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[2014] ZAFSHC 2
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Marais N.O. and Others v Kondos (5192/2013) [2014] ZAFSHC 2 (9 January 2014)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
No: 5192 / 2013
In
the matter between:
CHARL
MARAIS N.O.
…..........................................................................
First
Applicant
CARINA
MARAIS N.O.
…........................................................................
Second
Applicant
JOHANNES
WILLEM MARAIS N.O.
…............................................
Third
Applicant
(in
their capacities as trustees of the
CHARL
MARAIS FAMILY TRUST, IT 869/99
)
and
GEORGIOS
KONDOS
................................................................
Respondent
CORAM:
LEKALE,
J
HEARD
ON:
19
DECEMBER 2013
JUDGMENT
BY:
LEKALE,
J
DELIVERED
ON:
9
JANUARY 2014
INTRODUCTION
AND BACKGROUND
[1]
This is an urgent motion for an order:
“
1.
Dat kondonasie aan die Applikante verleen word vir nie-nakoming van
die voorgeskrewe Hofreêls met betrekking tot vorm,
proses en
tydperke vir betekeninge en dat hierdie aansoek aangehoor word as ‘n
dringende aansoek ooreenkomstig die bepalings
van Hofreêl
6(12);
2.
Dat die Respondent onmiddellik die eiendom bekend as Erf 156
Kroonstad, beter bekend as Presidentstraat 41, Kroonstad, Vrystaat
Provinsie (hierna ‘die eiendom’) moet ontruim.
3.
Dat indien die Respondent versuim om die eiendom te ontruim die Balju
van hierdie Agbare Hof gemagtig word om die hulp van die
Suid-Afrikaanse Polisie Diens in te roep ten einde die Respondent uit
die eiendom te sit.
4.
Dat die Respondent die koste van die aansoek betaal.”
[2]
The three applicants are the trustees of the Charl Marais Family
Trust, IT 869/99 (the trust) which owns the immovable property
known
as Erf 156, Kroonstad, also known as 41 President Street, Kroonstad,
Free State Province (the property).
[3]
The respondent has been renting the property from the trust for the
purposes of conducting a business therefrom under the name
and style
of New York Internet Café Online since the 1
st
September 2012.
[4]
Initially the parties concluded a written lease contract for six
months terminating on the 28
th
February 2013 with an
option for renewal on the same terms with regard to duration in
favour of the respondent. The said option
was, however, not exercised
by the respondent at the expiry of the six months period who, on the
21
st
June 2013, made a written offer to purchase the
property subject to a suspensive condition relating to procurement of
a bond on
or before the 24
th
September 2013. The offer was
accepted by the trust on the 24
th
June 2013.
[5]
Between the end of February 2013 when the written lease contract
expired and the 21
st
June 2013 the respondent continued
making payment of the monthly rental of R7 000.00 after he had
intimated his intention
to purchase the property. The loan was not
procured as set out in the offer and on the 7
th
October
2013 the trust’s attorney addressed a letter to the respondent,
inter alia
, requiring him to either pay the full purchase
price if he was still interested in buying the property or to
conclude a written
lease agreement on or before the 9
th
October 2013 failing which to vacate the property.
[6]
On the 10
th
October 2013 the respondent’s attorney
responded to the said letter,
inter alia
, pointing out that
the respondent was still eager to purchase the property and, further,
that
“…
‘
n
mondelingse alternatiewelik stilswyende ooreenkoms tussen die
verhuurder en die huurder bestaan dat die huurkontrak voortgaan
aangesien die huurder nog stiptelik die huurgeld ten bedrae van
R7 000.00 per maand betaal welke huurgeld deur die verhuurder
aanvaar word.
”
[7]
On the 22
nd
November 2013 the respondent effected payment of monthly rental of
R7000.00 and, further, attempted to pay rental for December
2013, but
was turned down by the estate agent on instructions from the trust.
[8]
On the 6
th
December 2013 the respondent’s attorney directed a letter to
the trust’s attorney conveying the respondent’s
offer to
purchase the property for R1 million alternatively, and if the offer
was not acceptable to the trust, to vacate the property
on the 31
st
March 2014 against payment of monthly rental of R7000.00. The offer
was, however, rejected by the trust which was already in negotiations
with Assupol Life for a five year lease agreement commencing on the
1
st
December 2013.
