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[2021] ZAMPMBHC 62
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Greyvenstein and Others v Mbombela Golf Club (322/2021) [2021] ZAMPMBHC 62 (14 December 2021)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
(MPUMALANGA DIVISION,
MBOMBELA)
CASE
NO: 322/2021
REPORTABLE: NO
OF INTEREST TO OTHER
JUDGES: YES
REVISED: YES
14/12/2021
In
the matter between:
JOHANNES
HENDRIK GREYVENSTEIN
First Applicant
EXECUGOLF
(PTY)
LTD
Second Applicant
GAVIN
SPIES
Third Applicant
and
MBOMBELA
GOLF
CLUB
Respondent
JUDGMENT
MASHILE
J:
INTRODUCTION
[1]
Central to the controversy between the parties is whether or not the
lease agreement
(“the agreement”) concluded on 1 December
2015 between the First Applicant (“Greyvenstein”) and the
Respondent
(“the Golf Club”) has been validly renewed as
intended in Clause 20(4) of the agreement. Resolution of all the
other
disputes, including the counterclaims, are dependent on the
decision of this Court on the central question. Counsel for both
parties
have advised that the reliefs sought in the main application
and counterclaim are mutually exclusive. As such, if the Court
resolves
in favour of the Applicants, for example on the main
application, the counterclaim of the Golf Club must fail and vice
versa.
[2]
Greyvenstein seeks relief in the following terms:
“
1.1
Declaring that the Lease Agreement between
the First Applicant (“Greyvenstein”) and Respondent (“the
Golf Club”)
has been lawfully renewed for a further period of 5
years from 1 December 2020;
1.2
That the sale of the business of the Pro Shop between Greyvenstein
and Third Applicant (“Spies”)
[1]
be
declared to be lawful and binding on the Respondent;
1.3
That it be declared that the Golf Club must
[2]
consent
to the cession of the lease to Spies pertaining to the Pro Shop lease
premises at the Mbombela Golf Club; and
1.4
That the Golf Club pays the cost of the Application.”
[3]
[3]
Conversely, the Golf Club seeks the following relief in its
counterclaim:
“
2.1
That
Spies and Greyvenstein be ordered to vacate the premises known as the
Execugolf Pro Shop situated on the premises of the Mbombela
Golf
Club, failing which the Sheriff is authorised to evict Greyvenstein
and/or Spies from the premises;
2.2
That a Declarator Order be issued wherein it is declared that the
Golf Club lawfully invoked the provisions
of clause 26.2 of the Lease
Agreement;
2.3 That
an independent auditor, Mr Pretorius, be appointed in terms of clause
26.2 of the Lease Agreement to give
effect thereto and to ascertain
the value of the business of the Execugolf Pro Shop as at 30 November
2020;
2.4 That
the Golf Club be ordered to pay, against receipt of the report and a
valuation of the business from the independent
auditor the aforesaid
amount to Greyvenstein,
alternatively
Spies.”
FACTUAL
MATRIX
[4]
The Golf Club is a voluntary association
established in 1928. It is the owner of the Mbombela Golf Club
situated in Matumi Golf
Estate, Mbombela. It is common cause that a
Pro Shop is an integral part of most successful golf clubs. In short
a Pro Shop is
very much a requirement for the successful operation of
a golf club because:
4.1
Usually, it supplies golf carts for patrons who make use of the golf
course;
4.2 It
sells merchandise such as golf clothing, gloves, golf balls, golf
pegs and the like.
[5]
The Pro Shop is no exception to the above. Prior to the conclusion of
the agreement
between
Greyvenstein
and the Golf Club, the Pro
Shop was owned and run by Mr Steve and Ms Heidi Lawrence. The
Respondent alleges that since Greyvenstein
took over as the lessee,
standards have declined to insufferable heights. On 1 December 2015,
Greyvenstein and the Golf Club concluded
the Agreement in terms of
which Greyvenstein took occupation of the Pro Shop at the Golf Club
together with the right to run the
business of the Pro Shop.
[6]
The agreement commenced on 1 December 2015 and was to endure for a
period of 5 years
culminating on 30 November 2020 unless extended.
