About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Kwazulu-Natal High Court, Pietermaritzburg
SAFLII
>>
Databases
>>
South Africa: Kwazulu-Natal High Court, Pietermaritzburg
>>
2016
>>
[2016] ZAKZPHC 38
|
|
Diocese of Natal of the Anglican Church of South Africa v Primed Sub-Acute Medical CC and Others (4776/2013P) [2016] ZAKZPHC 38 (28 April 2016)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL,
PIETERMARITZBURG
CASE
No: 4776/2013P
DATE:
28 APRIL 2016
In
the matter of:
THE
DIOCESE OF NATAL OF THE ANGLICAN
CHURCH
OF SOUTH
AFRICA
.............................................................................................
Applicant
And
PRIMED
SUB-ACUTE MEDICAL
CC
.....................................................................
First
Respondent
ELIZABETH
CHETTY
...........................................................................................
Second
Respondent
NOMALARVSAGI
REDDY
......................................................................................
Third
Respondent
JUDGMENT
VAN
ZÿL, J.
:
1.
In this application the applicant seeks
wide ranging relief against the first respondent, as well as against
the second and third
respondents, insofar as the latter have bound
themselves to liability as sureties of the first respondent. The
disputes concern
the occupation by the first respondent of certain
premises allegedly owned by the applicant and play out against the
background
of a long and acrimonious history of disputes between the
parties.
2.
The applicant alleges that it is and
remains the registered owner of [e… 6…….],
[1…….] and [1……
B…..]. Such
ownership is common cause. The three sub-divisions are adjoining one
another and have their street address at
[1……] [S……
Road, B……], Durban in the Province of KwaZulu-Natal.
For convenience these
sub-divisions will be referred to simply as
“the properties”, or “the property”, where
appropriate.
3.
The properties had historically been
developed by the construction thereon of certain buildings described
as the All Saints’
Church, the Rectory and the Gugini Hall. It
was not in dispute that the first respondent took occupation of the
Rectory and the
Gugini Hall, although the allegations of when this
occurred and upon what terms and conditions, are not harmonious.
4.
In regard to when the first respondent took
occupation the applicant alleged that such occupation commenced
during 2006. However,
the respondents recounted negotiations during
December 2006 with the then local parish priest to occupy the
properties with a view
to the eventual acquisition thereof. They are
however unclear as to when exactly they took control of the Rectory
and the Gugini
Hall.
5.
Also the terms upon which the first
respondent assumed occupation and control of the Rectory and the
Gugini Hall gave rise to dispute.
This resulted in subsequent
litigation between the parties whereby the applicant instituted
action against the first respondent
during 2011 under case number
8629/2011 claiming,
inter alia
,
eviction, damages and other relief. This action was defended, but
ultimately settled.
6.
The settlement agreement arrived at between
the parties comprised different parts, although it was agreed that
the various portions
would comprise one indivisible transaction.
There was a written agreement of settlement concluded and signed by
and on behalf of
the applicant as plaintiff on 13 September 2012 and
the first respondent as defendant on 30 August 2012.
7.
In terms of the settlement agreement, a
copy of which is annexed marked “RP.1” to the applicant’s
founding affidavit,
the first respondent acknowledged its
indebtedness to the applicant for payment of arrear rentals and water
and electricity charges
in the total sum of R265 112-39, which
sum it undertook to repay by way of nine instalments of R28 456-39
per month. The
first such instalment and despite the date of
signature of the settlement agreement, became payable by 31 August
2012 and the remaining
instalments monthly thereafter by the last day
of each succeeding month. It is not necessary at this juncture to
deal with the
further terms and conditions contained in the
settlement agreement.
8.
The second part of the settlement comprised
a formal agreement of lease relating to the Rectory and the Gugini
Hall. The leased
portions were identified in the agreement by virtue
of a diagram marked “X” attached thereto and a copy the
lease itself
forms annexure “RP.2” attached to the
applicant’s founding affidavit. For convenience the leased
potions are
herein referred to as “the leased property”
or “leased properties”, depending upon the context. In
the
interests of brevity it is unnecessary to set out the relevant
terms and conditions of the lease at this stage. The lease was signed
on behalf of the applicant and the first respondent simultaneously
with the settlement agreement on the dates already specified.
9.
