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[2015] ZAKZDHC 81
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Badat v Bhardwaj (14330/14) [2015] ZAKZDHC 81 (9 October 2015)
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IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
LOCAL DIVISION,
DURBAN
CASE
NO: 14330/14
DATE:
09 OCTOBER 2015
In
the matter between:
HOOSEN
MIA
BADAT
......................................................................................................
APPLICANT
And
DEEPAK
BHARDWAJ
..................................................................................................
RESPONDENT
ORDER
[1]
The respondent and all persons holding through the respondent are
ordered to vacate the business premises identified as [2…..]
[O……] [M……] [R….], [A…..]
(the premises) within fourteen (14) days of the date of this
order.
[2]
In the event of the respondent and any persons holding through the
respondent failing to comply with paragraph 1 hereof, the
Sheriff of
the above Honourable Court and/or his Deputy is authorised and
directed to do all things as may be necessary to eject
the respondent
and all such persons holding through the respondent from the
premises.
[3]
The respondent is directed to pay the costs of the application on an
attorney and client scale.
JUDGMENT
Date of hearing:
15 September 2015
Date of judgment:
09 October 2015
HENRIQUES J
Introduction
[1]
This is an application for the eviction of the respondent from
business premises situated at [2…..] [O…..] [M….]
[R….] [A…..] (the premises).
Factual
background
[2]
The applicant and his deceased wife are the registered joint owners
of the immovable property on which the premises are situated.
On 8
December 2009, a written lease agreement, annexed to the papers as
‘MA2’, was concluded between the applicant
and the
respondent, both of them acting personally.
[3]
The material terms of the lease agreement as alleged by the applicant
were
inter alia
the following:
‘
7.1
I would let the premises to the respondent with effect from 1
December 2009 until 30 November 2014, subject to an option to
negotiate and to renew the lease;
7.2
The respondent would pay a base rental in respect of the premises as
follows:
7.2.1
for the period 1 December 2009 to May 2010 the rental would be that
of R12 500.00 per month;
7.2.2
for the period 1 June 2010 to 30 November 2014 the rental would be
that in the sum of R15 000.00 per month.
7.3
Payment of rental was required in advance by the 30
th
or
the last business day of the preceding month.
7.4
The respondent would have the right to negotiate the renewal of the
lease with me or my nominee;
7.5
If the respondent wished to exercise such renewal, the respondent
would be required to exercise his option to negotiate in writing
by
30 September 2014, which notice had to be delivered to my
domicilium
citandi et executandi
address being that of 9 Protea Road,
Isipingo Hills, Durban, Kwazulu-Natal.
7.6
In the event that the respondent failed to pay rent or any other sums
due to me promptly on due date, or commit any other breach,
I would
have the right to instruct an attorney with the view to recover such
amounts due and to cancel the lease forthwith.
7.7
No arrangements at variance with the terms of the lease would be
binding unless reduced to writing and appended to the lease
in the
hands of both the respondent and I.
7.8
The respondent agreed to pay any legal costs on the scale as between
attorney and own client.’
Opposition
[4]
The respondent has opposed the granting of the relief, as anticipated
by the applicant, on the following grounds as set out
hereinafter.
[5]
The respondent has raised two points
in
limine
namely that of
lis
alibi pendens
and non-joinder. In so
far as the point
in limine
of
lis alibi pendens
is concerned, the respondent contends that there is on-going
litigation between the parties in the magistrate’s court in
which the relief sought is the same as in this application, being the
respondent’s continued occupation of the premises.
The
respondent submits ‘that there is no distinction between what
the applicant seeks in the magistrates court and what he
seeks in the
above Honourable Court and that no matter how nuanced a distinction
may appear to be that this is merely illusory.’
[6]
In so far as the issue of non-joinder is concerned, the respondent
submits that the search works annexed to the papers ‘MA1’
reflects two owners of the immovable property on which the premises
are situated, being the applicant and one Hawa Bibi Mahomed
Badat,
his wife and that she ought to have been joined in the application.
The failure to do so constitutes a fatal defect as she
has a
‘substantially direct registered right, title and interest in
the property’. The respondent contends that the
applicant
cannot act on his own without involving the co-owner of the immovable
property.
[7]
In the replying affidavit the applicant confirms that the co-owner of
the immovable property was his late wife and the executor
has put up
a confirmatory affidavit confirming this and ratifying the
institution of these proceedings and the applicant’s
conduct in
relation to the immovable property. The respondent objects to this
being done in reply.
[8]
In so far as the merits of the application is concerned, the
respondent alleges that pursuant to the institution of the action
in
the magistrates court, the parties entered into settlement
negotiations as the applicant did not want to undergo the rigors
of
cross-examination. Solly Badat (Badat) who incidentally is the
executor of the applicant’s wife’s deceased estate,
and applicant’s nominee,
negotiated the
extension of the current lease agreement in terms of which the
respondent would remain in the premises for a further
nine year
period and the terms of the old lease agreement would be extended.
