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[2019] ZANCHC 54
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Dawid Kruiper Municipality v Oranje Watersport CC (2231/2018) [2019] ZANCHC 54 (20 September 2019)
Reportable:
YES
/ NO
Circulate to Judges:
YES
/
NO
Circulate to
Magistrates:
YES
/ NO
Circulate to
Regional Magistrates:
YES
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IN
THE HIGH COURT OF SOTH AFRICA
(NORTHERN
CAPE PROVINCIAL DIVISION, KIMBERLEY)
Case
No: 2231/2018
In
the matter between:
DAWID
KRUIPER MUNICIPALITY
Applicant
and
ORANJE
WATERSPORT CC
Respondent
Coram:
Lever AJ
JUDGMENT
1.
This is
an application to evict the respondent from a business premises after
the expiry of a written lease agreement. At the time
of hearing, it
was common cause that the lease had terminated by the effluxion of
time.
2.
It is
necessary to give some background to place the matter in its proper
context. The applicant owns a property on the banks of
the Orange
River in Upington, being erf 15747. The respondent leased this
property from the applicant and applicant’s predecessor
in
title for a period of approximately 18 years in terms of several
lease agreements most of which were for a fixed period of 5
years.
3.
The
respondent ran a business which consisted of a river barge named
“Sakkie sê Arkie”. The respondent made certain
improvements to this property to accommodate such business. The
written lease agreement provided that on termination of such lease
the applicant would become owner of such improvements and that the
applicant would not be liable to compensate the respondent for
such
improvements. The said written lease agreement also provided that the
reason why the rental for the relevant property was
not a market
related rental during the subsistence of the lease was because
respondent had made such improvements to the said property.
4.
Subsequent
to the lease being entered into, and a relatively short time before
such lease came to an end, the applicant decided
to dispose of the
relevant property by way of a public tender. The respondent submitted
a tender. The tender was not awarded to
the respondent but was
awarded to another entity. The respondent took this decision on
review. The said review was heard in this
division and the judgment
went against the respondent. The respondent then sought leave to
appeal, which was refused.
5.
I was
informed by both Counsel that the respondent petitioned the President
of the Supreme Court of Appeal (SCA) for leave to appeal.
Counsel
then informed me that a ruling has been issued that the parties
should be prepared to argue both the application for leave
to appeal
and the merits of such appeal, but that no date has yet been set for
such hearing in the SCA.
6.
It was
necessary to set out this background to the present application
because some of the arguments raised by the respondent to
avoid
eviction relate to how, potentially, its rights might be affected in
the event that it is ultimately successful in such appeal,
but is
evicted before such appeal is decided.
7.
The
applicant relies on the fact that it is still the registered owner of
the property concerned and that the lease has terminated
by the
effluxion of time as grounds to evict the respondent from the
relevant property. The respondent in answer to this has raised
four
points
in
limine
and the fact that it would potentially suffer prejudice if it is
evicted and subsequently wins its appeal. Respondent has also
contended that a tacit lease agreement between the parties has come
into existence.
8.
The four
points
in
limine
raised by the respondent are as follows: In terms of the provision of
the lease agreement, the parties were first obliged to negotiate
in
good faith and if that failed to proceed by way of arbitration;
Although applicant has pleaded it is the owner of the property
it has
not dealt with the subsequent agreement of sale in respect of the
said property and the right to occupy the property in
terms of the
said agreement of sale. It is submitted by respondent that in the
absence of clarifying these issues and specifically
relating to the
right to occupy the said property, the applicant cannot seek the
eviction of the respondent; That the person authorised
to depose to
the affidavits in this matter did not have the authority to bring an
application to evict the respondent on behalf
of applicant; and That
the purchaser of the property, being the Upington Hotel (Pty) Ltd has
not been joined in these proceedings
to evict the respondent.
9.
In its
heads of argument filed in the matter respondent indicated that the
applicant filed its replying affidavit out of the period
allowed for
the filing of such document. Applicant alleged that it filed its
replying affidavit out of time by virtue of the knock-on
effect of
the respondent filing its answering affidavit out of time. At the
hearing hereof, Mr Snyman SC, who appeared on behalf
of the
respondent, indicated that the respondent would not be pursuing this
particular preliminary point.
