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[2021] ZALMPPHC 59
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Madzivhandila v Bottom Line Trading CC and Others (5989/2020) [2021] ZALMPPHC 59 (6 September 2021)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
LIMPOPO
DIVISION, POLOKWANE
CASE
NO: 5989/2020
REPORTABLE:
YES/NO
OF
INTEREST TO THE JUDGES: YES/NO
REVISED.
In
the matter between:
MUSANDIWA
SUSAN MADZIVHANDILA
APPLICANT
And
BOTTOM
LINE TRADING CC
FIRST
RESPONDENT
THEOPHILUS
RAMOKOKONO MPHOSI
SECOND
RESPONDENT
SASOL
(PTY) LTD
THIRD
RESPONDENT
JUDGEMENT
KGANYAGO
J
[1]
On 14
th
October 2018 Mukandangalwo Wilbert Madzivhandila
(deceased) entered into a lease agreement with Bottom Line CC (first
respondent)
which was represented by Theophilus Ramokokono Mphosi
(second respondent) in respect of a petrol filling and service
station (premises)
known as Tshibevha Motors. The deceased had an
agreement with Sasol (Pty) Ltd (third respondent) wherein the
premises used the
words Sasol filing station. In terms of the
agreement between the deceased and the third respondent, the Sasol
and Excel products
were supposed to be sold at the premises. The fuel
pumps, insignia and other colours at the premises were the
intellectual properties
of the third respondent. The petroleum
products to be sold at the premises were supposed to purchased
exclusively from the third
respondent.
[2]
It was a material term of the lease agreement that during its
currency, the first respondent shall
purchase exclusively from the
third respondent all products to be retailed on the premises. It was
also a condition of the lease
agreement that the first respondent and
the third respondent shall within thirty days of signature of the
lease agreement enter
into an operation agreement which will be
effective for the duration of the lease agreement. The thirty days
period provided for
a further thirty days period in the event the
condition was not fulfilled due to circumstances beyond the
deceased’s own
making. There was a further condition for the
lease agreement to come into operation, that the first respondent had
to pay the
deceased the agreed legal costs in the amount of R700
000.00 in respect of court case no 8276/2017 which amount had to be
paid
within five days into the deceased attorneys trust account. The
first respondent was also to be liable for the legal costs of
drafting
the lease agreement in the sum of R10 000.00.
[3]
The first respondent had duly paid the R700 000.00 and R10 000.00 and
took occupation of the premises
on 1
st
November 2018.
However, it is the deceased contention that the first respondent is
conflict with the lease agreement in that it
is purchasing its fuel
from the third respondent’s competitor and had also failed to
enter into an operation agreement with
the third respondent. That led
to the deceased on 3
rd
August 2020 through his attorneys
to notify the first respondent through its attorneys that he was
formally cancelling the lease
agreement dated 14
th
October
2018.
[4]
On 16
th
September 2020 the deceased brought an urgent
application seeking orders that it be declared that the lease
agreement between the
deceased and first respondent has lapsed on
14
th
December 2018; that the first and second respondents
be ordered to vacate the premises that is the subject matter of the
said lease
agreement; alternatively that it be declared that the
deceased has lawfully cancelled the lease agreement, and further that
the
deceased is authorised to institute action against the first
respondent for the recovery of damages flowing from such breach of
contract. On 1
st
October 2020 the deceased passed away and
was substituted by Musandiwa Susan Madzivhandila as the applicant in
these proceedings.
[5]
The first and second respondents (respondents) have opposed the
applicant’s urgent application
and have filed a provisional
opposing affidavit. The respondents in their provisional opposing
affidavit have disputed that the
applicant’s application was
urgent. The respondents submit that the lease agreement has not
lapsed, but that it never became
effective as it was impossible for
the first and third respondents enter into an operation agreement due
to the fact that the first
respondent did not have a retail licence.
The respondents further submitted that the third respondent refused
to do business directly
with the respondents as long as the first
respondent did not have a retail licence.
[6]
The respondents further submitted that the applicant has no right or
legal standing in law to
claim repossession of the premises on an
alleged failed or terminated contract until she had tendered
restitution of the amount
of R700 000.00 and R10 000.00 paid by the
respondents. It is the respondents contention that the premises were
handed over to the
respondents by the deceased willingly and with the
full knowledge that until the deceased surrendered his retail licence
to the
authorities so that a retail licence could be issued to the
first respondent, the business would have to operate under the
deceased’s
licences without the first respondent being able to
make its own contract with government. The respondents dispute that
the failure
by the first and third respondent to enter into an
operation agreement has anything to do with the conduct of the first
respondent,
but that it was a simple factual circumstance or event.
