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[2021] ZAGPJHC 511
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Sandton Square Portion 8 (Pty) Limited and Another v Coffee Chefs (Pty) Limited and Others (2021/46429) [2021] ZAGPJHC 511 (6 October 2021)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, JOHANNESBURG
REPORTABLE:
No.
OF
INTEREST TO OTHER JUDGES: No.
DATE:
6/10/2021
Case
No.: 2021/46429
In
the matter between:
SANDTON
SQUARE PORTION 8 (PTY) LIMITED
First Applicant
SANDTON
SQUARE PORTION 7 (PTY) LIMITED
Second Applicant
and
COFFEE
CHEFS (PTY)
LIMITED
First Respondent
SIBANYONI,
SIMON
Second Respondent
WELO,
CHRIS
Third Respondent
JUDGMENT
This
judgment was prepared and authored by Acting Judge Gilbert. It is
handed down electronically by circulation to the parties’
or
their legal representatives by email and uploading it to the
electronic file of this matter on CaseLines.
Gilbert
AJ:
1.
The applicants are the lessors of the
Michelangelo Towers Mall in Sandton. The first respondent is a lessee
in the shopping mall.
The second and third respondents are involved
in the conduct of the lessee’s business from the leased
premises.
2.
The applicants seek the eviction of the
respondents from the leased premises. The applicants seek the relief
on an urgent basis
because, they contend, the respondents in
conducting business from the premises are creating a safety and
security risk by not
only breaching the terms of the lease agreement
but also contravening the COVID 19 regulations. These breaches
and contraventions,
the applicants contend, include continuing to
trade from the premises during curfew as a bar or club, where alcohol
is sold. These
grounds for urgency are also some of the grounds
relied upon by the applicants as founding the breaches by the first
respondent
of the lease agreement and which breaches the applicants
relied upon for cancelling the lease agreement on 17 September
2021.
3.
It is common cause that there is a written
lease agreement between the applicants and the first respondent
pursuant to which the
applicants let the premises to the first
respondent and pursuant to which the first respondent occupies the
premises. The terms
of the lease agreement are also common cause and
include that:
3.1.
the lease is on a month-to-month basis,
commencing on 1 June 2021, with either party being entitled to
terminate the lease
by giving the other party one-month’s
written notice (clause 12 of the schedule to the lease agreement);
3.2.
the premises is to be used exclusively for
selling coffee, sandwiches, salads and bread and must not be used for
any other purpose
without the applicants’ prior written consent
(clause 10.1 of the schedule to the lease agreement read with
clause 13.1
of the general conditions of lease);
3.3.
the operating hours of the business in the
premises are 10h00 to 20h00 Sunday to Thursday and 10h00 to 22h00
Friday to Saturday
(clause 10.2 of the schedule to the Lease
Agreement read with clause 13.1 of the general conditions of
lease);
3.4.
the first respondent is to trade or do
business from the premises under the name of Coffee Chefs and is not
use any other name (clause
5 of the schedule to the lease agreement
read with clause 13.2 of the general conditions of lease);
3.5.
the first respondent must not contravene
any law, by-law, rule or regulation relating to the use of the
premises (clause 13.4
of the general conditions of lease);
3.6.
the first respondent must not effect any
improvements, alterations or additions to the premises without the
prior written consent
of the applicants and that if the first
respondent does so effect any improvements, alterations or additions,
whether with or without
the permission of the applicants, those will
become the property of the applicants and the applicants would not be
obliged to compensate
the first respondent in respect thereof
(clause 20.2 of the general conditions of lease);
3.7.
if the first respondent commits a breach of
the lease agreement and fails to rectify that breach within seven
days after written
notice requiring rectification, then in such event
the applicants will have the right, in addition to any other rights
that they
might have at law and in their sole discretion to
inter
alia
cancel the lease agreement and to
retake possession of the premises (clause 27 of the general
conditions of lease).
4.
On 3 September 2021 the applicants’
attorneys furnished the first respondent one month’s notice of
termination of the
lease agreement, the lease expressly being on a
month-to-month basis and terminable upon one month’s notice. In
the ordinary
course, the lease would terminate on 3 October 2021.
5.
On 6 September 2021 the applicants’
attorneys, without derogating from their earlier notice of
termination, furnished
the first respondent with written notice
calling upon the first respondent to remedy various breaches of the
lease agreement which
included calling upon the first respondent to
cease trading from the premises outside the agreed trading hours and
during curfew
under the COVID 19 regulations, to cease selling
alcohol from the premises when not permitted to do so by law and to
cease
continuing to effect alterations and improvements to the
premises without the applicants’ consent to do so.
