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[2021] ZAGPPHC 95
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Star Energy Resources (Pty) Ltd v Manonga and Others (6674/2021) [2021] ZAGPPHC 95 (5 March 2021)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
(1)
REPORTABLE:
YES
/ NO
(2)
OF INTEREST TO OTHER
JUDGES:
YES
/NO
(3)
REVISED.
5
March 2021
Case
No: 6674/2021
In
the matter between:
STAR
ENERGY RESOURCES (PTY)
LTD
Applicant
and
SIBUSISO
ALFRED
MANONGA
1
st
Respondent
CHILDREN
OF THE LATE ELIAS ALFRED MANONGA
2
nd
Respondent
ELIAS
FILLING STATION (PTY)
LTD
3
rd
Respondent
MANOKA
FAMILY
TRUST
4
th
Respondent
JUDGMENT
MNGQIBISA-THUSI,
J
[1]
The applicant seeks the following relief:
1.1
“
That this application be heard as
one of urgency in terms of Rule 6(12) of the Uniform Rules of the
High Court, condoning non-compliance
with the rules relating to
service of process and papers as well as time frames set out therein;
1.2
That the first and second respondents and
any other person acting on the instruction of the First Respondent be
compelled to leave
the business site situated at Corner van Deventer
Street and Long Street Road, Mamogaleskraal, Brits, North West
Province;
1.3
That the Respondents and any other person
acting on the instruction of the Respondents be prohibited from
entering the business
site situated at Corner van Deventer Street and
Long Street Road, Mamogaleskraal, Brits, North West Province;
1.4
That the Respondents and any other person
acting on the instruction of the Respondents be prohibited from
disrupting the business
operations of the Applicant at the business
site situated at Corner van Deventer Street and Long Street Road,
Mamogaleskraal, Brits,
North West Province;
1.5
That the Respondents and any other person
acting on the instruction of the Respondents be prohibited from
threatening and/or intimidating
the employees of the Applicant and
any other person present at the business site situated at Corner van
Deventer Street and Long
Street Road, Mamogaleskraal, Brits, North
West Province physically, verbally or any other means of threats;
1.6
That the Respondents and any other person
acting on the instruction of the Respondents be prohibited from
entering the business
site of the Applicant situated at Corner van
Deventer Street and Long Street Road, Mamogaleskraal, Brits, North
West Province until
the Commercial dispute between the Applicant and
the third Respondent is finalised;
1.7
That the first and second Respondents be
compelled to return the equipment and any other items he (sic)
unlawfully removed on the
5
th
of February 2021 from the Applicant’s business site situated at
Corner van Deventer Street and Long Street Road, Mamogaleskraal,
Brits, North West Province;
1.8
That the Prayers as per prayers 2 to 7
above be granted on an interim basis, and that the Respondents be
called upon a date as determined
by the above Honourable Court to
show cause as to why the interim order should not be made final;
1.9
That the Representatives of the Applicant
and the Third Respondent convene a meeting within 5 days of granting
of Prayers 1.2 to
1.7 at the Offices of the Applicant to discuss the
way forward in the business of the Applicant at the business site
situated at
Corner van Deventer Street and Long Street Road,
Mamogaleskraal, Brits, North West Province;
1.10
That the respondents be ordered to pay
costs of this application on an attorney and client scale jointly and
severally the one paying
the others to be absolved;
1.11
Any further and/or alternative relief”.
[2]
It is apposite to indicate that at the
hearing of this matter, the applicant appears to have abandoned
prayer 1.9 above as no submission
or argument was made in this
regard.
[3]
In its founding affidavit the applicant
alleges the following. On 1 November 2011 in Pretoria, the
applicant and third respondent,
represented by the late Elias Alfred
Manonga, the father of the first respondent, entered into a written
lease agreement in terms
of which the applicant leased the fourth
respondent’s vacant site situated at Corner van Deventer Street
and Long Street
Road, Mamogaleskraal, Brits, North West Province
(“the business site”). The applicant developed the
business
site by building a petrol filling station. According
to the first respondent, at the time of the signing of the lease
agreement,
there was already petrol pumps on site. It is common
cause that the parties received a grant from BP Southern Africa
(“BP”)
in the amount of R8,000,000.00. However,
there is a dispute as to whether the applicant was entitled to share
in the BP grant.
Further, that from the BP grant, the applicant
was paid an amount of R1,8000,000.00. The applicant alleges
that he and the
late Dr Manoga had agreed that Dr Manoga will not
compensate him for the shortfall of his share of the BP grant but
that the applicant
would set-off the monthly rental against the
shortfall until his share was in line with each party’s
entitlement.
[4]
According to the applicant, the filling
station started to operate on 23 June 2019.
