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[2017] ZAFSHC 69
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Roses United Football Club (Pty) Ltd v St Andrews School (1582/2015) [2017] ZAFSHC 69 (18 May 2017)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
No: 1582/2015
In
the matter between:-
ROSES
UNITED
FOOTBALL CLUB (PTY)
LTD
APPLICANT
and
ST
ANDREWS
SCHOOL
RESPONDENT
CORAM:
MOLOI, ADJP
H
E
ARD
ON:
05 MAY 2017
DELIVERED
ON:
18 MAY
2017
MOLOI,
ADJP
[1]
In this matter the plaintiff, St Andrews School, issued summons
against Roses United Football Club (Pty)Ltd, as the first defendant
and Mangaung Metropolitan Municipality as the second defendant. No
relief was, however, claimed against the second defendant which
was
joined merely for any interest it might have in the relief claimed.
The claim was for cancellation of an agreement of sub-lease
and
payment of arrear electricity account in breach of the
agreement. The first defendant (hereinafter the defendant) sought
absolution from the instance at the close of the plaintiffs case.
[2]
The claim of the plaintiff against the defendant is couched in
paragraph 5 of the plaintiffs Amended Particulars of Claim
as
follows:
"5.
The Defendant has, since 27 September 2013, been in breach of the
sub-lease agreement in that:
5.1
It failed to keep and maintain the field and more specifically
the cricket pitch, at
a
level comparable to the main cricket
field situated at St. Andrews
School.
5.2
The First Defendant has, on an on-going basis, refused
reasonable on timeous requests by Plaintiff for the use of the field
for
its own learners.
5.3
First Defendant has failed to pay the outstanding electricity
account totalling R65 279, 02 as at 31st December
2014.
5.4
First Defendant has been using the playing fields on an on-going
basis not only for training but for league fixtures
as
well.
"
The
above allegations were denied by the defendant in its amended plea.
[3]
The defendant had been using the sport field with the approval of the
Mangaung Municipal council from 2007 according to Mr Hickling,
a
member of the plaintiff's board of governors for 46 years prior to
the conclusion of the sub lease between the plaintiff
and the
defendant signed on 2 February 2013. The defendant installed the
sprinkler system to maintain the fields,
and paid
for the electricity it used. According
to Mr Thomas1 the principal of
the plaintiffs' school the
cricket field and the pitch were in a poor state of repair when the
sublease was signed. The defendant
was supposed to use the
soccer field on the western side of the field. According to Mr
Hickling the cricket pitch had been
neglected for 8-9 years before
the conclusion of the sub lease -
"there
was
no
maintainable pitch"
until it was re-laid in
July\August 2013.
[4]
The relevant parts of the sub-lease that was drawn up by the
plaintiff's own attorneys read as follows:
"1.
SAINTS will sub-lease the LEASED AREA to ROSES UNITED for the
duration of the Head Lease SAINTS has with the Mangaung Municipality,
rent free.
2.
ROSES UNITED shall maintain THE LEASED AREA
at
their cost and in particular the fields at
a
standard or level
comparable to the St Andrews A cricket field situated on SAINTS
School Grounds. The maintenance of THE LEASED
AREA shall include the
change rooms, the borehole and pump used to water the filed as well
as the flood lights. If Municipal
Water is to be used to water the
fields, the cost of the consumption of the water shall be for the
account of ROSES
UNITED.
3.
ROSES UNITED shall only use THE LEASED AREA in the main for
training purposes of its professional Soccer Team. This shall not
however
exclude non professional soccer games and other
activities for ROSES UNITED conditional upon the last two mentioned
activities
not clashing with any School activity nor be in
contravention of the HEAD lease with the Mangaung Municipality or the
South
Africa Schools Act No 84 of 1996 ROSES UNITED shall not be
entitled to sublet the LEASED AREA with prior written consent of
SAINTS
4.
It
is
recognised and agreed that SAINTS will also
utilise the fields situated on THE LEASED AREA from time to
time. Both SAINTS and ROSES UNITED shall make arrangements amongst
themselves
for the relevant time slots for the
use
of the
fields by themselves. Whenever possible preference shall be given to
SAINTS for the use
of the fields with particular
reference
to
their usage
of
the fields
for
cricket
training and I
or
matches.
6.
The electrical supply for the
flood
lights
on
the field
will be converted
to
pre-paid meters, the
costs
of
which shall be borne by SAINTS, and ROSES UNITED will allow SAINTS
use
of
the flood lights at the
costs of
ROSES UNITED"
[5]
The plaintiff contended that the defendant failed to maintain the
leased area at its cost and, in particular, the fields at
a standard
or level comparable to the St Andrews A cricket field
situated on SAINTS School Grounds. The sub-lease agreement
defined
the lease area as II
The cricket /football/ rugby field and the
relevant change rooms at the Premises."
The particulars of
claim, however, added 11more specifically the cricket
'pitch'
which was not mentioned in the sub-lease agreement.