The rental for the leased properties agreed
upon was R10 000-00 per month payable monthly in advance on or before
the first day
of each succeeding month. Such rental would escalate at
the rate of 10% with effect from 1 January of each succeeding year
and
the lease was agreed to terminate on 31 December 2016.
10.
The remaining portions of the settlement
reached between the parties involved each of the second and third
respondents binding themselves
jointly and severally with the first
respondent in writing to the applicant as sureties and co-principal
debtors
in solidum
for the due and punctual performance by the first respondent of all
its obligations under the settlement agreement and the lease,
as well
as those obligations which arise in consequence of any termination of
the lease.
11.
Regrettably, instead of the settlement
laying the foundations for an harmonious future relationship between
the parties, that relationship
became strained, deteriorated and
ultimately gave rise to further litigation in the form of the present
proceedings.
12.
In its founding papers the applicant
alleges that the first respondent breached its obligations both in
respect of the settlement
agreement, as well as the lease. It further
alleges that such breach continued despite demand and that it then
cancelled the lease
and is entitled to the eviction of the first
respondent from the leased properties, as well as to judgement for
the outstanding
monies due.
13.
On the approach taken by the applicant it
was common cause that it is the registered owner of the leased
properties and that the
first respondent was in occupation thereof in
terms of the agreement of lease. The applicant contended that the
lease was duly
cancelled, as a result of which the first respondent’s
continued occupation of the leased properties became unlawful and
accordingly that the applicant is entitled, as against the first
respondent to the latter’s eviction. In this regard reliance
was placed upon Chetty v Naidoo 1974(3) SA 13 (AD) as applied in
Worcester Court (Pty) Ltd v Benatar
1982 (4) SA 714
(C). In Worcester
Court Comrie AJ (as he then was) held at page 722 E that:-
“
The
applicant’s case is that it is the owner of the premises; the
respondent is in possession of them; that respondent possessed
the
premises by virtue of a lease; that the lease has been duly
terminated; and consequently that respondent is in unlawful
occupation
of the premises. All these facts, save the last, are
admitted or not disputed. That being so, applicant has discharged the
onus
of proof under consideration in Chetty v Naidoo (sura) .
”
14.
In Chetty v Naidoo (supra), Jansen JA at
page 20B-G held that it was inherent in the nature of ownership that
possession of property
vests in the owner. However, where the owner
concedes that a right to hold the property as against the owner would
have existed
but for its termination, the owner then bears the
onus
of establishing such termination in order to complete its cause of
action for eviction.
15.
In the present matter the applicant
concedes possession by the first respondent in terms of the
settlement of which the lease formed
part, but contends that the
right of continued occupancy terminated by reason of the cancellation
thereof due to alleged breaches
of its obligations committed by the
first respondent. The first respondent in turn denies that any valid
cancellation occurred
and claims a continued right of occupation by
virtue of the aforesaid lease agreement. The
onus
thus rests upon the applicant to demonstrate grounds for and the
termination of the first respondent’s right to continued
occupation in order to secure relief.
16.
It therefore becomes necessary to examine
the application papers to establish whether it is possible in this
regard to make a finding
on the affidavits, as contended for on
behalf of the applicant or whether, as claimed in behalf of the first
respondent, there
exist material conflicts of fact which cannot be
determined on the affidavits, so that considerations such as set out
in Room Hire
Co (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd
1949 (3)
SA 1155
(T) by Murray, AJP at 1162 come into play. These include a
referral of the matter to the hearing of oral evidence, or to trial
with directions as to pleadings, or to dismiss the application
particularly where the applicant should have realised at the outset
that a material dispute of facts was bound to develop.
17.
It is convenient at the outset to consider
the facts in relation to the applicant’s claim to the cessation
of the first respondent’s
right to continued occupation of the
leased properties. Following the conclusion of the agreement of
settlement of which the lease
formed part, the applicant alleges that
the respondent failed in particular to make payments as it was
obliged to do, either fully
or timeously. As a result, so applicant
contends, it became entitled to and did cancel the settlement
agreement inclusive of the
lease. In the result the first respondent
no longer enjoys a continued right of occupation and applicant is
entitled to its eviction.
18.
