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[2021] ZAGPJHC 679
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Ikenananuo v Kings and Queens Real Funeral Services and Others (2021/10643) [2021] ZAGPJHC 679 (13 August 2021)
IN
THE HIGH COURT OF SOUTH AFRICA,
GAUTENG
DIVISION, JOHANNESBURG
CASE
NO:
2021/10643
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
REVISED.
In
the matter between:
IKENANANUO
OGECHUKUO BRIGHT
Applicant
and
KINGS
AND QUEENS REAL FUNERAL SERVICES
First
respondent
G3
HOLDINGS T/A G3
INVESTIGATIONS
AND SECURITY
SERVICES
Second respondent
TIMER
ESTATES (PTY)
LTD
Third
respondent
JUDGMENT
engelbrecht,
AJ:
Introduction
1.
On
3 March 2021, the applicant launched an urgent spoliation
application. to restore his occupation and possession of Edge Bar
Restaurant, situated at Stand 18, New Doornfontein, Johannesburg (the
Restaurant). The Notice of Motion set the same day as the
hearing
date, although calling for notice of opposition within three days and
an answering affidavit by 9 March 2021.
2.
My sister
Kathree-Setiloane J, enrolled the matter as urgent. In the absence of
the respondents, she issued a rule
nisi
returnable on 23 March 2021, calling upon the respondents to show
cause why a final order should not be issued (i) compelling the
respondents to return the Restaurant to the applicant’s
possession; and (ii) interdicting the respondents from unlawfully
dispossessing the applicant from the Restaurant. Pending the return
day, the respondents were interdicted from dispossessing the
applicant of his possession of the Restaurant. The respondents were
given leave to anticipate the return day.
3.
On 23 March
2021, the matter came before Twala J in the urgent court, who removed
it from the urgent roll and directed that it be
enrolled on the
ordinary roll.
4.
And so the
matter came before me.
The
facts
5.
In the
founding affidavit, the applicant asserts that in 2011 he entered
into a five-year lease agreement with the late Mr Max Hodes
(Mr
Hodes), in respect of the premises on which the Restaurant are
situated. A signed copy of the lease agreement sent from Mr
Hodes’
facsimile is indeed attached.
6.
Then, in
October 2015 the applicant and Mr Hodes are said to have entered into
a new lease agreement for a period of 9 years. A
signed copy of the
second lease agreement is attached to the founding papers. Part of
the applicant’s obligations under the
second lease agreement
are said to have been to make improvements to the Restaurant, which
the applicant asserts was done. However,
such a term does not appear
from the agreement itself. Be that as it may. Allegedly in
consequence of non-payment of monies due
to the City of Johannesburg
Metropolitan Municipality (the City), the City terminated electricity
supply to the Restaurant for
a period of about 8 months, with obvious
adverse consequences for the applicant. The applicant fell into
arrears with payment of
rental amounts.
7.
According to
the answering affidavit, the applicant was placed in breach by way of
a letter of 5 July 2019 and “
the
lease agreement was thereafter cancelled orally when the Applicant
did not remedy his breach”
.
The letter forms part of the annexures to the answer. The applicant
denies receipt of this letter. Notably, in the affidavit in
response
to the rescission application, Mr Hodes does not explain in what way
the letter was dispatched to the applicant: he asserts
that “
A
copy of the letter placing the Applicant ni breach dated 5 July 2019
is attached to the founding affidavit in his rescission application
marked LD
”.
8.
Mr Hodes
issued summons in the Johannesburg Magistrates Court on 8 January
2020, alleging conclusion of an oral “
monthly
lease agreement”
with the applicant “
during
or about 2013”
.
Mr Hodes pleaded that the applicant was in arrears with payments in
an amount of almost R40 000 and that he had breached
the
agreement, having apportioned part of the premises to a tyre shop,
which it is said he was not authorised to do. According
to the
particulars of claim, “
As
a consequence of the material breach, the Plaintiff is entitled to
cancel the lease which he hereby duly does”
.
The prayers included an order (i) cancelling the lease agreement;
(ii) ordering the applicant to make payment of the arrears amount
and
interest thereon; and (iii) ejectment from the premises. (In answer
to a rescission application of May 2021, Mr Hodes asserted
on oath
that the agreement was in fact a written one, but that the
arrangement became an oral month-to-month arrangement after
cancellation of the written agreement pursuant to the applicant not
rectifying his default as set out in the July 2019 correspondence.)
9.
