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[2021] ZAGPPHC 223
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Helios Petroleum (Pty) Ltd v BP Southern Africa (Pty) Ltd and Another (9074/2020) [2021] ZAGPPHC 223 (3 May 2021)
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH
AFRICA
GAUTENG DIVISION, PRETORIA
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER JUDGES: NO
(3)
REVISED: NO
03
MAY 2021
CASE NO: 9074/2020
In the matter between:
HELIOS
PETROLEUM (PTY) LTD
APPLICANT
and
BP
SOUTHERN AFRICA (PTY) LTD
FIRST RESPONDENT
PETROLAND
GROUP (PTY)
LTD
SECOND RESPONDENT
JUDGMENT
MOGALE,
AJ
INTRODUCTION
[1]
This is an interlocutory application by the applicant (Helios the
first
respondent in the main application) for an order that the
respondents’ (BP the applicant in the main application),
founding
affidavit in the main application be set aside as an
irregular step in terms of Rule 30
[2]
The respondent’s founding affidavit in the main application
reads
as follow:
a. “The first
respondent and any other persons occupying through it, are hereby
ordered to, within five (5) calendar
days of the granting of this
order, vacate the property known as
Portion 23 of Erf 139, East
Lynne Township, Gauteng Province.
b. In the event of the
first respondent failing and or neglecting to comply with this
evection order, then, in that event,
the Sheriff of the High Court
and where necessary with the assistance of the South African Police
Services, is hereby authorized
to take the necessary steps to enforce
this eviction order”
[3]
The applicant is the lessee of the immovable property that is a
subject
matter in the main application and the respondent is the
lessor and also the owner of the said property.
[4]
In the main application, it is argued that BP has been renting the
property
in terms of a written lease agreement to Helios since 07
January 1993, the agreement is not appended to the founding
affidavit.
BP and Helios entered into a written sublease agreement in
terms of which Helios would lease the property to BP for five years,
from 01 May 2008 until 30 April 2013. At the end of the five-year
contract, BP and Helios continued to perform their obligations
in
terms of the written sublease agreement, resulting in a common-law
agreement with the same terms and conditions as those contained
in
the sublease agreement which commenced on 01 May 2013. There was a
tripartite agreement that was never concluded between the
parties. On
07 February 2020, the respondent instituted an application for the
eviction of the applicant from commercial premises
owned by the
respondent
[5]
The applicant raises non-compliance of Rule 30 by the respondent in
that
the BP failed to attach a complete true copy of the lease
agreement contract entered into by BP and Helios on their founding
affidavit.
That BP failed to identify the portions of the email
correspondence it relies on for the allegation.
[6]
The applicant relied on Rule 6(5) (a) which provides that, every
application
other than one brought ex parte must be brought on notice
of motion as near as may be in accordance with Form 2(a) of the First
Schedule and true copies of the notice and all annexures thereto must
be served upon every party to whom notice thereof is to be
given
[7]
The respondent opposes rule 30 application on the basis that, the
first
respondent’s eviction application is premised on the fact
that there is no lease agreement concluded between the parties and
any lease agreement that may have existed has been extinguished or
terminated by the effluxion of time.
[8]
The respondent conceded that indeed, the lease agreement which is
annexed
to the founding affidavit has missing pages and same could
not be found after diligent search and it is presumed lost. The
respondent
further argued that, since the lease agreement has been
terminated by the effluxion of time, the respondent does not rely on
the
lease agreement contract, the contract was made mentioned only to
confirm ownership. The respondents in their application will rely
on
the Repudiation by Helios.
[9]
The respondent indicated that the trail of emails that are sought to
be
identified form part of the correspondence to which the applicant
was copied and the respondent proceeded to go per email explaining
the relevance of each email sent to the applicant.
NON-COMPLIANCE
WITH RULE 30A
[10]
The applicant raised the fact that Helios is prejudiced by the
omission of missing pages
in the founding affidavit as it is unable
to respond meaningfully and fully to the allegations without a true
and complete copy
of the lease agreement. That as a result, the
respondent followed an irregular step in terms of Rule 30
[11]
The respondents responded that it has sufficiently pleaded its case
under the circumstances,
that they could not attach missing pages of
the lease agreement in the founding affidavit and further confirmed
that despite a
diligent search for the missing pages, same could not
be found and is to be presumed lost. The respondent contended that
the lease
agreement is an issue that never formed part of the notice
dated 07 February 2020, the lease of the agreement was only attached
to confirm ownership.
