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[2015] ZAGPPHC 284
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Engen Petroleum Limited v Rasebotsa t/a Everon Filling Station (24051/2014) [2015] ZAGPPHC 284 (6 May 2015)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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IN THE HIGH COURT OF
SOUTH AFRICA
(GAUTENG DIVISION,
PRETORIA)
CASE NO: 24051/2014
In the matter between:
ENGEN PETROLEUM LIMITED
(Registration Number:
1989/003754/06)
..............................................................................
APPLICANT
And
MALAN RONALD RASEBOTSA t/a
EVERON FILLING STATION
(Identity Number:
[…])
.................................................................................................
RESPONDENT
JUDGMENT
PRETORIUS J
[1]
In
this application Engen, the applicant, applied
inter
alia
for a money judgment and an eviction order. The respondent
failed to file an opposing affidavit. Therefore the matter
was
set down on the unopposed roll for hearing on 1 September 2014.
On 26 August 2014 the respondent filed an opposing affidavit
and the
matter was postponed at the request of the respondent, due to the
fact that the matter had become opposed. The respondent
was
ordered to pay the costs on an attorney and client scale due to the
late filing of the opposing affidavit.
[2]
Condonation:
The opposing affidavit was filed four
months late despite the applicant sending numerous reminders to the
respondent to file opposing
papers.
[3]
The
application was served on 2 April 2014 and the opposing affidavit had
to be served in terms of Rule 6(5)(d)(ii) on or before
15 May 2014.
On 12 May 2014 an extension was sought by the attorney for the
respondent until 23 May 2014 to enable the respondent
to file the
opposing affidavit. A second extension was sought, after the
first extension had been granted and the second
extension was granted
until 30 May 2014. On 5 June 2014 the attorney for the
applicant sent an e-mail to the respondent’s
attorney enquiring
whether an opposing affidavit was forthcoming which resulted in a
further request for an extension – until
10 June 2014, which
was once again granted. The request for extension set out:
“
We
request that you provide us with time until the 10
th
June 2014 to finalize said Affidavit, where after you may deal with
the matter as you see fit.”
[4]
As
no opposing papers were filed on or before 10 June 2014, the matter
was set down on the unopposed roll for 1 September 2014.
This
notice of setdown was served on the respondent’s attorney on 23
July 2014. Almost a month after the notice of
setdown had been
served the opposing affidavit was filed on 26 August 2014, resulting
in the postponement of the matter.
On 11 November 2014 the
heads of argument by the applicant was served on the respondent.
Once more the respondent failed
to file heads of argument, despite
having heads of argument served on the respondent’s attorney.
[5]
On
13 April 2015 the matter was to be heard on the opposed motion roll.
Counsel for the respondent came to court and requested
a postponement
due to the fact that the notice of setdown served on the respondent’s
attorney mentioned that the matter was
set down on the unopposed
roll. At the time of the request for postponement there was no
substantive application for a postponement,
the request was dealt
with by counsel from the Bar. When further enquiries were made
by the court, it became evident that
the respondent’s
attorneys’ preferred counsel was not available and the present
counsel for the respondent had only
received instructions to apply
for a postponement without any further instructions.
[6]
It
transpired that heads of argument had been provided to counsel that
morning by the respondent’s attorney. The court
ordered
the respondent’s attorney to attend court as there was no
clarity as to the respondent’s position. Mr
Ruan Vorster,
the attorney for the respondent, deposed to an affidavit on 14 April
2015 wherein he declared:
“
The
matter was therefore quiet
(sic)
clearly
opposed and was never in dispute in this regard, that the matter is
an opposed matter.”
[7]
He
further set out:
“
On
the 5
th
day of February 2015, I received the Notice of Set Down, which is the
cause of the current state of confusion on the part of myself
and
counsel, was filed on the respondent’s correspondent attorneys.
Upon receipt of
said notice I immediately forwarded the notice to counsel, also
asking him if it was not placed incorrectly.
This was indeed
confirmed in a subsequent telephonic conversation that it was indeed
incorrectly done.”
[8]
It
is clear that the respondent had known all along that the matter was
on the opposed roll and should have enquired from the applicant’s
attorney whether the notice of setdown on the unopposed roll was
incorrect.
[9]
The
respondent indicated that counsel will be able to argue the matter on
15 April 2015, so that the prejudice to the applicant,
due to the
tardiness and disregard of the Rules by the respondent, be limited.