The terms and conditions of the agreement are not contested but the
parties part
ways at the point of ascribing meaning to some of the
contents. On 15 April 2019, the erstwhile attorneys of the Golf Club
notified
Greyvenstein that he was in breach of the Agreement for not
making payment of the rental before the 7
th
day of every
month. The attorneys also alerted him to his failure to comply with
Clauses 9.1, 9.11 and 9.12 of the Agreement.
[7]
Following various persistent contraventions of the agreement by
Greyvenstein over
a protracted period, the Golf Club resolved that
Greyvenstein could no longer be the preferred tenant for the leased
premises.
On 5 October 2020, the attorneys of the Golf Club addressed
an e-mail message to Greyvenstein, which was also delivered by hand
at the leased premises, informing him of the decision of the Golf
Club. Even before the letter of 5 October 2020, on 4 May, 23
May and
6 December 2018, Greyvenstein was made aware of his violations of the
agreement. The notices notwithstanding the breaches
of the agreement
continued unabated.
[8]
On 31 May 2019, the Golf Club wrote an e-mail message to Greyvenstein
wherein it complained
about opening at 7:50 instead of 6:00 and other
several matters relating to faulty golf carts. Furthermore,
Greyvenstein had advertised
online that the Pro Shop business was for
sale. In that very advertisement he also stated that the Agreement
would expire on 30
November 2025. On 8 July 2020 responding to the
advertisement, the attorneys of the Golf Club wrote to Greyvenstein
conveying their
concern that he advertised the business for sale
online.
[9]
In a follow up letter also dated 8 July 2020, the attorneys of the
Golf Club notified
Greyvenstein that at the time when he advertised
the business, he was indebted to the Golf Club for arrear rentals. On
9 July 2020,
Greyvenstein replied apologising for the non-payment of
the rental, which he stated was caused by him falling behind by 2 and
a
half months
at many other places
for which he was then
trying to make up
.
[10]
Upon Greyvenstein’s failure to liquidate his entire arrear
rentals, the Golf Club, through
its attorneys, wrote a further letter
to him dated 5 August 2020 advising him that he was in arrears to the
extent of an amount
of R70 910.00 and that unless payment was
received, the Golf Club would exercise its rights in terms of the
Agreement against him.
The Golf Club alleges that this non-payment or
short or late payment recurred and became habitual despite numerous
warnings. The
situation deteriorated with other parties owed by
Greyvenstein asking if the Golf Club could not assist in impressing
upon Greyvenstein
to settle their bills.
[11]
The history of non-payment of rentals and the failure to pay his
creditors was enough, states
the Golf Club, to conclude that
Greyvenstein was no longer the preferred tenant for the lease
premises as contemplated in clause
26.2 of the Agreement.
[12]
The Golf Club alleges further that quite apart from non or short or
late payments of rentals,
Greyvenstein has over a sustained period
breached his obligations in terms of Clause 9 of the Lease Agreement
by:
12.1 Failing to
keep the lease premises clean and tidy;
12.2 Failing to
ensure that the premises were kept open for business when golf could
be played every day of the week and if
the day is a public holiday
for the hours described in Clause 9.11.1;
12.3 Failing to
ascertain that the lease premises were adequately stocked with
merchandise and properly staffed with personnel
at all relevant
times;
12.4 Failing to
guarantee that the décor of the premises was maintained at a
level which is in keeping with the standards
of the building of the
Golf Club;
12.5 Failing to
have a suitable qualified person nominated by Mr Greyvenstein and
approved by the management of the Mbombela
Golf Club to be in
attendance at the premises during golf playing hours;
12.6 Hiring out
golf carts which were mechanically not fit in that they broke down
too often and/or could not be used by patrons
visiting the Golf Club
and wishing to make use thereof.
[13]
The Golf Club has provided confirmatory affidavits of illnesses
referred to above by some of
its various patrons. Other than the
confirmatory affidavits, the Golf Club has attached letters, e-mail
messages and WhatsApp’s
setting out complaints by other
patrons. On 1 October 2020, Greyvenstein’s attorney wrote to
the Golf Club advising it that
he has exercised his right to renew
the Lease Agreement in terms of Clause 20.4, for a further period of
5 years immediately upon
the date of expiry of the initial period of
lease, being 30 November 2020.
