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[2018] ZAGPPHC 617
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Suid-Afrikaanse Vroe Federasie v De Bie (81278/2017) [2018] ZAGPPHC 617 (16 February 2018)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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IN THE HIGH COURT OF SOUTH
AFRICA
GAUTENG DIVISION, PRETORIA
(1)
NOT
REPORTABLE
(2)
NOT OF
INTEREST TO OTHER JUDGES
(3)
REVISED.
CASE
NO: 81278/2017
16/2/2018
In
the matter between:
SUID-AFRIKAANSE
VROUE
FEDERASIE
APPLICANT
and
MARIE
DE
BIE
RESPONDENT
(ID
NUMBER: [….])
REASONS FOR ORDER
THOBANE
AJ,
[1]
On
16 January 2018 I heard an urgent application and granted the
following order;
1.
The
application is struck from the roll;
2.
The
applicant is directed to pay the costs.
[2]
I
indicated at the time that reasons for my order will follow. What
follows below are the reasons.
[3]
On or about 29 November 2017 the
applicant launched an application in this court seeking the eviction
of the respondent from premises
known as [….] Pretoria, plus
costs on a scale as between attorney and client.
[4]
The application, which does not appear
to be opposed at this stage, is to be heard on 13 March 2018. In the
application, the applicant
seeks to have evicted from the
aforementioned premises, the respondent as well as all other persons
who occupy the premises through
the respondent.
[5]
On 20 December 2017 the applicant
launched another application purportedly on an urgent basis, seeking
in summary form the following
relief;
1.
Joining
one Raymond Fouche as the second respondent;
2.
Joining
Rey's Gymnastics as the third respondent;
3.
Eviction
of the first to third respondents;
4.
Costs
on attorney and client scale.
[6]
It must be accepted from the onset that
when the application was launched initially it was not on an urgent
basis, hence the set
down on the unopposed roll of 13 March 2018. It
follows therefore, that when that date is brought forward, cogent
reasons must
be advanced. The reason advanced which I will deal with
in detail below, was the imminent commencement of the academic year
on
18 January 2018. The main reason however was that the matter had
been rendered urgent because of events that occurred on 16 December
2017.
[7]
The aim of the recently launched
application is twofold, namely;
7.1.
To join the other parties as
respondents;
7.2.
To have the application classified as
urgent enrolled and heard.
[8]
To the above end, the applicant filed a
supplementary affidavit seeking joinder and establishing urgency. The
supplementary papers
further explain issues of service as well as
grounds of urgency. The application is opposed by the respondents.
[9]
For ease of reference it is prudent that
the application for joinder be considered first.
[10]
Johannes Fouche is the father of Reynard Fouche, who is sought to be
joined as the second respondent.
Johannes Fouche argues that
throughout the duration of the lease he is the one who had been in
constant contact with the applicant
and that it makes no sense to
seek to join Reynold Fouche, his son, who had no dealings with issues
that relate to this matter.
In fact he argues that the Gymnasium is a
separate legal entity and that there is no reason why citing it alone
should not be sufficient.
[11]
The application for joinder was not argued with vigor before me.
Counsel for the respondents
was much more vociferous in submitting
that the application was without merit particularly in so far as it
related to Reynold Fouche.
He argued that Johannes Fouche was at all
times the individual dealing with issues of the lease and contended
that there was no
necessity to join Reynold Fouche or even him for
that matter. He stated that the Gymnastic Club had its own legal
personality and
there was no reason, if a case has been made for
joinder, it alone would not be joined.
[12]
In
Burger v Rand Water Board and Another
2007 (1) SA 30
SCA
at
33, the Supreme Court of Appeal summarized the principles applicable
to joinder as follows:
"The right to demand
joinder is limited to specific categories of parties such as joint
owners, joint contractors and partners
and where the parties have a
direct and substantial interest in the issues involved and the order
which the Court might make, or
if such an order cannot be
substantiated or carried into effect without prejudicing that party,
unless the Court is satisfied that
he/she has waived his/her right to
be joined."
[13]
Corbett CJ in
United
Watch and Diamond Company (Pty) Limited v Disa Hotels Limited and
Another
1972 (4) SA 409
(C)
at
415 E-F, set out what amounts to direct and substantial interest as
follows;
“
A
direct and substantial interest can be connoted as an interest in the
right which is the subject matter of the litigation and
...
not merely a
financial interest which is only an indirect interest in such
litigation. This view of what constitutes
a
direct and
substantial interest has been referred to and adopted in a number of
subsequent decisions and it is generally accepted
that what is
required is a legal interest in the subject matter of the action
which could be prejudicially affected by the judgment
or the order.”