10.
In
addition to the issues raised by the respondent and set out above, in
relation to the merits, the respondent in its papers filed
herein
raised the issue of it having a lien or right of retention in respect
of the improvements and maintenance on the relevant
property. In
addition to this the respondent also raised in its papers that the
eviction should be suspended or postponed pending
the outcome of the
SCA appeal referred to above.
11.
Turning
now to the first point
in
limine
,
being the negotiation/arbitration clause contained in the lease
agreement. Mr Snyman for the respondent argued that the
correspondence
that is annexed to the founding affidavit as annexures
“C” up to and including annexure “G” clearly
evidences
a dispute between the parties flowing from the agreement
between them.
[1]
At best for Mr
Snyman, this is a mischaracterisation of the said correspondence. In
this context the relevant agreement is the
lease agreement. It is
clear from the said correspondence that both parties accepted that
such lease would or had ended due to
the effluxion of time. Such
disputes as are raised in the said correspondence do not flow from
the relevant lease agreement.
12.
Mr Snyman
developed the respondent’s argument in relation to this first
point
in
limine
by referring to clause 30 of the relevant lease agreement. The said
clause 30 reads as follows:
“
30
Enige dispuut of geskil wat mag voortspruit uit hierdie ooreenkoms,
uitgesluit die betaalings van huurgelde,
dienstegelde, belasting en
enige ander betalings waarvoor die HUURDER in terme van hierdie
kontrak aanspreeklik is, sal soos volg
mee gehandel word:
1.
By wyse
van onderhandeling tussen die partye tot die ooreenkoms.
2.
Indien
die dispuut of geskil nie by wyse van onderhandeling binne 14
(viertien) dae na die ontstaan daarvan opgelos kan word nie,
word die
dispuut of geskil, vir beslissing binne 21 (een-en-twintig) dae vanaf
datum van sy aanstelling, na ʼn onafhanklike
arbiter waarop die
partye ooreenkom, verwys.
3.
Die
partye kom ooreen dat die beslissing van die arbiter bindend en
finaal op beide partye sal wees.”
13.
Mr Snyman
then submitted that if one had regard to the provisions of clause 25
of the relevant lease agreement, it was clear that
the parties
intended the arbitration agreement to survive the termination of the
said lease agreement. Clause 25 of such lease
agreement reads as
follows:
“
25.
Ingeval die VERHUURDER hierdie huurkontrak of enige verlenging
daarvan kanselleer ooreenkomstig die regte aan hom
verleen uit hoofed
van hierdie ooreenkoms en ingeval die HUURDER die VERHUURDER se reg
om te kanselleer bestry en/of betwis en/of
voortgaan om die EIENDOM
te gebruik, sal die HUURDER, hangende die beslissing van sodanige
dispuut, hetsy by wyse van onderhandelings,
hetsy by wyse van geding,
voortgaan om ʼn bedrag gelykstaande aan die maandelikse huurgeld
bepaal in hierdie ooreenkoms, maandeliks
vooruit op die eerste dag
van elke en iedere maand te betaal en sal voortgaan om alle bedrae
waarvoor hy uit hoofde van hierdie
ooreenkoms aanspreeklik mag wees,
te betaal en die VERHUURDER sal geregtig wees om sodanige betaalings
te ontvang en te verhaal
en die ontvangs daarvan sal geskied sonder
benadeling van die VERHUURDER se eis wat die VERHUURDER teen die
HUURDER mag hê
enigsins te affekteer. Indien die dispuut ten
gunste van die VERHUURDER besleg word, sal die betaalings gemaak en
ontvang in terme
van hierdie klousule, behou word as bedrae betaal
deur die HUURDER ten opsigte van skade gely deur die VERHUURDER as
gevolg van
die kansellasie van die huurkontrak en/of die onwettige
gebruik en besit deur die HUURDER van die EIENDOM, maar streng sonder
benadeling
van enige eis wat die VERHUURDER mag hê vir
skadevergoeding andersins.”
14.
