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[2021] ZAGPJHC 109
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Atlas Towers (Pty) Ltd v Shaik Property Ltd (2021/30408) [2021] ZAGPJHC 109 (19 July 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, JOHANNESBURG)
CASE
NO: 2021/30408
NOT REPORTABLE
NOT OF INTEREST TO OTHER
JUDGES
REVISED
19 July 2021
In
the matter between
ATLAS
TOWER (PTY)
LTD APPLICANT
And
SHAIK
PROPERTY
LTD RESPONDENT
JUDGMENT
Siwendu
J
[1] The
applicant, Atlas Tower (Pty) Ltd (the applicant) provides
telecommunications base stations, masts, antennas
and other
subservient telecommunications infrastructure to telecommunications
companies. It launched this urgent application on
6 July 2021. The
application was heard on the 9 July 2021.
[2] The
applicant sought an order against the Respondent that: pending the
outcome of the disputes between the
parties pertaining to the
cancellation of the lease agreement, which is to be referred to AFS
for arbitration within 15 (fifteen)
days from the date of the court
order, the court should order the Respondent:
(a) To
grant the applicant (its agents, nominees, contractors, and
subtenants (Telkom and Cell C) full and unrestricted
access to the
leased premises situated at Portion 1 of Erf 243, Corner of Griesel
and Very Street, Beyerspark, Boksburg, Johannesburg
(b) To
forthwith restore the Applicant’s temporary power/ electricity
connection, pending finalisation of
the applicant’s application
for its own power supply connection.
[3] The
Respondent, Shaik Property Holding (Pty) Ltd, is a private company
which operates from Unit 14 Pomona Business
Park, 57 Maple Street,
Kempton Park, Gauteng. It is the owner of the property situated at
the Corner of Griesel and Very Street,
Beyerspark in Boksburg, being
the premises, which are the subject of this urgent application.
[4] The
Respondent opposed the relief sought on the grounds of a lack of
urgency and on the legal basis that the
relief the Applicant sought
was not competent in law. I deal with this aspect later in the
judgment.
[5] In
addition, the Respondent challenged Mr Pretorius’ authority to
depose to and bring the application
on behalf of the Applicant.
[6]
The
challenge to the authority of Mr Pretorius need not detain the court.
It has been consistently held that a party seeking to
challenge the
authority to act must so do in terms of Rule 7 (1). In particular,
the court in
Eskom
v Soweto City
Council
[1]
held
that i
t
is a factual question whether a particular person holds a specific
authority, and that risk is adequately managed by the Rule
.
[7] The
background to the application is that Applicant has amongst its
clients, mobile network operators, Telkom
and Cell C. The applicant
leased a portion of the premises on the property to construct, affix
and install telecommunications related
infrastructure for us by its
clients. Telkom and Cell C have installed their transmitters on the
infrastructure offered by Applicant
to enhance better network
coverage for their respective customers in the area. The use of the
premise by these mobile network operating
companies is premised on
sublease agreements concluded with the Applicant.
[8] The
Applicant first acquired the right to use a portion of the property
by way of a cession and an assignment
it concluded with Sky Coverage
(Pty) Ltd on or about 2016. On 25 February 2019, it entered into and
concluded a direct leased agreement
with the Respondent. The lease
agreement endures for the duration of Eighty- 2019 Five (85) months
with a provision for a further
renewal period of one hundred and
nineteen months (119).
[9] Clause
7 of the Lease Agreement grants to the Applicant the right to
undisturbed use and enjoyment of the property
“
according to
the terms of the lease agreement”
. [ emphasis added]
[10] In
particular, Clause 10.1 of the Lease Agreement grants the Applicant
access over the Respondent’s
property on a 24- hour basis any
day of the week. The Clause reads as follows:
“
In the even that
access by means of the road in terms of clause 10.2 is unavailable or
in case of emergency and the Lessor shall
not refuse, withhold and/
or prevent such access for any reason of whatsoever nature. The
Lessor and Lessee hereby agree that the
Lessee’s right of
access over the Property to the Premises is a material term of this
Agreement, subject to prior notification
(telephonic or written),
which shall not be unreasonably withheld”
[11] It
is common cause from the papers that within months of singing the
lease agreement, late in January 2020,
the Respondent notified the
Applicant of a damage to roof of the property, contending that the
Applicant had breached the terms
of the lease agreement. In opposing
the application, the Respondent complains that despite the
notification late in January and
before the declaration of the
National State of Disaster and the National Lock Down, the Applicant
failed to satisfactorily and
meaningfully remedy the damage to the
property even after an undertaking to do so.
