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[2015] ZAGPPHC 244
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Joyride Properties (Pty) Ltd v Luvhomba Capital (Pty) Ltd (24868/2015) [2015] ZAGPPHC 244 (30 April 2015)
THE
HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE NO. 24868/2015
DATE: 30 APRIL 2015
NOT REPORTABLE
NOT OF INTEREST TO
OTHER JUDGES
In the application
between:
JOYRIDE
PROPERTIES (PTY)
LTD
.............................................................................................
Applicant
and
LUVHOMBA
CAPITAL (PTY)
LTD
...........................................................................................
Respondent
Judgement
Jordaan J:
This is an urgent
application for the eviction of the Respondent from the property
known as Erf 295, Barolong Street, Sunderland
Ridge Ext 18, Icon
Park, Pretoria.
The version of
the Applicant:
On 5 August 2014 the
Applicant and the Respondent entered into a written agreement of
lease in terms of which the Applicant let
to the Respondent the above
mentioned property. The lease would commence on 1 August 2014 and
would endure for 12 months. The monthly
rental would be payable in
advance In the amount of R 198,171.90 inclusive of VAT.
In the event of
breach of any terms of the agreement, the Applicant would be entitled
to cancel the agreement after the expiry of
7 days written notice to
remedy such breach. Provision is also made for the Applicant to be
entitled to attorney and client costs
in such an event.
The Respondent took
possession of the property but failed to pay rental or full rental
for the months of September, October and
November 2014. The shortfall
for September was R 7,789.99, R 198171.90 for October and R
198,171.90 for November.
In terms of the
agreement the Applicant demanded payment of the arrear rental in a
letter dated 10 November 2014 and when the Respondent
failed to pay
cancelled the agreement on 25 November 2014 and requested the
Respondent to vacate the premises not later than 30
November 2014.
The Applicant issued
summons for the arrear rental and for damages for holding over in the
Magistrate’s court, Pretoria.
On 25 November 2014
the Respondent acknowledged receipt of the summon The Respondent and
stated in an E mail that the summons and
steps for eviction amounted
to “strong arm” tactics and issued a warning that it
would employ physical means if needs
be.
The Applicant,
thereafter obtained default judgement against the Respondent on 11
March 2015 for the amounts referred to above.
And the prayer for
damages was postponed.
Before judgement was
taken the Respondent’s attorneys requested settlement
negotiations and a meeting to attempt to settle
the dispute ook place
on 2 February 2015. It is in dispute whether a settlement was
reached.
On 9 February 2015
the Applicant’s attorneys informed the Respondent’s
attorneys in writing that it was not willing
to participate in any
further negotiations and the Respondent was requested to vacate the
property. The Respondent’s attorneys
then indicated that it
would pay, as from 1 March 2015 the normal rental and the outstanding
arrears.
The Applicant, after
judgement attached the goods as specified in the inventory of the
Sheriff attached to the papers.
The applicant points
out that the Respondent also failed to make any payment for the
period December 2014 to March 2015. The Respondent
also did not make
any payment in respect of the judgement debt. It is alleged that the
damages for holding over and the total exceeds
R 1.1 million
excluding costs and interest. (At the hearing of this application on
23 and 24 April 2015 I was told from the bar
that the amount at this
stage was R 1.8 million.)
During March 2015
the Applicant also ascertained that the electricity supy to the
property had been terminated as the Respondent
had not paid a single
cent towards electricity consumption. The outstanding amount owing
for electricity on 28 February 2015 amounted,
according to an account
attached to the papers, amounts to R 56,146.65.
On 23 March 2015 the
Respondent’s attorneys directed a letter to the Applicant’s
attorneys in terms whereof the Respondent
offered to pay the amount
of R 404,212.79 but no later than close of business on 27 March 2015
and also offered to vacate the premises
by no later than 27 March
2015. The Applicant’s attorneys then instructed the Sheriff not
to proceed with the removal of
the goods.
However the
Respondent again failed to honour the above mentioned undertaking
whereupon the Applicant’s attorneys instructed
the Sheriff to
proceed with the removal of the goods attached.
When the Sheriff
attempted to remove the goods the sole director of the Respondent, Mr
Mulaudzi, in a violent manner prevented the
Sheriff from doing so.
The version of
the Respondent:
Mr Mulaudzi appeared
in person on behalf of the Respondent before me. It seems as if he
also drew the opposing papers and the Respondent’s
heads of
argument.
1. That no lease
agreement exists between the parties;
2. That the
Respondent has launched an application for recission of the judgement
given in the magistrate’s court which bars
this court from
granting an order in this application
3. That there is an
Agreement of Purchase and Sale in place and also valid, which
entitles the Respondent to occupy the premises
4.That the
application is not urgent and the Respondent is financially able to
meet all of it’s commitments.
It is correctly
pointed out on behalf of the Applicant that the invalidity of the
lease agreement is a novel argument in defence
of the Applicant’s
claim. At no stage before was this defence raised. I agree that the
documents attached to the founding
affidavit, some of which have been
referred to above shows that the validity of the lease was not in
dispute at any previous stage.
It was submitted on
behalf of the Applicant that the order sought can be granted only on
the allegations made by Respondent, being:
1. That no agreement
of lease exists and that it had been declared null and void by the
Agreement of Purchase and Sale;
2. That the
Agreement of Lease, which had been concluded, was cancelled by the
said Agreement of Purchase and Sale.