[10]
The
applicant filed the replying affidavit on 1 October 2014 without an
application for condonation. I have considered all
the facts
and arguments and will condone the late serving of the condonation
application by the respondent. The respondent
has already been
punished by a punitive cost order on the scale of attorney and client
on 1 September 2014.
[11]
The merits:
The applicant applies for judgment
against the respondent in an amount of R797 911.94 and interest
thereon at the rate of 9%
a tempore morae
, as well as the
eviction of the respondent from Portion 3 of Erf 2 Lebowakgomo –
BA Township, Limpopo with further related
relief.
[12]
The
applicant has developed an automotive fuel filling station on the
immovable property and owns the immovable pumps, tanks and
ancilliary
equipment utilized for the storage and dispensing of petroleum and
automotive fuels and erected signs and advertising
material to
identify the service station as an “Engen Service Station”.
[13]
It
is of paramount importance to the applicant, Engen, that the
appearance of the station, the quality of oil and fuel, the Quickshop
and the service provided should be to maintain and enhance the Engen
brand name.
[14]
Strict
operating procedures must be observed by all dealers to ensure that a
leak in a tank or spillage must be detected as soon
as possible and
to minimize environmental contamination at all costs.
[15]
There
is enormous competition by the respective oil companies for lucrative
sites and the number of new service stations is restricted
by
legislation.
[16]
The
property is owned by the Ronald Rasebotsa Family Family Trust and is
the site from which the respondent operates the Everon
Filling
Station and is thus in occupation of the immovable property.
[17]
On
26 March 1997 the respondent and his wife, as the registered owners
of the property and the applicant, as lessee entered into
a Notarial
Deed of Lease which was registered in the Pretoria Deeds Registry.
On 29 October 2009 the Addendum to the Notarial
Deed of Lease was
registered wherein the Ronald Rasebotsa Family Trust is the owner of
the property.
[18]
The
applicant is the lessee of the immovable property and its rights
arise from the registered lease agreement. The material
terms
of the lease agreement are:
“
The
Lessor let to the Applicant, the immovable property being:
Erf 2 BA (3) in
the Township of Lebowakgomo, district Thabamoopa, in extent 2523
square metres held by Deed of Grant Number TG254/1994LB,
which
immovable property is the immovable property referred to in paragraph
10 above. (Preamble)
“
Premises”
would mean the Property together with all buildings, erections and
other improvements thereon or which might be
constructed thereon
(including all fixtures and fittings herein to the extent owned by
the Lessor)…
…
Notwithstanding
the provisions of sub-clause 2.2, the Lessee would be entitled to
extend this tenancy from time to time for a further
period of 5 years
on each occasion: Provided that:
(a)
Such
right of extension may not be exercised except by written notice
deliver to the Lessor during the currency of this tenancy,
whether
during the period referred to in sub-clause 2.2 or whether during any
subsequent period or extension thereafter;
(b)
After
the Final Date, the Lessee shall have the option to extend its
tenancy under this Notarial Deed of Lease for two (2) further
periods
of five (5) years each…
…
Throughout
the period of the Lease Agreement, including any renewal thereof, the
Lessee would be entitled to the exclusive use and
occupation of the
Premises
The Lessee would
be entitled to sub-let the Premises (or any portion thereof) or to
give up occupation or possession of the Premises
(or any portion
thereof), without the Lessor’s consent and without reference to
the Lessor…;”
[19]
Applicant
complied with the terms of the lease agreement and the letters for
renewal were delivered on 5 March 2002, 29 October
2007 and 31 August
2012. The current lease agreement will expire during November
2017.
[20]
On
10 December 2012 the respondent, in his personal capacity, and the
applicant concluded a written agreement of lease and operation
of the
service station. The material express terms of the Operating
Lease were
inter
alia
,
the applicant let to the respondent the entire premises and would be
deemed to commence on 1 December 2012 and remain in force
for two
years and four months until the termination date of 31 March 2015.
[21]
In
terms of clause 11 Schedule 2 of the agreement entered into the
respondent is prohibited from dealing in any way in any automotive
fuels other than those supplied by the applicant. The
respondent would exclusively purchase from the applicant or the
applicant’s
nominated approved suppliers the respondent’s
entire requirements of automotive fuel marketed by the applicant for
resale
from the premises. No automotive fuel from any other
entity may be stored, sold or distributed from the premises.
[22]
The
agreement will forthwith be cancelled should the respondent breach
any of his obligations as set out in the agreement.
