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[2017] ZAKZDHC 37
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Armas Developments (Pty) Limited v Singh and Another (1325/2017) [2017] ZAKZDHC 37 (12 June 2017)
IN THE HIGH COURT OF
SOUTH AFRICA
KWAZULU-NATAL LOCAL
DIVISION, DURBAN
CASE
NO: 1325/2017
In
the matter between:
ARMAS
DEVELOPMENTS (PTY)
LIMITED
Applicant
and
DARREN
SINGH
First
Respondent
FARGO
FREIGHTLINES
CC
Second
Respondent
JUDGMENT
Date Delivered: 12 June
2017
MASIPA J:
Background
[1]
The applicant in this matter brought an urgent application for what
it termed interim relief. The relief sought by the Applicant
was the
following:
'1. Pending the
outcome of an action or application to be instituted for final
eviction relief, the respondents and all those
holding by or through
one or other of them be and they are hereby evicted from the premises
more fully described as :
1.1.
Erf 2347 of Amanz imtoti, Ext 16, measuring in
extent 1974 square metres and situated at 7 Aarden Place,
Amanzimtoti, KwaZulu-Natal
; and
1.2.
Erf 2348 of Amanzimtoti, Ext 16, measuring in
extent 1662 square metres and situated at 5 Aarden Place,
Amanzimtoti, KwaZulu-Natal.
2. That the Respondents
are ordered to pay the costs of this application jointly and
severally, the one paying the other to be absolved;
3. Further and/or
alternative relief;'
[2]
The facts recorded by the Applicant which are in dispute are that it
is the owner of the two properties described in paragraph
1 above and
in support of this contention attached a copy of the tittle deed.
After purchasing the property, a settlement agreement
was concluded
with the previous occupant of the property, Nikesh Roopchand, where
it was agreed that he would vacate the premises
by 31 December 2016.
Consequently , on 10 January 2017 Lerry Holm, a director of the
Applicant who deposed to its founding affidavit
went to the premises
with his attorney Dean Pierre Merrick Petit of Brogan and Olivier
Attorneys to confirm that Roopchand had
vacated from the premises.
The Respondents agree that Holm visited the premises but aver that he
was alone.
[3]
On arrival at the premises, the First Respondent introduced himself
and said he was the owner of the Second Respondent. According
to
Holme, it was apparent that the Respondents were conducting their
transportation business from the premises. They were surprised
to
find the Respondents there as they had no right of occupation. When
they raised this with the First Respondent, he admitted
it. The First
Respondent however avers that the Applicant was aware of the Second
Respondent's business operated in the premises
since they had been
carrying on business from those premises for a period of a year.
[4]
The Applicant avers that the Respondents confirmed that they were
aware that they had no right of occupation but had nowhere
else to
go. They requested that they be allowed to remain in occupation and
offered to pay rent. This offer was rejected and the
Respondents
given until 23 January 2017 to vacate the premises. An email
confirmation was sent by Petit, the Applicant's attorney
who deposed
to a confirmatory affidavit, annexure LH3.
[5]
The Respondents did not respond to this in their answering affidavit
but instead introduced a new version where it contends
that the
Applicant was aware that it had concluded a lease agreement with
Roopchund terminating January 2019 after Roopchund informed
the First
Respondent that he had purchased the property and was awaiting
transfer from the Applicant. The First Respondent contends
further
that the Applicant had indicated that it was unhappy with the rental
amount payable and wanted to renegotiate an increase
in amount and
the duration of the lease.
[6]
On or about 17 January 2017, Holm received a text message where the
First Respondent requested that he grant him an extension
until he
found suitable premises and would pay R35 000 for two months in
advance. There was no reply to this message and on 24
January 2017
when Holm and Petit went to the premises, they found the Respondents
still in occupation. The reason advanced for
their presence was that
they could not find suitable premises. The Respondents were told to
vacate the premises by 27 January 2017.
[7]
In answer to this, the Respondents stated that there was a valid
lease between them and Roopchund and would require time to
find
suitable premises should they move after January 2018. In view of
this, the Respondents contend that they are in lawful occupation.
[8]
The Applicant contends that the Respondents are in unlawful
occupation and that they have failed to set out the basis for
alleging
that they are in lawful occupation. Further that they do not
expressly deny that they had given an undertaking to vacate. The
Applicant
contended also that the Respondents were simply playing for
time while the Applicant is suffering daily loss and damages which
were 'probably' irrecoverable. The Respondents deny that they are
playing for time. The Respondents contended that the Applicant's
case
of the damages being possibly irrecoverable did not satisfy the
requirements of a final interdict. Further that there were
no
allegations to support any irrecoverable loss as was required.