3. It is not in
dispute that Respondent is in occupation of the premises;
4. The Agreement of
Sale referred to on behalf of the Respondent was concluded with a
Third Party, namely Luvhomba Legal Axe (Pty)
Ltd and not with the
Respondent;
5.
No basis whatsoever is shown why the Respondent is entitled to occupy
in terms of the Purchase and Sale entered into with the
Third Party.
The fact that the Respondent may be a subsidiary to the Third Party,
or part of the Luvhomba Group
(sic),
makes
no difference;
6. Based solely on
Respondent’s allegations, Respondent is not entitled to occupy
the premises. The Applicant submitted that
Respondent should be
evicted. Judgment in the Magistrate’s Court was only granted
for payment of arrear rentals and not for
eviction. The Applicant had
not issue summons for eviction;
7. On behalf of the
Applicant it was submitted that this court, by granting an order of
eviction, complies fully with the principles
as laid down in the
decisions of:
Room Hire Co
(Pty) Ltd v Jeppe Street Mansions (Pty) Ltd 1949(3) SA 1155 (T) and
Plascon-Evans (Pty) Ltd Paints Ltd v Van Riebeeck
Paints (Pty) Ltd
1984(3) SA 623 (AD)
It was submitted on
behalf of the Applicant that, solely on the basis as set out above,
Applicant is entitled to an order of eviction.
I am in agreement
with these submissions. These submissions are further being fortified
by the following:
Even if it should be
found that respondent derives any rights from the agreement of sale
the right to occupy clearly commences on
date of transfer of the
property into the name of the Third Party;
The Respondent does
not allege, and it may be regarded as not in dispute, that transfer
has not taken place. Transfer was not effected.
In fact, on the
papers the Agreement of Sale had been cancelled.
Even if the
Respondent is correct, it’s right to occupy is subject to the
Agreement of Lease;
In this regard
clauses 17.2.7 and 18.1 are of importance.
Clause 17.2.7 reads
as follows:
“
The
Agreement of Lease entered into between the seller and Luvhomba
Capital (Pty) Ltd dated 4 August 2014 shall be ceded to the
Purchaser
on date of Registration of Transfer of the Property into the name of
the Purchaser ”
Clause 18.1 reads:
“
The
Purchaser is aware of the Agreement of lease entered into by and
between the Seller and Luvhombo Capital (Pty) Ltd and this
Sale
Agreement is subject to the provisions of the Agreement of Lease, a
copy of which is attached hereto for identification purposes.
”
It was correctly
argued that the Respondent does not allege or prove any payment in
respect of occupation for the period December
2014 up to date. It is
not in dispute that the judgment debt remains unpaid; in terms of the
Agreement of Lease Respondent is at
this stage indebted to Applicant
in a total amount of ±R1,4 million.
Based
on the principles of the
Jeppe
Street Mansions
and
Plascon-Evans
decisions,
this Court should grant Applicant the relief sought.
As to the allegation
that the application for recission of judgement bars any order in the
present matter it is important to note
that that application is
solely based on the fact that the order is erroneous because the
amount for which judgement was granted
exceeds the jurisdiction of
the magistrate’s court. This application loses sight of the
following:
The Respondent, in
the Agreement of Lease consented to the jurisdiction of the
magistrate’s court and
The amount claimed
had been claimed in three different claims, in view of one default
committed by the Respondent.
Accordingly there is
no merit in this point taken by the Respondent as well.
With regard to the
alleged lack of urgency in this application I am of the view that it
is also without any merit.
The Respondent
clearly intends to remain in occupation of the premises and does not
intend to pay any occupational rent. This is
in fact confirmed by the
Respondent in it’s papers.
The Respondent is
financially unable to pay Applicant. This is corroborated by:
Respondent’s
application for rescission of judgment;
The Respondent’s
failure to file a plea;
The Respondent’s
failure to show its ability to pay Respondent.
The Respondent’s
attorneys withdrew as a result of a lack of funds;
The Respondent have
not paid one cent in respect of electricity consumed. The Respondent
alleges that Applicant failed to supply
it with accounts, while the
accounts are addressed to Respondent;
If the application
is dealt with in the normal course of proceedings and not earlier
than at least four months from date hereof,
the Applicant will suffer
further irreparable loss of ±R800 000,00, as the premises
cannot be let to new tenants;
The financial loss
suffered by the Applicant up to date is substantial.
In the result I am
of the view that the application should succeed.
The punitive cost
order I intend to grant is not only because such was consented to in
the Agreement of Lease but also as a result
of the behaviour of the
Respondent by playing cat and mouse with the Applicant for months.
Its directors attitude towards the Sheriff
referred to above is also
of importance.
In the result the
following order is made:
1. That Respondent
be evicted from the premises situated at Erf 295, Sunderland Ridge,
Ext 18, Icon Park, Pretoria, Gauteng;
2.
That the Sheriff be authorised to evict Respondent should Respondent
fail to grant Applicant access to the premises mentioned
in paragraph
1
supra
within
10 days of granting of this order;
3. That Respondent
be ordered to pay the costs of this application on the scale as
between attorney and client.