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[2015] ZAECMHC 87
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Sarpong v Ahmad (CA&R61/5) [2015] ZAECMHC 87 (17 December 2015)
IN THE
HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION :
MTHATHA
CASE NO. CA & R 61/15
In
the matter between:
ALEX
SARPONG
Appellant
and
NANEEM
AHMAD
Respondent
APPEAL
JUDGMENT
GRIFFITHS,
J.:
[1] The
facts of this appeal are not at all clear, a conclusion which might
best be described by the quote:
Oh, what
a tangled web we weave, when first we practise to deceive!
[1]
A tangled web this matter is, but its weaver remains anonymous.
[2] The
matter served before the magistrate, Mthatha, in the form of an
application for eviction, the appellant (as applicant and
to whom I
shall refer for convenience as "the applicant") seeking to
evict the first respondent (who was, at that stage,
the only
respondent in the matter) "
together
with any other occupiers of the premises in the nature of business
partners and/or lodgers
…".
His claim was based simply on a written lease agreement between
himself and the first respondent which was allegedly
breached by the
first respondent in the form of rental non-payment. This spawned an
application to intervene by the second respondent,
the basis thereof
being that he was the lawful occupier of the leased premises by
virtue an agreement of lease concluded directly
with the owner of the
property, NMD Trust, which was subsequently joined as third
respondent. By way of the same joinder application
the fourth
respondent, being the trustee of the third respondent, was also
joined.
[3] To
compound matters further the fourth respondent subsequently died and
her trustee, who was not joined as a party, entered
the fray by
filing an affidavit in which he challenged the applicant's
locus
standi
alleging that no lease agreement
existed between the applicant and the third respondent, the owner of
the property.
[4] In
his replying affidavit, the applicant made mention of the fact that
the first respondent had approached him to discuss settlement.
The
first respondent, at this meeting, introduced the second respondent
as being his cousin who was "
working
with him
". It was agreed that in
order to settle the matter the applicant should send a taxed bill of
costs to the second respondent.
This was done, and payment was
apparently received by return. A subsequent default and letter from
the applicant’s attorneys
resulted in the matter being opposed.
Despite this, their attorneys once again sought to settle the matter
which ultimately came
to naught.
[5] The
question of the applicant's
locus standi
was, after all the papers had been filed, argued before the
magistrate on behalf of the second, third and fourth respondents as
a
point
in limine
.
After hearing argument, the magistrate ruled that indeed the
applicant had not established the existence of the verbal lease on
a
preponderance of probabilities and that accordingly the substratum of
his claim, being the verbal lease with the owner of the
property, had
fallen away. He thus concluded that the applicant had no right to sue
for the eviction of either the first or second
respondents.
[6] In coming
to his conclusion the magistrate dealt with the law as follows:
"Mr.
Zilwa indeed correctly submitted that it cannot be said that the
Applicant does not have locus standi merely because he
is not the
owner of the property as he has a direct interest in the property as
a lawful possessor. The problem with this statement
however is that
Applicant's title as lawful possessor was not proved.
It
is trite that a lessee is not allowed to question the title or rights
of the lessor
as per
Boompret
Investments v Paardekraal Concessions 1990 (1) a 347 A 351
…
In casu however the title of the Applicant is not only challenged by
the lessee but more importantly by the owner of the
property. With
reference to 2nd Respondents rights I also considered what was held
in
Pretoria
Stadsraad v Ebrahim
1979 (4) SA 193
(T) at 196 B
to
the effect that if a tenant can show a stronger right to the premises
than his landlord, such right would enjoy protection. On
appeal, this
view was approved of (
Ebrahim
v Pretoria Stadsraad
1980 (4) SA 10
(T) at 13 H
)."
[7] I
cannot fault the magistrate’s reasoning with regard to the
second respondent particularly when one takes into account
what was
said by Van Heerden JA at page 353 of the Boompret Investments case
by way of
obiter dictum
and after a thorough analysis of the law in this regard
[2]
:
"
For
reasons which follow I find it unnecessary, however, to express a
firm view on this point and I shall assume, in favour of the
appellants, that a lessee may refuse to vacate leased property if the
lessor has no title thereto and the lessee has acquired an
independent right to remain in occupation thereof."
[8] The
first respondent did not enter the lists and thus made no averment
that he had an independent title to the property or any
right
superior to that of the applicant. However it appears to have been
common cause that the first respondent was not in occupation
of the
premises and thus an eviction order could not have been granted
against him.
[9]
Again
,
I
cannot fault the magistrate's conclusion on the facts to the effect
that the applicant did not establish on a preponderance of
probabilities that a verbal lease indeed existed between him and the
owner, the third respondent.
The very fact
of the existence of this verbal agreement was directly challenged by
the respondents. The applicant argued that its
existence could not
have been challenged as the person with whom he would have concluded
the verbal lease (the fourth respondent)
has passed away. However the
trustee, who apparently was involved with the trust from its
inception, also directly challenged the
existence of such a verbal
agreement. It seems to me to be rather strange that the applicant
would have concluded a verbal agreement
relating to a business
property such as this but when subleasing would conclude a full-blown
written lease. This alone, in my view,
counts against the applicant.
In addition, when he was challenged on this aspect the applicant
failed to place any form of documentary
evidence or other evidence
before the court to substantiate the existence of the verbal
agreement.
[10]
The onus on this issue ultimately rested on the applicant. This was
not a situation of a bald or frivolous denial on the part
of the
respondents or a denial such as not to raise "
a
real, genuine or bona fide dispute of fact
"
[3]
.
The executor was clearly within his rights to challenge the applicant
on this point particularly as the applicant apparently had
no
documentary proof of the alleged agreement and the executor had no
knowledge whatsoever of it. Furthermore, why would the fourth
respondent conclude an agreement directly with the second respondent
if she, on behalf the trust, had concluded a verbal agreement
of
lease with the appellant? At best for the applicant, he should have
sought a referral to oral evidence on the question as to
whether or
not he had concluded the oral lease with the trust.
[11]
Mr. Hobbs, on behalf of the second respondent, has argued that the
appeal should be dismissed simply on the basis that it has
no
practical effect, pursuant to section 16(2)(a)(i) of the Superior
Courts Act
[4]
.
In my view this is not correct. The applicant sought an eviction
order not only as against the first respondent but also against
the
second respondent by virtue of the wording of the relevant prayer
which also sought the eviction of "
any
other occupiers of the premises in the nature of business partners
and/or lodgers
". Had the order
been granted, the second respondent, as an occupier of the premises,
would also have been evicted.
[12] In my
view therefore the magistrate’s conclusions with regard to the
second respondent were correct. In these circumstances,
the following
order will issue:
1.
The appeal is dismissed;
2.
The appellant is ordered to pay the
costs of the appeal.
R E GRIFFITHS
JUDGE OF THE HIGH COURT
MBENENGE, J.
: I agree
JUDGE OF THE HIGH COURT
COUNSEL FOR APPELLANT :
Mr Botma
INSTRUCTED BY
: X. M. Petse Inc.
COUNSEL FOR RESPONDENT : Mr Hobbs
INSTRUCTED BY
: J. A. Le Roux Attorneys
HEARD ON
: 15 November 2015
DELIVERED
ON
: 17 December 2015
[1]
A quote from "Marmion", a poem by Sir
Walter Scott. Often incorrectly attributed to Shakespeare.
[2]
At page 353F – G
[3]
Plascon-Evans Paints LTD v Van Riebeek Paints
(PTY) LTD 1984 (3) SA 623 (A)
[4]
No. 10 of 2013