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[2017] ZAGPPHC 249
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Hyprop Investments Ltd v Jenni Button (Pty) Ltd and Klopper N.O. (Intervening) (65643/2015, A787/2015) [2017] ZAGPPHC 249 (25 April 2017)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Case
Number: 65643/2015
A878/2015
Date:
25/5/2017
In
the matter between:
HYPROP
INVESTMENTS
LTD
APPELLANT
(RESPONDENT
IN THE COURT A QUO)
And
JENNIBUTTON(PTY)LTD
RESPONDENT
(APPLICANT
IN THE COURT A QUO)
INTERVENING:
JOHANNES
FREDERICK KLOPPER N.
O
.
JOINT
BUSINESS
RESCUE
PRACTITIONER
FOR RESPONDENT
(FOR
APPLICANT IN THE COURT A QUO)
JACQUES
DU TOIT
N.
O.
JOINT
BUSINESS
RESCUE PRACTITIONER
FOR
RESPONDENT
(FOR APPLICANT IN THE
COURT A QUO)
JUDGMENT
Fabricius
J,
1.
In
the Court a quo the Applicant, being Jenni Button (Pty)
Ltd, applied to the Court for an order:
2.
"Directing Applicant's possession of
Shops 39, 40 and
41 Woodlands Boulevard, 100 Woodlake Avenue,
Pretoriuspark, Pretoria (the premises) to be
restored
immediately.
3.
Directing Respondent immediately to allow Applicant
unrestricted access to the premises".
The
application was brought in the Urgent Court and was argued on 22
September
2015.
Judgment was given on 2 October 2015
by Holland-Muter AJ and the application
was
granted.
2.
This
is the appeal against such an order.
3.
The
application is by its nature based on the principles of
mandament
van spolie
and as such a particular Applicant
merely has to prove possession and dispossession.
It is a speedy remedy to protect possession and does not concern the
legal right to the property.
See:
Yeko v Qana
1973 (4) SA 735
(A) at 739.
4.
All
that was required therefore was that the Applicant in these
proceedings file short affidavits expeditiously on the
limited issues of possession and dispossession.
See:
Willow Vale Estates
CC
and
Another v Bryanmors Estates Ltd
1990
(3) SA
954
Wat 961.
5.
In
the Founding Affidavit, the Applicant alleged that it had been in
possession of and traded from the particular
premises since December 2004, until about
July 2015 when the Respondent unlawfully deprived
it of its possession by forcing the locks,
breaking into the premises and so taking
possession.
The Founding Affidavit was made
by M. P. Joubert, who was a director
of
Jenni Button, a company with its
registered address in Cape Town. He described Jenni
Button
as being a brand on the one hand
specialising in "elegant women's fashion" and on the other
hand
being the principal trading company for every Jenni
Button store in South Africa, including that at
Woodlands.
He added that Jenni Button forms part
of the larger Platinum Group which also
owned
a number of other brands, and each one of these brands had its
own principal trading company. He also was the
Chief Executive Officer of the Platinum Group and a
director in all the Group trading and entities.
Each brand conducts business across the country from leased
retail premises situated in leading shopping centres.
6.
He
then set out the "leasing history" in
some detail and stated that at the time
the
premises in Woodlands were opened, namely by the first week of
December 2004, Woodlands was owned by
ATT Fund Ltd
and he negotiated the Woodland lease with ATT Fund.
Agreement had been reached on all the
lease terms
and these were encapsulated in
various oral agreements
and other
recordals such as emails,
Minutes
of meetings and similar notes. No single lease document was ever
signed. The agreement with ATT Fund was that
as a
main trading
company, Jenni Button would be entitled to install a separate
Jenni Button Rental Enterprise
as the tenant
at
Woodlands, once Rental Enterprise was formed.
Until such time, Jenni Button would
occupy
and take possession of the premises and operate
therefrom as the tenant and main
trading entity. No
Jenni Button Rental Enterprise was ever
formed and Jenni Button has accordingly always
remained the
de
facto
tenant and trader at the premises.
7.
Subsequent
thereto, Hyprop, the present Appellant, acquired the whole of ATI
Fund during about September 2011
and has since
been Jenni Button's landlord. During June 2015, Hyprop
issued Summons
against "Platinum
Clothing Woodhill 5 CC", claiming an
amount for rental
and other charges
allegedly then due and owing in respect of the
Jenni Button premises
at the Woodlands Mall.
He stated that Jenni Button disputed this claim, because it was
not against the correct party,
nor correctly computed, nor was
it due and payable. He referred to the Particulars of Claim In
this context which
were annexed, and the fact that Hyprop had pleaded
a version of the lease agreement that
it
relied on. He disputed
the correctness of this lease
agreement, but
also said that they were immaterial to the application
before the Court a quo.
8.