[9]
The respondent’s version in that regard is set out in some
detail from paragraphs 17-20 of the opposing affidavit at pages
66-70
of the indexed papers. Essentially, the respondent alleges that the
parties would attempt to agree on a purchase price but
in the event
of them failing to do so, then an independent valuer would determine
the purchase price, which determination they
both agreed to be bound
by.
[10]
During the hearing of the matter, Mr
Winfred
who appeared for
the respondent, made the following submissions:
10.1
In relation to
lis alibi pendens
he submitted that the relief
which the applicant sought in the magistrate’s court was
substantially the same relief as he
is seeking in the high court. He
submitted that the issue which the magistrate’s court had to
decide related to the cancellation
of the lease agreement. This would
thus effect the respondent’s continued occupation of the
premises.
10.2
The proceedings in the high court were instituted on the basis of a
lease agreement being in place and having expired due to
the
effluxion of time. The applicant could not now in the high court
proceedings, contend for the existence of a lease agreement
which had
expired due to the effluxion of time, as in the magistrate’s
court the applicant alleged that the same lease agreement
had been
cancelled and was no longer in force.
10.3
This submission goes further that until the magistrate’s court
ruled on the issue of cancellation, the proceedings in
the high court
were premature and were not sound as there was no longer a lease
agreement in place and it was ‘common sense’
that the
applicant could not rely on the same lease agreement for the
proceedings in the high court justifying the eviction of
the
respondent.
10.4
In respect of non-joinder, the respondent contends that the failure
to join the applicant’s wife and/or the executor
of her estate
is fatal. The applicant cannot in reply deal with this as he must
make out a case in the founding affidavit and establish
locus
standi
and/or authority in the founding affidavit. For these
reasons the respondent is entitled to have the application dismissed
with
costs.
10.5
In the alternative, should the points
in limine
not succeed,
then to use the language of Mr
Winfred
, the respondent
contends that it was always the intention of the parties that he
remains in occupation of the premises. On the
expiration of the
current lease agreement the parties negotiated an extension for a
further nine years on the same terms and conditions
as applied in the
previous lease agreement via an intermediary, Badat.
10.6
In addition, Mr
Winfred
acknowledged that the negotiations in respect of the sale of the
immovable property were inextricably linked to the extension of
the
lease agreement for a further nine years. The parties intended
concluding a written agreement in compliance with s 2 of the
Alienation of Land Act 68 of 1981 (the Act) and even though it is not
specifically alleged in the opposing affidavit there are
sufficient
allegations in the papers from which one can glean this.
Lis alibi
pendens
[11]
I propose to deal with the first point in
limine
of
lis
alibi pendens.
The respondent in raising the special plea of
lis
alibi pendens
bears
the onus of alleging and proving the following, namely that there is
pending litigation, between the same parties, based on
the
same
cause of action
(my
emphasis).
[12]
There is pending litigation in the Durban magistrate’s court
between the applicant and the respondent who are the same
parties in
this application. Having regard to the pleadings in the magistrate’s
court, the applicant sued the respondent
in terms of the written
lease agreement for arrear rental and damages in respect of the
unlawful holding over as a consequence
of the respondent breaching
the lease agreement and not paying rental. The applicant further
alleges that the lease agreement has
been cancelled as a consequence
of the respondent’s breach thereof. A prayer which is included
in the particulars of claim
in the magistrate’s court is one
for confirmation of cancellation of the lease agreement. The
pleadings in the magistrate’s
court do not include a prayer for
the eviction of the respondent.
[13]
In this application, the applicant’s cause of action is based
on the written lease agreement and the applicant seeks
the eviction
of the respondent from the premises as a consequence of the lease
agreement terminating due to the effluxion of time.
There is no claim
for arrear rental, unlawful holding over or cancellation of the
agreement as a consequence of a breach thereof.
[14]
To determine whether or not the litigation in the magistrate’s
court is based on the same cause of action in respect
of the same
subject matter, the test is whether or not the issues defined in the
pleadings are the same. It does not mean that
the form of the relief
claimed must be identical or that the same evidence will be led in
respect of both sets of litigation.
[15]
In addition, if the respondent succeeds in proving that all the
requisites for the plea of
lis
alibi pendens
have been met, it still does not constitute an absolute bar to the
proceedings in the high court continuing. The applicant can
satisfy
this court that despite this, the balance of convenience and equity
are in his favour and that the application ought to
proceed in the
high court.
[1]
The appropriate order should the court find merit in the special plea
of
lis
alibi pendens
is for the proceedings in the high court to be stayed pending the
finalisation
of the proceedings in the magistrate’s court. Unlike what is
prayed for in the opposing affidavit the respondent would not
be
entitled to an order dismissing the application in the high court.
