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[2018] ZAKZDHC 26
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Tuzi Gazi Waterfront (Pty) Limited v Manishunkar (10574/2017) [2018] ZAKZDHC 26 (26 April 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU
NATAL LOCAL DIVISION, DURBAN
Case
No: 10574/2017
In
the matter between:
Tuzi
Gazi Waterfront (Pty)
Limited Applicant
and
Avesh
Manishunkar Respondent
Judgment
Lopes
J:
[1]
This is an application for the ejectment of the respondent from
commercial premises in Richards Bay. The applicant seeks
the
ejectment of the respondent on the basis that the lease which existed
between the parties has been terminated.
[2]
It is clear from the affidavits that the following are common cause:
(a) On the 3
rd
September 2014 the applicant and the respondent concluded a written
lease agreement for premises which I shall refer to as ‘the
original site’.
(b) The initial period of
the lease was from the 1
st
September 2014 to the 30
th
August 2015.
(c) The lease agreement
contained a renewal period to endure from the 1
st
September 2015 to the 30
th
August 2016.
(d) Clause 4.4 of the
General Terms and Conditions of Lease (‘the conditions’)
provides as follows
:
‘
In the event of the LESSEE
remaining in occupation of the Leased Premises after the expiration
of the period stipulated in the Lease
without a formal agreement
signed by both the LESSOR and the LESSEE having been concluded for
any reason whatsoever and irrespective
of any oral discussion,
negotiations and correspondence that may have been exchanged between
the LESSOR and LESSEE, and without
the LESSOR in any way conceding or
acknowledging that the LESSEE is entitled to remain in
occupation of the Leased Premises
after the termination date and
without prejudice to any rights that may be available to the
LESSOR in terms of the Lease
and / or in law arising out of the
LESSEE failure to vacate the leased premises by the termination date,
the LESSEE will be deemed
to lease the leased Premises on a temporary
basis subject to all the terms and conditions contained in the lease,
provided that
either party will be entitled to terminate such lease
by giving 1 (one) month written notice of termination to the other
party…’
(e) Clause 22.3 of the
conditions provides:
‘
No variation or consensual
cancellation of this agreement shall be of any force or affect unless
reduced to writing and signed by
both parties’.
(f) The applicant avers
that it delivered the requisite written notice to the respondent on
the 31
st
July 2017 in the following terms:
‘
We hereby give you 30 days’
notice to leave the premises. Your last month renewal is due on
the 1
st
as discussed with Renee.’
This was in direct
response to an email from the respondent of the same date (35
minutes’ earlier) alleging that the applicant
had to give him
30 days’ notice to ‘leave the premises’.
(g) The respondent has
refused to vacate the original site. The defences of the
respondent may be summarised as follows:
(a) Two points-in-limine
are raised.
(i) That the deponent to
the applicant’s affidavit has no authority to depose to the
affidavit. Accordingly the applicant
lacks the locus standi to
depose to the affidavit, and has no authority to do so.
(ii) This matter is
lis
pendens
because the respondent brought a spoliation application
in the Empangeni Magistrates’ Court, and an order was granted
on
the 8
th
August 2017. The order is contained in two
parts, one being a draft order signed by the magistrate, and the
other an order in the
magistrates’ handwriting. The
collective effect of the two orders is that an order was issued in
the following terms:
‘
(a) That the Sheriff of the
Magistrate’s Court be directed and authorised to instruct the
Respondent to restore possession
to the Applicant of Tuzi Gazi
building, situated at Tuzi Gazi Waterfront Car Wash, Small Craft
Harbour, Richards Bay, Newark Road,
Tuzi Gazi, to the full extent to
which it has been in peaceful and undisturbed possession of the
Applicant, until the expiry of
the verbal agreement of lease.
(b)
Respondent is hereby called
upon to show cause why this order should not be made a permanent
order.’