The
applicant alleged that the respondent breached the agreement by:
“
The
Respondent was dealing directly in Automotive Fuel (being leaded and
unleaded petrol and automotive diesel) other than that
supplied by
the Applicant;
The Respondent
failed to purchase exclusively from the Applicant, the Respondent’s
entire requirements of Automotive Fuel
and Diesel for resale from the
Premises;
The Respondent
was storing, selling and distributing from the premises Automotive
Fuel other than that purchased from the Applicant;
The Respondent
was purchasing Automotive Fuel from sources other than the Applicant;
The Respondent
failed to and or neglected to make payment of rental, retail levies
and fuel purchases due to the Applicant.”
[23]
During
the period 12 April 2013 and up to 21 May 2013 no purchases for fuel
were made from the applicant. During the month
of June 2013 no
fuel was sold to the respondent by the applicant. The site
continued to operate and sell fuel during these
periods and the only
conclusion is that the respondent obtained fuel from a different
source.
[24]
Furthermore
the respondent failed to pay rent, retail levies and fuel purchases.
On 31 December 2013 the respondent owed rental
in the amount of
R583591.71; retail levies in the amount of R213982.08 and fuel in the
amount of R338.15.
[25]
On
18 June 2013 the applicant’s attorneys of record advised the
respondent that the applicant elected to terminate the agreement
concluded in 2012 as the respondent had breached the agreement by
buying petroleum products from other suppliers. In this
letter
the applicant demanded that the respondent vacate the property on 21
June 2013; immediately cease to operate as an Engen
Service Station
and that the respondent refrain from passing himself off as an
authorised dealer of the applicant. Although
the respondent
initially agreed to vacate the property, he refrained from doing so.
On 21 October 2013 a further letter was
despatched to the respondent
demanding payment of arrear rental in the amount of R479 326.57;
payment of R157 015.04
in respect of retail levies and payment
of R381 in respect of the fuel account. On 5 November 2013 a
further letter was sent
to the respondent as he had not paid the
arrear amounts, cancelling the agreement between the parties.
[26]
The
respondent failed to comply with any of the demands. He is
still trading as an Engen Service Station as if he is a validly
appointed franchisee of the applicant.
[27]
The
applicant is suffering prejudice on an on-going basis, as the
respondent is causing potential harm to the applicant’s
reputation by distributing fuel in the name of the applicant, which
had not been bought from the applicant or from a supplier approved
by
the applicant.
[28]
The
respondent’s defence is that the applicant was in breach of the
operating agreement as it had allegedly failed to execute
orders.
The applicant responded thereto:
“
Not
only are the contents of these paragraphs irrelevant but so baldly
stated that it is quite impossible to reply thereto.
Engen was
allegedly in breach of the Operating Agreement in that it failed to
properly execute orders “…in that the
Applicant
delivered stock in a haphazard manner and in quantities which made it
impossible to properly deal with the demand from
my client base…”.
This ad hoc statement is unsubstantiated by any documentation
whatever; bears no reference
to the relevant representatives who
would have dealt with these issues and is totally lacking with
reference to dates, times and
places. It has left Engen in a
position where it is quite impossible to refer to any of its records
and/or any of its employees
in order to further cast light on the
allegations made in this paragraph.”
[29]
I
must agree that such a baseless statement has no evidentiary value
when adjudicating the matter. The respondent did not
supply any
official order number or set out the particulars in any manner to
substantiate these allegations. It is bald,
vague and sketchy
and cannot constitute a defence in these circumstances.
[30]
There
is no indication as to when the applicant failed to supply fuel and
where the respondent gave the applicant three (3) days’
notice
to remedy the breach of not supplying fuel. I can only come to
the conclusion that it did not happen.
[31]
The
applicant relies on the failure by the respondent to pay monthly
rentals to cancel the operating lease and the consequent eviction
application. In clause 34.3 of the second schedule of the
Operating Lease it was agreed by the parties that the respondent
would not be allowed to discharge any obligations to the applicant by
way of set-off. Any losses the respondent alleged was
suffered
as a result of the applicant’s actions can only be remedied by
a claim from the applicant.
[32]
The
respondent concedes that he is not a party to the Notarial Deed of
Lease. Therefore the applicant’s landlord’s
position is irrelevant to these proceedings.
