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[2015] ZAFSHC 75
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GM PaneelKloppers CC v GLL Advance Body Repair and Spray CC (4391/2014) [2015] ZAFSHC 75 (19 March 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case No. : 4391/2014
In the matter
between
GM
PANEELKLOPPERS CC
.........................................................................................................
Applicant
and
GLL
ADVANCE BODY REPAIR AND SPRAY CC
….............................................................
Respondent
CORAM:
NAIDOO,
J
JUDGMENT
BY:
NAIDOO,
J
HEARD
ON:
4
DECEMBER 2014
DELIVERED
ON:
19
MARCH 2015
NAIDOO J
[1]
The applicant seeks the eviction of the respondent from its property
and therefore vacant possession of the property. The applicant
proceeds on the basis of an owner’s
rei
vindicatio.
The
applicant’s ownership and the respondent’s possession and
occupation of the property are common cause between the
parties.
[2] Hester Maria
Pieters (Mrs Pieters) was married Jan Pieters (the deceased) and they
each held a 50% member’s interest in
the applicant. After the
deceased passed on in April 2010, his 50% interest was bequeathed, in
terms of his Last Will and Testament,
to Mrs Pieters and she is
currently the sole member of the applicant. The deceased started the
applicant’s business of panel
beating and restoring vehicles in
1996, and the applicant bought the property situated at 12 Pretorius
Street, Bethlehem, Free
State in 2000. This is where the applicant
has conducted its business since that date.
[3] Gawie Pieters
(GP) is the son of the deceased, who divorced GP’s mother and
married Mrs Pieters. Franscois Jacobus Coetzee
(Coetzee) is GP’s
stepfather, having married GP’s mother after she and the
deceased were divorced. Coetzee apparently
is the sole member of a
business called Bethlehem Pre-Owned Cars CC, trading as Fifa Motors
(Fifa Motors). GP alleges in the Founding
Affidavit of an application
for the liquidation (the liquidation application) of the applicant
(which I will deal with later) that
he was involved in the
applicant’s business as a manager since 2004, and that in 2005,
he identified a business opportunity
for the sale of second hand
motor vehicles. He wanted to run that business from the premises of
the applicant at 12 Pretorius Street,
Bethlehem. The deceased,
representing the applicant, gave GP permission to build a showroom
and do other improvements to the property,
at GP’s cost, to
accommodate GP’s business. GP alleges in the liquidation
application that he secured funds from Coetzee
and effected
improvements to the applicant’s property to the tune of
approximately R1 200 00.00. GP further stated that there
was never a
specific agreement between him and the applicant (represented by the
deceased) with regard to the repayment of the
money he had spent on
the improvements to the property. His father did, however, mention to
him shortly before his death that he
would give GP his (the
deceased’s) member interest in the applicant so that GP would
benefit from his interest as a member
of the applicant as well as the
improvements that GP had made to the property.
[4] As I indicated
above, the deceased’s 50 % member interest was in fact
bequeathed in his Will to Mrs Pieters after his
death in April 2010,
making her the sole member of the applicant. GP alleges that after
the deceased passed on, Mrs Pieters agreed
to transfer 50% of the
members’ interest in the applicant to GP and he should carry on
running the applicant’s business.
In return he should pay her
R15 000.00 per month for her living expenses. He agreed to this and
commenced payment (in 2010) of
the R15 000.00 per month to Mrs
Pieters. This appears to have continued until 2014.
[5] It is also GP’s
version that a family trust, namely the Pieters Famiiie Trust (the
family trust), was established during
2010 in order to hold the
member interest in the applicant on his behalf, as he was at that
time, and still is, an un-rehabilitated
insolvent, having been
sequestrated on 9 April 2009. For the same reason (presumably because
he was advised that he could not run
a business and/or be registered
as a member of a close corporation), a close corporation was formed
(the respondent in this matter),
and the family trust was the sole
member of the respondent. The respondent was registered in about
September 2010, and has conducted
its business from the applicant’s
premises since then. GP’s version, therefore, is that such
occupation was with the
consent of the deceased and after his death
with Mrs Pieters’ consent. In addition, he acquired the right
of occupation when
she agreed that she would transfer the deceased’s
member interest to him, and requested that he continue to run the
business
of the applicant.
[6] It appears from
the papers that meetings were held between GP and Mrs Pieters to
discuss the transfer of the 50% member’s
interest in the
applicant to GP. He seems to be of the view that an agreement to this
effect was, in fact, concluded. Mrs Pieters
of course denies that any
agreement in this regard was reached. It also appears that GP tried
to buy out Mrs Pieters’ interest,
and presented her with an
agreement to this effect, which, from the correspondence in the file,
appears to have been rejected by
her. What is clear is that the
relationship between Mrs Pieters and GP soured quite considerably,
and ultimately in July 2014,
GP and the respondent launched an urgent
application for the liquidation of the applicant. They were
unsuccessful as the matter
was held to lack urgency. However,
extensive affidavits were filed by GP and Mrs Pieters in the
liquidation application in which
the versions of the respective
parties were articulated. Both the applicant and respondent in the
matter before me have requested
that I read the affidavits filed in
the liquidation application as if incorporated in these papers.