6.
On 17 September 2021, the applicants in
writing cancelled the lease agreement because the first respondent
had failed to rectify
the breaches. This cancellation letter although
dated 15 September 2021 was emailed on 17 September 2021,
as appears
from the covering email.
7.
Although
the respondents have sought to make something of the dates of these
various letters, it is clear from the correspondence
attached to the
founding affidavit when these dates were dispatched per email to the
first respondent. These notices have been
furnished in accordance
with the terms of the lease agreement, including the breach
provision. Should the breaches as contended
for by the applicants be
factually sustainable and should they not have been remedied, the
applicants’ cancellation of the
lease on 17 September 2021
will be good and whereafter the respondents’ continued
occupation of the premises would be
unlawful. Although the
respondents contend that they would then lose the value of their
investment in what they contend are various
improvements they made to
the premises, that cannot render their continued occupation of the
premises lawful. Nor does it give
the respondents a basis to continue
to use the premises once the lease agreement has been cancelled.
[1]
In any event, the lease agreement expressly provides that the
applicants would not be liable for compensation for any improvements.
8.
The issue accordingly to be determined is
whether the first respondent was in fact in breach of the lease
agreement, as contended
for by the applicants.
9.
As
the applicants seek an eviction order which is final relief, the
applicants are obliged to establish their case upon the application
of the usual
Plascon Evans
approach to any relevant
bona
fide
factual dispute where the respondents’ version is effectively
to be preferred over that of the applicants,
[2]
unless the respondents’ version can be rejected as far-fetched
and fanciful.
[3]
10.
As the
Plascon-Evans
approach is used to resolve
bona fide
factual disputes, the first step is to determine whether there is a
relevant
bona fide
dispute of fact:
"The
crucial
question
is always
whether
there
is a real
dispute
of fact. That being so, and the applicant being entitled
in
the absence
of
such dispute
to
secure relief by means of affidavit evidence,
it
does
not
appear
that
a respondent
is
entitled to defeat
the
applicant
merely
by bare denials
such
as
he
might employ
in
the pleadings
of
a trial action, for the sole purpose
of
forcing
his
opponent
in
the witness
box
to undergo cross-examination. Nor is the respondent's
mere
allegation of the existence
of
the dispute of fact conclusive
of
such existence."
[4]
11.
If there is no genuine factual dispute, and
so the respondents’ version can be rejected, then the
applicants’ version
will effectively stand alone and so there
would be no need to resolve a factual dispute by the
Plascon-Evans
approach. Whether there is a
bona fide
factual dispute is an anterior issue to the application of the
Plascon-Evans
approach.
12.
In deciding whether there is a factual
dispute, the court adopts a “
robust,
common sense approach
”:
“
If
by
a
mere denial
in
general terms
a
respondent can defeat or delay an applicant who comes to Court on
motion, then motion
proceedings
are worthless for a respondent can always defeat or delay a
petitioner by such
a
device.
It
is necessary to make a robust, common-sense approach to a dispute on
motion as otherwise the effective functioning
of
the Court can be hamstrung and circumvented by the most simple and
blatant stratagem. The Court must not hesitate to decide an
issue of
fact on affidavit
merely
because it may be difficult to do so. Justice can be defeated or
seriously impeded and delayed by an over-fastidious approach
to a
dispute raised in affidavits.
"
[5]
13.
A
denial
will be inadequate for creating a genuine dispute of fact
where
the
person making the denial has
in
his
or her possession the
relevant
facts
to
amplify
the
denial.
[6]
14.
The applicants in support of their averment
that the respondents continued to trade from the premises as a bar
and nightclub after
the agreed trading hours and after curfew provide
a series of some fifty six photographs taken from CCTV footage of a
security
camera just outside the main entrance of the premises,
supported with a confirmatory affidavit by the compiler of those
photographs.
Those photographs are described as depicting patrons
leaving the premises after the agreed trading hours and during
curfew, with
the premises closing sometimes as late as 04h22 in
morning. Some of these photographs are also described as showing the
unruly
behaviour of exiting patrons, damaging property within the
shopping mall.
15.
The respondents in their answering
affidavit to not respond squarely to these detailed averments
supported by the photographs but
to refer to the first respondent’s
earlier success on 1 September 2021 in obtaining a spoliation
order in the magistrates’
court against the applicants and by
contending that it was open to the applicants to have opened a
criminal case with the South African
Police Services but that
they have failed to do so. When the answering affidavit is read as a
whole, at best for the respondents
they deny the applicants’
averments, reasoning that if the first respondent had so breached the
lease agreement then the
police who attended the premises would have
done something about it and because the police did not do something
about it, it must
follow that they had behaved permissibly.