[9]
On the 9
th
December 2013 the trust gave instructions to its attorneys to take
legal steps against the respondent and an appointment was arranged
with counsel for the 12
th
December 2013.On the same date
viz.
the 12
th
December 2013 Assupol Life confirmed that it would lease the property
with effect from the 1
st
January 2014 provided the trust was able to give it free and
undisturbed possession of the property.
[10]
On the 13
th
December 2013 the trust launched the instant
application and effected service on the respondent at the property.
DISPUTE
[11]
The respondent effectively contends that the matter is not properly
before the court insofar as Mr Jagga submits that it lacks
urgency
and, if anything, the alleged urgency is self-created in that the
trust delayed to take action since the 1
st
December 2013 when it became aware that the respondent had not
vacated the property by 30 November 2013 as demanded. The trust,
on
its part, maintains that the matter is urgent as it needs to place
Assupol Life in free and vacant occupation as early as 1
st
January 2014.
[12]
The respondent, further, contends that there exists a genuine dispute
of fact which cannot be resolved on papers and, as such,
in line with
the respondent- friendly test, the application should be dismissed
insofar as the trust should have foreseen the dispute
relating to the
existence of a 6 (six) months oral lease agreement terminating on the
31
st
March 2014 as opposed to a month to month lease
contract as far back as the 10
th
October 2013. On the
other hand the trust denies that there exists genuine and real
dispute of fact on papers and beseeches the
court to adopt a robust
common sense approach and grant the relief prayed for.
CONTENTIONS
FOR THE PARTIES
[13]
Mr Zietsman, for the trust, submits that there was no delay in
approaching the court because the trust had to wait until the
respondent had failed to vacate the property at the end of November
2013 as required in the letter of 14 October 2013 and was,
as such,
in unlawful occupation of the same before it could commence the
present proceedings. He, further, contends that there
exists no real
and genuine dispute of fact because the respondent does not, in his
papers, engage with issues by,
inter
alia
,
disclosing the date and names of people who allegedly represented the
parties when the alleged six months oral lease agreement
was
concluded. In his view if such an agreement existed the respondent’s
attorneys would simply have relied on the same instead
of effectively
communicating the respondent’s offer that the agreement
terminate on the 31
st
March 2014 against monthly rental of R7 000.00 in their letter of the
6
th
December 2013.
[14]
Mr Jagga, on the part of the respondent, retorts that the motion
lacks urgency in that the trust has failed to demonstrate
urgency as
required by law. In his opinion the terms of the oral lease agreement
relied upon by the trust are not clear and certain
from the trust’s
papers insofar as it is alleged that the month to month oral
agreement was express alternatively implied.
He, further, submits
that the trust was, in law, obliged to make out its case in the
launching papers and not in replying papers
as it sought to do with
regard to its negotiations or agreement with Assupol Life. It is,
furthermore, not apparent, according
to Mr Jagga, from the founding
papers that the respondent’s right of occupation has been
terminated. The court should be
wary to have regard to probabilities
in the face of a genuine dispute of fact on the papers, so Mr Jagga
reminds the court.
APPLICABLE
LEGAL PRINCIPLES
[15]
Rule 6(12) of Uniform Rules of Court provides a vehicle through which
an applicant can jump the queue by forging its own rules
with regard
to service and time frames subject to the court’s control in
order to ensure that its matter enjoys the court’s
attention
out of turn. In order to avail itself of such a vehicle, an urgent
applicant should set out in its founding papers facts
which render it
necessary for the matter to engage the court the soonest. Absent
urgency the matter is not properly on the court
roll and falls to be
struck off.
(See
Commissioner
for SARS v Hawker Aviation Services Partnership and Others
[2006] ZASCA 51
;
2006 (4) SA 292
(SCA).)
