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[2021] ZAGPJHC 499
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Cez Investment (Pty) Ltd v Wynberg Auto Body (Pty) Ltd (41475/2018) [2021] ZAGPJHC 499 (29 September 2021)
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, JOHANNESBURG
CASE
NO.: 41475/2018
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
REVISED
29/09/21
In
the matter between:
CEZ
INVESTMENT (Pty) Ltd
Applicant
And
WYNBERG
AUTO BODY (Pty) Ltd
Respondent
Delivered:
This
judgment is handed down electronically by circulation to the parties'
legal representatives through email and released to the
court's
library. The date for hand-down is deemed to be 29 September 2021.
Summary
:
Urgent application. Eviction from a commercial property. Commercial
interest like other interests such as protecting life and
liberty may
be a ground for urgency. Urgency founded mainly on the offer to lease
the property by a third party. The applicant
likely to lose the offer
to lease if it was to bring the application in ordinary course.
JUDGMENT
Molahlehi
J
[1]
This judgment
provides the reasons for the order made on 12 September 2021 in which
the respondent was directed to vacate the commercial
premises it
occupies in Wynberg, Johannesburg. The order, which reads as follows,
was made following the urgent application launched
by the applicant:
1.
The
forms and services provided for in the rules of this court are
dispensed with, and accordingly, this matter is heard as one
of
urgency in accordance with Rule 6(12).
2.
The oral lease
agreement between the applicant and the respondent relating to the
commercial immovable property at [....] Main Pretoria
Road, Wynberg,
Johannesburg (the premises) is cancelled, and accordingly, the
respondent is an illegal occupier of the premises.
3.
The
respondent and all persons occupying the premises are ordered to
vacate the premises within 7 (seven) days of the granting of
this
order, failing which the Sheriff be duly authorised to evict the
respondent from the premises and anyone occupying the premises
through the respondent;
4.
The Sheriff is
authorised to request any person, including members of the South
African Police Services, to assist the Sheriff in
evicting the
respondent from the premises and or anyone occupying the premises
through the respondent.
5.
The respondent
is to pay the costs of this application on the attorney and client
scale.
[2]
As stated
above, the applicant, CEZ Investment (Pty) Ltd, sought an urgent
eviction order against the respondent, Wynberg Autobody
(Pty) Ltd,
from its commercial immovable property at Erf [....] Wynberg,
Johannesburg (the property).
[3]
The applicant
initially based its case on the written lease agreement with the
respondent and in terms of which amongst others,
the respondent was
expected to pay rental in the sum R127 711. 36 per month. The lease
agreement commenced on 1 December 2018 and
was to expire on 31 May
2019.
[4]
The applicant
also sought rectification of the lease agreement by replacing the
word "without" with the word "with."
This issue
fell away following the acceptance by the applicant in the
alternative that there existed a verbal lease agreement between
the
parties.
[5]
On 12 January
2021, the applicant, through its attorneys, addressed a letter to the
respondent in terms of which
section 345
of the
Companies Act 71 of
2008
demanding payment of the arrear rental in the sum of R1 17513
7.09.
[6]
In response to
the above letter, the respondent, amongst others, raised the issue
about the calculation of the above amount. The
respondent contends
further in the same letter that it had effected repairs and
improvement on the property, which cost R96 000.00,
and that a
compromise had been reached between the parties in this regard.
[7]
On 19 February
2021, the erstwhile attorneys of the respondent addressed an email to
the applicant's attorneys wherein, amongst
others, a proposal was
made that a new lease agreement be concluded between the parties.
[8]
Further to the
letter from its erstwhile attorneys, Shaheed Dollie attorneys, the
respondent on 30 November 2019, advised the applicant
that the
written lease agreement expired by effluxion of time during January
2020, and after that, the parties entered into an
oral lease
agreement. It was further stated in the same letter that in terms of
the oral agreement, the lease was for a period
of five years
commencing January 2020, and the rental would remain as was from the
expired written lease, and that it would remain
constant for the
duration of the lease period. The rental would be in the sum of R1 27
711.36. According to the respondent, the
oral agreement also gave
consent for the respondent to effect the necessary improvement to the
property. The repairs that had been
effected at that stage were,
according to the respondent at the cost of R1 229 149.00.