When Mr Hodes
sought judgment by default, the Magistrate raised queries in February
2020 and those were eventually answered on 8
October 2020. Mr Hodes
obtained judgment by default against the applicant on 10 October
2020. The applicant was ordered to make
payment and to vacate the
premises, failing which a warrant of ejectment could be carried out.
10.
Attached to
the answering affidavit is a letter of 30 November 2020 from Mr
Hodes’ attorney to the applicant, (i) asserting
that the
applicant had entered into a lease agreement on a “
month-to-month”
basis and had failed to make rental payment timeously or at all; (ii)
giving notice of termination of the lease agreement and (iii)
advising the applicant to vacate the premises by 30 December 2020.
The date of the alleged agreement (and whether reference is
made to a
written or oral agreement) is not revealed in the letter. No mention
is made of any order.
11.
The applicant
accepts that an order was obtained by default for payment of money,
cancellation of his lease and for his eviction.
In the founding
affidavit it is said that such order was obtained by the first
respondent (Kings & Queens), but that is patently
a mistake that
derived from copying and pasting from the Magistrates’ Court
application where Mr Hodes was the respondent.
He also accepts that a
warrant of execution was issued on 26 January 2021, although
apparently only served upon the Restaurant
on 22 or 23 February 2021.
According to an affidavit filed by Mr Hodes in the Magistrates’
Court proceedings, the default
judgment had been transmitted to the
applicant’s erstwhile attorney on 16 February 2021 (i.e some
four months after it had
been obtained and about two and a half
months after the 30 November letter).
12.
The applicant
says that, during January 2021, “
the
third respondent”
presented him with a new lease agreement, demanding that he should
sign it. This must be taken to be an unidentified representative
of
the third respondent (Timer Estates). A copy of the new lease
agreement to be entered into with Timer Estates is also attached
to
the application. Apparently at the time when the lease agreement was
presented to the applicant, the representative of Timer
Estates also
informed the applicant that the building in which the Restaurant is
housed had been sold, although the respondents
say Mr Hodes had told
the applicant in December 2020. Whatever the case may be, according
to the answering affidavit, at the time
the affidavit was deposed to
in March 2021, Kings & Queens was “
in
the process of purchasing the building … from Hodes in terms
of an agreement dated 30 November 2020. Pursuant to the intended
sale
and transfer of the property, [Kings & Queens] was provided with
occupation of the property prior to registration of transfer
of the
property occurring”
.
13.
The applicant
refused to sign the new lease agreement because, on his version, he
still had a valid lease agreement in place. Accordingly,
so asserts
the applicant, he continued to pay rentals under the existing lease
agreement in the months of January and February
2021. Kings &
Queens, however state in the answering affidavit that they had been
assured at the time when the sale agreement
was signed that the
applicant did not have a written lease agreement. The deponent to the
answer says that the applicant provided
no reason for not signing the
new lease agreement, but inconsistently with that allegation asserts
that the applicant’s then
attorney contended that the “
previous
written lease
”
was valid on the basis of the principle “
huur
gaat voor koop”
,
as is indeed evident from an annexure to the answer. Notwithstanding
this, the respondents say that the applicant only made reference
to a
prior written lease agreement when he was requested to vacate the
premises.
14.
The deponent
to the answering affidavit says that the respondents’ attorney
responded to this correspondence, asserting that
the lease had been
cancelled, resulting in the applicant being required to leave the
premises. That correspondence is not attached
to the answering
affidavit.
15.
Apparently, a
warrant of execution was then served on the applicant’s
premises towards the end of February, prompting him
to seek legal
advice. He says this was when he learnt of the judgment by default
obtained against him.
16.
Then,
according to the applicant’s version, on 2 March 2021 about 15
security personnel employed by the second respondent
(G3) came to the
Restaurant and locked the premises. They apparently informed the
applicant that they were “
sent”
by Kings & Queens, who instructed them to lock the premises.
Considerable force is said to have been used in evacuating those
persons then on the premises.
17.
On 3 March
2021, a senior security staff member of G3 is alleged to have told
the applicant that all of his property (stock, furniture,
alcohol
etc) with a combined value of about R500 000 would be moved onto
the street by close of business on that day.
18.
It is common
cause that all of this was done without the benefit of a court order
authorising any of the respondents to effect such
ejectment. That
provided the basis for the urgent approach to this Court and the
order of Kathree-Setiloane J on 3 March 2021.
19.
On 9 March
2021, the applicant launched a related urgent application for stay of
execution in the Johannesburg Magistrate’s
Court.
20.