With reference to the settlement agreement
and the lease the applicant sought to demonstrate, particularly by
way of the schedule
attached to the applicant’s founding
affidavit marked RP.18, that the first respondent was in default of
payment at all material
times. The first respondent, in its answering
affidavit deposed to by the deponent Sateesh Isseri, its chief
executive officer,
did not dispute the accuracy of the schedule, save
in two respects. In the first instance it was alleged that the
applicant had
allocated from the payments made the sum of R31 603-00
to reconnection fees “
without in
any way validating this
” and
secondly that the applicant had omitted form the schedule the sum of
R40 000-00 paid by the first respondent on 26 April
2013 and a
further R40 000-00 paid on 30 April 2013.
19.
Before considering the issues arising from
the disputed reconnection fees it is convenient to deal with the two
payments of R40
000-00 claimed by the first respondent. The
applicant, in reply, conceded both that these two payment had been
made, but explained
that they were not included in the schedule
(annexure RP.18) because at the time when the founding affidavit was
deposed to on
29 April 2013 these payments had not yet reflected on
the bank accounts of the plaintiff’s attorneys. The fact of
these payments
are therefore not in dispute. The influence they may
have on the outcome of this matter will be considered at a later
stage, if
relevant.
20.
The issue of the reconnection fee has its
origin prior to the conclusion of the settlement agreement when the
Ethekwini Municipality
had disconnected the water and electricity
supply to the premises due to the first respondent’s failure to
maintain payment
of the utility charges. This much was agreed to in
clause 4.1 of the settlement agreement. In terms of clause 4.2.
thereof the
first respondent agreed to “..
pay
such amounts as are required for the reconnection of water and
electricity
” within seven days of
demand by the applicant.
21.
The applicant in its founding affidavit
alleged and the first respondent in reply admitted that on 3
September 2012 the applicant
called upon the first respondent to make
payment of R31 603-00 required for the reconnection of the municipal
water and electricity
supplies to the leased properties and that the
first respondent’s attorneys on 7 September 2012 requested that
monies which
the first respondent had by then paid to the applicant
be utilised for payment of the said reconnection fees. It is evident
that
the reconnection payment was at that stage unconditionally
agreed upon. However, it was only at a later stage and once the
parties
had reached a stage of dispute, that the first respondent
requested an accounting by the applicant as to how the sum of R31
603-00
was disbursed. This request was in the final paragraph of its
attorneys’ letter dated 7 November 2012 to the applicant’s
attorneys.
22.
In opposing the relief sought the first
respondent dealt at length with the events and disputes which
occurred prior to the conclusion
of the settlement agreement between
the parties. In relation to the prior litigation between the parties
the first respondent claimed
that it had expended and had a claim as
against the applicant for approximately R1,8 million for alleged
improvements it had made
to the leased properties.
23.
However, this is of little relevance
because these issues were overtaken and compromised by virtue of the
conclusion of the settlement
agreement between the parties. In this
regard it is relevant to note that it was agreed that the settlement
represented the entire
agreement of the parties, that neither of them
would thereafter have claims against each other which arose prior to
the settlement
and that no variation or amendment of their agreement
would be valid unless reduced to writing and signed by or on behalf
of the
parties.
24.
The first respondent, in paragraph 60 of
its answering affidavit, set out the grounds upon which it sought to
rely in denying the
applicant’s entitlement to cancel the lease
agreement relevant to the leased properties. The first ground
advanced is that
the applicant failed to account to it for the R31
603-00 “
that was paid to it for
the purposes of reconnecting the utilities
”.
The failure to account cannot, however, constitute a ground for
denying the applicant a right to cancel the agreement of
the parties.
In the first instance their agreement cast no express duty to account
upon the applicant and secondly, when payment
of the amount was
requested such payment was unconditionally agreed to by the first
respondent. It was only much later and after
the applicant claims to
have cancelled the agreement of the parties that the first respondent
requested an accounting.
25.
The second ground advanced by the first
respondent as to why the applicant was not entitled to cancel the
settlement agreement and
corresponding lease is that the first
respondent has an improvement lien over “
the
property
”, being a reference to
the leased properties, for
“
at
the very least, the new water piping that the first respondent had
laid on the property at its own expense.
”
26.
