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[2016] ZAGPPHC 732
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Bobbejaan's Kloof Caravan Park (Pty) Limited v South African Nucluer Energy Corporation Soc Limited (NECSA) and Others (78433/2014) [2016] ZAGPPHC 732 (19 August 2016)
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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO.: 78433/2014
DATE:
19 AUGUST 2016
In
the matter between:
BOBBEJAAN’S
KLOOF CARAVAN PARK (PTY)
LIMITED
..................................
First
Applicant
And
SOUTH
AFRICAN NUCLEAR ENERGY CORPORATION
SOC
LIMITED
(NECSA)
............................................................................................
First
Respondent
RJD
CONSORTIUM trading as AFRICA LAND
DEVELOPMENT
.....................................................................................................
Second
Respondent
DUNCAN,
RORY
........................................................................................................
Third
Respondent
JUDGMENT
VAN DER WESTHUIZEN, A J
1.
The applicant, Bobbejaan’s Kloof
Caravan Park (Pty) Ltd, comes by way of an urgent application before
court.
2.
The first respondent is The South
African Nuclear Energy Corporation SOC Limited (NECSA). The second
respondent is RJD Consortium
trading as Africa Land Development and
the third respondent is Mr Rory Duncan.
3.
The relief sought against the respondent
is premised upon alleged spoliation actions on the part of the
respondents. In this regard
a final order is sought interdicting the
respondents from interfering with the business activities of the
applicant on premises
situated at the farm [W….. 5………]
,
Registration Division J. Q., Transvaal. The restraint that is sought
is specifically described in the notice of motion.
The applicant, in the
alternative, seeks an interim interdict on the same terms as the
final interdict, pending the institution
of an action by the
applicant for final relief within one month from the date of the
order.
The respondents oppose the relief
sought and the first respondent has brought a counter application for
the eviction of the applicant
from the premises.
The
underlying
causa
for both applications
is a written lease agreement entered into by the applicant and the
first respondent during 2014.
The
nub of the dispute between the parties relates to whether the
aforesaid lease agreement has been terminated.
The
aforesaid lease agreement contains, in Schedule 1 thereto, a clause 3
that reads:
“Expiry date
...30
June 2024. Notwithstanding the expiry of this agreement, either the
Lessor or the Lessee has the right to cancel this agreement
for any
reason whatsoever with one (1) month’s written notice.
It
is common cause between the parties that notice of cancellation in
terms of afore quoted clause was given to the applicant on
27 June
2016. It is recorded in the said notice that the lessee, the
applicant, is to vacate the leased premises by 31 July 2016.
It is
also common cause that by 1 August 2016 the applicant had to have
vacated the leased premises.
10.
It is further common cause that the
applicant had not vacated the leased premises by 1 August 2016 and
that the applicant had no
intention to vacate the leased premises.
The reason proffered is that the applicant has a lien over the leased
premises in respect
of alleged development of the leased premises and
improvements thereof.
11.
It is a term of the lease agreement that
any alteration etc. to the leased premises shall only be effected
with written consent
on the part of the lessor. There is a dispute
whether the applicant has been compensated for the alleged
developments and improvements
or not.
12.
On 29 July 2016 the applicant addressed
a letter to the first respondent’s attorneys of record stating
that the application
for an interdict restraining the respondents
from interfering with the applicant’s business on the leased
premises will be
held in abeyance until 15 August 2016 for the first
respondent to serve by that date its application or action for the
eviction
of the applicant.
13.
However, on 10 August 2016 the applicant
launched the present application, the threatened application for
restraining the respondents
from interfering with the applicant’s
business on the leased premises.
14.
The first respondent retaliated by
opposing this application and launching the counter application for
eviction of the applicant
from the leased premises.
15.
The only defence raised by the applicant
to the counter application for eviction is a reliance on the alleged
lien in respect of
the development and improvement of the leased
premises. In this regard the applicant submits that the first
respondent had “known
for months” of the applicant’s
right to retention of the property and hence it is not entitled to an
eviction order.
16.
The applicant on 29 July 2016
through
the gauntlet down by challenging the first respondent to institute
proceedings for the eviction of the applicant by 15 August 2016.