[14]
On 5 October 2020, the attorneys of the Golf Club responded to
Greyvenstein’s exercise
of his right to renew the agreement in
terms of Clause 20.4. The letter draws Greyvenstein’s attention
to the provisions
of Clause 26.2 and that the right of renewal is
dependent on the provisions of clause 26.2. The letter went further
to provide
the following:
14.1 Greyvenstein
is informed that the Golf Club would exercise its right in terms of
Clause 26.2 as at 30 November 2020 and
not conclude a new Lease
Agreement because he was not regarded as the preferred tenant for the
lease premises anymore;
14.2 Paragraph 4 of
the letter elaborates on reasons why Greyvenstein has been discarded
as the preferred tenant for the premises;
14.3 The letter
further invites Greyvenstein to agree to the appointment of an
independent auditor in Mbombela to determine
the value of his
business to enable payment of the amount so established prior to his
evacuation of the premises on 30 November
2020;
14.4 Additionally,
the letter advises Greyvenstein that should he refuse to agree on the
appointment of an independent auditor,
he would be in breach of the
provisions of clause 26.2 of the Lease Agreement;
14.5 Paragraph 7 of
the letter informs Greyvenstein that he continues to be in breach of
his obligations arising from the
agreement. In consequence, he was
not entitled to renew the Agreement due to the provisions of Clause
20.6.
[15]
On 7 October 2020, the attorneys of Greyvenstein wrote back advising
the Golf Club that in consequence
of its failure to exercise its
right of first refusal, Greyvenstein concluded an Agreement of Sale
with Spies in respect of the
first part of the business. The Golf
Club was further told that Spies would take occupation of the lease
premises on 12 October
2020. Replying to the above letter on 14
October 2020, the attorneys of the Golf Club wrote and requested the
following:
15.1 A copy of the
alleged agreement of Sale of Business between Greyvenstein and Spies;
15.2 Proof of
payment of the purchase price by Spies to Greyvenstein.
[16]
Greyvenstein is yet to provide the proof of payment by Spies. That
said, the Golf Club states
that it would appear that Spies has caused
a guarantee for the payment to be issued. However, the guarantee has
not been called
upon for payment. On 14 October 2020 and as a result
of the sale of their Shop business to Spies, the attorneys of the
Golf Club
wrote to Spies’ attorneys to which they responded by
their letter of 16 October 2020. The Golf Club maintains that against
the background of the above facts, it is entitled to an order
evicting Greyvenstein and/or Spies from the leased premises for the
various reasons already canvassed above.
ASSERTIONS
[17]
The Golf Club contends that the professed exercise of the right of
renewal is illegitimate firstly,
because when Greyvenstein purported
to renew the agreement, the Golf Club had previously decided that he
would not be the preferred
tenant for the leased premises anymore.
Secondly, at the time of the exercise of the right of renewal
Greyvenstein was constantly
in contravention of his obligations. As
such, he could not exercise the right of renewal being prohibited by
the provisions of
clause 20.6.
[18]
Regarding the observance of the agreement concluded between
Greyvenstein and Spies by the Golf
Club, the argument is that the
latter cannot entertain it because Greyvenstein cannot and could not
have transmitted to Spies a
right that he himself did not have in the
first place. Against that background, the Golf Club impressed upon
the Court to dismiss
the application and to grant relief as per its
counterclaim.
[19]
Greyvenstein on the other hand contends that his exercise of the
right of renewal of the agreement
on 1 October 2020 precluded the
Golf Club from declaring that he was no longer the preferred tenant.
In any event, such a decision
could only be made by the Golf Club on
30 November 2020, not before. While Greyvenstein acknowledges that he
has not been a model
tenant especially insofar as payment of rentals
is concerned, he urged this Court not to have regard to his
historical contraventions
of the agreement because they are
immaterial. In any event, concludes Greyvenstein, such infringements
were ultimately complied
with as demanded by the Golf Club.
ISSUES
[20]
The first key issue for decision is the validity of the exercise of
the right of renewal of the
agreement by Greyvenstein. The second is
whether or not the Golf Club is legally obliged to observe the
agreement entered into
on 7 October 2020 between Greyvenstein and
Spies. Needless to state that should this Court find the renewal to
have been invalid,
the second issue as described aforesaid will
become superfluous. The resolution of these issues depend on the
interpretation of
the agreement and case law. For that reason, I deem
the provisions of the agreement to be the starting point followed by
case law.
