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[2016] ZAGPPHC 389
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Botha v Pretorius (59005/2015) [2016] ZAGPPHC 389 (9 June 2016)
SAFLII
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IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
Case number: 59005/2015
Date:
9/6/2016
Not
reportable
Not
of interest to other judges
Revised.
In the matter between:
ELISE
BOTHA APPLICANT
And
PIETER GERHARD
PRETORIUS RESPONDENT
JUDGMENT
PRETORIUS J,
(1)
In this application the
applicant requests the court to order the respondent to immediately
return and relinquish to the applicant
full access and control in and
to a portion of the property at Portion […], Broederstroom
[…], known as the Mango
Bar, and a cost order on attorney and
client scale. The respondent elected to appear in person, as
his attorneys had withdrawn.
(2)
This application is based
on a
rei vindicatio
as the applicant seeks delivery of the possession of her property.
It is common cause that the applicant is the owner of
the property
known as Portion […], Broederstroom […]. It is
further common cause that the respondent is in
possession of the
property. It is in dispute whether the main agreement, as well
as any other agreement, between the applicant
and the respondent were
cancelled. The respondent does not dispute that he did not
comply with the obligations of any of
the alleged agreements.
(3)
The respondent relies on a
defence that all obligations he had to pay rent and electricity had
been suspended, as a result of the
fact that he disputes that the
agreements were cancelled. He relies on the
exceptio
non adimpleti
contractus
. This
defence can only be considered if there is a proper agreement of
lease and the performance by the lessee is conditional
upon the
performance by the lessor. The respondent’s performance
was not conditional upon any performance by the applicant,
should it
be found that a valid lease existed.
BACKGROUND:
(4)
The applicant allowed the
establishment of two businesses on the property, namely the Bundu Bar
and the Mango Bar. On 3 May 2010
the applicant entered into a lease
agreement with Mr PV Gillingham in terms of which Mr Gillingham
leased the full property, including
the two bars from the applicant.
(5)
On 3 June 2010, a month
after entering into the original lease agreement, Mr Gillingham
entered into a sublease, as he was entitled
to do, with the
respondent. In terms of the sublease the respondent obtained
the right to occupy the Mango Bar and three
huts on the property.
(6)
This lease remained
effective until 18 October 2012 when the applicant cancelled the main
lease, as Mr Gillingham failed to fulfil
his obligations in terms of
the lease agreement.
(7)
On 18 September 2012 the
applicant, through her attorney, addressed a letter to Mr Gillingham,
demanding that the breach of the
main agreement be rectified. A
month later, on 18 October 2012, the applicant cancelled the main
lease as a result of Mr
Gillingham’s failure to comply with the
letter of demand and still being in breach of the lease agreement.
(8)
Clause 20.2 of the main
lease agreement provides:
“…
Should the rent not
be paid by the 3
rd
of the calendar month,
the LESSOR will have the right to cancel this agreement in writing
and to claim immediate vacation of the
premises by the LESSOR and any
other person or persons occupying the premises, allowing the LESSOR
to take up immediate occupation
himself.”
(9)
The respondent only had
the right to sub-lease in terms of the main lease and when the main
lease was cancelled the sub-lease was
automatically cancelled,
according to the applicant. The respondent contends that there
is an agreement between him and the
applicant in terms of the main
lease agreement where it is set out in clause 24.1:
“
In the event that the LESSOR
is declares insolvent, or fails his obligations as LESSEE to the
owner, Elise Botha, the Sub-LESSEE
will take over the rental
agreement entered into between the LESSOR and the Owner of the
property under the same terms and conditions.”
(10)
According to the
respondent he relies on the main lease agreement and it is according
to this lease agreement that he occupies the
property. This is
contrary to the respondent’s affidavit where he stated:
“
My right to occupy the
premises is not based on the sub lease, but on the new lease
agreement that came into being as a result of
the cancellation of the
agreement between the applicant and Gillingham.”
(11)
On 31 January 2013 the
applicant’s attorney addressed a letter to the respondent, in
which,
inter alia
,
it was stated:
“
We confirm that the
aforesaid lease with Mr Gillingham has been cancelled and that you
claim a lease by default in terms of your
sub-lease with Mr
Gillingham.
We confirm that we are at present
busy in negotiations for a new lease on the premises.”