[7]
Mrs Pieters’ version accords largely with GP’s version as
I have outlined it above. The point of departure relates
to the
transfer of the deceased’s 50% member’s share in the
applicant. As indicated, Mrs Pieters denies that any agreement
was
reached between her and GP in this regard. She concedes, however,
that meetings and discussions were held in connection with
the matter
of the transfer of the deceased’s member interest in the
applicant which, according to her, failed to produce
any agreement in
that regard. She alleges that, at best, GP had a
spes
in
relation to the transfer of the member’s interest. It is also
her version that when she discovered that GP had misappropriated
money from the applicant, she insisted that the parties enter into a
lease agreement. She prepared a written lease agreement and
presented
it to GP to sign. She sought a monthly rental of R25 000.00. GP
apparently refused to sign but the respondent offered
to pay R15
000.00 per month as consideration for its use of the property, as
well as the utility expenses such as water and electricity
levies,
rates and taxes on the property and the monthly bond instalment in
respect of the property. In return the respondent would
continue the
panel-beating business of the applicant which was hired out to it, as
well as its second hand car dealership from
the applicant’s
premises. Mrs Pieters agreed to this. These payments commenced in
2010 and continued until about April 2014,
when the respondent
stopped paying the said amounts. Shortly thereafter GP and the
respondent launched the liquidation application
against the
applicant.
[8] GP deposed to
the Founding Affidavit in the liquidation application, apparently in
his personal capacity, without any mention
of what role, if any, his
curator had played in this matter. No affidavit was filed on behalf
of the respondent (as second applicant),
but confirmatory affidavits
by the Trustees of the family Trust, were filed.
[9] The version put
forward by GP in the liquidation application has been set out above.
This version changed quite substantially
in the opposing/replying
affidavit to this application. GP also deposed to the latter
affidavit. I pause to mention that GP alleges
that he is authorised
to depose to the replying affidavit by virtue of his position as
manager of the respondent, as well as in
his persona! capacity. As an
unrehabilitated insolvent, it was expected that he would mention that
he is opposing the application
(in his personal capacity) with the
consent of his curator. This was not done, nor was any documentary
substantiation filed for
his allegation that he is authorised to
depose to the affidavit on behalf of the respondent. To return to the
version which appears
from the replying affidavit, GP alleges that he
made a “bona fide error” in the liquidation application
by creating
the impression that he sourced funds from Coetzee and/or
Fifa Motors to fund the improvements to the applicant’s
property.
His version now is that the deceased held discussions with
GP and Coetzee and authorised them both to continue with the
improvements,
which were actually paid for by Coetzee/Fifa Motors
during 2005/2006. These improvements increased the value of the
property by
some R1.2 million. In addition, the respondent effected
improvements to the property during 2010/2011, which increased the
value
of the property by approximately R500 000.00. Such improvements
were effected with the consent of the deceased and MrsPieters.
Needless to say, Mrs Pieters strenuously denies this and states that
Coetzee was never part of the discussions and agreement between
GP
and the applicant (as represented by the deceased), nor did she
consent to any improvements by the respondent. This change in
version
entails such a fundamental shift in the factual situation pertaining
to the sourcing of funds, with which the improvements
were effected,
that I find extreme difficulty in reconciling it with the notion of a
"bona fide error”.
[10] As alluded to
earlier, Mrs Pieters alleges that the respondent and GP occupied the
applicant’s property by virtue of
a verbal) lease agreement,
after the death of the deceased. GP alleges that his and the
respondent’s occupation arose from
an agreement between him and
Mrs Pieters that she would transfer 50% of the member interest in the
applicant to him, in return
for which he should continue to run the
business of the applicant. In her opposing affidavit to the
liquidation application, Mrs
Pieters gave notice (in paragraph 75) of
cancellation of the lease agreement and asked that the respondent
vacate the applicant’s
premises, so as far as she was
concerned, the respondent ceased to have any right to occupy the
premises. For his part, GP (ostensibly
acting on behalf of the
respondent and himself), in paragraph 36 of the founding affidavit in
the liquidation application, cancelled
the agreement he alleges he
had with Mrs Pieters, and appears, therefore, to rely on an
enrichment lien.
[11]
The respondent, in its Heads of Argument, states that it does not
rely on the right to occupation which the applicant alleges
to have
cancelled. Its version is that the applicant permitted it to occupy
the premises until such time as such consent was withdrawn.
The
applicant has not withdrawn such consent, hence the respondent still
validly occupies the property. This is alleged to be in
the nature a
precarium.
A
precarium
is
where one party enjoys the use and/or occupation of the property of
another, with the owner’s consent and permission. Such
right of
use or occupation can be revoked at the will of the owner.