[12] The
details of the communication exchange between the parties is not
essential for the scope of this Judgment,
save to observe that the
exchange concerning the damage to the property persisted through to
July 2020 when the Respondent conveyed
further details of the extent
of the damage which purportedly occurred during the Applicant’s
maintenance procedures. The
Respondent claims that the Applicant
accepted the responsibility for the damage in a letter dated 6 of
July 2020 and undertook
to engage contractors to remedy it.
[13] The
Respondent agreed in its opposing papers that the Applicant attempted
to remedy the damage but did so
unsatisfactorily. On the other hand,
the Applicant claims it remedied the breach and there had been no
further breach notices.
[14] It
is not disputed that despite the belief that it had remedied the
breach, when the Applicant sought to install
additional equipment for
a new client RAIN, in October 2020, the Respondent denied it
immediate access. However, the Applicant
sought information from the
Respondent’s engineers about the proposed installation. The
Applicant asserts that it considered
the refusal a breach of the
lease agreement and dispatched a notice to the respondent on 19
October 2020. Even though it claims
there was a request for
negotiations, it lost the business from RAIN.
[15] Other
than to state that the matter was resolved
inter partes
, it is
not disclosed in the papers how it was resolved. According to the
Respondent, it continually called for the satisfactory
repair of the
damage to its property. For this it relies on WhatsApp communication
exchanges in February 2021.
[16] On
the other hand, the Applicant complains that on or about 10 and 11
May, and thereafter, on 15 June 2021
the respondent unilaterally
revoked and refused to grant access. It claims on or about 10 June,
the respondent unlawfully disconnected
electricity supply to the
premises rendering the telecommunications infrastructure inoperative,
thus preventing Telkom and Cell-
C from providing coverage. The
consequence is that it is unable to fulfil its obligations to its
subtenants, Telkom and Cell C,
and now risks a cancellation of the
sublease agreements.
[17] Lastly,
the Applicant claims the Respondent had allowed it access until 10
June, when its request for access
to conduct maintenance work was
denied resulting in this application. It had not received prior
notice about the cancellation until
the email of June 2021 referring
to the cancellation.
[18] The
Respondent counters that its refusal to grant access is consistent
with and is a continuation of its previous
stance pertaining to the
proposed installation on behalf of RAIN. It repeated the allegations
about the breach of the lease agreement.
Unlike on the previous
occasions involving RAIN, it elected to cancel the lease on 14 June
2020 based on the Applicant’s
failure to repair and remedy the
breach satisfactorily.
[19] The
thrust of the legal complaint by the Applicant is that the Respondent
cancelled the lease unlawfully.
In response to the cancellation, on
18 June 2021 it sought an undertaking from the Respondent that it
must restore the undisturbed
use and the electricity supply to the
property immediately by the 22 June 2021. For this, it relies on
Clause 14.4, contending
that the Respondent is obliged to adhere to
the terms of the lease agreement. It does not accept what it
considers to be a repudiation
of the lease agreement, and as already
said, rejects that it was cancelled lawfully. It claims that the
repudiation by the Respondent
is inconsistent with the party’s
conduct. The respondent accepted the rental payments which negates
the unlawful cancellation
of the agreement.
[20] To
buttress the order to restore the use of the property, the Applicant
claims the respondent has taken the
law into its own hands. Absent an
arbitration award or a court order, the Respondent’s conduct is
unlawful. Therefore, the
aim of the urgent application is to restore
the
status quo ante
pending the outcome or resolution of the
disputes about the validity of the cancellation of the lease and its
rights to performance
.