LEGAL
FRAMEWORK
RELEVANT
PROVISIONS OF THE AGREEMENT
[21]
Clause 4 deals with duration of the agreement and it provides that:
“
This
lease shall come into operation on 1 December 2015 and shall endure
until 30 November 2020.”
[22]
Clause 6 is concerned with payments. Sub-clause 6.1 lays down that:
“
All
payments due by the lessee to the lessor under this lease shall be
made to the lessor on or before the 7
th
day of each and every month at the Club or to such other person, if
any, at such other place, if any, as the lessor has designated
for
the time being by written notice to the lessee.”
[23]
Clause 9 dealing with sundry obligations of the lessee states that
the lessee shall:
“
9.1
Keep the premises clean and tidy;
9.11 Procure the
that the premises are kept open for business when golf can be played
every day of the week, if the day is
a public holiday of which the
hours will be as follows:
9.11.1
opening at least 30 minutes before the first Tee-off on all relevant
days; and
Closing
hours: Wednesday and Saturday 18:00
Sunday
and all others days 17:00.
9.12 Procure
that the premises are adequately stocked with merchandise and
properly staffed with personnel at all times;
9.13 Procure
that the décor of the premises is maintained at all level
which is in keeping with the standards of the
building;
9.16.2
Appoint a suitable qualified person, nominated by the lessee,
and
approved by management of the lessee, to be in attendance at the
premises during playing hours, also ex officio to serve on
the Club
Committee and attend all meetings, if and when required, including
the Jock Tournament Committee.; [SIC]
9.17 Responsible
(not exclusively to market the golf course, the facilities and the
general upliftment of the aforementioned,
and without derogating from
the generality thereof assisting with the following:
9.17.1
The Greens Superintendent with course setup, where necessary;
9.17.2
Promoting the game of golf through an operational structure that
provides the first class environment for members and their guests;
9.17.3
Actively promote the Club to companies, visiting groups and visitors;
9.17.4
Management and Golf Committee to organise the playing of the game
on
non-club days, club days are currently Wednesday and Saturday
afternoons and the occasional Sundays;
9.17.5
The Golf Committee during large tournament in marshalling on the
course;
9.17.6
Management and Golf Committee from time to time in other duties
as
agreed between the parties to disagreement from time to time hereto.”
[24]
Clause 20 is headed: Option of Renewal and the following sub clauses
are pertinent:
“
20.1
The lessee shall have the right to renew this lease upon die terms
and subject to the conditions set out below; [SIC]
20.2 The period
for which this lease may be so renewed is 5 years commencing on the
date immediately following the date of
expiry of the initial period
of this lease, being 30 November 2020.
20.3 All the
terms of this lease shall continue to apply during die renewal period
save that:
20.3.1
upon expiry of the renewal period, set out in Clause 20.2, the
Club
may elect to re-advertise the letting of the premises. And
20.3.2
Should the letting of the premises be re-advertised, the lessee
shall
not be precluded from re-applying.
20.4 The right
of renewal shall be exercised by notice in writing from the lessee to
the lessor given and received not later
than 1 November 2020, and
shall lapse if not so exercised.
20.5 If the
right of renewal is duly exercised, this lease shall be renewed
automatically and without the need for any further
act of the
parties.
20.6 The lessee
shall not, however, have the right of renewal while in breach or
default of any of the terms of this lease.
20.7 …”
[25]
Clause 23 is headed: Whole agreement. The following sub clauses are
relevant:
23.1 “This is
the entire agreement between the parties.
23.2 Neither party
relies in entering into this agreement on any warrantees,
representations, disclosures or expressions of
opinion which have not
been incorporated into this agreement as warrantees or undertakings.
23.3 No variation
or consensual cancellation of this agreement shall be of any force or
effect unless reduced to writing and
signed by both parties.