[9]
The Applicant contends that it secured a tenant for the premises with
rental of between R35 000 and R38 000, who was reluctant
to sign a
lease due to the Respondents' occupation of the premises. The
Applicant contended that as there was no security for the
recovery of
the loss it was suffering, it was suffering irreparable harm which
issue was not necessary for the court to determine
since it had
established a clear right.
[10]
Having denied the existence of a tenant, the Respondents averred that
the application was an absolute abuse of the court process
since
irreparable harm was one of the requirements for an urgent interdict.
They averred that the Applicant's case was one of commercial
urgency
which could not be granted. The Respondents sought a punitive cost
order.
[11]
The Applicant averred that the court did not need to consider the
balance of convenience but that in so far as it was necessary,
the
balance of convenience favoured it as it had good prospects of
success and the Respondents had no case. This contention is
denied by
the Respondents. The Respondents denied that the Applicant was
entitled to the relief sought and averred that the Applicant
could
institute an action.
The
Points
in limine
[12]
The Applicants raised numerous points
in
limine
in view of the facts set out above
which points are dealt with hereunder.
[13]
That the Applicant launched an urgent application using form 2 rather
than complying with the requirements in Rule 6(12). Mr
Naidoo
submitted that the Applicant in bringing the
urgent application used form 2 when it ought to have complied with
the provisions of
Rule 6(12) regulating urgent applications. Mr
Bingham
submitted that
the practice in this court was to use form 2.
[14]
In
Sikwe v S A Mutual Fire
&
General Insurance
1977
(3) SA 438
(W) , the Court stated that an application was not
defective merely because the Applicant failed to strictly adhere with
the form
referred to in the Rules since it is the substance and not
form which the court must consider.
[15]
The Applicant did not in its prayer ask for condonation for the
non-compliance with the time frames as laid down in the Uniform
Rules
of court. It was contended for the Respondents that by failing to
comply with the provisions of Rule 6(12), the Applicant
did not ask
for condonation of its non-compliance with the Uniform Rules of
Court. Although the matter was before court as an opposed
application, since it was initiated as an urgent application, it
still had to satisfy the requirements set in Rule 6(12). It was
argued for the Applicants that the practice of the division was that
it was not a requirement to ask for relief condoning non-compliance
with the rules. Mr
Bingham
submitted that this was in line
with the practice directive.
[16]
DR Harms
Civil Procedure in the Superior
Courts
at 86.64 states that in urgent
applications, applicants must apply for condonation of the
non-compliance with the rules. In
I L
&
B Marcow Caterers (Pty) Ltd v Greatermans
SA
Ltd and another; Aroma Inn (Pty) Ltd v
Hypermarkets (Pty) Ltd and another
1981 (4)
SA 108
(C), at 109H to 11OB the court stated that Rule 27 entitled
the court upon application and on good cause shown to condone any
non-compliance
with the Rules. At 11OH to 111A, the court stated that
in terms of Rules 27 and 6( 12) applicants had to show good cause why
time
frames should be abridged.
[17]
The court in
Kayamandi Town Committee v Mkhwaso and Others
1991
(2) SA 630
(C) at 6331-634A found the applicant's failure to apply
for and order dispensing with the operations of any of the Rules of
court
was sufficient to refuse the rule
nisi.
[18]
In terms of the Practice Manual of the KZN Division of the High Court
Government Notice 535 of 2004, GG 26180 of 2 April 2004,
practice
directive 8.1.3 requires that all applications be brought in terms of
Rule 6(5)(a) using notice of motion in accordance
with form 2(a) of
the first schedule and that condonation will only be granted in
extremely urgent matters where a case has been
made out in the
founding affidavit. Although Mr
Bingham
relied on a practice
directive, his submission that an application for condonation was
unnecessary could not be found and on the
contrary, it is apparent
from a reading of the Practice Manual that application for
condonation is a requirement.
[19]
I am therefore of the view that the point
in
limine
regarding the form must fail. This
must however not be seen as an approval of the incorrect form
/procedure followed by the Applicant
in this matter. As regards the
Applicant's failure to apply for condonation, this is a serious
nonconformity from the Uniform Rules.
In the absence of this, the
application for interim relief cannot be granted. The point
in
limine
relating to this issue is therefore
upheld. However, if I am wrong, I proceed to deal with the merits of
the application hereunder.
[20]
The relief sought is final in nature although claiming that it is
interim pending the outcome of an application or action for
eviction.
Although the Applicant stated in its prayer that it was seeking an
interim relief, if the order is granted, the Respondents
will be
evicted. The relief sought is therefore final and brought in an
incorrect form. He submitted that the application was not
for a
spoliation order. Mr
Naidoo
submitted
that it was clear that the Applicant was seeking to execute before
judgment which was an absolute abuse of court.