The content of this letter makes it
clear that at that stage there was no lease agreement between the
applicant and the respondent.
(12)
On 22 April 2013 a further
letter was addressed to the respondent wherein it was set out that
the respondent was occupying the premises
illegally and that:
“…
unless a lease
agreement is negotiated and signed by the end of the current month we
hold instructions to launch an application
to Court for your
eviction
.
Will
you kindly communicate with the writer to finalize the lease
agreement and attend to the signature thereof.”
(Court emphasis)
Once more the applicant and respondent
did not enter into a lease agreement after 22 April 2013.
(13)
On 22 August 2014 a final
letter of demand was sent to the respondent by the applicant’s
attorneys. The respondent was
once more informed that,
according to the applicant, no agreement existed between the
applicant and the respondent. The respondent
was further
informed that he was in breach of the agreement, should it exist, by
failing to pay the electricity account to Tshwane
Municipality,
despite undertaking to pay the outstanding amount of R500 000.00.
Furthermore, Mr Pretorius was informed
that he had illegally
connected the electricity meter with a consumption of approximately
R15 000 per month and have failed
to pay the rental of R24 000
per month. In this letter the attorney proclaimed:
“
The Lessor has elected to
cancel the Agreement of Lease, (insofar as any Lease Agreement may
have existed, which is denied), of
which this is official
notification to you.”
It is thus clear that on 22 August
2014 the lease, if it ever existed, was cancelled.
(14)
This letter was
acknowledged by the respondent on 9 September 2014 but he did not
reply to the letter. On 2 October 2014 the
respondent was
informed that an application would be launched claiming the return of
the property and the eviction of the respondent.
(15)
On 20 March 2015 the
respondent instructed an attorney to act on his behalf. On the
same date the respondent’s attorney
informed the applicant’s
attorney that the respondent is exercising his option to renew the
lease agreement, although he
must have known that the applicant had
already cancelled the lease agreement on 22 August 2014.
(16)
It is common cause that
the respondent had not paid rent since cancellation of the alleged
lease agreement during August 2014.
The current application was
launched on 27 July 2015 and was served on 28 July 2015 on the
respondent’s attorney. The
respondent’s attorneys
had withdrawn thereafter.
(17)
The further defence put
forward by the respondent is that the tenants of the Bundu Bar and
the occupiers of the other properties
should have been joined as they
have an interest in this application. I cannot agree with the
respondent, as this application deals
specifically with the Mango
Bar.
(18)
The respondent could not
rely on a lease agreement as the lease, if it had existed, had
already been cancelled during August 2014
by the applicant.
There is thus no lease agreement and no obligation on the applicant
to perform in terms of a non-existent
lease agreement.
(19)
Therefor the respondent
cannot rely on the
exceptio
non adimpleti
contractus
as there
exists no lease agreement between the applicant and the respondent.
The respondent could not give any indication
as to how and when the
new lease was concluded. He could not inform the court as to the
terms of the new sub-lease. His statement
that a “new”
lease agreement came into being, without setting out whether it was a
written or oral agreement or any
other relevant facts, cannot be
entertained. No agreement comes “into being”
automatically, as the respondent
submits. His confirmation in
the founding affidavit that he was prepared to negotiate a new lease
agreement, militates against
his contention that there existed a
lease agreement between him and the applicant. This contradiction by
the respondent is of utmost
importance as it confirms that there was
no lease agreement, at least since 22 August 2014.
(20)
The respondent did not
prove any payments to the applicant. I find that the lease had
not existed, however even if there had
been a lease agreement, it was
cancelled on 22 August 2014.
(21)
I cannot find that the
respondent has any right to the property and the property should be
returned to the applicant.
(22)
Subsequently I make the
following order:
1.
The respondent is ordered
to forthwith return and to relinquish full access and control in and
to the portion of the property at
Portion […], Broederstroom
[…], known as the Mango Bar, to the applicant.
2.
The respondent is ordered
to pay the costs.
_____________________
Judge C Pretorius
Case
number :
59005/2015
Matter heard
on :
25 May 2016
For the
Applicant :
Adv BM Heystek
Instructed
by :
JJ Badenhorst and Associates
For the
Respondent :
In person
Instructed
by :
In person
Date of
Judgment :
9 June 2016