[26]
Clause 24 is a Non-Waiver and it prescribes that:
“
24.1
Neither party shall be regarded as having waived, or be precluded in
any way from exercising, any right under or arising from
this lease
by reason of such party having at any time granted any extension of
time for, or having shown any indulgence to, the
other party with
reference to any payment or performance hereunder, or having failed
to enforce, or delayed in the enforcement
of, any right of action
against the other party.
24.2 The failure
of either party to comply with any non-material provision of this
lease shall not excuse the other party
from performing the latter’s
obligations hereunder fully and timeously.”
[27]
Clause 26 deals with special conditions and it stipulates as follows:
“
26.1
Should the lessee during the currency of the agreement wish to sell
its business in whole or in part, the lessee shall first,
by means of
a written offer, offer it to the lessor:
26.1.1
The said offer shall be irrevocable for a period of 30 days after
it
has been received by the lessor and shall state the price required
for the business and the terms of payment;
26.1.2
The said offer shall not contain any other terms and conditions
save
for the normal restraints and warranties required by the lessor as
well as the releasing of the lessee or its representative/members
as
surety from any financial institution;
26.1.3
Should the said offer be accepted, it shall be communicated to
the
lessee, in writing, without any counter and/or new conditions and/or
proposals, together with the payment of the price required,
alternatively submit security for payment, acceptable to the lessee;
26.1.4
If at the expiration of the period stated in Clause 26.1.1 above,
or
if it is not accepted by the lessor, the lessee will be entitled to
offer the said business to any bona fide third party at
a price not
less and terms not more favourable than the price and terms set forth
in the written offer to the lessor, with the
exception, if the
business is sold the lessor shall consent to the cession of this
agreement of lease to the purchaser.
26.2 It is
hereby agreed that should the lessee at the expiry of any of the
lease periods not be the preferred tenant for
the premises, the
parties shall instruct a firm of auditors, who shall not be the
auditors of the Club nor of the lessee, to value
the business of the
lessee. The said auditors shall act as an expert and not as an
arbitrator, whose valuation shall be final and
binding on all
parties. It is agreed that the said valuation shall be the purchase
price of the business and shall be paid, in
cash, to the lessee
before the vacation of the premises by him or it as the case may be.”
[28]
To the extent that this matter involves interpretation of the
agreement between the parties,
it could be instructive to refer to
the famous and often quoted paragraph of Wallis JA in
Natal Joint
Municipal Pension Fund v Endumeni Municipality
2012 (4) SA 593
(SCA):
“
[18]
The present state of the law can be expressed as follows.
Interpretation is the process of attributing meaning to the
words
used in a document, be it legislation, some other statutory
instrument, or contract, having regard to the context provided
by
reading the particular provision or provisions in the light of the
document as a whole and the circumstances attendant upon
its coming
into existence. Whatever the nature of the document, consideration
must be given to the language used in the light of
the ordinary rules
of grammar and syntax; the context in which the provision appears;
the apparent purpose to which it is directed
and the material known
to those responsible for its production. Where more than one meaning
is possible each possibility must be
weighed in the light of all
these factors. The process is objective not subjective. A
sensible meaning is to be preferred
to one that leads to insensible
or unbusinesslike results or undermines the apparent purpose of the
document. Judges must be alert
to, and guard against, the temptation
to substitute what they regard as reasonable, sensible or
businesslike for the words actually
used. To do so in regard to a
statute or statutory instrument is to cross the divide between
interpretation and legislation. In
a contractual context it is to
make a contract for the parties other than the one they in fact made.
The ‘inevitable point
of departure is the language of the
provision itself’, read in context and having regard to the
purpose of the provision
and the background to the preparation and
production of the document.”
[29]
There is a dispute on the pertinence of historical breaches by
Greyvenstein. Greyvenstein asserts
that they are irrelevant because
while it is true that he contravened the agreement on several
occasions, he subsequently fully
complied rendering reference thereto
untenable. The Golf Club maintains that Greyvenstein’s conduct
of non or short or late
payment of rentals throughout the currency of
the agreement is material and requires to be taken into account when
it exercises
its discretion whether or not to declare him a preferred
tenant.
[30]
The Appellate Division, as it was then, in
OK
Bazaars (1929) Ltd v Cash-In CC
1994
(2) SA 342
(A)
was concerned with a
similar clause as 20.6 that provided that the lessee could not renew
while he is in contravention of the agreement.