The
respondents say that a letter from the applicant’s attorney
pursuant to without prejudice negotiations between the parties
that
followed this “
makes
it clear that the Applicant has not in the past complied with and
currently refuses to comply with either the written or oral
agreement
which he purports to rely upon in this matter”
.
What the letter in fact asks for is a rental statement from Kings &
Queens or Timers Estates. The indebtedness to Mr Hodes
is said to be
an issue to be resolved with him, unrelated to the spoliation
application. How the deponent to the answering affidavit
reaches the
conclusion pleaded, I am not sure.
21.
On 11 May
2021, the applicant served a rescission application in respect of the
default judgment on Mr Hodes. Mr Hodes filed an
answering affidavit
in the Magistrates’ Court on 18 June 2021. In the meantime, Mr
Hodes has sadly passed on. I am advised
that the rescission
application was due to be heard on 3 August 2021 (i.e. some 6 court
days before the present application came
before me). However, the
matter was removed from the roll and remains pending in the
Magistrates’ Court. The respondents’
counsel asserted
before me that the removal from the roll in the Magistrates’
Court formed part of the applicant’s
alleged “
Stalingrad
approach”
to delay finalisation of the matter.
Pleadings
and points
in limine
22.
As indicated
hereinbefore, the application was launched on 3 March 2021.
23.
Kings &
Queens and Timer Estates gave notice to oppose on 8 or 9 March 2021,
and filed their answer on 16 March 2021. G3 also
gave notice of
intention to oppose on 11 March 2021. It filed no answer.
24.
The applicant
replied on or about 19 March 2021.
25.
In the answer,
Kings & Queens and Timer Estates raised three “
points
in limine”
,
being (i) the non-joinder of Mr Hodes; (ii) the applicant approaching
this Court in motion proceedings where disputes of fact
exist; and
(iii) the applicant having misled the Court.
26.
In reply, the
applicant raised as preliminary points (i) reference to the wrong
case number in the resolution attached to the answering
affidavit;
and (ii) the commissioner of oaths administering the oath for the
deponent to the answering affidavit sharing an address
with the
attorney for the respondents.
27.
I shall deal
with these matters first.
Non-joinder
of Mr Hodes
28.
A point
in
limine
was
raised on the basis that Mr Hodes had not been cited, even though the
applicant relies on his lease agreement concluded with
Mr Hodes. This
was said to be a material non-joinder.
29.
The
question as to whether all necessary parties had been joined does not
depend upon the nature of the subject matter of the suit,
but upon
the manner in which, and the extent to which, the court's order may
affect the interests of third parties.
[1]
The
test is whether or not a party has a “
direct
and substantial interest
”
in the subject matter of the action, that is, a legal interest in the
subject matter of the litigation which may be affected
prejudicially
by the judgment of the court.
[2]
30.
The
mere fact that a party may have an interest in the outcome of the
litigation does not warrant a non-joinder plea.
[3]
The
rule is that any person is a necessary party and should be joined if
such person has a direct and substantial interest in any
order the
court might make, or if such an order cannot be sustained or carried
into effect without prejudicing that party.
[4]
31.
The
present application was based in the spoliation effected by Kings &
Queens, through the agency of G3. The relief sought
concerned
restoration of the applicant’s occupation of the Restaurant and
prevention of further efforts by the cited respondents
to interfere
with the applicant’s occupation of the Restaurant.
32.
It
is true that Mr Hodes and his wife are the registered owners of the
premises from which the Restaurant is operated. However,
on the
respondents’ version, the Hodes’ sold the property to
Kings & Queens in terms of an agreement concluded
on 30 November
2020 and Kings & Queens was given “
occupation”
of the property. Indeed, it appears to be on this basis that Timer
Estates approached the applicant in January 2021 to request
signature
of the new lease agreement. On no version before me was Mr Hodes a
party to the spoliation. I cannot conceive what legal
interest he
might have had in an order against the party in charge of the
property that had effected the spoliation. The respondents
assert
that the legal interest lies in the effect upon the sale agreement,
because apparently Mr Hodes had assured Kings &
Queens that there
was no written agreement between with the applicant. I find this
point unpersuasive. Mr Hodes (or his estate,
post him having passed
on) may be impacted by any action that Kings & Queens elects to
take if it is found that the position
adopted by Mr Hodes in his
negotiations with Kings & Queens was incorrect, but that does not
mean that Mr Hodes (or his estate)
has a legal interest in the relief
sought. Any interest may at best be indirect. This case is about
whether the spoliation was
lawful, and given that Kings & Queens
has been placed in control of the premises in consequence of the
arrangements contained
in the sale agreement and authorised the
spoliation, it is the party appropriately cited, to the exclusion of
Mr Hodes.