[9]
The applicant
in the founding affidavit refuted the existence of the oral lease
agreement and contended that the allegation was
untruthful. It,
however, abandoned this position and based its case on the
alternative position, namely accepting that there existed
an oral
agreement between the parties.
[10]
On 27 May
2021, the applicant addressed a letter demanding payment of the
outstanding rental in the sum of R2 277 091.68 as provided
in the
written lease agreement. The applicant contends that the non-payment
of R1 385 925.22 despite the demand constitutes a material
breach of
the lease agreement.
[11]
The respondent
disregarded the demand, and accordingly, the applicant cancelled the
written lease agreement. However, despite the
cancellation, the
respondents failed to vacate the property.
[12]
The applicant
contends in the founding affidavit that it validly cancelled the
lease agreement on 12 June 2021, and it further argues
in the
alternatively that it cancelled the oral agreement.
[13]
The applicant
avers further in the founding affidavit that on 6 August 2020, it
received an offer to lease the property from a third
party, Curopax
(Pty) Ltd. The offer is to lease the premises from 1 October 2021 for
a period of three years. In this regard, the
acceptance of the offer
is conditional upon the applicant accepting and signing the offer by
31 August 2021. According to the applicant,
Curopax advised that it
is not prepared to wait beyond 31 August 2021 to finalise the lease
agreement.
[14]
The respondent
opposed the application and contended that the application was not
urgent, and if there was urgency, it was self-created
as the dispute
between the parties arose on 12 January 2021 when the applicant
issued a notice in terms of
section 345
of the
Companies Act.
[15
]
The respondent
further contends that:
a.
on the
applicant's version, the issue of eviction arose on 10 June 2021.
b.
in the event
the existence of the oral agreement was rejected, it (the respondent)
was entitled to remain on the property because
it has a lien arising
from the improvements effected over the property.
The
issues
[16]
The two main
issues for determination in this matter are:
a.
urgency and
whether the respondent has the right to remain in occupation of the
property.
b.
The ownership
of the property is not in dispute, and it is also not in dispute that
the last payment of the rental by the respondent
was on 18 March
2021.
[17]
As
indicated above, the respondent contends that the matter is not
urgent as the applicant delayed instituting the proceedings from
when
the dispute arose. Another point raised by the respondent is that the
applicant should have sought an urgent application before
seeking the
offer to lease from the third party. In support of this contention,
the respondent referred to the unpublished judgment
in Ramodutoana
Investment (Pty) Ltd v City of Johannesburg Property Company [SOC]
Limited and Others.
[1]
[18]
In my view,
the facts in the present matter are distinguishable from those in the
above case. In that case, there was no offer to
lease the property by
a third party. In other, words the applicant was not faced with the
risk of losing a tenant who was, unlike
the respondent, willing to
pay rental. The other point is that the court in that case noted that
the applicant did nothing to address
its dispute for a period of over
three years.
[19]
It
is trite that commercial interest, like any other interest, may find
urgency given the circumstances of a particular case. This
means that
the court has the power to hear an application as a matter of urgency
to protect the commercial interests of a litigant.
In other words,
urgency is not limited to protecting liberty or threat to life only.
It may include commercial interests.
[2]
The court considers the explanation proffered in each case in
evaluating urgency and exercising its discretion.
[20]
In the
circumstances of this case, it is apparent that if the applicant was
to wait and launch the application in the normal course
as laid down
in the rules, it will not be afforded a substantial redress in due
course.
[21]
The
pertinent facts and circumstances of the present matter require that
the issue of urgency be weighed in the context involving
commercial
premises. The recalcitrant tenant is not paying rental nor offering
to do so at any stage. The continued non-payment
of rent if the
respondent is not evicted is likely to affect the value of the
property,
[3]
and thus
prejudicing the commercial interest of the applicant.