[16]
This application involves the eviction of the respondent
from the premises due to the lease agreement ending
with the
effluxion of time. In the action in the magistrate’s
court the relief which the applicant seeks is not the
same. The
subject matter of the action in the magistrate’s court is a
claim for arrear rental and damages for unlawful holding
over.
[17]
In my view, the respondent has not succeeded in proving that all the
requisites for the plea of
lis
alibi pendens
have
been met. This is because the issues defined in the pleadings in both
courts are not the same. Even if I am wrong in this regard,
I still
have a discretion to allow these proceedings in the high court to
proceed, if I am of the view that the balance of convenience
and
equity are in the applicant’s favour.
[18]
The affidavits reveal that the proceedings in the magistrate’s
court have been protracted. The action was instituted
in 2010 and the
trial has been adjourned on several occasions. In addition the trial
was adjourned on the last occasion for discovery
of further
documents. On the applicant’s version the respondent continues
to occupy the premises for which no rental is payable
in
circumstances where the lease agreement has ended through the
effluxion of time. In my view, the balance of convenience and
equity
favour the applicant and in the exercise of my discretion the
application ought to proceed in this court should I be wrong
in my
conclusion that all the requirements for the special plea of
lis
alibi pendens
have
not been met.
Non-Joinder
[19]
I now turn to the issue of non-joinder. The respondent contends that
the applicant has no
locus standi
to institute the proceedings
and the application is fatally defective as the executor was not a
party to the proceedings and has
a direct and substantial interest
therein. This issue was raised in the opposing affidavit filed by the
respondent.
[20]
In response thereto and in reply, the applicant filed an affidavit of
the executor Badat who ratified the actions of the applicant
in
instituting the proceedings and further on oath indicated that the
applicant was responsible for all matters relating to the
immovable
property.
[21]
The respondent also takes issue with this and submits that the
applicant ought not to be allowed in reply, to file the affidavit
of
Badat to ratify his conduct specifically the institution of these
proceedings.
[22]
The law requires the joinder of a party who has a direct and
substantial interest in the outcome of litigation whose rights
may be
adversely affected thereby. One must however, distinguish between
joinder of convenience and joinder of necessity.
[23]
Ms
Beket
,
who appeared for the applicant, referred in her supplementary heads
of argument to the judgment of
Judicial
Service Commission & another
v
Cape
Bar Council & another
[2]
in which the court stated the following:
‘
It
has by now become settled law that the joinder of a party is only
required as a matter of necessity – as opposed to a matter
of
convenience – if that party has a direct and substantial
interest which may be affected prejudicially by the judgment
of the
court in the proceedings concerned ... The mere fact that a party may
have an interest in the outcome of the litigation
does not warrant a
non-joinder plea. The right of a party to validly raise the objection
that other parties should have been joined
to the proceedings, has
thus been held to be a limited one.’
[24]
The affidavit of the executor makes it clear that he has no objection
to the granting of the relief sought and ratifies the
conduct of the
applicant in instituting these proceedings. Any interest which the
estate of the applicant’s late wife may
have in the outcome of
the litigation is taken care of by the affidavit of the executor. In
any event, I do not agree that this
was a joinder of necessity as
contended for by the respondent as the interest of the estate would
not be prejudiced by any judgment
the court would grant, to the
contrary it would benefit therefrom.
[25]
The further objection raised by the respondent is that the applicant
cannot deal with the issue of
locus
standi
and authority in reply. Ms
Beket
referred to the judgment of Gorven J of this division in
ANC
Umvoti Council Caucas & others
v
Umvoti
Municipality
[3]
in which it was held:
‘
where
authority is challenged in the answering affidavit, it is permissible
to make out a case in reply. It is further clear that,
even if the
authority was not in place when the litigation commenced, actions
taken can be ratified subsequently.’
[26]
I am in agreement with the view expressed. Having regard to the
affidavit of Badat the conduct of the applicant in instituting
the
litigation has been ratified subsequently.
[27]
Consequently, there is no merit in the points
in
limine
of
lis alibi pendens
and non-joinder.
The
merits of the opposition
[28]
The respondent relies on an alleged oral agreement in respect of the
sale of the immovable property for a reasonable price
to be
determined by a professional valuator. It is common cause no such
valuation was obtained and therefore the purchase price
was not
agreed. The respondent’s version envisages an agreement to
agree which is not permissible.
[4]
This view has been endorsed in the subsequent decision
of
Kwazulu-Natal Joint Liaison Committee
v
MEC
for Education, Kwazulu-Natal & others.
[5]
[29]
A further difficulty which the respondent faces is that for the
parties to conclude a valid sale of the immovable property,
the
provisions of s 2 of the Act must be complied with. In light of the
non-compliance with the Act any agreement is void
ab
initio
.