[14]
The Gymnasium currently occupies the
leased premises on the basis of a sublease between itself and Marie
de Bie. The relief sought,
to evict Marie de Bie and all those who
occupy the premises through her, will undoubtedly affect the
Gymnasium. I am accordingly
of the view that a case for the joinder
of the Gymnasium has been established. However, it can not be said
that an application
for joinder must be entertained in the urgent
court.
[15]
The applicant states in the
supplementary affidavit founding urgency that the events of 16
December 2017 were precipitous to the
urgent application. This is
because on that day a Mr Fouche attended the premises and removed
therefrom furniture belonging to
a tenant (Mr Jordaan), who had
occupied the hall seemingly at the instance of the applicant.
[16]
The following very brief background
facts which are largely common are necessary to highlight. The
applicant is the owner of the
leased premises, stated above. The
applicant and the respondent entered into an agreement of lease with
an option to purchase.
The lease would have run its course and
terminate on 28 February 2010. It seems two further leases were
concluded between the parties,
the last of which was on 8 March 2017.
The applicant's contention is that the third agreement was terminated
on 27 September 2017
when applicant delivered a letter to the
respondent to the effect that the lease agreement would terminate on
31 October 2017.
[17]
For our purposes, it is irrelevant
whether the parties loaned each other moneys back and forth an
allegation which is prominently
made. What is of importance is what
was known by the applicant at the time when the application for
eviction ·was launched.
What makes this application, which was
launched after the initial application, urgent.
[18]
On 14 September 2007 the applicant
entered into a new agreement with Mr Pieter Jordaan who intended to
utilize the premises as a
school. On 16 December 2017 Mr Jordaan
spoliated the gymnasium. In turn, Mr Fouche spoliated Mr Jordaan by
removing from the hall
items belonging to him. It is these events
that the applicant contends gave rise to urgency leading to the
launching of the urgent
application on 20 December 2017. I must
hasten to add that the current dispute is not about the spoliation of
either of the parties,
it is simply about the eviction of the
respondent or any person occupying the premises through the
respondent, such as the Gymnasium,
from the leased premises.
[19]
Bearing in mind that this application
was struck from the roll for want of urgency, the court must in this
judgment deal with whether
the application was in fact urgent. A
useful starting point is to evaluate whether the application meets
the requirements of Rule
(6)(12) of the Uniform Rules of Court. The
rule provides that;
'In every
affidavit or petition filed in support of any application under
paragraph (a) of this subrule, the applicant shall set
forth
explicitly the circumstances which he avers render the matter urgent
and the reasons why he claims that he could not be afforded
substantial redress at
a
hearing
in due course.'
[20]
In all matters where relief is sought on
an urgent basis it is peremptory that the applicant deal with the
above requirements. Notshe
AJ in
East
Rock Trading 7 (Pty) Ltd v Eagle Valley Granite (Pty) Ltd and Others
[
2012] JOL 28244
(GSJ)
put it
thus,
"[6] The import thereof is
that the procedure set out in rule 6(12) is not there for taking. An
applicant has to
set
forth explicitly
the circumstances which he avers render the matter urgent. More
importantly, the Applicant must state the reasons
why he claims that
he cannot be afforded substantial redress at a hearing in due course.
The
question of whether a matter is sufficiently urgent to be enrolled
and heard as an urgent application is underpinned by the
issue of
absence of substantial redress in an application in due course.
(My emphasis). The rules allow the court to come to the assistance of
a
litigant
because if the latter were to wait for the normal course laid down by
the rules it will not obtain substantial redress.
[7] It is important to note
that the rules require absence of substantial redress. This is not
equivalent to the irreparable harm
that is required before the
granting of an interim relief. It is something less. He may still
obtain redress in an application
in due course but it may not be
substantial. Whether an applicant will not be able obtain substantial
redress in an application
in due course will be determined by the
facts of each
case.
An applicant must
make out his
cases
in that regard."
[21]
In
casu
circumstances that gave rise to
urgency are said to be the spoliation that took place on 16 December
2017. At that time the applicant
was fully aware that the respondent
as well as the subtenants were in occupation of the premises. The
applicant nevertheless chose
to approach this court in the normal
course for relief. That case is pending before this court. Reverting
to
East Rock Trading 7 (Pty) Ltd v
Eagle Valley Granite (Pty) Ltd and Others,
Notshe
AJ tells us that urgency is underpinned by absence of substantial
redress at a hearing in due course. The question to be
asked
therefore is whether the relief or redress the applicant seeks can
not be obtained in due course. The relief or redress that
the
applicant seeks in due course, namely, to evict all those who occupy
the leased including the subtenants, is exactly the same
as the
relief the applicant seeks in
casu.
By all accounts therefore, the
applicant has substantial redress at a hearing in due course.
[22]
Once it is shown that the applicant can
obtain substantial redress in due course, the application can not be
said to be urgent.
[23]
For all the above reasons the matter was struck from the roll with
costs.
SA THOBANE
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION,
PRETORIA