Mr Snyman
in the Heads of Argument he filed on behalf of the respondent, then
referred to the authorities where the arbitration
clause survived the
termination of the contract and submitted that on the strength of
such authorities that on the termination
of the contract, for
whatever reason, the arbitration clause does not fall away unless the
contrary intention emerges from the
relevant contract. In support of
this proposition, Mr Snyman cited Paley v Michaelian
[2]
,
De Goede v Venter
[3]
and
Atterigeville Town Council v Livanos
[4]
.
15.
However,
during oral argument in this matter Mr Snyman conceded that the
relevant lease agreement had terminated due to the effluxion
of time.
This concession effectively puts paid to the argument raised by the
respondent in the paragraph set out above. As can
be seen from the
arbitration clause, which is set out in full above, save for the
express exclusions the arbitration clause applies
to disputes that
arise from the relevant agreement.
16.
The
pertinent question then is, does the applicant’s cause of
action herein arise from the relevant lease agreement? Properly
construed the applicant’s cause of action as set out in the
papers it filed in this application, is that: Applicant is the
registered owner of the land concerned; Such rights as the respondent
may have had to occupy the land concerned terminated when
the latest
lease between the parties had run its course and come to an end by
the effluxion of time; Once the said lease had terminated
by the
effluxion of time, the respondent had no lawful right to occupy or be
in possession of the land concerned; and As an incident
of its rights
of ownership the applicant is entitled to have possession and
occupation of such land restored to it.
17.
Once
respondent conceded that the lease had run its course by the
effluxion of time there was no longer any possibility that respondent
could raise any issue that arose from the agreement which could be
the subject of an arbitration as contemplated in clause 30 of
the
said lease agreement. Accordingly, this first point
in
limine
has no substance and stands to be dismissed.
18.
Turning
now to the second point
in
limine
,
being that whilst the applicant has pleaded it is still the
registered owner of the property it has not furnished the deed of
sale relating to the said property and the rights that the purchaser
might have to occupy have not been disclosed. Respondent then
submits
that if applicant has given another party a right to occupy in such
circumstances the applicant does not have
locus
standi
to evict the respondent.
19.
Mr Snyman
did not seriously pursue this point
in
limine
,
in my view for good reason. Even if the sale of the property gave the
purchaser the right to occupy, it would not mean that the
applicant
would not have the right to evict a former tenant. Ownership of
immovable property in our law is determined by registration.
It is an
incident of ownership that the registered owner will have the right
to occupy and even if the registered owner has given
the right to
occupy to another person, the registered owner still has the right to
evict an occupier with no lawful right of occupation.
Indeed, if the
registered owner has given the right to occupy to another person such
owner may indeed be obliged to evict the unlawful
occupier or assist
the lawful occupier in evicting the unlawful occupier. In either
case, the right to evict rests with the registered
owner.
20.
The
respondent faintly disputed the ownership of the relevant property.
It is a matter of public record that the applicant was formed
by
combining the //Khara Hais Local Municipality with a smaller
municipality that was not viable to form the DAWID KRUIPER LOCAL
MUNICIPALITY. A computerised Deeds Office search was conducted and
the printed result was annexed to the replying affidavit. This
printed result shows that the relevant property is registered in the
name of the applicant’s predecessor in title. This fact
does
not materially affect the applicant’s rights of ownership.
21.
Even
though the case of
BETTA
EIENDOMME (PTY) LTD v EKPLE-EPOH
[5]
was decided in a very different context, it correctly reflects the
law that is to be applied in this instance. In the
BETTA
EIENDOMME
case Flemming DJP set out the position as follows:
“
[10.1]
Ownership still carries within it the right to possession. Similar to
the inflatable
ball, ownership still reflates to its full content as
and when any burden such as the rights created by tenancy falls away.
[10.2]
In the absence of legislative interference, postulating that nothing
more is known
than that the plaintiff is the owner and the defendant
is in possession, it is right and proper that an owner be granted an
ejectment
order against someone who has no business interfering with
the possession. A court must protect a legal right when it is not
clearly
barred from doing so. That applies also to ownership and the
right to possession which is its core. A court should require a clear
restraint before it fails to act against a wrong. That applies also
to the theft of land and to the grabbing the right to possess,
which
is after all of the same quality and has the same effect.”
