applicant obtain final
relief to protect its rights as soon as possible.
[18]
The respondents in this matter have not offered up any defence or
even a summary of a defence on the merits of the application.
The
applicant is entitled to an ejectment order in the absence of a
lawful right to the respondents’ occupation of the property.
I
will therefore exercise my discretion and grant the relief sought in
this application.
[19]
In the result I make the following order:
i.
The 1
st
and 2
nd
respondents and anyone
occupying property known as G8- 2 Bosveld Shopping Centre, situated
at Erf 1[…], Bosveld, Bela Bela,
Limpopo (the property),
through the 1
st
and 2
nd
respondents are ejected
from the property;
ii. The 1
st
and 2
nd
respondents are to pay the costs of this
application jointly and severally, the one paying the other to be
absolved.
M
V SEMENYA
JUDGE
OF THE HIGH COURT
LIMPOPO
DIVISION
APPEARANCES
FOR
THE APPLICANT
:
MR.J GROBBLER
INSTRUCTED
BY
:
REAAN SWANEPOEL ATTORNEYS
FOR
THE RESPONDANTS
:
ADV. J STROEBEL
INSTRUCTED
BY
:
LOMBARD & PARTNERS
DATE
OF HEARING
:
26 MAY 2021
DATE
OF JUDGEMENT
:
05 JULY 2021
[1]
2016
(1) SA 47
(WCC) at 53H
[2]
2013
(6) SA 499
SCA at par [2] and [3]
[3]
1964
(2) SA 167 (O)
[4]
2009
(6) SA 106
(W)