16.
Applying the legal principles as to what
would constitute a
bona fide
dispute of fact, the respondents have not demonstrated a
bona
fide
dispute of fact in relation to the
applicants’ assertion that trading continued at the premises
after the agreed trading hours
and during curfew. The respondents
have not attempted to give any exculpatory explanation for what
appears in the photographs.
The respondents do not seek to contest
what the applicants describe is depicted in the photographs. The
photographs, explains the
applicants, shows patrons leaving the
premises on numerous occasions on many days and at various times in
the late night and early
morning during the month of September 2021.
The respondents do not offer an alternate explanation, and do not
even specifically
deny that these are patrons leaving the premises at
these hours. But even if the answering affidavit is to be read as
containing
such a denial, such denial can be rejected as not being
bona fide
.
17.
The applicants further assert that the
respondents were trading in alcohol, contrary to the lease agreement,
and without a liquor
licence and, it would appear, also contrary to
the COVID 19 regulations. The respondents do not deny that they
were trading
in alcohol but contend they were entitled to do so. I do
not take the respondents to be contending that they were entitled to
deal
in alcohol contrary to the COVID 19 regulations but rather
that they were selling alcohol permissibly during trading hours
under
a valid liquor licence.
18.
The applicants contend that the sale of
alcohol, even during trading hours and with a liquor licence, is not
permitted under the
lease agreement as it goes beyond the agreed use
of the premises. The lease agreement does not mention alcohol but
does describe
the premises to be used exclusively for purposes of
coffee, sandwiches, salads and bread. In an email attached to the
respondents’
answering affidavit, dated 23 August 2021,
and which the applicants’ highlight in their replying
affidavit, the applicants’
retail manager specifically records
that there are to be no alcohol sales, and asks for a copy of the
first respondent’s
liquor licence. Although it appears from the
respondents’ answering affidavit that the parties were
negotiating towards concluding
a long-term lease pursuant to which
the first respondent would conduct the business of a restaurant and
bar that would sell alcohol,
that was something for the future and
not something that is permissible under the applicable written lease
agreement. I however
need not make a final determination on this
issue because even should the sale of alcohol have fallen within the
permitted use
of the premises, the applicants have established that
the sale of alcohol, even if during permissible trading hours, was
without
a valid liquor licence.
19.
The applicants in their founding affidavit
particularise how they attended to photograph the liquor licence
displayed in the inside
of the leased premises and which photograph
shows that the liquor licence is ostensibly for “Knead Bakery &
Café
– Sandton” for the period 2020 / 2021 in
respect of Shop L08 in the Michelangelo Towers. This is what is
shown
in the photograph annexed to the founding affidavit. The
applicants further continue in their founding affidavit that they
through
the services of a liquor licence attorney ascertained that
according to the records of the Gauteng Liquor Board the liquor
licence
for Knead Bakery had not been renewed for 2020 / 2021. The
founding affidavit continues by furnishing a letter from Knead
Bakery,
who were previously a tenant in the mall but had since
vacated, to the Gauteng Liquor Board dated 20 September 2021
confirming
that it did not renew its liquor licence and so that the
purported renewal of their liquor licence must be fraudulent.
Further,
the leased premises occupied by the first respondent is not
Shop L08 as reflected in the liquor licence but rather Shop L14.
And the permitted trading name of the first respondent in terms of
the lease agreement is Coffee Chefs, albeit that it is
now
operating as Towers Lounge. Neither of these names match the name
reflected on the liquor licence, which is Knead Bakery &
Café
– Sandton.
20.
The respondents’ response in their
answering affidavit to this detailed evidence relating to the liquor
licence is to deny
it “
with the
contempt it deserves,
” asserting
that the applicants are misrepresenting the facts and that liquor is
validly sold, with the Liquor Board having
come to the premises and
satisfied itself that the first respondent is in possession of valid
liquor licences. But no facts are
given in support of these
assertions. No attempt is made to explain why the liquor licence
which is displayed in the premises relates
to a different named
licensee and to different premises. Neither does the first respondent
adduce any evidence that it has a valid
liquor licence, which should
have been simple enough to do by adducing the licence.
21.
In the circumstances, there are no
bona
fide
factual disputes in relation both
to the respondents’ impermissible trading after the agreed
trading hours and during curfew,
and to the sale of liquor without a
liquor licence. The applicants’ version therefore stands alone
and so there is no need
to have recourse to the
Plascon-Evans
approach, which, as described above, only operates where there are
two
bona fide
conflicting factual versions.