33.
The
point
in
limine
based in the alleged material non-joinder of Mr Hodes falls to be
dismissed.
Disputes
of fact
34.
The
respondents assert that the applicant has come to this Court with
“
disputes
of fact”,
which
he ought not to have done in motion proceedings, and therefore that
the application falls to be dismissed.
35.
It is trite
that the
mandament
van spolie
is intended to be a speedy and robust remedy, aimed at restoring the
status quo
ante
pending determination of possessory rights. To suggest that the
applicant ought not to have approached the Court on motion (or
on an
urgent basis) is wrong in the circumstances. The appropriate
procedure to launch spoliation proceedings is to do so by way
of
application.
36.
As
to the treatment of disputes of fact, it is important to note that,
if material facts are in dispute and there is no request
for the
referral to oral evidence, a final order may be granted on notice of
motion if the facts stated by the respondent together
with the facts
alleged by the applicant that are admitted by the respondent, justify
such an order.
[5]
In
the present case, the facts stated by the respondents include the
facts stated by Mr Hodes in the affidavit in Magistrates’
Court
proceedings on which the respondents rely.
37.
In
every case the Court must examine the alleged dispute of fact and see
whether in truth there is a real dispute of fact which
cannot be
satisfactorily determined without the aid of oral evidence.
[6]
38.
To
put it plainly, the Court must take a “
robust,
common sense approach”
to a dispute on motion and not hesitate to decide an issue on
affidavit merely it may be difficult to do so.
[7]
39.
No point
in
limine
can
be upheld on the basis that the process used was motion proceedings.
Misleading
the Court
40.
The third
so-called point
in
limine
taken is that the applicant has misled the Court, warranting
dismissal of the application.
41.
It is
unfortunate that parties continue to make all sorts of assertions
about their counter-parties misleading the Court, or perjuring
themselves. The proper approach is to deny averments, set up positive
facts that disprove the allegations of the counterparty and
leave it
to the Court to decide. That also serves the
decorum
of the
Court. Be that as it may, I do not consider this issue appropriately
to be raised or dealt with as a preliminary point. What
is required
of the Court is to engage with all of the facts placed before it in
order to reach a conclusion on the veracity of
the facts relied on by
the parties as discussed under the previous heading.
42.
No preliminary
objection in this regard can be upheld.
Commissioner
of Oaths at same address
43.
In his reply,
the applicant complained that the Commissioner of Oaths before whom
the answering affidavit had been deposed to apparently
has the same
address as the attorneys for the respondents. He wanted the entire
answer to be struck for that reason, apparently
forgetting that the
Commissioner who administered the oath when he signed his founding
papers were signed shares an address with
his attorney.
44.
There
is no merit to this point. The Regulations Governing the
Administration of an Oath or Affirmation
[8]
provide
in Regulation 7(1) that a “
commissioner
of oaths shall not administer an oath or affirmation relating to a
matter in which he has an interest
”
.
There is no prohibition on a commissioner of oaths having the same
address as the attorney acting for a party. As a matter of
practice
and convenience, it may be expected that a commissioner of oaths
having their business in the same building as a party’s
attorneys may be approached when an affidavit is to be deposed to.
There is nothing untoward unless that commissioner of oaths
has an
interest in the matter. If the applicant wanted to raise an
objection, he had to make a positive averment that the commissioner
of oaths had an interest in the matter. He did not. This point cannot
be entertained.
Resolution
45.
The applicant
raises an objection to the authority of the deponent on the basis
that the resolution attached to the answer refers
to the wrong case
number. The “
wrong
case number”
is patently a typographical error, where “
2021”
was typed as “
2020”
.
There is no good reason to take a point like this, where manifestly
an honest mistake was made.
46.
In
any event, as Flemming DJP pointed out in
Eskom
v Soweto City Council
,
[9]
insistence
on proof of authority is based in the fear that a person may deny
that he was a party to litigation carried on in his
name. Formal
proof of authority avoids undue risk to the opposite party. However,
with the advent of Rule 7(1) of the Uniform Rules,
that risk is now
differently managed:
“
If
the attorney is authorised to bring the application on behalf of the
applicant, the application is necessarily that of the applicant.
There is no need to say that any other person, whether he be a
witness or someone who becomes involved especially in the context
of
authority, should additionally be authorised. It is therefore
sufficient to know that the attorney acts with authority.