[6]
22.
Nothing
set out by the respondent can materially affect this position. There
is no substance to this second point
in
limine
and it stands to be dismissed.
23.
The third
point
in
limine
is to the effect that Mr Bernard Fourie has not demonstrated his
authority to launch the present application on behalf of the
applicant.
24.
The
applicant relies on two documents to establish the authority of Mr
Bernard Fourie to launch the present application on its behalf.
The
first is an extract of the minutes of a special council meeting held
‘in committee’ on the 23 July 2018. The second
document
is in the form of a written delegation from the municipal manager of
such authority to Bernard Fourie, the applicant’s
Head: Legal
Services, dated the 8 August 2018. Due to the manner in which this
was initially raised and later pursued by the respondent,
I will have
to set out both documents in their entirety. The relevant extract of
the minute of the special council meeting reads
as follows:
“
STRENG
VERTROULIK
IN-KOMITEE
NOTULE
: SPESIALE RAADSVERGADERING GEHOU OP MAANDAG, 23 JULIE 2018
8.
VERVREEMDING VAN ERF 15747, OLIVIERPARK : SAKKIE SE ARKIE : (SRV)
: 8.2.1 : (DIREKTORAAT KORPORATIEWE DIENSTE)
8/07/2018
(SRV) BESLUIT (IN-KOMITEE)
1.
Dat die
raad kennis neem van die uitspraak ten gunste van die Raad in die
saak tussen die Raad en Oranje Watersport BK, rakende
die
vervreemding van Erf 15747, Upington.
2.
Dat die
Raad verder kennis neem dat die huurooreenkoms met Mnre Oranje
Watersport BK op 30 Junie 2018 verstryk het en dat Mnre Oranje
Watersport BK nie Erf 15747 ontruim het nie.
3.
Dat, na
sorgvuldige oorweging van die aangeleentheid en nadat regsadvies ten
opsigte daarvan van die Raad se regsadviseurs ingewin
is, word
besluit en instruksies en opdrag aan die Munisipale Bestuurder om die
nodige stappe te neem, wat die verkryging van ʼn
uitsettingsbevel
teen mnr Oranje Watersport mag insluit, vir die ontruiming van die
Erf 15747.
4.
Dat,
indien nodig, die Munisipale Bestuurder, Mnr E Ntoba en/of enige
amptenaar deur hom daartoe versoek en beopdrag hiermee, gemagtig
en
gelas word om die Raad te verteenwordig in sodanige aansoek en om die
nodige beëdigde verklarings af te lê (tesame
met sodanige
verdere verklarings van amptenare van die Raad betrokke by die
aangeleentheid) namens die Munisipaliteit en/of die
Raad en om alle
ander verdere stappe te neem wat nodig mag wees om uitvoering te gee
aan hierdie besluit.
5.
Dat,
indien nodig, die nodige kostebevel teen die aansoeker, warna in punt
1 verwys word, ook aangevra word.”
25.
The
relevant written delegation dated 8 August 2018, reads as follows:
“
TO WHOM IT MAY
CONCERNS (sic)
I, Elias Ntoba, in my
capacity as Municipal Manager, in terms of resolution 8/07/2018 (SCM)
dated 23 July 2018, a copy of which
is attached hereto, duly
authorizes (sic) Bernard Fourie in his capacity as Head: Legal
Services to sign all the necessary affidavits,
documents and forms
relating to the matter between the Dawid Kruiper Municipality and
Oranje Watersport CC, regarding the purchase
of Erf 15747, Upington.”
26.
Originally,
in its heads of argument the respondent approached the matter by
contending that the minute of the resolution was a
suspicious
document and it ought to be approached with caution because it did
not name those present who had taken the decision
on Council’s
behalf and that it was not signed by anybody. Further, in it’s
Heads of Argument, respondent also attacked
the delegation by the
Municipal Manager to Mr Fourie.
27.
Mr
Rautenbach who appeared for the applicant raised the issue, in the
applicant’s Heads of Argument, that the authority to
bring the
present application had not been challenged by the procedure set out
in Rule 7 of the Uniform Rules of Court and relied
on the authority
of the SCA in the matter of
Unlawful
Occupiers, School Site v City of Johannesburg
[7]
for the submission that challenges to the authority of a person
launching an application must be brought under the provisions of
the
said Rule 7.