Mr
Nirghin
,
who appeared for the applicant, did not persist with the first
point-in-limine.
[3]
The second point-in-limine is based on the action in the Empangeni
Magistrates’ Court where the respondent brought spoliation
proceedings in respect of the original site. Although those
proceedings do not appear to have been determined, they play
no role
in the application before me. The application in the Magistrates’
Court was brought on the basis that the respondent
had been in
peaceful and undisturbed possession of the original site, and feared
an unlawfully deprivation of it by the applicant.
The
application appears to have been precipitated by an incorrect oral
notice given to the respondent indicating that he had a
day’s
notice to vacate. His reply, which was sent by e-mail, is contained
in the applicant’s papers as well as the
applicant’s
further written advice that the lease was terminated on one month’s
notice.
[4]
Mr
Nirghin
submitted
that the respondent was entitled to stay on in the original site
which he occupied on the leased property whilst he awaited
occupation
of the alternative site on the leased premises. I refer to the sites
as ‘original’ and ‘alternative’
because both
sites are on a large piece of ground fitting the cadastral
description of the property. The respondent has variously
referred to
the original site and the alternative site as forming the subject of
an oral agreement which the respondent alleges
he concluded with the
applicant’s representative. Mr
Nirghin
relied heavily on the contents of annexure “A” of the
interim order granted in the Magistrates’ Court which ends
with
the words ‘…. until the expiry of the verbal agreement
of lease.’ Mr
Nirghin
submits
that this is a court order which must be given effect to until it is
confirmed or set aside. Mr
Nirghin
concedes that the order itself is extremely vague because it does not
indicate which site the respondent is entitled to continue
to
occupy. The affidavits of the respondent are most confusing in
this regard.
[5]
Ms
De Vos
, who appeared for the applicant, referred me to the
respondent’s replying affidavit in the spoliation application.
At paras 5.2 – 5.7 the respondent stated:
‘
5.2 The verbal agreement was at
some stage to have been reduced in writing, but I was not concerned
about having had a written agreement
as I was an occupation of the
existing premises on a verbal lease agreement for in excess of a
year.
5.3 It is indeed correct that it is
not for the court to determine whether a lease exists until 2024, but
for the court to determine
whether my peaceful and undisturbed
possession has been impinged in any manner whatsoever.
…
5.7 In so far as point 6, is
concerned, I do not wish to deal with this aspect of the Respondent’s
affidavit as an application
to have me evicted from the entire
premises, has been launched in the High Court and would be dealt with
at that forum.’
[6]
Ms
De
Vos
submitted
that in those circumstances there can be no doubt that the relief
sought by the respondent in the spoliation application
could only
have related to the original site which he has been occupying, and
continues to occupy in terms of the written
lease agreement.
As pointed out by Ms
De
Vos,
the
respondent concedes in the Magistrates’ Court proceedings that
the conclusion of the verbal agreement is not relevant
to the
spoliation relief which he sought. In sub para 5.2 of his replying
affidavit in the Magistrates’ Court, he alleges
that he was in
occupation of the original site on a verbal lease agreement for in
excess of a year. This must be a reference
to the premises
forming the subject matter of the written lease. That
allegation contradicts other statements by the respondent
that the
oral lease is in respect of the alternative site.
[7]
I understood Mr
Nirghin
to
submit in reply that the two premises cannot be looked at in
isolation and that the respondent intends to move to the new site,
but is entitled to remain on the original site until then. This
is not what the respondent alleges in his affidavits.
He cannot
rely on his occupation of the original site for the continued
existence of the oral agreement, which relates to the alternative
site.
[8]
In my view the spoliation application dealt clearly with the unlawful
and disturbed possession of the respondent’s right
to
occupation of the original site by the applicant. It did not
relate to the respondent’s right to occupy in terms
of the oral
lease, and he makes that clear in his affidavits. The fact that
the learned magistrate may have included words
referring to the oral
agreement at the end of prayer (a) of the order made in the
spoliation proceedings, is simply a consequence
of the fact that he
followed the draft order sought. No case was made out in the
spoliation proceedings for occupation in terms
of the oral agreement.