As
to when and how the attorney’s authority should be proved, the
Rule-maker made a policy decision. Perhaps because the risk
is
minimal that an attorney will act for a person without authority to
do so, proof is dispensed with except only if the other
party
challenges the authority. See Rule 7(1). Courts should honour that
approach. Properly applied, that should lead to the elimination
of
the many pages of resolutions, delegations and substitutions still
attached to applications by some litigants, especially certain
financial institutions.”
47.
In
Unlawful
Occupiers, School Site v City of Johannesburg
[10]
one
of the issues raised by the appellant was that the respondent had
failed to prove that the deponent to its founding affidavit
had the
requisite authority to institute the application on its behalf. The
Supreme Court of Appeal (SCA) pointed out that the
Eskom
decision had been cited with approval inn
Ganes
v Telecom Namibia Ltd,
[11]
and
had held that the issue of authority as raised had been decided
conclusively in
Eskom.
The import of that was that the remedy of a respondent who wished to
challenge the authority of a person allegedly acting was now
provided
for in Rule 7(1).
48.
The simple
point is this: the respondents were not even required to attach a
resolution. If the applicant wished to challenge authority,
that
ought to have been done by way of a Rule 7(1) notice challenging
authority of the attorney to act. This was not done, and
so no proper
objection to authority is before this Court.
49.
This
preliminary objection falls to be dismissed.
Conclusion
50.
None of the
preliminary points raised by either of the parties are upheld in the
circumstances. Accordingly, I proceed to deal with
the merits.
Mandament
van spolie
:
Principles
51.
In
Sithole
v Native Resettlement Board
,
[12]
it
was held that:
“…
the
clear principle of our law is that, ordinarily speaking, persons are
not entitled to take the law into their own hands to enforce
their
rights. There is a legal process by which the enforcement of rights
is carried out. Normally speaking, it is carried out
as a result of
an order of Court being put into effect through the proper officers
of the law such as the Sheriff, deputy sheriff,
messenger of the
magistrate's Court or his deputies, reinforced if necessary, by the
aid of the police or some such authority;
in most civilised
countries there exists the same principle that no person enforces his
legal rights himself. For very obvious
reasons that is so; if it
were not so, breaches of the peace, for instance, would be very
common. It is clear, therefore,
that if you want to enforce a right
you must get the officers of the law to assist you in the attainment
of your rights.”
52.
In
the recent decision of
Blendrite
(Pty) Ltd and Another v Moonisami and Another
,
[13]
the
Supreme Court of Appeal (SCA) summarised the relevant principles as
follows:
[14]
52.1.
The
mandament
van spolie
relates to possession.
Possession is the combination of the factual control or detention of
a thing and the will to possess the
thing.
52.2.
Spoliation is any illicit deprivation of
another of the right of possession which he or she has, whether in
regard to movable or
immovable property or even in regard to a legal
right.
52.3.
The
mandament
van spolie
is designed to be a robust,
speedy remedy which serves to prevent recourse to self-help.
52.4.
The sole requirements are that the
dispossessed person had possession of a kind which warrants the
protection afforded by the remedy,
and that he or she was unlawfully
ousted. All that must be proved is: (1) the fact of prior possession
and (2) that the possessor
was deprived of that possession unlawfully
(i.e. without agreement or recourse to law).
52.5.
The
mandament
provides for the immediate restoration of possession regardless of,
and before determining, the rights of the parties to the thing
possessed. It is the fact of possession that is material, not the
basis of possession. The prior lawfulness or otherwise of the
possession is of no moment. The fundamental principle of the remedy
is that no one is allowed to take the law into his or her own
hands.
The respective legal rights of the parties to possess the property in
question does not enter into consideration.
53.
The
judgment must, however, be read with
Street
Pole Ads Durban (Pty) Ltd & Another v Ethekwini Municipality
[15]
where
Cameron JA held that:
"…
good
title is irrelevant: the claim to spoliatory relief arises solely
from an unprocedural deprivation of possession. There is
a
qualification, however, if the applicant goes further and claims a
substantive right to possession, whether based on title of
ownership
or on contract. In that case, ‘the respondent may answer such
additional claim of right and may demonstrate, if
he can, that
applicant does not have the right to possession which it claims’.
This is because such an applicant 'in effect
forces an investigation
of the issues relevant to the further relief he claims. Once he does
this, the respondent's defence in
regard thereto has to be
considered
."
Discussion
Introduction
54.
In the present instance, the applicant
sought to rely on the
mandament
.
He had no obligation other than to show possession and unlawful
dispossession at the hands of the respondents. However, he elected
to
raise in his founding affidavit a lengthy description of the basis
upon which he possessed the property. This may have been
the
consequence of him using the same material as had been used in the
stay application that was ostensibly prepared on the same
day, given
the urgency of the matter and his desire to reach the Court without
delay.
