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[2018] ZAGPPHC 750
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3JR Properties CC v Malana Beleggings (Pty) Limited and Another (45703/2017) [2018] ZAGPPHC 750 (16 March 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
NORTHERN GAUTENG DIVISION,
PRETORIA
(1)
NOT
REPORTABLE
(2)
NOT OF
INTEREST TO OTHER JUDGES
(3)
NOT REVISED
CASE NO: 45703/2017
16/3/2018
In
the matter between:
3JR
PROPERTIES CC
Applicant
and
MALANA
BELEGGINGS (PTY)
LIMITED
First
Respondent
WELLNESS
WORL-D (PTY) LIMITED
Second Respondent
JUDGMENT
VAN
VUUREN AJ:
Introduction
[1]
The
first and second respondents. Malana Beleggings (Propriatary) Limited
and Wellness World (Propriatary) Limited launched an application
for
leave to appeal (and condonation for its late filing) against the
judgment and order handed down on 29 September 2017 in terms
whereof
it was declared that the agreement of sale entered into between the
applicant, 3JR Properties and Malana Beleggings dated
3 December 2013
had been cancelled and that both Malana Beleggings and Wellness World
be evicted from the property situated at
Section
8, Building 3
,
Businesspark@Zambezi, 860 Milkplum Street, Montana, Pretoria.
[2]
Mr
Ellis SC on behalf of the applicants for leave to appeal, during
argument. relied on the following grounds which can be summarised
as
follows:
[2.1] 3JR
Properties has not proven that it is the
owner
of the
property;
[2.2] The
guarantee
provided by Malana Beleggings in terms of the
agreement complied with the terms thereof:
[2.3] The
cancellation notices
did not give rise to cancellation of the
Deed of Sale; and
[2.4] In
view of a pending action, the relief on motion ought not have been
granted - lis
alibi pendens.
[3]
3JR
Properties launched a conditional counter-application for rendering
the 29 September 2017 order effective pending a further
application
for leave to appeal, should leave be refused.
Condonation
[4]
The
applicants for leave to appeal, Malana Beleggings and Wellness World
sought condonation for the late filing of their application
for leave
to appeal. The explanation was offered that the court file was not
located and that the Registrar was unable to accept
service of the
application for leave to appeal in the absence of the file. 3JR
Properties did not persist with any opposition to
the application for
condonatio11 which I am accordingly inclined to grant.
Ownership
[5]
In the application for leave to appeal a new point was raised on
behalf of Malana Beleggings
that it was neither alleged nor proven
that 3JR Properties was the
owner
of the property which it
sold to Malana Beleggings and from which it sought to evict the
respondents .
[6]
The Deed of Sale described 3JR Properties as the seller of the
property and Malana Beleggings
was in turn defined as the purchaser
of the property. The property referred to above, as defined in the
Deed of Sale, formed the
subject of the sale agreement. In paragraph
1 of the Deed of Sale the parties agreed that
"The Seller
sells the property to the Purchaser who purchases same from the
Seller."
[7]
Clause
6 of the agreement arranges the
"
risk of ownership"
as follows:
“
AII
advantages and risks of ownership shall pass
to
the Purchaser on
the date of registration of the properly in the Purchasers name."
[8]
Malana
Beleggings, as purchaser of the property, at no time took issue with
or attacked the understanding and premise that 3JR Properties
was the
owner or seller of the property. Such an issue was neither raised in
the answering papers in the motion proceedings nor
in the action
under case no. 94602/2016.
[9]
Mr
Ellis SC did not argue that evidence existed that 3JR Properties was
not the owner of the property when it sold the property
to Malana
Beleggings.
[10]
Moreover, and irrespective of the new issue raised on ownership,
Malana Beleggings' obligation to vacate
the property in the event of
cancellation of the Deed of Sale arises from clause 12 of the Deed of
Sale. Malana Beleggings' obligation
was circumscribed as follows:
"In the event of the
Seller cancelling this agreement in terms of this clause 10
[1]
, the Purchaser shall immediately vacate the property and shall not
have any right of retention in regard to the property."