The evidence on behalf of the plaintiff through the principal of the
plaintiff
school, Mr Thomas, the cricket stadium manager, Mr
Pretorius and the member of the school's governing body, Mr Hickling
emphasised
the difference between a cricket field and a cricket
pitch. The evidence also shows that for 8 to 9 years before the
conclusion
of the sub-lease there was no cricket pitch to talk about
that required maintenance. A cricket pitch was re-laid only in
July/August
2013. What is more is that the evidence further shows
that the defendant, being soccer club, cannot use a cricket pitch as
that
would lead to injuries on the players because
it is harder than the normal cricket
field. Beside that there is no evidence at all as to in which respect
was the leased area not maintained. After the pitch was re
laid
it would even be more dangerous to play soccer on it. It is difficult
to imagine, therefore. what maintenance it would require
as it was
never used as will be made clear hereunder.
[6]
According to the plaintiff the defendant refused to allow its leaners
the use of the field (the leased area) at all times and
even chased
them away contrary to clause 4 of the sub lease agreement. The
wording of clause 4 does not state that SAINTS
must have access
to the leased area on demand. On the contrary, it states that the use
of the leased area must be negotiated between
Saints and the
defendant and preference shall be given to Saints
"whenever
possible."
There is no evidence of the instances when the
negotiations were conducted and this does not even appear in the
minutes of
the many meetings that were held. More than that there is
no evidence of the reasons given by the defendant in refusing access
to the leased area by Saints. It is therefore not possible to
determine the rationale for the refusal nor the
11wherever
possible"
provision in the sub-lease agreement.
I do not agree with Adv Greyling's submission that these
words in
the agreement are vague and render the contract
unenforceable as stated in
Namibian Minerals Corporation Ltd
v Benguela Concessions Ltd
1997 (2) 548 (A). On the contrary, I
find that the words are clear and needs no interpretation as
confirmed by Mr Thomas' answer
to the question viz:
"Okay
it
seems
to me that it
is
difficult for the Plaintiff
and the Defendant to arrange time
slots
because they, they all
needed the
same
time
slots
for practising purposes.
..
I would agree there
has
been difficult,
yes."
What
that response does is, in fact, to emphasize that both parties
understand the
"whenever possibl
e
11
the same way and that cannot be vague. Consequently
that response, on the contrary, indicates that
there were no ma/a
tides
on the part of the defendant to exclude the plaintiff
from using the leased area and consequently the alleged breach by the
defendant
is negated.
[7]
The third aspect raised in the particulars of claim is the
failure of the defendant to pay for the electricity used the
amount
which was R65 279, 02 when the summons was issued and have since
increased to R204 164, 38. It is common cause that in the
dispensation the defendant had with Mangaung Council, the defendant
was paying for the electricity used for the flood lights at
the
leased area. The plaintiff, through its own attorney, at the
plaintiff's instruction drew up a lease agreement which he termed
Heads of Agreement and provided in clause 6 thereof as follows:
"6.
The electrical supply for the flood lights on the fields
will be converted to pre-paid meters; the
costs
of
which shall be borne by SAINTS
and ROSES UNITED will allow SAINTS' use of the flood lights at
the
cost
of ROSES UNITED."
The
factual position is that the flood lights were not converted to
pre-paid meters by Saints and, Roses United failed to
allow Saints to
use the leased area as discussed in par. 6 above. The effect of the
provision is that even if the flood lights
were converted to pre-paid
meters, the defendant had no obligation arising from the sub-lease
agreement to pay for the electricity
usage for the flood lights but
only if it allowed Saints the use thereof. This is an agreement that
totally replaced the one under
which the defendant paid for the
electricity usage for five years pre-ceeding the sub-lease. The
relevant clause places no obligation
on the defendant to pay for the
usage of the electricity for the flood lights. The clause reads:
“
'
...
and ROSES
UNITED will allow SAINTS' use of the flood
lights at the cost
of ROSES UNITED.”
On
proper reading of clause 6 of the sub-lease agreement no obligation
is placed on the defendant to pay for electricity usage except
when
it allowed Saints the use of flood lights in which event it would pay
for that usage but the plaintiff says it was not
allowed to use
the flood lights nor the leased area. There is no other provision in
the sub-lease agreement placing an obligation
on the plaintiff to pay
for electricity usage.
[8]
From the above it is evident that no case was made on which the court
applying its mind reasonably could or might find
for the
plaintiff:
De Klerk v Absa Bank Ltd
2003(4) SA 315 (SCA)
Claude Neon Lights SA Ltd v Daniel
1976(4) SA 403 (A) at 409
G-H:
Hanger v Rega
l
2015 (3) SA 115
FB at 117
F-118 B. Up to this stage the court cannot on any evidence find
anything in favour of the plaintiff as the plaintiff’s
evidence
does not at all support the grounds on which the claim is based:
Du
Tait v Vermeulen
1972 (3) SA 848
(A) at 855.
The
sub-lease agreement on which the claim is based is beyond question
not supported by the evidence adduced:
Rosaville Vehicle Services
(Edm) Bpk v Bloemfonteinse Plaaslike Oorgangsraad
1998 (2) 289
(0) at 293 G-1.
[9]
In the premises the court has no other alternative than to grant
absolution from the instance and order the plaintiff to pay
the
costs.
_________________
MOLOI,
ADJP
On
behalf of the plaintiff:
Adv Fischer SC
Instructed by
SYMINGTON
&
DE
KOK
BLOEMFONTEIN
On
behalf of the defendant: Adv
Grayling
Instructed by
MARIUS VAN ZYL INC
BLOEMFONTEIN