55.
In his reply the
applicant asserts that he “
merely
mentioned
”
the lease agreement to show the Court that he had a right of access
to the Restaurant. But therein lies the rub: the applicant
essentially claimed a substantive right to possession. In doing so,
he spoilt for a fight over whether he had such a substantive
right,
and he activated the entitlement of the respondents to dispute such
substantive right. The respondents accepted the applicant’s
invitation to engage with his substantive rights, and therefore this
Court must, in addition to consideration of the ordinary requirements
of possession and unlawful deprivation of possession also engage with
the issue of the applicant’s substantive rights.
Possession
and unlawful deprivation of possession
56.
There is no
dispute before me that the application had undisturbed possession of
the Restaurant prior to the events that gave rise
to these
proceedings.
57.
On the facts
before this Court, it cannot be disputed that Kings & Queens had
instructed G3 to lock the Restaurant and so deprive
the applicant of
possession without having taken any steps lawfully to allow it to
eject the applicant. It is true that Mr Hodes
had obtained a judgment
by default and had secured a warrant of execution in January 2021,
which was served upon the applicant
in the latter part of February
2021. However, G3 was not acting for Mr Hodes, it was acting for and
on behalf of Kings & Queens,
an entity that enjoyed no legal
right to evict. As the applicant points out in his replying
affidavit, no warrant of ejectment
was obtained in consequence of the
Court order granted in favour of Mr Hodes. Even if it had, it would
have not been within the
province of Kings & Queens or G3 to
evict the applicant. The dispossession was unlawful.
Substantive
right to possession
58.
Given
the pleading in this matter, and the judgment in
Street
Pole Ads
[16]
I
have no choice but to engage upon the question of the applicant’s
substantive rights. In essence, that boils down to the
question
whether the written agreement concluded in October 2015 was still
extant or whether it had been terminated.
59.
In making the
evaluation, this Court must rely on the versions put up by the
applicant and the respondents, respectively. In the
present case, the
applicant relies on the second written lease agreement and his
version in relation to that. The respondents do
not have, nor can
they be expected to have, personal knowledge of the engagements
between the applicant and Mr Hodes. They must
rely on what Mr Hodes
tells them. Here, they have the benefit of versions presented by Mr
Hodes in the Magistrates’ Court
in his particulars of claim and
also in an answering affidavit in the rescission application. These
papers form part of the papers
before this Court.
60.
It is a
notable feature of the particulars of claim in the Magistrates’
Court that Mr Hodes placed reliance on an oral agreement
alleged to
have been concluded in or about 2013. This date is before the period
of the first lease agreement had run out and before
the second lease
agreement had been entered into. As I indicated in the summary of
facts, Mr Hodes in answer to the rescission
application then said on
oath that the agreement was in fact a written one, but that the
arrangement became an oral month-to-month
arrangement after
cancellation of the written agreement pursuant to the applicant not
rectifying his default as set out in the
July 2019 correspondence.
That allegation is patently inconsistent with the version presented
to the Magistrates’ Court in
the particulars of claim, which
dated the oral arrangement back to 2013. Any oral agreement, as
alleged, could only have hailed
from after the July 2019 letter.
61.
This begs a
different question: how and when was the second lease agreement
cancelled?
62.
It is true
that Mr Hodes purportedly sent a letter on 5 July 2019, demanding
payment, failing which he would proceed to court to
seek payment and
also eviction. As I indicated in the summary of facts, Mr Hodes has
not told the Court how and when that letter
was delivered, and the
applicant denies receipt.
63.
But
even if I proceed on the assumption in favour of the respondents that
the letter was indeed received on 5 July 2019 or shortly
thereafter,
the letter does not say anything about cancellation of the agreement,
and Mr Hodes did not in the Magistrates’
Court answer purport
to suggest that this letter constituted cancellation. What is said by
Mr Hodes in the affidavit in the rescission
application is that,
“
Pursuant
to the applicant’s breach and his failure to rectify his breach
the
written
lease was cancelled orally
once the time allowed for him to rectify his breached had
lapsed”.
[17]
That
presents a problem, because clause 7 of the second lease agreement is
explicit: “
Should
the tenant fail to pay the rent by the 7
th
of each succeeding month, then the landlords are automatically
entitled to cancel the lease forthwith
by
written notice
served at the premises in question”
.