[33]
In
Boompret
Investments (Pty) Ltd and Another v Paardekraal Concession Store
(Pty) Ltd 1990(1) SA 347 (A)
Van Heerden JA held at p351 F:
“
In
particular it was contended that the sublease had terminated before
the application was launched; that in terms of the sublease
the
lessee was obliged ‘to hand the premises over to the lessor on
the termination of this tenancy…’, and
that
when sued for ejectment after the termination of a lease a tenant may
not dispute the title of his lessor
.
In support of the latter proposition counsel relied upon the
decisions in Hughes v Anglia and Co 1912 EDS 242; Hillock and
Another
v Hilsage Investments (Pty) Ltd 1975(1) SA 508 (A) at 516, and
Ebrahim v Pretoria Stadsraad 1980(4) SA 10 (T).
It
is, or course, true that in general a lessee is bound by the terms of
the lease even if the lessor has no title to the property.
It
is also clear that when sued for ejectment at the termination of the
lease it does not avail the lessee to show that the lessor
has no
right to occupy the property.
”
(Court’s
emphasis)
[34]
In
this instance the lease was terminated by the applicant due to the
breach of the agreement by the respondent. Therefore
the
principles set out in the Boompret matter are applicable in this
matter.
[35]
The
respondent admitted that there exists a lease agreement of immovable
property with certain terms and conditions in which the
applicant
rents the property to the respondent. The respondent does not
deny that he is in possession of the property.
[36]
The
respondent does not deal with the outstanding rent, which is the
larger part of the claim. The only answer the respondent
has is
that the landlord should have been joined. Once again the
Boompret matter puts paid to such a defence. The notarial
lease
agreement between the Trust and the applicant has nothing to do with
the respondent being in breach of his agreement in his
personal
capacity with the applicant.
[37]
It
is clear that the applicant sent at least three (3) demands to the
respondent, respectively on 18 June 2013, 21 October 2013
and lastly
on 5 November 2013. The respondent deals with these allegations
as follows:
“
The
content of these paragraphs, as well as the Annexures referred to in
these paragraphs, is denied.
I specifically
dispute the content of any certificate of balance and for the reasons
referred to earlier in this affidavit.”
and sets out that he disputes the
contents of the certificate of balance, without giving any reason or
basis for doing so.
[38]
The
court was referred to
Plascon-Evans
Paints v Van Riebeeck Paints 1984(3) SA 623 (AD)
in connection with disputes of facts. Corbett JA found at page
634 H to 635 C:
“
It
seems to me, however, that this formulation of the general rule, and
particularly the second sentence thereof, requires some
clarification
and, perhaps, qualification. It is correct that, where in
proceedings on notice of motion disputes of fact
have arisen on the
affidavits, a final order, whether it be an interdict or some other
form of relief, may be granted if those
facts averred in the
applicant’s affidavits which have been admitted by the
respondent, together with the facts alleged by
the respondent,
justify such an order.”
[39]
I
cannot find that a factual dispute exists on the papers as they
stand. The non-joinder of the Trust cannot assist the
respondent
in any way as the Notarial Lease Agreement is between the
Trust and the applicant. The respondent is not a party thereto.
[40]
I
cannot find that the respondent has a
bona
fide
defence or a genuine defence to the merits as the respondent admits
the agreement between himself and the applicant and he admits
the
contents of the agreement.
[41]
There
is no doubt that he owes a substantial amount for monthly rentals.
Proper demand was made on various occasions, to no
avail. The
lease agreement was cancelled and the respondent dos not deny that he
is still in possession of the property.
[42]
I
cannot find that there exists any defence.
[43]
I
therefor make the following order:
1.
Judgment
is granted against the respondent in an amount of R797911.94 plus
interest on the amount of R797911.94 at 9%
a
tempora morae
;
2.
The
respondent is evicted from Portion 3 of Erf 2 Lebowakgomo – BA
Township, Limpopo, together with all persons that claim
any right or
title in and to the property, in and through the respondent;
3.
The
applicant is entitled to immediate possession, occupation, use and
enjoyment of the property;
4.
The
Sheriff of the Court is authorised and directed to take such steps as
may be necessary in order to give effect to prayer 3 above;
5.
The
respondent is ordered to pay the applicant’s costs of this
application on attorney and client scale.
____________________
JUDGE C PRETORIUS
Case number: 24051/2014
Application heard on: 16 April 2015
For the Applicant: Adv. Clive van der
Spuy
Instructed by : Lanham-Love Attorneys
For the Respondent: Adv. G Janse van
Vuuren
Instructed by: Ruan Vorster Attorneys
Date of Judgment: 6 May 2015