[22]
In
dealing with a similar situation as that in the present matter
concerning urgency in the circumstances where there was an offer
to
lease the property by a third party, Matojane J, in the unpublished
judgment of
Elkam
(Pty) Limited v Ferej, Tariku Nure trading as Magnum General Trading,
The Occupants of Shop I, Cumberland Court, 9 Pretoria
Street,
Hillbrow, Johannesburg,
[4]
said:
“
[18]
In the circumstances, I find that the matter is urgent because by the
time this application would be heard
in the ordinary course the
applicant could have lost Chicken Licken as a tenant.”
The
same approach was adopted by Adams J, in the unpublished judgement in
Silverbalde
Investment (Pty) Ltd v Bay Tower Properties 247 (Pty) Ltd Lanoman and
Others,
[5]
where the court in
dealing with urgency said:
“
[10]
This then brings me to the issue of urgency. The first respondent
contends that the applicant's urgent application should be
dismissed
due to non-compliance with practice directives applicable in this
division. Closely linked to this contention is the
first respondent's
submission that the application should fail for lack of urgency. I do
not agree with these submissions for the
simple reason that the
applicant's case for the eviction of the first respondent is
overwhelming. It would not be in the interest
of justice not to grant
the applicant the eviction order, especially if regard is had to the
fact that, according to the uncontested
evidence of the applicant
that it stands to lose out on a new lease agreement with a new
tenant, who has indicated that he would
conclude a lease agreement
with the applicant provided he be given occupation during January
2018.”
[23]
I align myself
with the above authorities and thus in the circumstances, I was
satisfied that this matter was sufficiently urgent
to be enrolled and
be heard as an urgent application.
[24]
Turning to the
merits of the case, it has already been stated that the applicant has
a potential tenant to take occupation of the
property that the
respondent unlawfully occupies. It needs to be emphasised that the
last time the respondent paid the rental was
in March 2021 and thus
is in breach of its contractual obligation.
[25]
In my view,
considering all the facts and the circumstances of this case, the
applicant has made out a case, warranting the eviction
of the
respondent. The circumstances also do not favour the suggestion made
by the respondent that it be afforded a "period
of time" to
decommission and remove its machinery. The respondent does not state
the time period it requires to prepare the
removal of its machinery.
There are no discernible reasons why the respondent should be
provided with unlimited time to arrange
its evacuation of the
property. I am, however, inclined to permit the respondent limited
time to evacuate the property.
Costs
[26]
The applicant
has prayed for cost on a punitive scale. In considering the issue of
costs, account has to be taken that the respondent
is in unlawful
occupation of the property and has not been paying rental but then
opposes the application when called to vacate
the property. The
applicant has a result of the respondent's opposition incurred
unnecessary costs.
[27]
It
was for the above reasons that the order quoted above was made.
E
Molahlehi
Judge
of the High Court,
Gauteng
Local Division,
Johannesburg
Representation:
For
the Applicant: Adv L Hollander
Instructed
by:
TWB-Tugendhaft
Wapnick Banchetti and Partners
For
the Respondent: Adv M Reineke
Instructed
by:
Rowe
Taylor Attorneys.
Date
of hearing: 24 August 2021
Date
order made: 13 September 2021
Date
of the reasons: 29 September 2021
[1]
[2019/1855]
[2019] ZAGPGHC 51 [23 July 2019].
[2]
Twentieth
Century Fox Film Corporation v Anthony Black Films (Pty) Ltd
1982
(3) SA 582
(W)
at 586G.
[3]
See
Tyaak Properties (Pty) Ltd v Explorer Corporation (Pty) Ltd
12000/23927)
[2000] ZAGPHC 30
(13 November 2000).
[4]
Unpublished
in the Gauteng Local Division, Johannesburg case number 10019/2018.
[5]
Case
number: 2017I38318.