[18]
On
the basis of Mr Hodes’ version, presented on oath, the terms of
the second lease agreement insofar as they relate to cancellation,
had not been complied with. The cancellation was invalid for that
reason. Moreover, this Court takes notice that on 30 November
2020,
purportedly in respect of an oral agreement for a “
month-to-month”
lease, Mr Hodes had gone to the trouble of issuing a written notice
of cancellation in stark contrast to allegedly cancelling the
second
lease agreement orally, despite its terms requiring written notice.
64.
In
Truter
v Smith
[19]
it
was held that “
The
Court requires the act of cancellation of an otherwise valid
agreement to be clear and unambiguous”
.
In our law, a party to a contract who exercises his right to cancel
must convey his decision to the other party and cancellation
does not
take place until that happens.
[20]
Where,
as here, the contract requires such cancellation to be in writing,
cancellation cannot be said to have been clear and unambiguous
when
it is said to have been done orally. Even if Mr Hodes had said to the
applicant that he intended to, or was cancelling the
second lease
agreement, the applicant would have been entitled to expect
confirmation in writing of that fact, in terms of the
agreement that
he signed. Mr Hodes, who in life was an advocate upon whom senior
counsel status had been conferred, would surely
have known that a
valid cancellation under the written agreement and in accordance with
the principles applicable to cancellation
of contract demanded of him
to make cancellation in writing.
65.
The other
difficulty that this Court has is that, on Mr Hodes’ version,
he cancelled the written agreement as a result of
breach in the form
of failure to pay. It is odd, then, for Mr Hodes to have entered into
an oral agreement with the same tenant
on the same terms immediately
thereafter, with the only alteration being to change the long-term
agreement to a “
month-to-month”
arrangement. Surely, a lay person like the applicant in the
circumstances could not be said to have been clearly and
unambiguously
informed of cancellation of the written agreement? Put
differently, Mr Hodes’ conduct in allowing the applicant to
remain
as a tenant is inconsistent with a clear and unambiguous
intention to cancel the then existing arrangement between the
parties,
on the basis of non-payment and other alleged breaches.
66.
The issue of
summons – assuming in favour of the respondents that the
summons was indeed received – might have been
taken to
constitute cancellation of the agreement. But the problem is this: Mr
Hodes did not seek cancellation of the written agreement,
he sought
cancellation of an oral agreement purportedly entered into in 2013,
before the applicant had entered into a written agreement
with Mr
Hodes, so that the issue of summons in the Magistrates’ Court
in January 2020 equally could not have constituted
a clear and
unambiguous intention to cancel the second lease agreement which, on
the face of it, was concluded only in 2015. Mr
Hodes’
about-turn in the answering affidavit to the rescission application
that the oral agreement was actually concluded
after the cancellation
of the second lease agreement does not alter this conclusion.
67.
Since the
cancellation sought and granted in the Magistrates’ Court was
of an oral agreement allegedly concluded in 2013,
the Order of that
Court (even if not rescinded) cannot constitute cancellation of the
second lease agreement.
68.
The only other
potential source of cancellation was the 30 November 2020 letter from
Mr Hodes’ attorney to the applicant.
However, that purports to
be a cancellation of a “
month-to-month
agreement”
that is not identified. I am of the view that, on no construction,
that letter can constitute clear and unambiguous notice of
cancellation of the second lease agreement. Indeed, Mr Hodes did not
intend it to be so, given his adopted stance (on affidavit)
that the
second lease agreement had been cancelled more than a year before.
This letter equally cannot stand as a valid cancellation
of the
second lease agreement.
69.
The bottom
line is, I find no evidence of a clear and unambiguous cancellation
of the second lease agreement, and most certainly
no such
cancellation in the written form required in terms of the agreement.
That means it is still extant.
70.
The
“
huur
gaat voor koop
”
principle ensures that any contract with a tenant, whose lease
has not yet expired must be honoured if and when the
property is
sold. This applies whether or not he purchaser knew of the lease when
he signed the deed of sale. That means that
the
applicant does lawfully occupy the premises on which the Restaurant
is situated.
71.
In the
circumstances, I come to the conclusion that the applicant remains
lawfully entitled to occupy the premises under the second
lease
agreement and that the unlawful dispossession of his undisturbed
possession cannot be sanctioned.
72.
Unless the
second lease agreement is validly cancelled, and the appropriate
procedures followed, the respondents cannot deprive
the applicant of
possession. The respondents ought to refrain from taking the law into
their own hands.
73.