[7]
The respondents have submitted that the supply agreement between the
deceased and the third respondent
had expired on 1
st
February 2017, and that at the time the lease agreement was signed,
there was no supply agreement between the deceased and third
respondent. It is the respondents’ contention that the deceased
had refused to have the bills for deliveries made out to
him and
insisted that it should be made out to the first respondent, whilst
the third respondent was not prepared to have the bills
issued out to
the first respondent without it having a retail licence. The
respondents submit that in order to solve the impasse
and also to
save the deceased retail licence from lapsing due to the fact that
the premises was going to be no longer trading as
a going concern,
the first respondent arranged with Global Oil which is a Sasol
stockist and is owned by the brother of the second
respondent, to
make deliveries to the premises. It is the respondents’
contention that they were entitled to do that while
the lease
agreement was in a state of uncertainty or effectiveness in order to
make deliveries to the premises. The applicant’s
application
was struck off the roll due lack of urgency. The respondents did not
file a final answering affidavit, but have argued
the matter based on
their provisional answering affidavit.
[8]
The applicant is seeking to be restored possession of the premises by
this court declaring that
the lease agreement between the parties
have lapsed, and further that the respondents be evicted from the
premises. Both parties
are in agreement that the lease agreement
never came into operation due impossibility of the respondents
entering into an operation
agreement with the third respondent. It is
not in dispute that the parties have signed the lease agreement
regarding the premises
on 14
th
October 2018, and the
respondent took occupation of the premises on 1
st
November
2018. From 1
st
November 2018 the respondents have been
trading on the premises and paying rental of R70 000.00 per month. In
this court when the
matter was argued, counsel for the applicant
submitted that the respondents have discontinued paying the monthly
rentals with effect
from November 2020.
[9]
The applicant even though she did not specifically plead that her
case is based on
rei vindicatio
, the facts of this case and
the relief which the applicant is seeking, shows that its cause of
action is based on
rei vindicatio
. The respondents also seems
to understand the applicant’s claim to be based on
rei
vindicatio
as the respondents are seeking that the applicant
tender or offer
restitutio
of the amount R700 000.00 paid by
the respondents in settlement of the debt of the second respondent’s
brother against the
applicant and also the R10 000.00 paid by the
respondents in settlement of the legal fees for drafting the lease
agreement that
never took effect. What the respondents are raising is
a defence available to a
rei vindicatio
action.
[10]
It is trite that
rei vindicatio
is available to an owner for
the recovery of his/her movable/immovable thing from whomsoever is in
possession or has detention
of the thing irrespective of whether the
possession is bona fide or mala fide. All what the owner need to
prove for successful
rei vindicatio
action is to prove (i)
that he/she is the owner of the thing; (ii) the thing is still in
existence; and (iii) the respondent has
possession or detention of
the thing at the time the action is instituted. In the case at hand
the applicant is seeking the recovery
of immovable property. Normally
when the thing recovered is an immovable property, the appropriate
relief for the applicant will
be an application for an ejectment, and
that is one of the prayers that the applicant is seeking.
[11]
From the facts of this case, it is not in dispute that the applicant
is the owner of the premises,
the premises are still in existence and
the respondents are in possession of the premises. The respondents
defence to the applicant’s
claim are that they are entitled to
remain trading on the premises as there was consensual delivery of
the premises and that if
the applicant wants them to vacate the
premises, the applicant must tender payment of the R710 000.00 they
have paid to the applicant.
What this court must determine is whether
what the respondents are raising constitute a valid defence to ward
of the
rei vindicatio
claim by the applicant.