[11] The
latter contractual provision agreed to between the parties, in clear
terms, provides for Malana
Beleggings vacating of the property.
Lis
alibi pendens
[12]
The
onus of pleading and proving the requisites of a defence of
lis
alibi pendens
rests upon the party
who seeks to raise the defence
[2]
.
[13]
A defence of
lis
alibi pendens
has not been pleaded
specifically nor has it been relied upon during the hearing of the
matter. In the absence of a party specifically
pleading and raising
the issue of
lis alibi pendens,
it
is not open to the Court to raise the defence.
[3]
[14]
Mr Ellis SC correctly pointed out that,
although reference was made to the action proceedings instituted and
subsequently withdrawn
by 3JR Properties, no plea of
lis
alibi pendens
was entered in the
present proceedings. It is so that the counterclaims of the
respondents for relief distinguishable from that
sought by 3JR
Properties in the present proceedings in the action remain extant.
The
guarantee requirement and cancellation of the deed of sale
[15] These
matters were raised and fully ventilated during the hearing of the
matter and judgment
was consequently given on the absence of a
guarantee as is required in terms of the Deed of Sale and the
consequent cancellation
of the contract.
Conditional
counter-application
[16] 3JR
Properties brought a conditional counter-application, in the event of
leave to appeal being granted,
for an order that the operation of the
judgment of 29 September 2017 be of immediate force and effect
pending any further application
for leave to appeal.
[17] This
application was only served on 7 December 2017 during the week
preceding the hearing of the application
for leave to appeal. I agree
with the submissions made by Mr Ellis SC who explained that, as at
the date of hearing of the application
for leave to appeal, it was
not possible for the representatives of Malana Beleggings and
Wellness World to respond meaningfully
to such an application brought
on short notice. Mr Ellis correctly pointed out that the application
did not constitute an urgent
application and could have been brought
by 3JR Properties soon after it had gained knowledge of Malana
Beleggings and Wellness
World's intention to seek leave to appeal.
[18]
In the circumstances it would be unjust
to make any finding on 3JR Properties' provisional counterapplication
at this stage. Should
3JR Properties in future be advised to seek the
relief claimed in its provisional counter-application dated 7
December 2017, such
application ought be set down with due notice to
Malana Beleggings and Wellness World to afford them an opportunity to
answer to
the application if so advised.
Conclusion
[19]
In
the circumstances, and having considered the application, I am of the
opinion that the applicants do not have reasonable prospects
of
success on appeal.
In
the premises the following order is made:
[1]
Condonation
is granted for the late filing of the first and second respondents'
application for leave to appeal.
[2]
The
application for leave to appeal is dismissed with costs, which costs
shall include the costs of two counsel.
[3]
3JR
Properties CC's counter-application dated 7 December 2017 is removed
from the roll.
[4]
3JR
Properties CC is granted leave to re-enrol its provisional counter
application, if so advised, on due notice to the respondents
and upon
having afforded the respondents an opportunity to answer thereto as
provided for in the Rules of Court.
E
Van Vuuren AJ
ACTING
JUDGE OF THE HIGH COURT
APPEARANCES:
For
the Respondents
(Applicants
for leave to appeal)
Adv P Ellis SC
Adv J Moller
Instructed
By:
F Hartzenberg of
Hartzenberg Inc.
Pretoria
For
the Applicant
(Respondent
in leave to appeal):
Adv AJH Bosman SC
Adv ZF Kriel
Instructed
By:
E Champion of
E Champion Inc.
Pretoria
[1]
Reference to clause 10 is an apparent error. "[T]his clause•
should be Interpreted as clause "12"
[2]
Dreyer v Tuckers Land and Development Corporation (Pty) Ltd
1981
(1) SA 1219
(T) at 1231
[3]
Kerbel v Kerbel
1987 (1) SA 562
(W) at 567E