According to the first respondent’s
answering affidavit read with a letter from its attorneys dated 16
November 2012 (annexure
SI.12) it was claimed that when the water
supply was originally discontinued the water meters were removed
(prior to the settlement
agreement). When the water supply was
reinstated the municipality fitted new water meters which caused
“
further complications
”,
in that the old galvanised piping on site was unable to accommodate
the water pressure, sprung leaks and the first respondent
then
commissioned a plumber at its expense to replace the piping with
rubber piping. The sum expended in this regard remains
unstated.
27.
I have some difficulties with the
proposition that an improvement lien could constitute a defence as
against the cancellation of
a lease due to the non-performance by the
lessee of its contractual obligations. Such a lien, by its very
nature, does not give
rise to a cause of action. It does, however, in
certain circumstances provide a bar to dispossession by the owner in
proceedings
for a
rei vindicatio.
But a lien is no defence where the lessee has, for instance,
undertaken to vacate (De Aguair v Real People Housing (Pty) Ltd
2011
(1) SA 16
(SCA), Griessel AJA at page 20 G-H).
28.
In Business Aviation Corporation (Pty) Ltd
and Ano v Rand Airport Holdings (Pty) Ltd
2006 (6) SA 605
(SCA) it
was stated that it was generally accepted that in Roman-Dutch law
lessees were in the same position as
bona
fide
possessors insofar as claims
for improvements to leased premises were concerned.
However,
Brand JA in para 6 at page 608F held that:-
“
It
follows that
absent any governing
provisions in the contract of lease
,
lessees, like bona fide possessors, had an enrichment claim for the
recovery of expenses that were necessary for the protection
or
preservation of the property (called impensae necissariae), as well
as for expenses incurred effecting useful improvements to
the
property (called impensae utiles). More pertinent for present
purposes, lessees, like bona fide possessors, who were still
in
possession of the leased property, also had an enrichment lien (a ius
retentionis) that allowed them to retain the property
until their
claims for compensation had been satisfied.
”
(emphasis added and authorities omitted)
29.
In the present matter there are clauses
contained in the agreement of lease which impact upon the claims made
by the first respondent.
Clause 4 recorded that, notwithstanding the
date of signature, the lease took effect from 1 January 2012. Clause
11 recorded that
the first respondent had, however, been in
occupation of the leased properties since 2007 and that it was
obliged to keep same
in good order and condition. Included in the
obligations was the duty promptly to repair and make good all damage
occurring, whatever
the cause of such damage. If the assertions by
the first respondent are correct, then the original disconnection of
the water supply
was due to its non-payment for services. The
services were reconnected following the settlement and its request.
The damage to
the piping necessitating its replacement followed as a
result. The first respondent was therefore obliged to make good such
damage
and if it failed to do so the applicant as lessor would have
become entitled to attend to the repairs and to recover the costs
thus incurred from the first respondent (clause 11.3 of the lease).
30.
It is evident that the first respondent
cannot claim as against the applicant for whatever improvements to
the water piping it may
have effected and, in any event, the first
respondent was prohibited in terms of the provisions of clause 7.2 of
the lease from
withholding, deferring, or deducting monies from any
payments due to the applicant.
31.
In the circumstances it cannot be said that
the applicant was precluded from cancelling the lease because the
first respondent was
entitled to an enrichment lien over the leased
properties based upon its replacement of the defective water pipes.
32.
In terms of clause 13 of the lease the
first respondent acknowledged that it would have no claim as against
the applicant for damages
resulting from any breach by the applicant
of its obligations, any act or omission by or on behalf of the
applicant, the condition
or state of the leased properties at any
time, or any failure or interruption or suspension of utility
services.
33.
The provisions of clause 13 also affect the
third defence raised by the first respondent in paragraph 60 of its
answering affidavit.
According to paragraph 60.3 it is alleged that
the applicant was obliged to, but did not, place the leased
properties in a condition
where they were fit for the purpose for
which they were let. In this regard and in particular reference is
made to annexure RP.17
to the applicant’s founding affidavit.
34.
Annexure RP.17 was a letter dated 30
January 2013 and addressed by the first respondent’s attorneys
to the applicant’s
attorneys and raised two issues of interest.
The first is a denial contained in paragraph 4 of the letter that the
first respondent
had received the “
breach
letters
”. It is unnecessary at
this point to deal with this issue to which I will revert later in
this judgment.
35.