[16]
It is correct, as Mr Jagga submits, that
“…
an applicant who
seeks final relief on motion must, in the event of conflict, accept
the version set up by his opponent unless the
latter’s
allegations are, in the opinion of the court, not such as to raise a
real, genuine or
bona
fide
dispute of fact or are so far-fetched or clearly untenable that the
court is justified in rejecting them merely on papers.
”
(See
Wightman t/a J W Construction v Headfour (Pty) Ltd and Another
[2008] ZASCA 6
;
2008 (3) SA 371
(SCA) at par
[12]
.)
[17]
It is further correct, as Mr Zietsman reminds the court, that
“
A
real, genuine and
bona
fide
dispute of fact can exist only where the court is satisfied that the
party who purports to raise the dispute has in his affidavit
seriously and unambiguously addressed the fact said to be disputed…
”
(See
Wightman
t/a J W Construction
,
supra
,
at par [13].)
[18]
As Mr Jagga correctly points out, a court should, in deciding
disputed facts in application proceedings, always be cautious
about
deciding probabilities in the face of conflicts of facts in their
affidavits.
(See
Buffalo
Freight Systems (Pty) Ltd v Castleigh Trading (Pty) Ltd and Another
2011 (1) SA 8
(SCA) at 14D – F.)
[19]
The courts are, however, prepared in appropriate circumstances to
take a stronger line to avoid injustice by, as Mr Zietsman
points
out, adopting a “
robust common sense approach
” and
undertake an objective analysis of such disputes.
(See
Soffiantini
v Mould
1956 (4) SA 150
(E) and
Buffalo
Freight Systems
,
supra
.)
[20]
Mr Jagga is correct in his submission to the effect that in motion
proceedings the applicant party’s case must be apparent
ex
facie
its founding papers so as to enable the opposing party a
fair opportunity to deal and engage with the same in its answering
affidavits.
(See
Transnet
Ltd v Rubenstein
2006 (1) SA 591
(SCA) par [28] and
Ferreira
v the Premier, Free State and Others
2000 (1) SA 241
(O) at 254C.)
APPLICATION
OF LEGAL PRINCIPLES AND FINDINGS
[21]
For the matter to enjoy the attention of the court on an urgent basis
it needs to be urgent and, as such, the question as to
whether or not
it is urgent must be decided
in
limine
.
It is true, as the respondent effectively contends, that the trust
did not dedicate at least a paragraph in its launching papers
exclusively to this important vehicle which is supposed to bring it
closer to the court out of turn. It would obviously have been
convenient for the court if the trust had set out and collected
together all the facts which, in its view, render the matter urgent
for the court to appreciate the same easily. The question, however,
is whether or not urgency is apparent
ex
facie
the launching papers as filed by the applicants. I am
persuaded, from a reading of the founding papers as a whole, that the
motion does deserve to be heard as a matter of urgency regard being
had to the fact that the application could only be launched
once the
respondent was in unlawful occupation of the property, as Mr Zietsman
correctly retorts. I am, further, satisfied that
there was no undue
delay in bringing the matter to the attention of the court insofar as
the parties were in communication at the
very latest on the 6
th
December 2013 when the respondent’s attorneys conveyed his last
offer to the trust. I am, further, satisfied that the respondent
has
not been prejudiced by service of the papers on his business manager
at the property as opposed to his residential address.He
did receive
the papers and he, in fact, did file opposing papers.
[22]
I am, further, satisfied that the trust was not entitled, in law and
equity, to make out its case in the replying papers and,
as such, I
disregarded all allegations in the replying papers relating to,
inter
alia
,
the alleged activities of the respondent directed at preparing new
premises for his business. I, furthermore, ignored documents
seeking
to prove that the alleged oral agreement was terminated in writing by
the trust as well as communication between the trust
and Assupol Life
in line with Mr Jagga’s objections.
[23]
The real question for determination is whether or not, at the time
when the trust required the respondent to vacate the property,
it
was, in law, entitled to do so. In support of its claim that it is
entitled to evict the respondent, the trust relies on an
oral month
to month lease agreement which entitles it to terminate the same on
one calendar month’s notice and further provides
for the
lapsing of the same upon failure by the respondent or his nominee to
proceed with the sale. On his part the respondent
resists the
claim on the grounds that there existed a 6 (six) months oral lease
agreement which would only terminate at the end
of March 2014.