[21] I
pause to mention that the foundation of the Applicant’s
prima
facie
rights as well as the balance of convenience is premised on
the terms of the lease agreement. The applicant claims that Telkom
and Cell C require that it rectifies any breach of its obligations in
terms of the subleases within 30 days of the notice to do
so. The
period stated is not sufficient to resolve the dispute by
arbitration. The irreparable harm it will suffer is that it faces
substantial damages as well as reputational damage should Telkom and
Cell C cancel the sublease agreements.
[22] Mr
Marques argued that all the Applicant sought was to hold the
Respondent to the contract pending arbitration
proceedings
challenging the cancellation. He argued that consistent with the
founding affidavit, the Applicant does not accept
the repudiation
and, therefore, he seeks the performance of the terms of the
contract. I understand this to be a specific performance
of the
contract.
[23] It
is trite that a
mandament van spolie
is a remedy available in
South African law to protect possession of property. The remedy
results in the restoration of possession
to persons who have been
unlawfully dispossessed of their property. To qualify for relief, the
Applicant must prove that it was
in peaceful and undisturbed
possession of the property. Secondly, there must be an unlawful
dispossession (or deprivation) by the
spoliator,
in casu
the
Respondent. Thirdly, a court should generally disregard the merits of
the dispute when deciding whether the remedy should be
granted.
[24]
However,
Ms Chowan (for the respondent), argued that the Applicant
impermissibly seeks a
mandament
van spolie
in order to restore the position and to enforce the lease agreement.
She relied on the decision in
ATM
Solutions (Pty) Ltd v Okru Hande
laars
CC and Another
[2]
.
[25] At
the hearing of the application, I had been of the view that Mr
Marques (for the Applicant) established
spoliation which entitled the
Applicant to some relief. This preliminary view was exacerbated by
the fact that Ms Chowan had not
filed Heads of Argument to assist the
court.
[26] On
consideration, of the decision in the
ATM Solution (Pty) Ltd vs
Okru Handelaar cc and Another,
which is binding on this Court,
enjoins the court to consider the origin and the nature of the right
the Applicant seeks to enforce.
The court makes it clear that an
Applicant is not entitled to a
mandament van spolie
where all
it seeks is to enforce a contractual right.
[27] Confronted
with the court’s decision in
ATM Solution,
Mr Marques
made an about turn. He disavowed the reliance on a
mandament van
spolie
and sought to refashion the cause of action first relied
in the founding affidavit on the basis that is not clear to the
court.
The change is inconsistent with his heads of argument. He had
contended the Respondent effectively “
spoliated
”
the Applicant and its case is “
akin to spoliation and should
be treated as such.
” The change in the cause of action and
departure does not assist the Applicant. On the strength of the
authority above, the
Applicant would not be entitled to relief.
[28] The
second issue is that the genesis of the dispute between the parties
about the repair to the property as
well as the Respondent’s
complaints germinated in 2020. It seems they resurrected when it was
denied access in October 2021
leading to it losing a potential
client, RAIN. The applicant does not disclose how that disagreement
was resolved. Furthermore,
despite the assertion by the applicant
that it disputes what it considers an unlawful cancellation of the
lease agreement which
occurred on 14 June, it allowed more than three
weeks to lapse. It did not require a court order in order to refer
the matter to
arbitration. Yet by the time of the hearing, it had not
taken the cudgels to do so.
[29] The
Applicant is not entitled to relief both on account of a lack of
urgency and on account that based on
the argument, it denounced its
earlier cause of action leaving the basis of its prima facie right
and the application unclear to
the court.
Accordingly,
I make the following order
:
1. The
application is dismissed
2. The
Applicant is ordered to pay the costs of the application.
T
SIWENDU
JUDGE
OF THE HIGH COURT
GAUTENG LOCAL DIVISION,
JOHANNESBURG
Date
of hearing: 9
July 2021
Date
of judgment: 19
July 2021
Appearances:
Counsel
for the Applicant: Adv
AAR Marques
Attorneys
for the Applicant: VFV
Attorneys
Counsel
for the Respondents: Adv
Chowan
Attorneys
for the Respondent: Ruarc
Dhabi Pillay
Attorneys
[1]
Eskom v Soweto City Council
1992
(2) SA 703
(W)
[2]
ATM Solution (Pty) Ltd vs. Olkru Handerlaar cc and another
2009
2 ALL SA 1
(SCA). Paragraph 13 and 14.