[21]
In order to comply with the requirements for an interim relief, the
Applicants had to show a
prima facie
right;
the Applicant says it has a clear right. In respect of the
irreparable harm, the Applicant states in its founding affidavit
that
damages are in all probabilities irrecoverable when it must show the
court that it would suffer irreparable harm. He argued
that the
Applicant failed to prove irreparable harm since it has an
alternative remedy for damages.
[22]
Mr
Bingham
submitted
that the notice of motion stated that the relief sought was interim
pending the institution of an eviction action. As
regards whether the
relief is final or interim,
Erasmus Superior
Court Practice
Vol 2 at 06-3 to 4
distinguishes between final and interim interdicts. A final interdict
is set out as being granted without any
limitation as to time and
which secures a permanent cessation of an unlawful course of conduct.
The substance of the relief sought
must be considered. An
interlocutory interdict on the other hand is granted
pendente
lite
to protect that right of the complainant
to protect or reserve his rights pending an action or application
between the parties.
It does not involve or affect the final
determination of the right of parties. It merely suspends or reverses
the position complained
of until the main issues are determined and
then ceases to operate.
[23]
The relief sought by the Applicant directly affects the determination
of the parties since the granting of the order results
in the removal
of the Applicants from the premises which the Applicant asserts
ownership to when this issue should be determined
by the trial court.
[24]
Mr
Bingham
argued that
since there was no security, no averment that the Respondents were
paying rent in advance or that they paid the security
in their
attorney's trust account after the Applicant failed or refused to
receive it, there was irreparable harm suffered by the
Applicant.
Notably, as contended by Mr
Naidoo,
this
issue was not in the Applicant's papers.
[25]
Mr
Naidoo
contended
that the Applicant based its application on
rei
vindicatio,
an action
in
rem.
The basis for the Applicant's claim is
an application
in rem
instead
of an action. The Applicant should have issued summons and would have
an alternative remedy for damages. Mr
Bingham
submitted that the relief sought was
vindicatory relief. He submitted that in the application, the
Applicant sought interim relief.
Although it did not appear in the
papers, an action had been instituted with the Respondents entering
appearance to defend.
[26]
I agree with Mr
Naidoo
that
the App licant is seeking relief to enforce a vindication judgment
before the action is heard. The nature of the relief sought
says so
since it seeks an interim order evicting the Respondents pending the
determination of the action. However, if the purported
interim relief
is granted, the Respondents will be evicted from the premises. There
can be no other meaning to this.
[27]
The Applicant contends that it is not required to prove that it would
suffer irreparable loss and relies on numerous authorities
referred
to in
Erasmus
including
Ki/roe v Ki/roe
1928
WLD 112
and
VSA Motor Distributors (Pty) Ltd v
Rossman and another
1980 (3) SA 1164
(D).
According to
Erasmus,
in
interdicts sought pending vindicatory action, all other
considerations applicable to interim interdicts apply. This is
confirmed
in
VSA Motor Distributors.
[28]
Mr
Bingham
has shown
through the title deed that the Applicant is the rightful owner of
the premises. Although this is disputed by the Respondent,
the
contention advanced by them that Roopchand was in the process of
purchasing the premises is improbable and in any event, does
not
assist their case. I have already addressed the issue of irreparable
harm. Since the Respondents are already trading from the
premises and
have been so trading for some time, I am of the view that the balance
of conveniences favours them. It is apparent
from the papers and
submissions by Counsel that there is other satisfactory remedy.
[29]
Mr
Bingham
relied on
Chetty v Naidoo
1974
(3) SA 13
(A) in support of the application. In my view, the court in
Chetty
confirmed that
vindicatory relief must be sought by way of action. This confirms
what Mr
Naidoo
contended
that the Applicant has other relief being to bring an action against
the Respondents. In fact, as submitted by Mr
Bingham,
the Applicant has already taken steps by
issuing summons which are defended.
[30]
As regards costs, Mr
Naidoo
asked
for a punitive cost order against the Applicant. The Applicant
genuinely believed that bringing this application was the appropriate
procedure to follow to preserve their right. It is however
inexcusable that the Applicant comes to court and expects the court
to hear him without first asking the court for an indulgence to
deviate for the Uniform Rules of Court. In order to prevent other
litigants from abusing the court process, I deem it necessary to make
a cost order against the Applicant. I however am of the view
that a
punitive cost order is not justified in the circumstances.
[31]
In the result, the following order is made:
1. The application is
dismissed with costs.
APPEARANCE
DETAILS:
For
the Applicant: Adv. M Bingham
Instructed
by: Brogan Olivier
For
the Respondents: Adv. M R Naidoo
Instructed
by: Kushen Sahadaw Attorney
Matter
heard on: 11 May 2017
Judgment
delivered on: 12 June 2017