The respondent understood that that was a separate issue to be
decided elsewhere.
[9]
In all the circumstances I am of the view that the requisites for the
defence of
lis pendens
are not established, in that the
application in the Magistrates’ Court and this application do
not concern the same subject
matter, and is not founded upon the same
cause of complaint. The complaint in the Magistrates’
Court is founded upon
an unlawful deprivation of peaceful and
undisturbed possession, whereas the application in this court is
based upon a lawful termination
of a lease. In addition, the
confusion is caused by the respondent’s references to an oral
agreement, relating, apparently
to the original site.
Accordingly,
the suggestion of
lis
pendens
being
a successful bar to the applicant’s claim is without merit.
[10]
I now deal with the main defence which is that an oral agreement was
concluded with the applicant which, on the respondent’s
version, allows him to stay in the alternative site until 2024. In my
view the non-variation clause precludes such an agreement
in respect
of the original site. In any event, the conclusion of the oral
agreement is grossly improbable. I say this
because the
applicant, as landlord, went to the trouble of concluding a
comprehensive written agreement in regard to a two year
lease.
It did not take the risk of a lease agreement being concluded on an
oral basis. Given the fact that the written
agreement was a
comprehensive agreement, it is inherently improbable that the
applicant would have concluded an oral lease.
The respondent,
as he should have done, has set out no details whatsoever of the oral
lease in his answering affidavit. One
would have expected the
respondent to have set out in great detail the circumstances
surrounding the conclusion of the oral agreement
and the terms
thereof. Then there is a question of the period of that oral
agreement. It is improbable that, having initially
agreed to a
written one year lease, renewable for a further year, the applicant
as landlord has now orally agreed to a lease for
approximately seven
years’.
[11]
A further, and compelling circumstance in the conclusion of the
alleged oral agreement is that the respondent claims that the
oral
agreement was for premises other than those which he occupies.
It is insufficient in my view to suggest that it is all
part and
parcel of the same area of land. It is clear from the
respondent’s affidavits that the alleged oral agreement
was in
respect of the alternative site, this time a waterfront facing area.
There is no counter-application before me in
which the respondent
seeks to compel the applicant to provide him with occupation of the
waterfront area.
[12]
In all the circumstances I am of the view that the defence to the
application is one which falls within the ambit of those
disputes of
fact referred to in
Plascon-Evans Paints Ltd v Van Riebeeck
Paints (Pty) Ltd
1984 (3) SA 620
(A) at 635B-C as follows:
‘
Moreover,
there may be exceptions to this general rule, as, for example, where
the allegations or denials of the respondent are
so far-fetched or
clearly untenable that the Court is justified in rejecting them
merely on the papers…’
13]
In my view this is such a case. In all the circumstances, I
make the following order:
1.
The respondent’s continued occupation of the premises described
as PORTION 11 OF THE FARM, LOT 223, UMHLATUZI NO 16230,
RICHARDS
BAY,(‘the premises’), is declared to be unlawful.
2.
The respondent, and any persons occupying the premises through him
are directed to vacate the premises with 5 days’ of
the date of
this order.
3.
In the event of the respondent and all those occupying through him
failing to comply with the order in 2 above, the Sheriff of
this
Court or his Deputy is authorised and directed forthwith to eject the
respondent and all those occupying through him from
the property.
4.
The respondent to pay the applicant’s costs of suit
________________
Lopes
J
Date
of Hearing: 20
th
April 2018.
Date
of Judgment: 26
th
April 2018.
Counsel
for the Applicant: Ms
C De Vos
(instructed by Shepstone and
Wylie).
Counsel
for the Respondent: Mr
R
Nirghin
(instructed by Sangham Incorporated ).