[12]
Rule 30 A (1) provides that where a party fails to comply with these
Rules or a request
made or notice given pursuant thereto, or with an
order, any other party may notify the defaulting party that he or she
intends,
after the lapse of ten days from the date of delivery of
such notification, to apply for an order that
(a) such
rule, notice, request order, or direction be complied with, or
(b) the
claim or defence be struck –off
(2) where a party
fails to comply within the period of ten days contemplated in subrule
(1), the application may on
notice be made to the court and the court
may make such order thereon as it deems fit
[13]
Rule 30(1) provides that a party to a cause in which an irregular
step has been taken by
any other party may apply to the court to set
aside.
(2) An application in terms of
subrule (1) shall be on notice to all parties specifying particulars
of the irregular or impropriety
alleged, and may be made only if-
(a)
the applicant has not himself taken a further step in the knowledge
of the irregularity.
(b)
the applicant has within ten days of becoming aware of the step, by
written notice afforded his opponent
an opportunity of removing the
cause of compliant with ten days
[14]
In
ABSA
Bank Ltd v The Farm Klippan
[1]
the court made it clear that if a provision in the rules provides a
specific remedy for non-compliance with the rule, a party needs
only
follow the specific rule and need not give notice in terms of or
follow, Rule 30A
[15]
Harms, Civil Procedure in the Supreme Court: LexisNexis
provides that: "The rule applies only if compliance with the
rules is sought and then only if the relevant rule does not have
its
inbuilt procedure such as rule 21(4), which provides for an
enforcement procedure in the event of a failure to provide
particulars
for a trial.
ISSUES
TO BE DETERMINED
[14]
For the applicant to succeed with the relief sought, the court has to
determine if the
respondent has followed irregular steps and as a
result of that irregularity, whether the applicant is prejudice by
the failure
of the respondent not attaching the missing pages of the
lease of agreement in their founding affidavit.
[15]
This court has to
determine whether the respondent relied on or made reference to the
lease of the agreement to a relief sought,
being the founding
affidavit.
A
reference to a document that is not detailed, complete, or
descriptive will suffice to trigger the provisions of subrule 35(12).
The question which arises is whether
Rule
35(12)
can
be invoked when not only has no detailed or descriptive reference
been made to the document/s, but neither has there been any
indirect
reference to such document/s and it is only through a process of
reasoning and inference drawing that it can be deduced
that the
document does or may exist.
Is there an Irregular
step
[16]
A court will grant a rule 30(1) application if it is satisfied that
there is an irregular
step, that the party bringing such application
has not taken any further step in the cause of the matter with
knowledge of such
irregular step, has given its opponent notice to
remove such steps within 10 days of the former becoming aware of the
step, and
importantly if the applicant will suffer.
[17]
In
Afrisun
Mpumalanga (Pty) Ltd v Kunene No and Others
[2]
Southwood
J at 611 C-F held that
“
With
regard to the Rule 30 application, Mr. Van der Linde pointed out that
such an application will be granted only be granted where
the
irregular step would cause prejudice to the applicant seeking to set
it aside. The prejudice that is referred to is the prejudice
that
will be experienced in the further conduct of the case if the
irregular step is not set aside. There is no prejudice if the
conduct
of the case is not affected by the irregular step and the irregular
step can simply be ignored"
Lease
Agreement
[18]
Regarding the application before this court, after the applicants
were served with the
eviction order, they requested to be furnished
with the complete lease agreement entered into by Helios and BP.
There are twenty
missing pages out of 66 pages on the lease
agreement. The respondent conceded that the missing pages are lost.
BP was requested
to make available a blank and unsigned copy of the
standardized lease agreement that contains missing pages but BP never
complied.
[19]
The respondent argued that for the relief sought, BP relies on the
repudiation by Helios,
not the lease agreement. The respondent made
mention that there was a sub-lease agreement that BP let the property
to Helios, the
agreement commenced on 01 May 2008, subsisted for five
years, and terminated on 30 April 2013. From 01 May 2013 until 01
October
2018 a common law agreement operated on the same terms and
conditions as those contained in the sub-lease agreement mutatis
mutandis.
In August 2019, BP, Helios, and Petroland (second
respondent) concluded a partially written and verbal agreement (the
tripartite
agreement) which was later repudiated and terminated.