[12]
In
Rhoode
v De Kock
[1]
Cloete JA said:
“
[22] …Patel’s
case is similar to the present matter on facts, but it contains one
important distinguishing feature:
there, although the plaintiff
relied on rei vindicatio for ejectment of the defendant from the
property that had been sold in terms
of a contract that was void, he
specifically tendered payment of the amount paid to him on account of
the purchase price. Rabie
JA said at 670A-D:
‘
Such enrichment
occurs, it has been said (see, eg, Mattheus v Stratford and Others
1946 TPD 498
at p 504) when the seller retains both the land the
price. There can, of course, be no quarrel with this view, but where,
as in
the present case (where, it may be noted, there is – save
for the reference to improvements made by the defendant, a matter
not
in issue in these proceedings – no allegation that the
plaintiff will be enriched at the expense of the defendant if
he is
granted the relief he seeks), the seller claims possession of
his property against repayment of what he has received
from the
purchaser, there is no question of his being enriched at the expense
of the purchaser if possession of the property is
restored to him:
the position in such a case is, simply, that the parties are restored
to their original, ie, pre-agreement, position.
I can see no inequity
in such a result: the agreement which the parties purported to
conclude is, after all, declared by statute
to be of no force or
effect.’
[23] The court in Patel
was therefore not concerned with the question whether the failure to
tender the return of what had been
received under a void contract was
fatal to a rei vindicatio brought by the owner. In the present
matter, the mere fact that the
appellant would be entitled to a
repayment of the R400 000.00 (absent a defence) in order to prevent
the respondents being unjustly
enriched, does not mean that he is
entitled to resist ejectment until the amount is repaid or tendered:
he could do so only if
the repayment has to take place at the same
time that the appellant is ejected…”
[13]
As I have already pointed out above, the parties are in agreement
that the lease agreement never took
effect. There is no merit in the
respondents submission that there was consensual delivery of the
premises and that they are entitled
to remain on the premises. The
respondents were paying R70 000.00 monthly rentals which is provided
for in the failed lease agreement.
The respondents does not dispute
signing the failed lease agreement. In terms of the failed lease
agreement the respondents had
to take occupation of the premises on
1
st
November 2018, and that is the date on which they took
occupation. Occupation of the premises was therefore in terms of the
failed
lease agreement, and there was no such a thing as consensual
delivery.
[14]
The respondents are not claiming expenses for the improvement of the
premises. The R700 000.00 paid by the
respondents was for a debt of
the brother of the second respondent which has got nothing to do with
the improvement or enhancement
of the premises. The R10 000.00 for
legal costs was paid to the legal practitioner who drafted the failed
lease and did no benefit
the applicant or improve the premises. The
R700 000.00 payment was clearing a brother’s debt which the
respondents’
knowingly and willingly agreed to that well aware
that it has got nothing to do with them. The applicant saw an
opportunity to
secure payment of the amount due to her by the second
respondent’s brother and he used that opportunity. In my view,
the
payment by the respondents’ which did not bring any
improvement to the premises but was in settlement of a private debt,
is not sufficient to resist the ejectment.
[15]
The condition for the lease agreement to come into operation was
never fulfilled, and both parties are in
agreement that the lease
agreement never took effect. The lease agreement could not took
effect as it was impossible for the respondents
to fulfil the
condition of entering into an operation agreement with the third
respondent. The agreed time period within which
to comply with the
condition had lapsed. There is no possibility that the respondents
will be able to comply with that condition
since the first respondent
is unable to obtain a retail licence. Legally the lease agreement had
lapsed on 14
th
December 2018 despite the continued
relationship which the parties had. The relationship that existed
after the lapsing of the
lease agreement was formally terminated by
the applicant on 3
rd
August 2020. As there is no longer
any lease agreement to govern the relationship between the applicant
and the respondents, it
will therefore be just and equitable to make
an order ejecting the first and second respondents from the premises.
[16]
In the result I make the following order:
16.1 The lease agreement
between the applicant and the first respondent had lapsed on 14
th
December 2018.
16.2 The first and second
respondents are ordered to vacate the premises that is the subject
matter of the lease agreement, i.e.
Thsibevha Motors, BA 35,
Thohoyandou, Limpopo Province within 30 days from date of this order.
16.3 The first and
second respondents jointly and severally to pay the applicants costs
on party and party scale.
KGANYAGO
J
JUDGE
OF THE HIGH COURT OF SOUTH
AFRICA,
LIMPOPO DIVISION,
POLOKWANE
APPEARANCES:
Counsel
for the applicant
Adv
Q Pelser SC
Instructed
by
Tambani
Matumba INC
Counsel
for first and second respondents
BG
Savvas
Instructed
by
Legodi
Attorneys
Date
heard
4
th
August 2021
Delivered
electronically on
6
th
September 2021
[1]
2013 (3) SA 123
(SCA) at pars 22 and 23