He
then gave details as to the dispossession and the correspondence
between the parties in connection therewith.
9.
In
the Answering Affidavit, it Is stated that the Applicant had not paid
rent for a number of months and that an agreement had been
entered
into to the effect that if there was no compliance with
certain of the terms that were
referred to in
that correspondence of 17 March 201S, the landlord would have the
right to cancel the lease and take back
the store.
This condition was accepted by Jenni
Button's representatives.
10.
Apart
from that, the Respondent in the proceedings a quo
set out in great detail facts relating to a business
rescue
application launched in the High Court of the
Western Cape Division during July
2015. It was pointed out that
in those proceedings the same M.
P.
Joubert made an affidavit describing
the whole structure of the "Platinum Clothing
Clearwater 5
CC" entity, from which it was clear that Jenni
Button (Pty) Ltd was not the
entity
that leased the premises in the particular
shopping centre. In summary it
was
stated that it was difficult to
understand on what basis Jenni Button (Pty) Ltd had
locus standi
in this matter, and that on Mr Joubert's own version in the Cape
High Court it became clear that it did not have any lease agreements
in respect of the premises that they occupied.
11.
The
affidavit of M. P. Joubert was annexed, and I do agree that it
appears therefrom that the
locus standi
of Jenni Button (Pty)
Ltd was challenged on grounds that on the face of it were
completely justified. A Replying Affidavit
was drafted by the Fifth
Respondent in his capacity as a joint business rescue
practitioner for Jenni Button
(Pty)
Ltd. In essence he stated that it was the only entity that ever
took possession of, fitted out and
stocked the premises
and the only entity that ever operated from
such premises.
12.
In
my view, a
bona fide
dispute of fact
had arisen in that context and of course, in
mandament
van spolie
proceedings the onus is on the Applicant to prove that
it was in possession of the
premises.
Despite the
bona fide
disputes
of fact that were raised in the proceedings a
quo, neither party asked
that the matter be
referred to evidence, and nor did the Court a quo raise
this point. It must in
any event also be
remembered that
mandament
van spolie
proceedings cannot
be used when contractual rights
are disputed
or where in
effect a specific performance of
contractual obligations
is claimed.
See:
First Rand Ltd T/A Rand Merchant Bank v
Scholtz N. O. and Others
2008
(2) SA 503
SCA at 510 B to
D.
13.
It
is not necessary to deal with the contractual
dispute between the parties as
it
emanated from notes, discussions and
correspondence. It is in my view clear that a serious
and
bona fide doubt existed whether
Jenni Button ( Pty) Ltd had
the necessary
locus standi
to launch the spoliation
proceedings, and that it had shown that it, as a legal
entity, was the possessor of the
premises in terms of
a contractual right granted to it. The Court a quo ought to have
approached
the dispute between the parties
on this basis, but the learned Judge
did
not do so. In the light of the
conflicting versions relating to what the actual terms of any
agreement
were between the parties, and in fact who were the
parties to any such agreement relating
to
the Woodlands shopping centre, it is my view that the
Applicant in the Court a quo did not prove on the
balance
of probabilities that it had
possession of the particular premises. The application
ought
therefore not to have been granted.
14.
It
is also common cause on the
affidavits before us that another
entity is now occupying the particular premises, and that in
any event, possession thereof cannot now be restored
to the Respondent in the proceedings before us. A
Court will not make an order that cannot
be enforced,
that will not have practical effect, and that does not refer to the
rights and obligations of parties affected
thereby.
See:
Cordiant Trading CC v Daimler Chrysler
Financial Services (Pty) Ltd
2005 (6) SA 205
SCA
at
213
E
-
G.
15.
However,
on the
basis
that the Applicant in
the Court a quo did not prove on a
balance of probabilities
that it was in possession of the premises,
the appeal must in my view, succeed with costs.
The
following order is therefore made:
1.
The appeal succeeds with costs, including cost of Senior
Counsel;
2.
The order of the Court a
quo is set
aside,
and
substituted with
the following
order: "The application is dismissed
with costs, including the
cost of Senior Counsel".
_____________________
JUDGE
H.J FABRICIUS
JUDGE
OF THE GAUTENG HIGH COURT, PRETORIA
I
Agree.
_____________________
JUDGE
P. RABIE
JUDGE
OF THE GAUTENG HIGH COURT, PRETORIA
I Agree
________________________
JUDGE
F. LEGODI
JUDGE
OF THE GAUTENG HIGH COURT, PRETORIA
19MAY2017
Case
Number:
A878/2015
65643/2015
Counsel
for Appellant:
Adv A. C. Ferreira SC
Instructed by: Mark
Efstratiou Inc
Counsel
for Respondent:
Adv J. Smit SC
Instructed by: Deon
Perold & Associates Inc.
Date
of hearing:
17 May 2017
Date
of judgment: 24 May 2017