[6]
Consequently,
I do not agree with the submission that the parties intended to
comply with the provisions of the Act and it must
follow that there
are insufficient allegations in the papers from which this can be
gleaned.
[30]
Mr Winfred conceded that the extension of the lease agreement was
inextricably linked to the negotiations surrounding the sale
of the
immovable property. If, as the respondent contends, the terms
negotiated for the extension of the lease were the same as
that which
existed in the written lease agreement, then the respondent was
required to exercise the option to renew, which it is
common cause on
the papers he did not do, and consequently there cannot be a valid
extension of the lease agreement as it has ended.
[31]
A further matter which requires mentioning is should the matter be
referred for the hearing of oral evidence. Mr
Winfred
,
submitted that in light of the nature of the evidence in relation to
the circumstances under which the parties allegedly negotiated
the
extension of the lease agreement and the sale of the immovable
property, a dispute of fact exists and the matter ought to be
referred for the hearing of oral evidence.
[32]
In this regard Ms
Beket
,
submitted that a determination of the legal issues between the
parties would be decisive of the matter and consequently the matter
need not be referred for the hearing of oral evidence. She submitted,
in support of this, that if this court followed the approach
in the
judgment of
Fax
Directories
(Pty) Ltd v
SA
Fax Listings
CC
,
[7]
then
there would be no need to refer the matter for the hearing of oral
evidence as any finding in respect of the legal issues is
definitive
of the dispute between the parties. In the alternative, should the
court not agree with the approach followed in
Fax
Directories
,
then the matter need only be referred for the hearing of oral
evidence in respect of the alleged extension of the lease agreement
and the sale of the immovable property.
[33]
For reasons already mentioned in the judgment, I am of the view that
the respondent cannot rely on the fact that there is an
alleged
dispute of fact on the papers which requires the matter to be sent
for the hearing of oral evidence. The law is clear in
this regard,
there can be no agreement to agree. If on the respondent’s
version the lease was extended on the same terms
then the respondent
did not exercise the option to renew and consequently the lease
agreement lapsed and any agreement in respect
of the sale of the
immovable would be void
ab
initio
for
want of compliance with s 2 of the Act.
[34]
In addition I am of the view that in so far as the merits of the
opposition are concerned the respondent has not succeeded
in showing
that he has a right to occupy the premises. Consequently, the
existing lease agreement terminated with the effluxion
of time. It is
common cause on the papers that the respondent did not exercise an
option to renew, it goes without saying that
it must follow that the
respondent has no legal basis to remain in occupation of the premises
and the applicant is therefore entitled
to the relief that he seeks.
Costs
[35]
It is trite that the order of costs falls within the discretion of
the court. Such discretion must be exercised judicially
having regard
to the facts and particular circumstances of a matter. The lease
agreement made provision for the payment of costs
on an attorney and
client scale in the event of legal proceedings being instituted.
There is no reason to depart from the normal
rule that the successful
party is entitled to its costs.
[36]
In the premises the orders I grant are the following:
Order
[1]
The respondent and all persons holding through the respondent are
ordered to vacate the business premises identified as [2….]
[O…] [M….] [R….], [A…..] (the premises)
within fourteen (14) days of the date of this order.
[2]
In the event of the respondent and any persons holding through the
respondent failing to comply with paragraph 1 hereof, the
Sheriff of
the above Honourable Court and/or his Deputy authorised and directed
to do all things as may be necessary to eject the
respondent and all
such persons holding through the respondent from the premises.
[3]
The respondent is directed to pay the costs of the application on an
attorney and client scale.
Henriques
J
Appearances
Counsel for the
applicant : N Beket
Instructed
by : McNaught and Company
Tel:
(031) 467 3881
Ref:
M Leathers
Counsel
for the respondent : N.G Winfred
Instructed
by : J Surju
Tel:
(031) 306 3663
Ref:
JS/PG/B279
[1]
Geldenhuys
v
Kotzê
1964
(2) SA 167
(O);
Nordbak
(Pty) Ltd v Wearcon (Pty) Ltd &
others
2009
(6) SA 106
(W);
Janse
van Rensburg & others NNO v Steenkamp & another; Janse van
Rensburg & others NNO v Myburgh & others
2010
(1) SA 649
(SCA) para 35.
[2]
2013 (1) SA 170
(SCA) para 12.
[3]
2010 (3) SA 31
(KZP) para 8.
[4]
Shoprite
Checkers (Pty) Limited
v
Everfresh
Market Virginia
Limited
2010
JDR 0818 (KZP)
.
[5]
2013 (4) SA 262 (CC).
[6]
Thorpe
& others v
Trittenwein
& another
2007
(2) SA 172
(SCA) para 15.
[7]
1990 (2) SA 164
(D).