The Court stated the
following:
“
The clause
reflects, upon the part of the lessor, an understandable version to
be saddled, after the ordinary expiry of the lease
and for a further
period of 9 years and 11 months, with a lessee whose performance of
its obligations during the ordinary currency
of the lease had been
unsatisfactory. The language of the clause means no less, so it seems
to me, than that in considering the
prerequisite for the renewal has
been established, the lessee’s whole track records up to the
date of the expiry of the lease
is relevant.”
ANALYSIS
VALIDITY OF THE
RENEWAL OF THE AGREEMENT
[31]
It is manifest that the validity of the renewal is governed by Clause
20.6 to which I have referred
above. The essence of the clause is
that Greyvenstein is at liberty to renew the agreement save in those
instances where he is
in breach of any of the terms of the agreement.
The obvious question then becomes, was Greyvenkstein in contravention
of the provisions
of the agreement at the time when he renewed it?
Greyvenstein purportedly renewed the agreement on 1 October 2020 for
another 5-year
period.
[32]
In support of its allegation that Greyvenstein was in contravention
of the agreement at the time
when he purportedly exercised his right
of renewal, the Golf Club has furnished the evidence of Robert Bruce
Henderson (“Henderson”)
in the form of an affidavit. He
confirms that he was at the Golf Club from 1 to 3 October 2020. Below
are some of the complaints
that he describes in his affidavit:
32.1
He found the level or absence of service received at the Pro Shop
during the period 1 October 2020 to 3 October 2020
objectionable;
32.2 There were no
golf balls that could be purchased as there were none in stock and
the general stock level was very poor
with very little golf and other
clothing items for sale;
32.3 Some of the
members of Henderson’s group, as visiting golfers, wanted to
purchase clothing and other souvenirs
from the club but could not
find anything of relevance to buy;
32.4 The personnel
displayed lack of proper training as they exhibited no welcoming or
enthusiastic attitude towards the patrons;
32.5 The interior
of the Pro Shop was parsed and barren;
32.6 He describes
the aforesaid as having been a contrast to the rest of the golfing
experience, which he refers to as fantastic,
exemplary, efficient and
professional; and
32.7 Henderson
concluded his Affidavit by stating that it was disappointing that
their experience as described aforesaid was
diminished by the extreme
poor quality of the Pro Shop.
[33]
The in depth experiences of Henderson described in his affidavit are
confirmed in the affidavit
of Mr Gert Drederik Johannes Erasmus
(“Erasmus”). As such, Greyvenstein was in breach of
Clause 20.6 of the agreement
if I have regard to the affidavits of
Henderson and Erasmus. Accordingly, Greyvenstein could not have
renewed the agreement because
he was proscribed from doing so as a
result of the provisions of Clause 20.6.
[34]
Greyvenstein has argued that the Golf Club has always been at liberty
to cancel the agreement
utilising the provisions of the breach clause
if it felt aggrieved by his contraventions. In any event, added
Greyvenstein, he
subsequently rectified them making reliance on the
fact that he was not a preferred tenant invalid. The OK Bazaars case
supra
is unequivocal on the argument advanced by Greyvenstein
in that regard. The position is that the Golf Club was entitled to
have
regard to the history of Greyvenstein’s breaches of the
agreement it being beside the point that he subsequently complied.
In
any event, Clause 24.1 of the agreement, the non-waiver clause,
militates against Greyvenstein’s assertion.
[35]
Having declared that Greyvenstein was no longer a preferred tenant,
the Golf Club proceeded to
invoke Clause 26.2. In short, the clause
provides that if at the expiry of any of the lease periods
Greyvenstein is no longer the
preferred tenant for the leased
premises, the parties shall instruct independent auditors to value
the business. The resultant
valuation shall be the purchase price of
the business, which the Golf Club must pay to Greyvenstein in cash
prior to his vacation
of the leased premises. If the invocation of
Clause 26.2 by the Golf Club was lawful, as I believe it was,
Greyvenstein could not
have exercised his right of renewal.