The
first respondent dearly accepted the challenge, hence the counter
application.
17.
In view of the approach that I take in
respect of the counter application, I do not intend to deal with the
applicant’s application
for interdictory relief.
18.
As referred to earlier in this judgment,
the only defence raised by the applicant to the eviction application,
is a reliance of
the alleged right to retention in respect of the
development and improvements made to the leased premises. In so far
as such defence
may have been raised in respect of the status of the
notice of termination of the lease agreement, it was not pressed on
behalf
of the applicant and correctly so in my view. In this regard,
the relief that is sought, both final and interim, is premised upon
the applicant's alleged lien or right to retention in respect of the
alleged development of and improvements to the leased premises.
19.
It follows that the first respondent is
entitled to a declaratory order confirming the termination of the
lease agreement.
20.
Mr Coertzen, who appears on behalf or
the respondents, submitted that in view of the fact that the leased
premises are situated
on farmland, the applicant does not hold any
right to retention for development and/or improvements made. In this
regard he relies
upon the decisions in
Business Aviation
Corporation (Pty) Ltd et
a/
v Rand
Airport Holdings (Pty) Ltd,'
a decision of the
full bench of the
Witwatersrand Division of the High Court,
and Rekdurum (Pty) Ltd v Weider Gym Athlone (Pty) Ltd t/a Weider
Health Fitness Centre.
[1]
21.
The full bench in
Business
Aviation Corporation
,
supra,
considered the question whether the provisions of the Placaaten of 26
September 1658 and 24 February 1696 apply to both urban and
farmland
properties. The Placaaten stipulate that a lessee had the right to
claim compensation only after he had evacuated the
property and
accordingly had no lien or right of retention. It is trite that the
Placaaten have been received into South African
law and have been
applied by the courts.
22.
It was further held by the full bench in
Business Aviation Corporation, supra,
that the Appellate Division in
Van Wezel v Van Wezel’s
Trustee
[2]
had decided that issue.
23.
It is common cause that the leased
premises is situated on farmland. It follows that the Placaaten
apply. Consequently the applicant
has no lien or right of retention
in respect of the alleged development and improvements to the leased
premises.
24.
In the decision of
Rekdurum
,
supra,
it was held that in exercising a
lien or right of retention, it does not entitle the lessee to
continue to conduct its business
on the leased premises.
[3]
25.
It therefor follows that the applicant's
defence to the eviction application has no merit and the application
for eviction must
succeed.
26.
In the event that the application for
eviction succeeds, the parties have not addressed the issue when the
applicant is to evacuate
the leased premises. In view of the fact
that a
rententor
is not entitled to
continue to conduct its business on the leased premises, I am of the
view that it would be just and reasonable
that the applicant is to
vacate the leased premises by midnight on 31 August 2016.
27.
There is no reason why the costs should
not follow the event.
I
grant the following order:
(a)
It is declared that the written lease
agreement entered into between Bobbejaan’s Kloof Caravan Park
(Pty) Ltd and the South
African Nuclear Energy Corporation SOC
Limited on 1 August 2014 has been terminated;
(b)
Bobbejaan’s Kloof Caravan Park
(Pty) Ltd and all persons who occupy or purport to occupy through
Bobbejaan’s Kloof Caravan
Park (Pty) Ltd, be evicted form the
premises described as Necsa Recreation site, the Preller House and
Phaladingwe Hiking Trial,
situated on the farm Weldaba 567,
Registration Division JQ, Transvaal;
(c)
Bobbejaan’s Kloof Caravan Park
(Pty) Ltd is directed to evacuate the premises referred to in (b)
above by midnight on 31 August
2016;
(d)
The applicant, Bobbejaan’s Kloof
Caravan Park (Pty) Ltd, is to pay the costs of the application.
C J VAN DER
WESTHUIZEN
ACTING
JUDGE OF THE HIGH COURT
GAUT
ENG
DIVISION
On
behalf of Applicant: J G Botha
Instructed
by: SchGler Heerschop Pienaar Inc Attorneys
On
behatf of Respondents: Y Coertzen
Instructed
by: Noko Ramaboya
Mason Attorneys
[1]
1997(1) SA 646(C)
[2]
1924 AD 409
[3]
At 654D-E