28.
In his
oral argument, Mr Snyman only referred to the delegation and dropped
all reference to the minute of the council meeting.
Mr Snyman then
argued that in such circumstances the decision of the SCA in the
Unlawful
Occupiers, School Site
case
[8]
did not apply to the
present case.
29.
In making
this argument Mr Snyman focuses on the words “…,
regarding the purchase of Erf 15747, Upington.” In
short Mr
Snyman’s argument is that the delegation did not authorise the
application to evict respondent.
30.
Clearly,
the delegation being, annexure “A1” to the founding
affidavit is inelegantly drawn. However, Mr Snyman loses
sight of the
fact that the resolution is specifically referred to and identified.
Furthermore, a copy of such resolution was attached
to the delegation
when it was made. It is clear from the resolution itself that the
present application is indeed uathorised by
the applicant’s
council.
31.
Mr Snyman
also loses sight of the underlying reason for establishing the
authority of a person who is not a natural person, but
who is a party
to the application. Such reason being that the said party should not
be able to deny being a party to the litigation
pursued in its name
when an adverse costs order is in the offing or being a party to such
litigation no longer suits it for any
reason. This aspect was
referred to by the SCA in the
Unlawful
Occupiers School Site
case when it quoted with apparent approval, the ratio decidendi of
Flemming DJP in the Eskom v City Council of Soweto matter
[9]
.
32.
Reading
the delegation together with the minute of the decision, being
annexures “A1” and “A2”, it is quite
clear
that Mr Bernard Fourie had the necessary authority to launch the
present application for the eviction of the respondent.
In the
circumstances evidenced by annexures “A1” and “A2”,
there is no way that applicant can deny it is
a party to this
application. This third point
in
limine
also has no substance and stands to be dismissed.
33.
The
fourth point in limine is the non-joinder of the purchaser of the
relevant property, being the Upington Hotel (Pty) Ltd to the
present
application to evict the respondent.
34.
Mr
Rautenbach submitted on the applicant’s behalf that applicant
is still the registered owner and that in the present circumstances
as Upington Hotel (Pty) Ltd was merely the purchaser that it did not
have a direct and substantial interest in the matter. Accordingly,
Mr
Rautenbach submitted that there was no need to join the Upington
Hotel (Pty) Ltd to these proceedings.
35.
In the
current circumstances, I believe Mr Rautenbach is correct.
Accordingly, this point
in
limine
also stands to be dismissed.
36.
Turning
now to the merits, here the respondent essentially raised three
issues. Firstly, it had a lien or right of retention based
on certain
repairs, maintenance and improvements it had affected to the relevant
property. Secondly, it had initiated an appeal
process that was
currently pending before the SCA. That if it was ultimately
successful in such appeal, it stood to suffer prejudice
if it was
evicted and ultimately was successful in its appeal and was also
ultimately awarded the right to buy the relevant property.
Respondent
developed this argument by referring to a number of parks and other
recreational facilities for which applicant was
responsible and
showed by way of photographs how the applicant had allowed such
facilities to deteriorate and become vandalised.
Thirdly, the
applicant by invoicing respondent for rental after the expiry of the
lease had brought into existence a tacit agreement
of lease.
37.
Dealing
with the first issue raised on the merits, being the alleged right of
retention or improvement lien. This argument was not
pursued by Mr
Snyman in his oral argument with any vigour or enthusiasm.
Accordingly, I need not deal with it in any great detail.
38.
In the
main these issues are dealt with in the appropriate provisions of the
lease. Clauses 8.1 and 8.2 of the lease deal with these
issues. These
clauses read as follows:
“
8.1
Die HUURDER sal die reg hê om op eie koste verbeterings op die
EIENDOM op te rig of aan te bring. Die verbeterings
moet inpas by die
beoogde Noerdoewer ontwikkeling. Planne en/of specifikasies van
sodanige verbeterings moet egter ingevolge die
toepaslike
verordeninge vooraf aan die VERHUURDER vir goedkeuring voorgelê
word en moet esteties aanvaarbaar wees. Die VERHUURDER
onderneem om
nie sodanige goedkeuring onredelik te weerhou of te vertraag nie.