[24]
The respondent contends that there exists a real and genuine dispute
of fact with regard to the existence or otherwise of oral
month to
month agreement and relies, in this regard, on the respondent-
friendly test set out in
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(A).
[25]
The trust disputes the existence of such a dispute and calls upon the
court to undertake an objective analysis of the dispute
in question
in order to avoid injustice. As correctly submitted by Mr Zietsman
the respondent does not set out the date and full
particulars of the
alleged six months oral agreement save for deposing that
“
Mr
Bredenkamp was informed that financing would eventually be approved
and that the time period until 24
th
September 2013 was too short.
”
And
further that
“
Mr
Bredenkamp was also informed that the application for financing would
only probably be finalised on 30
th
October 2013.
”
[26]
The respondent furthermore deposes that
“
This
was one of the reasons why a further six months lease was agreed upon
orally with the Trust, as it was uncertain when exactly
the financing
would be finalised, and I could not afford to rent the property on a
month to month basis.
”
[27]
The above assertions on the part of the respondent are, with respect,
out of line with his initial attitude of not exercising
the option to
renew the lease for a further 6(six) months period and eventually
opting to buy the property. The very fact that
it was not certain
when exactly the issue of financing would be finalised appears to me
to have been the very reason and motivation
for a month to month
contract as opposed to a 6 (six) months contract. In my view, where
finality with regard to funding is not
certain, good business sense
dictates against conclusion of medium to long term lease contracts.
In such circumstances commercial
sense opts for short term contracts
because change is imminent. The contention that there exists a 6(six)
months oral lease agreement
is further not supported by
correspondence from the respondent’s attorneys who, in the
letter of 10 October 2013, clearly
inferred the existence of such a
contract from the fact that rental got paid and accepted as Mr
Zietsman correctly submits. While
the fact of payment and acceptance
of regular monthly rental is not
per
se
proof
of 6(six) months verbal lease contract, it is consistent with the
existence of month to month oral agreement. The position
would,
obviously, be different were it the respondent’s case that he
advanced full 6(six) months’ rental to the trust
either in
September 2013 or at the beginning of October 2013. In my judgment
the respondent’s version is clearly untenable
and, as such,
worthy of being rejected on papers.
[28]
Mr Jagga contends that the terms of the oral agreement relied upon by
the trust are not clear or certain on the applicants’
papers.
Mr Zietsman, on the part of the trust, correctly points out that the
relevant deposition is very clear that the oral agreement
was a month
to month lease which provided, either expressly or by implication,
for automatic termination of the same in the event
of the respondent
or his nominee not proceeding with the sale, alternatively for
termination on one calendar month’s notice
by either party.
[29]
It is clear, in my opinion, that no 6 (six) months oral lease
agreement was ever concluded between the parties either before
or
after September 2013 regard being had to correspondence between the
parties which clearly shows that, as early as the 7
th
October 2013, the trust insisted on finalisation of the sale or
conclusion of a written lease agreement.The aforegoing leaves,
in my
judgment, no room for any oral agreement to have been concluded
between the parties after September 2013. As Mr Zietsman,
further,
points out, if any such agreement was in place, the respondent’s
attorneys would simply have relied on the same
and not made a
proposal for the respondent to vacate the property only on the 31
st
March 2014 in their letter of the 6
th
December 2013. I am,
further, satisfied from the respondent’s answering papers that
he was aware and
ipso facto
notified that he was required to
vacate the property on 30 November 2013.
[30]
The trust was, thus, in law entitled to terminate the contract as and
when it required the respondent to vacate the property.
ORDER
[31]
In the result I make an order in terms of prayers 1, 2, 3 and 4 of
the notice of motion.
L.
J. LEKALE, J
On behalf of applicants:
Adv P.J.J. Zietsman
Instructed
by:
Honey
Attorneys
BLOEMFONTEIN
On
behalf of respondent: Adv N. Jagga
Instructed
by:
Rossouws
Attorneys
BLOEMFONTEIN
/spieterse