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[2015] ZAGPPHC 94
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Coetze JNV v Sugar Creek 261 (Pty) Ltd (10358/2015) [2015] ZAGPPHC 94 (16 February 2015)
IN
THE NORTH GAUTENG HIGH COURT, PRETORIA
[REPUBLIC
OF SOUTH AFRICA]
CASE
NUMBER: 10358/2015
DATE:
16 FEBRUARY 2015
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
In the matter
between:
COETZE
JNV
.............................................................................................................................
APPLICANT
And
SUGAR CREEK 261
(PTY)
LTD
..........................................................................................
RESPONDENT
JUDGMENT
MAVUNDLA, J.
[1] The applicant
approached this court seeking an order in terms of which
non-compliance with the provisions of rule 6 of the Uniform
Rules of
Court be condoned; Ordering respondent to forthwith restore the
supply of electricity to the applicant on the premises
known as plot
236, Bokfontein, Brits, and to hand over to the applicant the key to
the lock placed on the structure which houses
the equipment receiving
and generating electricity on the premises, and ordering the
respondent to pay the costs of the application
on attorney and client
scale. The application was opposed.
[2] It is common
that the applicant leased from the respondent the property known as
plot 236, Bokfontein, Brits on which there
is a chrome wash plant and
the crushing and screening plant, per annexure A. The applicant is
conducting business through the chrome
wash plant and crushing and
screening plant. He is also conducting a brick making business on the
said property. It is common cause
that the applicant in his business
utilises Eskom-electricity made available by the respondent through
the electrical installations
on the property. It is common cause that
at the end of 2014 the transformer utilized for purposes of providing
electricity broke
down, on the respondent's version, due to the
transformer having been struck by lightning. It is common cause that
the respondent
subsequently installed at his own cost a 100 Kwt
Diesel driven Generator transformer to supply electric power. The
applicant averred
that this 100 Kwt Diesel Generator was inadequate
for purposes of operation of the chrome wash, screening and crushing
plant on
the property. It is common cause that nonetheless the
appellant could still operate his brick making process; (vide
paragraph 7
answering affidavit). It is also common cause that the
applicant subsequently withheld his monthly electricity supply
payment,
albeit the fact that he was contractually obliged to pay.
[3] According to the
applicant on 9 February 2014 the respondent's son Jurie on the
respondent's instructions, entered an area on
the leased premises
housing the electrical equipment and switched off such equipment as a
result the applicant was deprived of
all electricity supplied to the
premises. He also attached annexure B which is a copy of the What
Sapp chat regarding the discussion
between the parties including
Jurie on that particular day: (para 14). Jurie also locked the
structure housing the electrical equipment,
consequently denying the
applicant access to such equipment. (15). The applicant further
averred in his papers that on 9 February
2014 the respondent's son
Jurie on the respondent's instructions, entered an area on the leased
premises housing the electrical
equipment and switched off such
equipment as a result the applicant was deprived of all electricity
supplied to the premises.
Jurie also locked
the structure housing the electrical equipment, consequently denying
the applicant access to such equipment. The
applicant further
contended in his affidavit that the respondent acted unlawfully and
also in breach of the obligation of the highest
good faith
contemplated in clause 5 of the agreement and that the matter was
therefore urgent because all his commercial activities
on the leased
premises have grounded to a halt, with his monthly obligations to his
workers, and his clients who have placed orders
for the chrome and
bricks, still exist.
[4]
The respondent denied the averments contained in paragraph 14 and 15
of the applicant's affidavit and placed him to proof thereof.
He
further stated that the whole matter could be solved just by the
applicant paying attention to the electrical problems which
was
aggravated by his unwillingness to address his financial problems.
The discussion of the morning of the 9 February 2014 was
about the
applicant's deliberate withholding of payments. The respondent
stated,
inter
alia,
that
the applicant is well aware of the fact that the respondent informed
the applicant that even should the applicant pay all the
money he is
an arrears with, the respondent cannot allow him to continue his
operations prior to rectifying the illegal electricity
connections
and other safety hazards. According to the respondent the only
electrical connection he cut was an illegal electricity
connection.