[36]
The assertion by Greyvenstein that the Golf Club could not have
declared that he was no longer
the preferred tenant because at the
time when it did so, he had already renewed the agreement on 1
October 2020 and that such decision
could only be made on 30 November
2020 and not prior, will produce aberrant corollaries. I find myself
in agreement with the Golf
Club that such interpretation renders
Clause 26.2 completely gratuitous as to ensure that the Golf Club
does not invoke it, Greyvenstein
could basically notify the Golf Club
before the end of October 2020 of his objective to renew the
agreement.
[37]
If that were to be the interpretation to assign to the clause, the
Golf Club could be guaranteed
that any decision taken by it on 30
November 2020 and beyond would be ineffectual. It is understandable
why Greyvenstein would
prefer that meaning because it protects him
against the natural consequences of the principle that flows from the
OK Bazaars case
supra
. What could happen is that had
Greyvenstein chosen to exercise his right to renew the agreement
between inception of the agreement
and 1 October 2020, the Golf Club
would find itself without any remedy for Greyvenstein’s
transgressions throughout the period
of the agreement.
[38]
The above would bring about preposterous and unintended results. The
position is that the Golf
Club could exercise its discretion to
declare him no longer preferred tenant at any time including invoking
the provisions of the
breach clause. Such a move by the Golf Club
would undermine any attempts of renewal of the agreement by
Greyvenstein. Over and
above all this, Greyvenstein has failed to
state why the Golf Club was not entitled to make its declaration that
he was no longer
the preferred tenant earlier than 30 November 2020.
THE
AGREEMENT BETWEEN GREYVENSTEIN AND SPIES
[39]
Turning to the agreement concluded between Greyvenstein and Spies on
7 October 2020. The decision
of this Court that the Golf Club was
within its rights to invoke the provisions of Clause 26.2 ousts any
possible entertainment
of declaration of the agreement between
Greyvenstein and Spies as lawful. Accordingly, even if their
agreement was valid, the mere
fact that it was concluded subsequent
to the Golf Club exercising its rights in terms of Clause 26.2 means
that the procedure laid
down in Clause 26.2 takes precedence over
Clause 26.1. As such I find it unnecessary to traverse the subject
whether or not Greyvenstein
and Spies followed the procedure
described in Clause 26.1. In the result, the application must fail
and the counterclaim succeeds.
ORDER
[40]
I make the following order:
1.
The main application is dismissed with
costs;
2.
Spies and/or Greyvenstein and/or Execugolf
(Pty) Ltd are directed to vacate the premises known as the Execugolf
Pro Shop, situated
on the premises of the Mbombela Golf Club failing
which the Sheriff is authorised to evict Spies and/or Greyvenstein
from the premises;
3.
It is declared that the Golf Club lawfully
invoked the provisions of Clause 26.2 of the Agreement;
4.
Mr Pieter Pretorius of PBS Chartered
Accounts Incorporated, an independent auditor, is appointed in terms
of clause 26.2 of the
Lease Agreement, to give effect to the
provisions of clause 26.2 and to ascertain the value of the business
of the Execugolf Pro
Shop as at 30 November 2020;
5.
The Golf Club is ordered to pay, against
receipt of the report and the valuation of the business from the
independent auditor the
amount that he shall have determined to Spies
alternatively,
Greyvenstein and/or Execugolf (Pty) Ltd;
6.
Greyvenstein, Execugolf (Pty) Ltd and Spies
are directed, jointly and severally, the one paying the other to be
absolved, to pay
the cost of the Application.
______________________________
B A MASHILE
JUDGE OF THE HIGH
COURT OF SOUTH AFRICA
MPUMALANGA DIVISION,
MBOMBELA
This judgment was
handed down electronically by circulation to the parties and/or
parties’ representatives by email. The date
and time for
hand-down is deemed to be 14 December 2021 at 10:00.
APPEARANCES:
Counsel for the
Applicant:
Adv J
Brand SC
Instructed
by:
Christo Smith Attorneys Inc
Counsel for the
Respondent:
Adv C Erasmus SC
Instructed
by:
Swanepoel & Partners Inc
Date of
Judgment:
14 December 2021
[1]
Incorrectly
set out in prayer 2 of the Notice of Motion to be the “
Respondent”
[2]
Sic!
shall
[3]
Prayers
1, 2, 3 and 4 of the Notice of Motion, pp 1 and 2