[12] The respondent
also goes on to allege in its Heads that it relies on an enrichment
lien which is enforceable against the applicant
for the expenses it
incurred in effecting improvements to the property or for the value
by which property has been enhanced due
to such improvements. The
respondent’s affidavit in the liquidation application refers to
improvements to the value of R1
200 000.00 and in this application it
alleges that the value of the property was enhanced by “approximately
R1.2 million”
due to the improvements paid for by Coetzee
and/or Fifa Motors, and by “approximately R500 000.00” in
respect of the
improvements effected by the respondent. It is well
version that this was the reason that the respondent was established
and that
the family trust was made the sole member of the respondent.
He therefore appears to be the human being that directed the
activities
of the respondent, or the respondent. Everything GP did in
furtherance of the business of the respondent, therefore, wouid have
been in his representative capacity. It may be that the proposed
written lease agreement which Mrs Pieters presented to GP reflected
their personal names, but it was not taken to its final conclusion,
and instead a verbal lease agreement was concluded. The fact
that Mrs
Pieters refers in this regard to the “current applicant”
is indicative of her intention to deal with the respondent,
via GP.
GP himself claims that the respondent made the payments of R15 000.00
to Mrs Pieters as well as the other expenses of the
applicant. To
allege that such an agreement was made with GP personally, to the
exclusion of the respondent makes no sense and
is disingenuous and
opportunistic, i am satisfied that in cancelling the lease agreement,
the applicant, acting through Mrs Pieters,
effectively withdrew its
consent for the respondent to remain in occupation of its property.
The fact that GP (on behalf of the
respondent) undertook to vacate
the premises is a further indication the respondent’s
acknowledgement that it had no right
to remain in occupation. The
argument that the applicant did not withdraw its consent for the
respondent to remain in occupation
cannot, in my view, be sustained.
[15]
A further point raised by Mr Van Aswegen is that the dispute as to
different routes by which the parties allege that the respondent
acquired occupation of the applicant’s property, namely lease
versus
precarium,
creates
a factual dispute entitling the respondent to a dismissal of the
application. In view of what I have said above, it is not
necessary
for me to decide this issue, as the manner by which the respondent
acquired occupation is not relevant, in view of the
fact that the
respondent’s occupation was not disputed. Each party cancelled
the agreement which it alleges created the right
of occupation,
leaving the respondent with a possible lien for improvements, which
it in fact based its defence on. The respondent
failed to establish a
lien, hence the manner in which it acquired occupation becomes
irrelevant. I pause to mention also that the
respondent raised in its
replying affidavit a point
in
limine
that
Mrs Pieters did not have
locus
standi
to
bring this application, on account of the deregistration of the
applicant. This point was not pursued and need not detain us
further.
[16] It is common
cause that the respondent and/or GP has secured alternative premises
from which its business is operated and has
left a few motor vehicles
on the applicant’s premises on the basis that it has a lien
over the property. It will effectively
not be put out of business by
handing back possession of the applicant’s property to it. The
applicant does not dispute that
certain improvements were made to its
property, in order to move forward, the applicant has, in its
founding affidavit, offered
to register a continuing covering bond
over its property to meet the claim of the respondent that the latter
may choose to pursue
against the applicant. The claim according to
the respondent is approximately R500 000.00. From the papers, there
appears to be
sufficient equity in the property to meet such a claim.
[17] in the
circumstances, I make the following order:
17.1 The respondent,
its employees, directors, sub- tenant or any person associated with
it, and who are either actively or inactively
engaged in, or
connected to, the furthering of the respondent’s business
activities at 12 Pretorius Street, Bethlehem, Free
State Province,
are ordered to vacate the said premises within Thirty (30) days of
the date of this order;
17.2 In the event
that the respondent and all those associated with it fail to vacate
premises as directed in paragraph 1, the Sheriff
of this court is
directed and authorised to evict the respondent from the premises,
using all legal means to secure the eviction
of the respondent and
all those occupying through it;
17.3
The applicant is directed to take steps, at its cost, within Thirty
(30) days of the date of this order to register a continuing
covering
bond on its property situated at 12 Pretorius Street, Bethlehem, Free
State Province, in the amount of Five Hundred Thousand
Rand (R500
000.00).
17.4 The respondent
is directed to institute its claim, if any, against the applicant,
within Sixty (60) days of the date of this
order.
17.5 Should the
respondent fail to institute its claim as directed in paragraph 17.4,
the applicant shall be entitled to cancel
the continuing covering
bond referred to in paragraph 17.3, in which event, the respondent is
directed to pay the costs of such
cancellation.
17.6 The respondent
is directed to pay the costs of this application.
S NAIDOO, J
On behalf of the
applicant: Mr S Grobler
Instructed by:
Honey Attorneys
BLOEMFONTEIN
(123967/BM Jones/bv)
On behalf of the
respondents: Mr WA Van Aswegen
Instructed by:
McIntyre & Van
Der Post
BLOEMFONTEIN
(Mr ES Els/RAB278)