The second point raised and which
apparently relates to the defence raised in paragraph 60.3 of the
first respondent’s answering
affidavit, is contained in
paragraph 6 of the letter and reads that:-
“
Your
client is well aware that the Gugini Hall was leased for purposes of
conducting business as a function hire venue, but this
was impossible
for most of November 2012 due to the amenities not being connected.
”
36.
A claim such as is postulated on behalf of
the first respondent cannot, in the light of the provisions of clause
13 of the lease,
found a defence to a cancellation of the lease for
non-performance by the first respondent. It is however and in any
event in conflict
with the manuscript letter of 9 January 2013 by the
first respondent’s attorney to the applicant’ attorneys.
Therein
non-payment by the first respondent is attributed to a
deception by its manager that no functions had been held when
apparently
they had been held but the proceeds had not been accounted
for. As a result, so the applicant’s attorneys were informed,
the first respondent suffered cash-flow problems and criminal charges
were being preferred against its manager. A request was then
made for
the withdrawal of the notice of cancellation and the reinstatement of
the lease.
37.
Whilst
it is so that the letter of 9 January 2013 was marked “
Without
prejudice
”
it cannot be said to be privileged from disclosure because it evinces
no bona fide attempt at compromise. Instead it admits
non-payment by
the first respondent due to misconduct by its manager and requests an
indulgence by way of the reinstatement of
the lease. There is no
magic in the phrase. In this regard Combrink J observed in
Jili
v SA Eagle Ins Co Ltd
1995
(3) SA 269 (N)
at
page 275 B-D that-
“
The
mere fact that a communication carries that phrase does not per se
confer upon it the privilege against disclosure, for
example where
there exists no dispute between the parties or it does not form
part of a genuine attempt at settlement (Merry
v Machin
1926 NPD
236
; Schmidt Bewysreg 2nd ed at 552-3); nor is a communication
unadorned by that phrase always admissible in evidence, for it will
be protected from disclosure if it forms part of settlement
negotiations (Gcabashe v Nene
1975
(3) SA 912 (D)
at
914E-G, and see Cross on Evidence 5th ed at 300).
”
See
also:
Unilever Plc v Proctor &
Gamble Co
[2001] 1 All ER 783.
The
objection based on an alleged privileged communication has no merit.
38.
In my view there was also no misconduct
shown which was attributable to the applicant and upon the first
respondent could rely as
a ground upon which to resist any
cancellation of the lease which otherwise would have been valid.
39.
This conclusion, in turn, relates to the
final defence apparently sought to be relied upon by the first
respondent in paragraph
60.4 of the answering affidavit, namely that
the applicant acted
mala fide
when it “
entered into the
arrangement constituted by annexure ‘RP1’ and ‘RP2’
”, whereas the first respondent
by implication was
bona fide.
As indicated above, nothing has been shown to establish that the
applicant in exercising what it claimed to be its contractual
rights,
acted unlawfully or with an ulterior motive.
40.
What remains to consider is whether, in
purporting to cancel the contractual relationship which had come into
existence as between
the applicant and the first respondent by virtue
of the agreement of settlement as a whole, the applicant was legally
entitled
to do so and whether its actions had the effect of
terminating,
inter alia
,
the first respondent’s tenancy of the leased properties so that
its eviction becomes justified.
41.
The applicant asserts that as early as 3
October 2012 the first respondent was already in arrears with the
settlement and rental
payments it was obliged to make to the
applicant. Accordingly and by letter of that date the applicant
claims to have made demand
upon the first respondent for payment of
arrears in the sum of R40 016-86. The first respondent’s
attorneys responded by
letter dated 4 October 2016 (annexure RP5)
advising
inter alia
that “
.., our client will make
payment of the arrears owed. The delay has been occasioned by late
payment by medical aids.
”
42.
By letter dated 2 November 2012 the
applicant’s attorneys addressed a formal demand for payment of
arrears to the first respondent.
With reference to the schedule of
payments (annexure RP.18) earlier referred to, it is apparent that
the first respondent in consequence
made payment of R70 000-00 on 7
November 2012 to the applicant’s attorneys, but that a
shortfall of R8 473-79 remained. The
demand was addressed by pre-paid
registered mail to the first respondent at its address at 2 Marbleray
Drive, Newlands, Durban
4001 which corresponds with the first
respondent’s chosen
domicilium
citandi et executandi
as per clause
20.2.2 of the lease. In terms of clause 20.3 of the lease an item
thus posted shall be deemed to have been received
by the addressee on
the fifth day after the date of posting. Since it is common cause
that the next payment made to the applicant
by the first respondent
was only received on 9 January 2013, it is clear that the first
respondent was in default of payment after
expiry of the time period
specified in the demand.
