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[2021] ZAGPJHC 446
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Timeout Sports Bar (Pty) Ltd t/a Timeout Sport v Kyalam (0037622/2021) [2021] ZAGPJHC 446 (14 September 2021)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 0037622/2021
REPORTABLE:
OF
INTEREST TO OTHER JUDGES:
REVISED.
14/9/2021
In
the matter between:
TIMEOUT
SPORTS BAR (PTY) LTD t/a TIMEOUT SPORT
Applicant
and
CORALFIG
KYALAM
Respondent
JUDGMENT
MAKUME
J:
[1]
There is an existing lease agreement between the Applicant and the
Respondent in terms
of which the Applicant occupies certain premises
situated at Shop number [....], [....]and [....] in the building
known as Kyalami
Downs Shopping Centre at the corner of Main Road and
Kyalami Boulevard, Kyalami Midrand (the premises).
[2]
On the 12
th
June 2021 a person named Babi Prokats
addressed an email to the Respondent threatening to “shut you
down with immediate effect.”
The email mentioned certain
incidents being breach of the lease, late payments, disturbing peace
and intimidating security.
[3]
On receipt of that email the Applicant informed the Respondent to
address the complaints
through their respective lawyers.
[4]
On the 24
th
August 2021 the Respondent’s attorneys
addressed a letter to the Applicant in which they demanded payment of
the amount of
R325 064.95 being arrear rental and that on
failure of payment they have instructions to institute legal action
to recover
same, including cancellation of the lease agreement.
[5]
On the morning of the 25
th
August 2021 at about 11h00 four
men entered the premises and informed the Applicant’s Manager
one Balsu Pillay that they
had been sent by the landlord to inspect
electrical connections at the premises. They were granted permission
and shortly thereafter
the electricity supply to the premises was cut
off and when Mr Pillay enquired what the problem was he was referred
to the landlord
and the men left.
[6]
On the inspection as evidenced by annexure J9 and J10 it is clear
that electrical
wires were cut off thus interrupting supply to the
premises.
[7]
Applicant’s attorneys addressed an urgent letter immediately to
the landlord
and demanded that electricity be reconnected by not
later than 08h00 on the 26
th
August 2021.
[8]
On the 26
th
August 2021 the electricity was not
reconnected instead the Respondent’s attorneys addressed a
letter in response and told
the Applicant’s attorneys that
their client had discovered illegal electrical connection on the
premises and denied having
spoliated. The Respondent maintained that
the illegal connections were jeopardising the safety of all other
tenants of the shopping
centre.
[9]
The Respondent did not deny that it was their employees or agents
that disconnected
the electricity at 12h45 on the 25
th
August 2021 their attorneys informed Applicant’s attorneys that
they have secured services of an electrician and mandated
him to
reconnect the electricity supply however, that he was unable to do
that immediately.
[10]
A further letter demanding reconnection of electricity supply was
sent to the Respondent on the
26
th
August 2021 demanding
reconnection by 16h00 on the same day failing which urgent court
application will be served. A response was
received from the
Respondent in which they said that material had been ordered which
will be on site the following day being Friday
the 27
th
August 2021 on which day they will reconnect.
[11]
On Friday the 27
th
August 2021 Respondent attorneys sent a
letter to Applicant’s attorneys that an amount of R49 795. 51
was required to be
paid for the electrical material and demanded
payment from the Applicant. Applicant refused to pay and insisted on
reconnection.
[12]
An urgent application was then served and placed on the roll for
hearing late on Friday the 27
th
August 2021 by which time
the Respondent had not filed its answering affidavit. I granted an
interim order restoring electricity
supply immediately to the
premises and granted the Respondent an opportunity to file their
opposing affidavit by Monday the 30
th
August 2021.
[13]
An answering and a replying affidavit were duly filed timeously the
matter served before me on
the 01
st
September 2021 being
the return date of the rule nisi.
[14]
On the return date I was informed that the electricity was
reconnected immediately within 30
minutes after I had issued the
order on Friday the 27
th
August 2021 without having had to
utilise any new material as it had previously been told to the
Applicant.
[15]
In their answering affidavit the Respondent firstly denies having
spoliated the Applicant secondly
it is now alleged that because of
the arrears the lease agreement had been cancelled. In the further
alternative the Respondent
says that the disconnection was lawful
because of the illegal connection which they allege was posing a
danger to other tenants.
This eventually became their main argument
in the submissions by their counsel.
[16]
It is common cause that ultimately the Respondent admitted that it
was its employees or agents
who disconnected the electricity supply
on their instructions after a report of unsafe connection had been
reported to them.
[17]
At paragraph 40.5 the Respondent says:
“
The Respondent
reiterates that it is not unwilling to restore the electrical
connection save for the requirement that the Applicant
make payment
therefore which the Applicant has refused to.”
[18]
There was a clear spoliation in this matter. The offer to restore on
condition that the Applicant
pay is what has resulted in this
application. It would have been avoided had the Respondent proceeded
to restore at own costs with
or without the ordered material and then
bill the Applicant for such expenses. They did not do that seemingly
this was part of
the execution of the threat issued during June 2021
to shut down the Applicant. This had nothing to do with illegal
connection.
[19]
The Applicant had been in occupation of the premise for 7 years and
this was the first time that
they are being told of illegal
connection. The employees proceeded to cut off the electricity and
only thereafter told the manager
why they did that.
[20]
The sensible thing to have been done would have been to bring the
alleged illegal connection
to the attention of the manager and then
call upon the Applicant to rectify the situation failing which
necessary action be taken
which may include disconnection.
[21]
I am satisfied that the Applicant has satisfied all the requirement
of a final interdict. The
Applicant as a tenant and lessee has a
clear right to secure a permanent cessation of unlawful disconnection
of electricity supply
to the leased premises.
[22]
The court on the matter of
Minister of Law and Order,
Bophuthatswana & Another v Commissioner of the Church of Summit
of Bophutatswana and Others
1994 (3) SA 89
(BGD) at 97 H 100A
said that:
“
A Plaintiff is in
general entitled as of course to a perpetual injunction to prevent
recurrence of the wrong the jurisdiction to
grant a perpetual
injunction is founded on the equity of relieving a party from the
necessity of bringing action after action at
law for every violation
of a common law right and finally quieting the right, after a case
has received such full decision as entitles
a person to be protected
against further trials of the right.”
[23]
The Applicant has a contractual right to receive uninterrupted supply
of electricity to their
business premises which contractual right was
tempered with by the Respondent in an unlawful manner.
[24]
The Respondent acted carelessly and with an ulterior motive which is
to get rid of the Applicant
without following procedure. They chose a
short cut thinking that on the cutting of electricity the Applicant
will abandon its
business. That was not to be. They displayed
oppressive measures by first denying their actions and later when
they did admit they
impose penalties to make it more onerous for the
Applicant to return to normal business. It is this overbearing
attitude that was
displayed that has persuaded me to concede to the
granting of a punitive costs order.
[25]
In the result I hereby grant the following order:
ORDER:
1.
The interim order granted on the 27
th
August 2021 is
hereby confirmed.
2.
The Respondents are ordered to pay the Applicant’s taxed
costs
on the scale as between attorney and client.
Dated
of Johannesburg on this 13
th
Day of September 2021
M
A MAKUME
JUDGE
OF THE HIGH COURT
GAUTENG
LOCAL DIVISION, JOHANNESBURG
DATE
OF HEARING
:
27
August 2021
DATE
OF JUDGMENT :
14 September
2021
FOR
APPLICANT
:
Adv
Bodhana
FOR
RESPONDENT
:
Adv
Morland