[5]
The applicant alleges that on 5 February
2021 he was called by one of his employees at the filling station who
informed him that
the first respondent and his brother, one Silas,
together with a group of unknown people came to the filling station
on the instructions
of the first respondent and intimidated and
threatened the employees and chased them away from the site.
Furthermore, the
applicant alleges that the first respondent demanded
the keys to the filling station thereby preventing any further
operations
at the filling station. Applicant further alleges
that his employees’ lives are also being threatened and the
applicant
is prevented from continuing with its business operations.
[6]
It was contended on behalf of the applicant
that it was unlawfully disposed of its possession of the business
site when the first
respondent and his cohorts invaded the site,
intimidating and threatening its employees and chasing them away from
the business
site.
[7]
In the answering affidavit, deposed to by
the first respondent, he does not deny that he was at the filling
station during the alleged
incident in order to take back the
operations at the business sites as the lease agreement had been
cancelled in September 2019,
a fact disputed by the applicant.
However, he denies that the applicant’s employees were either
threatened, intimidated
or chased away. He alleges that the
applicant’s employees willingly handed over the keys and
thereafter left the site.
Inasmuch as the first respondent does
not deny that equipment and other items were removed from the site,
he admits that the removed
items were later delivered at the
applicant’s place.
[8]
Further, the first respondent has, barring
disputing that the matter is urgent, raised several points in limine,
in particular,
that the applicant has not shown cause why an
interdict against the respondent should be granted and that the
application is defective
in that the children of the late Dr Manoga
and his wives; and the trustees of the fourth respondent were not
cited. With
regard to the prayer for an interdict, it was
submitted on behalf of the applicant that the applicant has not made
out a clear
case that he has a clear right in that the lease
agreement had been terminated and it had no right to the property.
Secondly, that there is no reasonable apprehension of irreparable
harm and that the balance of convenience favours the respondents.
[9]
In order to succeed in an application for
an interdict, the applicant has to prove that:
9.1
it has a prima facie right though open to some doubt;
9.2
there is a reasonable apprehension of harm if the interdict is not
granted; and
9.3
the balance of convenience favours the granting of the interdict.
[10]
It is not in dispute that the applicant and
the third and fourth respondents had concluded a lease agreement
which was to endure
for a period of 10 years. What is in
dispute is whether the lease agreement was cancelled which cannot be
resolved on the
papers. It is further common cause at the time
the first respondent and his cohorts came to the site and took the
keys to
the site from the employees of the applicant, the applicant
was for all intents and purposes in possession of the site. The
dispossession of the applicant of the site is further confirmed by
the first respondent’s admission that they took items
which
they claim to belong to the applicant, to the applicant’s
residence. In this regard the first respondent relies
on the
fact that the lease agreement was terminated and the applicant had no
right to be still on the property. As indicated
above in
paragraph 7 above, the termination of the lease is in dispute.
Even if the first respondent had correctly terminated
the lease
agreement, it was not open to him if he wanted to regain control of
the site to take the law into his hands. The
proper thing the
first respondent should have done is to obtain an eviction order.
[11]
Prima facie and in terms of the lease
agreement, the applicant does have a right to occupy the premises.
[12]
By preventing the applicant access to the
business site in order to continue with the business it was carrying,
the first respondent
unlawfully deprived the applicant of its
possession of the business site. As a result there is a
reasonable apprehension
of harm since the applicant’s business
has stopped operating due to the conduct of the first respondent.
Taking into
consideration the fact that at the time the alleged
unlawful conduct of the first respondent took place, the applicant
was peacefully
carrying on business on the site, I am of the view
that the balance of convenience favours the applicant, by being
prevented from
operation his business at the site,
continues
to suffer damage. being caused
.
[13]
I am satisfied that the applicant has
shown sufficient cause for an interim interdict to be granted.
Further, under prayer
1.11 above, I am satisfied that the applicant
has shown cause that his possession of the business site has been
unlawfully spoliated
by the first respondent and the people he as
with at the business site on 5 February 2021.
[14]
The fact that the first respondent
committed an act of spoliation against the applicant on 5 February
2021, the non-joinder of the
other respondents is not pertinent in
these proceedings. Further, as the status of the lease
agreement is in dispute, the
fact that the fourth respondent is the
owner of the property is not relevant to these proceedings.
[15]
In the result, an order is granted:
1.
in terms of prayers 2 – 7 of the
Notice of Motion dated 9 February 2021. November 2019.
2.
The interim order is returnable on 25 May
2021.
3.
Costs reserved.
NP
MNGQIBISA-THUSI
Judge
of the High Court
Date
of hearing: 23 February 2021
Date
of Judgement: 05 March 2021
Appearances
For
Applicant: Adv Madira (instructed by Gwebu Inc Attorneys)
For
Respondents: Adv Woodrow (instructed by DPH Attorneys)