43.
By letter dated 4 December 2012 the
applicant’s attorneys wrote to the first respondent, referred
to their earlier demand
of 2 November 2012 and again demanded payment
of the then arrears from the first respondent within seven days. This
letter too
was sent by prepaid registered mail to the first
respondent at its chosen domicilium address and was posted on 5
December 2015.
It was therefore deemed to have been delivered by no
later than 10 December 2016 and the first respondent became obliged
to comply
within seven days thereafter, namely by 17 December 2012.
44.
When no satisfactory response was
forthcoming the applicant’s attorneys addressed a further
letter to the first respondent,
addressed and posted as before. This
letter was dated 20 December 2012 and was posted on 21 December
2012. In the letter
the first respondent was advised that the
applicant had cancelled the agreement as between the parties and
inter alia
required
the first respondent to vacate the leased properties by no later than
31 January 2013.
45.
As is evident from the schedule (annexure
RP.18) a number of payments then followed commencing with the R40
000-00 paid on 9 January
2013. None of these are, however, relevant
if the applicant lawfully cancelled the agreement, as it claimed to
have done. In any
event, clause 17.3 of the lease provides that the
applicant may accept payment of amounts paid by the first applicant
after cancellation
as damages for holding over. As is apparent from
the letter by applicants attorneys dated 29 January 2013, the
applicant declined
requests to reinstate the lease.
46.
As indicated above, in paragraph 4 of the
letter from the first respondent’s attorneys, a claim was made
that the first respondent
had not received the letters from the
applicant’s attorneys dated “2
nd
December 2012 and 4
th
December 2012”. In context the reference must be to the formal
letters of demand addressed to the first respondent, so that
the
reference to the letter of “2
nd
December” should read “2
nd
November 2012”. Be that as it may, as is apparent from the
foregoing, once the letters were duly despatched as provided for
in
the agreement, they were deemed to have been received. It accordingly
does not avail the first respondent later to claim not
to have
received the letters concerned.
47.
But even if I were wrong in the conclusion
drawn in the preceding paragraph, then and in any event clause 3.4.2
of the settlement
agreement provides that should the first respondent
fail to make any payment on due date or breach any term of the
settlement agreement,
or the lease, then the applicant would become
entitled forthwith to cancel the lease while the total amount
outstanding in terms
of the settlement would immediately become due
and payable. It follows that formal demand was dispensed with by
agreement between
the parties and insofar as the applicant did
formally demand compliance, such demand was
pro
non scripto
and failure to demand
cannot be relied upon by the first respondent to defeat the rights of
the applicant.
48.
On the contrary, the fact that the
applicant sought to make multiple demands upon the first respondent
before resorting to cancellation
is indicative of good faith on its
part and destructive of the first respondent’s suggestions to
the contrary. Insofar as
reliance was sought in argument to be placed
upon the observations of Nkabinde J in Botha and Another v Rich NO
and Others
2014 (4) SA 124
(CC) at paragraphs 45 and 46, I
respectfully consider the analogy with the facts of the present
matter misplaced. For the reasons
already discussed, I am of the view
that no injustice arises from the cancellation of the agreement due
to the failure of the first
respondent to perform, as it had
undertaken to do, but did not. Certainly it has not been shown that
any delay in the reconnection
of municipal services, even if
attributable to the applicant, was the cause of the first
respondents’ failures to perform,
as opposed to the failure of
medical aids to make payments to it, or the duplicitous behaviour of
the erstwhile manager of the
first respondent which caused its
claimed cash-flow problems.
49.
In terms of the lease the rental of the
leased properties escalated by ten percent with effect from 1 January
2013 and as discussed
above the cancellation became effective prior
thereto. Occupational damages for holding over would nevertheless
operate at R11
000-00 per month from 1 January 2013 until the next
increase would have taken effect from January 1
st
of the following year(s), until the first respondent vacates, or the
lease expires due to the effluxion of time.
50.