8.2
Met beëindiging van hierdie huurkontrak of enige verlenging
daarvan, hetsy weens verstryking daarvan
of andersins, sal alle
veranderings of byvoegings, onmeddellik die eiendom van die
VERHUURDER word en duur die HUURDER ongeskonde
gelaat word vir die
voordeel van die VERHUURDER, wie nie aanspreeklik sal wees om die
HUURDER ten opsigte daarvan te vergoed nie,
tensy die VERHUURDER
verlang dat die persele na hulle oorspronklikke toestand herstel word
in welke geval die HUURDER die
herstelwerk sal aanbring binne 30
(dertig) dae na beëindiging van die ooreenkoms.”
39.
Respondent
has not alleged nor established that the improvements it relies on in
respect of this defence to the eviction fall outside
the provisions
of the lease agreement quoted above. The respondent has not alleged
or established that insofar as it relies on
maintenance or repairs
for its right of retention that it falls outside the provisions of
clause 15 or clause 16 of such lease.
Further, in respect of the
alleged improvement lien, the respondent has not established that the
alleged improvements were both
necessary and useful.
40.
In all of
these circumstances, I find that this is not a defence to the
applicant’s application to evict the respondent from
the
property concerned.
41.
Turning
now to the second defence on the merits, being that the appeal
process is currently pending before the SCA and in the event
that
respondent is successful in its appeal, it might ultimately be
awarded the tender to buy the relevant property.
42.
In
support of this argument respondent contended that it had spent some
R900,000.00 (nine hundred thousand Rand) on improvements
to the
property. It followed this with the submission that if respondent was
deprived of possession of the relevant land before
the appeal process
was finalised, it would be at risk of ultimately loosing the benefit
of the improvements that it had made to
the property. In support of
this contention respondent has given a list of parks and
entertainment facilities run and maintained
by the applicant which
the applicant has either not maintained or allowed to be vandalised.
43.
Respondent
submits that if this were to happen to the property concerned and it
was successful in its appeal and if it were ultimately
awarded the
right to buy the property concerned that it would be severely
prejudiced. It argued that it should be allowed to retain
possession
of the property pending the finalisation of the appeal in order to
protect and safeguard it.
44.
In
response Mr Rautenbach argued that even if the respondent was
successful in its appeal that this did not mean that it would
necessarily be awarded the right to purchase the relevant property.
He submitted that all the respondent had was a hope or a
spes
that it would one day be able to purchase the property concerned. It
was further submitted that this was not sufficient to defeat
the
applicant’s rights as owner of the property concerned.
45.
Mr Snyman
argued that I had a discretion to postpone the eviction and could
order respondent to pay rental in the interim while
the appeal is
processed in the SCA. What Mr Snyman overlooks is that the property
concerned is not residential property. Also,
that I am not in a
position to make an agreement for the parties. The applicant has
established its right as the registered owner
in the present
circumstances. Having established its rights as the registered owner
I cannot without lawful reason deprive the
registered owner of such
right. Especially in circumstances where even if it is successful in
its appeal, this does not mean it
will ultimately win the right to
purchase the property concerned.
46.
The final
argument raised by the respondent on the merits is that a tacit lease
came into existence when the applicant invoiced
the respondent for
rental and other municipal imposts and charges.
47.
In this
regard the applicant explained in paragraph 40 of its replying
affidavit that the finance department of the applicant is
not privy
to the legal issues which the Legal Department would handle.
Accordingly, the finance department continued to send the
accounts
because the respondent had not vacated the premises. Then applicant
explained that once the legal department got wind
of the fact that
the finance department was billing respondent for rental
inter
alia,
it arranged for the finance department of the applicant to stop the
billing of the respondent because to allow a tacit month-to-month
lease in such circumstances would be contrary to the applicant’s
supply chain management policy and would thus be unlawful.
48.
The
respondent itself is not arguing that there has been a tacit
relocation of the previous existing lease. On the respondent’s
version a tacit month-to-month lease came into existence.
49.