22.
The applicants have accordingly established
several of the breaches that they relied upon and in respect of which
they furnished
written notice to remedy to the first respondent on
6 September 2021. The applicants have also established that
those breaches
were not remedied and continued even after the
seven-day rectification period. For example, some of the photographs
pertain to
a period after the seven-day notice period, with the most
recent being on 25 September 2021. It is therefore unnecessary to
consider
the other breaches relied upon by the applicants.
23.
In the circumstances, I find that the
applicants validly cancelled the lease on 17 September 2021 and
therefore the respondents’
continued occupation of the premises
after the termination of the lease agreement on 17 September
2021 is unlawful. It is
also significant that the one-month notice
period as commenced on 3 October 2021 had also expired by the time
this application
was argued.
24.
I also find that the matter is sufficiently
urgent to have justified approaching the urgent court and truncating
the usual periods
for the filing of affidavits given the serious
nature of the breaches that have been demonstrated. The continued
conduct of the
respondents in contravention of the COVID 19
regulations is serious and potentially life-threatening, and
justifies the applicants
approaching the court on a urgent basis. The
applicants also, correctly, set down the matter for a Tuesday, as
required in this
Division.
25.
The applicants seek that the respondents
pay the costs of the application on and attorney and client scale,
motivating this as an
appropriate order given the egregious nature of
the respondents’ conduct. The respondents were furnished an
opportunity to
explain themselves in their answering affidavit,
particularly as the detailed version was set out in the founding
affidavit. The
respondents avoiding doing so. In my discretion, I
accede to the applicants’ request.
26.
The following order is granted:
26.1.
The first, second and third respondents and
all other persons who claim any title, right or interest through or
under the respondents
to occupy Shop L14 on the ground floor in
the Michelangelo Towers Mall, Maude Street, Sandton (“the
premises”)
are to vacate the premises within five (5) days of
this order.
26.2.
In the event that the respondents and all
other persons referred to above fail to vacate the premises within
the above period, the
sheriff is directed and authorised to evict
such respondents and other persons forthwith and in doing so are
authorised to call
upon the South African Police Services for
assistance.
26.3.
The respondents are ordered to pay the
costs of the application, jointly and severally, and on an attorney
and client scale.
BM
Gilbert
Acting
Judge of the High Court
Date
of hearing:
5 October 2021
Date
of judgment:
6 October 2021
Counsel
for the applicants:
Mr H D Baer
Instructed
by:
KN Kleynhans Inc, Randburg
Counsel
for the respondents:
Mr
Mohlala
Instructed
by:
Ngoetjana Attorneys, Kempton Park
Kempton Park
[1]
Rekdurum
(Pty) Limited v Weider Gym Athol (Pty) Limited
1997
(1) SA 646
(C) at 654 A – D;
Guman
NO v Ansari
[2011]
ZAGPJHC 124 (23 September 2011
)
at
paras 14, 16 and 17
[2]
Final
relief can only be granted on motion if the facts as stated by the
respondents, together with the admitted facts in the
applicants’
affidavits, justify the granting of the relief:
Plascon-Evans
Paints Limited v Van Riebeeck Paints (Pty) Limited
[1984] ZASCA 51
;
1984
(3) SA 623
(A) at 634E-G, as reaffirmed in
National
Director of Public Prosecutions v Zuma
[2009] ZASCA 1
;
2009
(2) SA 277
(SCA) at 290D-G. Effectively, the factual disputes ought
to be resolved by accepting the respondents’ version, save
where
such version is “
so
far-fetched or clearly untenable that the court is justified in
rejecting (it) merely on the papers
”:
Botha
v Law Society, Northern Provinces
2009
(1) SA 277
(SCA) at para 4, with reference to
Plascon-Evans
Paints
.
[3]
If
and once the respondents’ version is rejected as far-fetched
and fanciful, there would only be one version before the
court,
namely that of the applicants and therefore the
Plascon-Evans’
approach
would not come into play as there would no longer be conflicting
factual versions.
[4]
Room
Hire
Co
(Pty)
Limited v
Jeppe
Street Mansions (Pty) Ltd
1949
(3) SA 1155
(T) at 1162-1163.
[5]
Soffiantini
v Mould
1956
(4) SA 150
(E)
at
154G/H.
[6]
Wightman
trading as J W Construction v Headfour (Pty) Limited
[2008] ZASCA 6
;
2008
(3)
SA
371
(SCA)
at
375G-376B