In the circumstances I conclude that there
exist no factual conflicts which are sufficiently material so as to
prevent the granting
of final relief to the applicant by way of these
motion proceedings. The applicant has duly discharged the onus of
establishing
that the first respondent is no longer entitled to
remain in possession and occupation of the leased properties and the
applicant,
as owner, is entitled to evict the first respondent in
order to recover its property.
51.
The monetary claims contained in prayer 2
of the notice of motion present some difficulty. The claim for
payment in prayer 2(a)
for R35 215-37 corresponds with the amount
claimed as outstanding as on 30 April 2013 in the schedule (annexure
RP.18). However,
as already indicated the first respondent claimed
and the applicant conceded that two further payments of R40 000-00
each had been
made, but were too late to have been included in the
calculations as contained in the schedule. The schedule took account
of all
nine payments derived from the settlement agreement in
arriving at the shortfall of R35 215-37 as claimed in the notice of
motion.
52.
What remains unclear is whether and if so,
then to what extent, the first respondent has continued, or failed to
pay damages for
holding over whilst it remained in occupation of the
(formerly) leased properties. All these factors affect the manner in
which
an order under prayer 2 of the notice of motion needs to be
formulated. The applicant attached to its replying affidavit a
further
schedule (annexure RP.19) which was claimed to be an updated
schedule of payments due and outstanding. I am reluctant to accept
this further schedule because it is tendered in reply and as such the
respondents have not had the opportunity of responding to
its
accuracy.
53.
What becomes apparent, however, is that
taking into account the further two payments of R40 000-00 each, the
deficit of R35 215-37
as claimed in the notice of motion would have
been extinguished and ignoring the accumulation of further damages
for holding over,
there would have remained a surplus of funds paid
by the first respondent. In my view it would therefore not be
justified to make
any order with regard to prayer 2(a) of the notice
of motion.
54.
Assuming that the first respondent remained
in occupation of the (formerly) leased properties, liability for
damages for holding
over would have continued to accumulate at the
rate of R11 000-00 per month after 1 January 2013. Unless further
payments have
been made in this regard, any surplus remaining would
in time be extinguished and a growing deficit created. The relief as
claimed
in paragraphs 2(b) and (c) of the notice of motion would then
be appropriate and the necessary arithmetical calculations would
follow in determining whether the first respondent is entitled to a
refund, or remains indebted to the applicant and if so in what
amount.
55.
Since there was no dispute as to the joint
and several liability of the second and third respondents for any
indebtedness of the
first respondent, a suitable order will include
them as well.
56.
There is also no reason why the applicant
should be deprived of its costs, claimed in the notice of motion upon
the scale as between
attorney and client. In this regard it is to be
noted that clause 3.4.3 of the settlement agreement provided that in
the event
of breach the applicant was entitled to claim costs,
including collection commission, on the higher scale as between
attorney and
own client. The applicant has therefore restricted its
claim for costs, which is a further indication that it has not acted
unreasonably,
or conducted itself in a manner giving rise to
criticism.
57.
In the result I make an order:-
a.
As against the first respondent in terms of
prayers 1, 1(a), (b), (c) and (d) of the applicant’s notice of
motion; and
b.
As against the first, second and third
respondents, jointly and severally, the one paying the others to be
absolved, as follows:-
i.
in terms of prayer 2(b);
ii.
in terms of prayer 2(c), save that the
words “
alternatively, in
accordance with the agreement of lease and otherwise according to
law
” as contained in the notice
of motion will be omitted from the order; and
iii.
costs in terms of 2(d); of the applicant’s
notice of motion.
VAN
ZYL, J.
APPEARANCES:
For
the Applicant : Adv M M Swain,
Instructed
by
Tatham
Wilkes Inc.
200
Hoosen Haffejee (Berg) Street Pietermaritzburg.
(Ref:
N R Tatham/Michele/06G0399/08)
Tel:
033 3453501
For
the First, Second &
Third
Respondents : Adv O A Moosa SC and Adv J P Broster
Instructed
by
Vijay
Govender & Associates
Hillary
(VNG/LN/P21)
c/o
Cajee Setsubi Chetty
195
Boshoff Street
Pietermaritzburg.
(Ref:
Mr A Essa)
Tel:
033 3456719
Date
appeal argued : 5 November 2014
Judgment
delivered :
28 April 2015