[5]
On behalf of the respondent it was contended,
inter
alia,
that
the matter was not urgent. According to the respondent the applicant
knew as early as in December 2014 that there was not enough
power
supply. The applicant is withholding the electricity consumption
monthly account. It is not the electricity power which makes
the
chrome plant dysfunctional but its general deteriorating state, as
shown in the photographs attached to the respondent's answering
affidavit. There is also no unlawfulness on the part of the
respondent having cut the illegally connected electrical wire,
because
he was protecting any harm done to any person who could have
been electrocuted. Besides the applicant is withholding payment of
the electricity he is consuming.
[6] It is trite that
in spoliation proceedings, the applicant must prove that he was in
undisturbed possession and has been unlawfully
or wrongfully
deprived. The despoiled is entitled to restoration, without the court
having to interrogate any dispute regarding
the items forming subject
of spoliation;; Zulu v Minister of Works, KwaZulu, and Others
1992
(1) SA 181
(D) at 187.
[7] The respondent
admits that the electricity was sufficient to enable the applicant to
operate the brick operation. He admits
having cut off the electricity
supply, although this was for safety reasons and because the
applicant had made an illegal connection.
Perusal of annexure B is
the WhatsApp chat between the applicant and the respondent's son
Jurie between since 28 Jan 2014 and 9
February 2015. The major
concern of the respondent was the applicant's electricity consumption
payment withdrawal: "08: 03,
09 Feb—Jurie Johan".....elke
man oet maar betaal. Vraa jou regs friend hulle sal dit vir jou
bevestig" (paginated
page 16.... 10:45, 09 Feb—Jurie
johan: Hierdie is maklik betaal die krag wat jy gebruik het en maak a
reeling oor die huur."
(Paginated pages 68 and 69). Although
annexure B may be hearsay evidence, in urgent applications the court
has discretion to admit
hearsay evidence, as I do.
[8]
I am of the view that the reasons advanced by the respondent for
cutting the electricity supply, is primarily premised on his
withholding his monthly electricity payment. I am further of the view
that electricity, in the modern industrial world we live
in, just
like water, is an important commodity, the supply of which, as
in
casu,
the
landlord cannot without much ado just be severed. Urgency lies in the
inherent nature and use of electricity where it has been
unilaterally
severed. I am of the view and find that the matter was indeed urgent.
The mere fact that the applicant withheld his
monthly payment for the
electricity consumption, did not justify the action taken by the
respondent in unilaterally severing the
electricity. I am therefore
of the view that the applicant was in peaceful possession of the
property with electricity supply thereto
and therefore entitled to
the restoration of this
status
quo.
[9] With regard to
costs, I am of the view that in the exercise of my judicial
discretion, I should not grant punitive costs but
the ordinary
opposed costs, on the generally accepted principle that these follow
the event.
[10] In the result
the following order is granted:
1. That the matter
be heard as one of urgency and that the applicant's failure to have
complied with the provisions of rule 6 of
the Uniform Rules of Court
relating to tie-periods and form, be and is condoned;
2. That the
respondent is ordered to forthwith restore the supply of electricity
to the applicant on the structure which houses
the equipment
receiving and generating electricity on the premises.
3. That the
respondent is ordered to pay the applicants costs on opposed party
and party scale.
N.M.MAVUNDLA
Date heard:
13/02/2015
Date of Judgment:
16/02/2015
APPLICANTS' ADVOCATE
: ADV S STRAUSS (Ms).
INSTRUCTED BY:
MARKROBERT DE VILLIERS INC.
DEFENDANT'S ADVOCATE
: ADV. G VAN NIEKERK
INSTRUCTED BY:
BERNICE DE BEER ATTORNEYS