A word of
caution to the applicant, however. The judgment herein and the order
that I propose to make do not insulate the applicant
from valid
cancellation for breach, and steps pursuant to such valid
cancellation. The applicant cannot expect to be and remain
in default
without consequences. The judgment herein is no sanction of the
applicant’s breach of contract. The Court is not
here to
dispense advice, but it does seem to me to be undesirable, if the
applicant wants to continue operating the Restaurant
from which he
derives his livelihood, that he should take a hard stance in law and
decline to engage with those now controlling
the premises. The costs
devoted to endless litigation could be better employed towards
satisfying the judgment debt and payment
of current rental
obligations.
Costs
74.
Costs must
follow the result. There is no reason to depart from this general
principle. There is however no basis in the present
case to award
costs on a punitive scale.
Conclusion
75.
In the
circumstances, I make the following order:
75.1.
That the rule
nisi
granted by this Court on 3 March 2021 be and is hereby confirmed.
75.2.
That the first
respondents pay the applicant’s costs in this application.
MJ
ENGELBRECHT
ACTING
JUDGE OF THE HIGH COURT
GAUTENG
LOCAL DIVISION, JOHANNESBURG
Electronically
submitted therefore unsigned
Delivered:
This judgement 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 13 AUGUST 2021.
Date
of hearing:
11
August 2021
Date
of judgment:
13 August 2021
Appearances
For
the applicant:
Mr V.O.M Seloane
Instructed
by:
Seloane Vincent Attorneys
For
the respondents:
Ms Teneille Govender
Instructed
by:
RHK Attorneys
[1]
Amalgamated
Engineering Union v Minister of Labour
1949
(3) SA 637
(A)
at
657. See also
Collin
v Toffie
1944
AD 456
at
464;
Tshandu
v Swan
1946
AD 10
at
24–5;
Home
Sites (Pty) Ltd v Senekal
1948
(3) SA 514
(A)
at
521;
Benson
v Joelson
1985
(3) SA 566 (C)
at
569F–570B;
Segal
v Segil
1992
(3) SA 136
(C)
at
141A–C;
New
Garden Cities Incorporated Association Not for Gain v Adhikarie
1998
(3) SA 626
(C)
at
631C;
Transvaal
Agricultural Union v Minister of Agriculture and Land Affairs
2005
(4) SA 212 (SCA)
at
226F–227F;
Davids
v Van Straaten
2005
(4) SA 468 (C)
at
487B–C;
Sikutshwa
v MEC for Social Development, Eastern Cape
2009
(3) SA 47
(TkHC)
at
56I–57A.
[2]
Henri
Viljoen (Pty) Ltd v Awerbuch Bros
1953
(2) SA 151
(O)
at
168–70.
[3]
Judicial
Service Commission v Cape Bar Council
2013
(1) SA 170 (SCA)
at
176I–177A;
Lawrence
v Magistrates Commission
2020
(2) SA 526
(FB)
at
para 27
[4]
One
South Africa Movement v President of the RSA
2020
(5) SA 576
(GP)
at
para 22.
[5]
Stellenbosch
Farmers Winery Ltd v Stellenvale Winery (Pty) Ltd
1957
(4) SA 234
(C) at 235.
[6]
NDPP
v Zuma
[2009] ZASCA 1
;
2009
(2) SA 277
(SCA) at 290F.
[7]
Soffiantini
v Mould
1956
(4) SA 150
(E) at 154G;
Reed
v Witrup
1962 (4) SA 437
(D) at 433G;
Western
Bankn Bpk v Trust Bank van Afrika Bpk
1977 (2) SA 1008
(O) at 1017E-H;
Techmed
(Pty) Ltd v Hunter
[2008] ZAGPHC 41
;
2008 (6) SA 210
(W) at 217I – 218B.
[8]
GN
R1258
of
21 July 1972, amended by GN R1648 of 19 August 1977, by GN
R1428 of 11 July 1980 and by GN R774 of
23 April
1982.
[9]
1992
(2) SA 703 (W).
[10]
2005
(4) SA 199 (SCA).
[11]
2004
(4) SA 615
(SCA) at 624I – 625A.
[12]
1959
(4) SA 115
(W) at 117C-G.
[13]
Case
no 227/2020
[2021] ZASCA 77
(10 June 2021).
[14]
See
at paras 5 – 9 (references to case law relied on by the SCA is
omitted).
[15]
2008
(5) SA 290 (SCA).
[16]
Supra
.
[17]
Emphasis
supplied.
[18]
Emphasis
supplied.
[19]
1971
(1) SA 453 (E).
[20]
Miller
and Miller v Dickinson
1971 (3) SA 581 (A)
at 587H–588A.