The
proverbial officious bystander would have to look at all the relevant
facts and circumstances in their proper context. This
would include
the correspondence between the parties annexed to applicant’s
founding affidavit. It is clear from such correspondence
that the
applicant had no intention of agreeing to the respondent remaining in
possession after the lease had terminated by the
effluxion of time.
It is true that on the applicant’s own version its right hand
did not know what its left hand was doing.
Also, it is clear from the
respondent’s version set out in paragraph 15.6 and evidenced by
annexures “SP44” to
“SP49” that invoices and
payment were only made for 3 months the last payment being made on
the 18 September 2018.
50.
In any
event the conduct of the finance department in these circumstances is
equally compatible with an intention to collect damages
from the
respondent for holding over. In these circumstances, I do not believe
the applicant can be said to have intended or acquiesced
in the
creation of a tacit lease agreement. To enforce a tacit lease in
circumstances which would compel the applicant to break
the law would
be against public policy. On these facts, I do not believe that the
said officious bystander could conclude that
a tacit month-to-month
lease came into existence.
51.
In the
absence of a tacit lease the respondent has no defence to the
applicant’s claim for eviction.
52.
Even if I
am wrong on concluding that a tacit lease did not come into
existence, on the respondent’s own version it could
only be a
tacit month-to-month lease. If this was the case only one months
notice would be required to terminate the lease. In
these
circumstances such termination could be for any reason. The act of
stopping to send the invoice and refusing to accept payment
would
constitute such notice. The respondent has been in possession of the
property for far more than a month after the invoicing
for such
rental stopped. In these circumstances there is at this point no
longer a month-to-month lease and the respondent is holding-over
the
relevant property without any legal right to do so. In such
circumstances, I must uphold the registered owner’s rights
to
possession of the property.
53.
For the
reasons set out above, I believe the respondent has not set out a
defence that would oblige me to refuse the relief claimed
by the
applicant. In such circumstances, I must grant the relief that the
applicant seeks.
54.
The only
issue still to be decided is the issue of costs. The applicant seeks
an order for costs on the attorney and client scale
alternatively
on
the party and party scale. The respondent submitted that if the
matter is decided against the respondent costs should be awarded
against the respondent on the magistrate’s court scale,
55.
The
applicant in seeking an order for attorney and client costs relies on
clause 29.2 of the relevant lease agreement. The said
clause provides
that for any enforcement of any rights that arise from the said
agreement, the costs incurred in enforcing such
right shall be
calculated on the attorney and client scale.
56.
The
respondent seeks to rely on clause 28 which provides that for any
dispute arising from the lease agreement the parties agree
to the
jurisdiction of the magistrate’s court Upington.
57.
The
answer to the contentions by the applicant and respondent
respectively is the same. The current dispute is based on ownership
and the right to possession. This does not arise out of the lease
agreement that has terminated by the effluxion of time. It is
now
common cause that the lease agreement has terminated by the effluxion
of time. In these circumstances, the general rule that
costs should
follow the event prevails. I can think of no reason why the general
rule should not apply. Accordingly, the respondent
shall bear the
costs of this application on the ordinary party and party scale.
The
following order is made
:
1.
The
respondent and/or any person occupying erf 15747 Upington, Northern
Cape through or on behalf of the respondent is hereby evicted
from
the said premises.
2.
The
respondent is to pay the costs of this application on the ordinary
party and party scale.
Lawrence
Lever AJ
Representation:
Adv
J.S Rautenbach for the applicant oio Elliott Maris Wilmans & Hay
Attorneys
Mr
M Snyman SC for the respondent oio Engelsman Magabane Inc
Date
of hearing: 23 August 2019
Date
of Judgment: 20 September 2019
[1]
Respondent’s Heads para 4.2
[2]
1929 CPD 309.
[3]
1959 (3) SA 959 (O).
[4]
[1991] ZASCA 139
;
1992 (1) SA 296
(A) at 303I to 306C.
[5]
2000 (4) SA 468 (W).
[6]
Betta Eiendomme, above at p 475E-G.
[7]
2005 (4) SA 199
at para [16].
[8]
Above.
[9]
Unlawful Occupiers School Site case above at para [14].