Respondent further mentions the contents of the email dated 20 August
2019
confirming the repudiation by Helios, which reads as follows:
“
You telephoned me today and advised me that whereas
Helios were prepared to sign the agreement which has been prepared in
this matter,
Helios can no longer do so at this stage because you
were called to BP last week and you were advised that BP had decided
to renew
the remaining 3 BP branded service stations being operated
by Helios. The decision by BP came as a shock to you as you expected
that your co-operation with BP in the Stormvoel matter would be a
factor to be favorably considered by BP when deciding on the
renewal
or not of these other three service stations and that in the
circumstances, you will need to take legal advice”
The
responded also mentioned the contents of a letter, a correspondence
from Ross & Jacobsz Attorneys dated 14 October 2019
on behalf of
the applicant, where it is quoted that “
Our client denies
that an agreement or agreements were reached, our client will thus
not be signing any documents and or agreement
as demanded in your
aforesaid letter
”
[20]
For the reasons set out above, it is my view that Helios will not
suffer any prejudice
by the omission of missing pages or without a
complete copy of the lease agreement in the main trial, on the basis
that, the respondent
does not rely on the lease agreement on the
relief sought. The respondent relies on the repudiation by Helios,
the lease agreement
was only attached to give context. Therefore, I
find that there is no irregularity committed by the respondent
further that the
applicant can respond meaningfully and fully to the
allegations the respondent relied on for the relief sought.
Email trails
[21]
Advocate DB du Preez (SC) for the applicant argued that BP
submitted a trail of emails without indicating pages they rely on and
the relevancy. That the principle in the motion proceedings is that
the applicant must identify the documents it relies upon, and
to
enunciate the case which it seeks to make out on strength thereof.
The respondent argued that, a trail of emails that are sought
to be
identified form part of correspondence to which the applicant was
copied. The respondent complied with the applicant's request
by
giving an explanation per email, explaining the relevancy of each
email in full detail.
[22]
It is in my view, based on the reasons above that, Helios will
not suffer any prejudice as the respondent indicated the relevancy
of
each email. I also find that the applicant can respond meaningfully
and fully to the allegations the respondent relied on for
the relief
sought.
Void Attestation on
the founding affidavit
[23]
This issue has no bearing on the case but the applicant argued that
even though it was
corrected by BP, they failed to rectify that point
until Helios raised it, as a result, BP must pay the costs for that.
[24]
I am not persuaded that the applicant has made
out a case for setting aside the respondent founding affidavit. The
issues raised
relating to the trails of emails and void attestation
this court cannot find to be irregularities, the issues are settled.
For
the reasons set out above, in my view, the effective
administration of Justice dictates against the granting of Rule 30
Application
[25]
One
more aspect remains, the issue of costs. In so far as costs are
concerned, it should follow the result and be awarded in favor
of the
respondents. Advocate CB Kubeka-Manyelo urged this court to
show its displeasure with the application, given the specific
circumstances, by dismissing the application with punitive costs. The
principles for a punitive costs order have been comprehensively
dealt
with in
Waar
v Louw
[3]
,
Webb and Others v Botha
[4]
and Ketwa v Agricultural Bank of Transkei
[5]
[26]
Consequently, the following order is made:
26.1
The applicant’s rule 30 application is dismissed
26.2
The applicant shall file its answering affidavit in the main
application within 10 days of the
publication of this order
26.3
The applicant is to pay the first respondent’s costs of the
application.
K J MOGALE
ACTING JUDGE OF THE
GAUTENG DIVISION,
PRETORIA
Electronically
submitted.
Delivered:
This judgment
was prepared and authored by the Judge whose name is
reflected and is handed down electronically by circulation to the
parties/their
legal representatives by email and by uploading it to
the electronic file of this matter on CaseLines. The date for
hand-down is
deemed to be 03 May 2021.
Date
of hearing: The matter was heard by way
of video conferencing or otherwise, the matter may be
determined
accordingly. The matter was set down for a court date of 18 March
2021.
Date
of judgment: 03 May 2021
Heard
on
: 18 March 2021
For
the Applicant
:
Adv DB DU Preez (SC)
Instructed
by
:
Ross & Jacobsz INC
For
the Defendant
:
Adv CB Kubeka-Menyelo
Instructed
by
:
Slambert ATTORNEY’S
Date
of Judgment
:
03 May 2021
[1]
2000(2) SA
215A-B
[2]
1999(2) SA
599 (TPD)
[3]
1977 (3) SA 297 (O)
[4]
1980 (3) SA 666 (O)
[5]
1999 (3) All SA 245
(NC)