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[2013] ZAGPPHC 120
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De Sousa v Vermaak and Another (11321/2012) [2013] ZAGPPHC 120 (15 May 2013)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA (NORTH GAUTENG HIGH COURT, PRETORIA)
CASE NO: 11321/2012
DATE:15/05/2013
In
the matter between:
A A G DE
SOUSA
..........................................................................................
APPLICANT
and
P J
VERMAAK
.............................................................................................
FIRST RESPONDENT
Y
WENG
........................................................................................................
SECOND
RESPONDENT
EX
TEMPORE JUDGEMENT
DE
VOS J
[1]
It is common cause that the Applicant is the lawful lessor of a
property situated at 164 Bloed Street Pretoria. An agreement
of
sub-lease was concluded between the Applicant and the First
Respondent. Prior to the sub-lease entered into between the Applicant
and the First Respondent, the Applicant obtained the permission of
the Pretoria City Council (the owner of the property) to sub-lease
a
portion of the premises on condition that the Applicant remained
responsible for the conduct of the sub-lessee, and that any
agreement
of lease that might be concluded would be subject to the provisions
of the written agreement entered into between the
Applicant and the
Council as set out in their written lease agreement.
[2]
The Applicant is seeking a cancellation order against the First
Respondent and an eviction order against the First and Second
Respondents. The eviction order pertains to the premises which form
the subject matter of the sub-lease agreement as well as to
any other
persons holding rights to the premises under the First Respondent.
[3]
It is common cause that on 25 July 2005 the Applicant and the First
Respondent entered into a written agreement of sale of a
business
know as Champion’s Tavern and Restaurant. This agreement of
sale is not germain to the present application. Simultaneously,
with
the conclusion of the agreement of sale in respect of the said
business, the Applicant concluded a sub-lease agreement with
the
First Respondent also dated the 25th July 2005.
[4]
The material terms of the sub-lease agreement were that the leased
premises comprised of a shop situated at 164, 170 and 172
Bloed
Street, Pretoria, together with some outbuildings. The lease
commenced on the 1st August 2005, and would endure for as long
as the
main lease agreement between the Applicant and the City Council of
Pretoria was not cancelled. It incorporated the terms
of the head
lease. There was agreed upon a monthly rental and an annual increase
of 10% per year in the amount of rental to be
paid as from the 1st
January 2006, and yearly thereafter.
[5]
The First Respondent at some stage sub-let the premises or a portion
thereof, with permission of the City Council, to a tenant.
The
sublease was subject to the conditions contained in the main lease
and sublease. When the matter was heard, the First Respondent
informed the Court that both the First Respondent and the sub-lease
tenant had vacated the premises on account of the fact that
the First
Respondent had disposed of the business that was being conducted from
the premises. The First Respondent contended that
a third party/the
Second Respondent, Yuhui Weng has concluded a new lease agreement in
his own name with the City Council for the
said premises.
[6]
The Applicant’s case is that the First Respondent was not
entitled to sub-lease the premises or any portion thereof, or
to
cede, transfer or alienate the leased rights without the Applicant’s
written consent, as set out in Clause 9 of the sublease
agreement.
Various other terms and conditions are contained in the contract. I
do not regard them as relevant at this stage.
[7]
The Applicant contends that during the existence of the sublease he
experienced problems regarding the sub-lease with the First
Respondent. There were numerous incidents where the Applicant
complained to the First Respondent. According to the Applicant these
complaints were not properly complied with. The First Respondent
denies these allegations. Eventually the Applicant approached
an
attorney and they prepared a letter addressed to the First Respondent
with the object that the First Respondent should obtain
a lease in
his own name form the City Council of Pretoria. The First Respondent
failed to obtain such a lease in its own name within
thirty days of
21 October 2011, i.e. the time set in the Applicant’s
attorney’s letter to obtain such lease.
[8]
On the 10th November 2011, the Applicant was informed by the First
Respondent’s attorney, Mr Blom, that the First Respondent
had
sold the business and that his client wanted to negotiate a cession
of the lease agreement into the name of the
new
purchaser. A cession document was also attached to that letter. It is
common cause that the Applicant refused to sign the cession
document.
[9]
On the 16th November, Mr Blom addressed a further letter to the
Applicant’s attorney denying that the Second Respondent
was in
arrears with his rental obligations. The effect of these letters were
that on the 29th November 2011, the Applicant gave
notice to the
First Respondent that he was in breach of the provisions of the
sub-lease agreement on the ground that he has given
possession of the
property to the Second Respondent - who has purchased the First
Respondent’s business - and that the sub-lease
agreement will
be cancelled if such breach was not rectified within two days. The
lease agreement between the Applicant and the
First Respondent was
subsequently cancelled on the 7th December 2011 by the Applicant
after the First Respondent’s domicilium
was changed to his
attorney, Mr Blom’s, address.
[10]
It is clear from the papers that there was a breach of the lease
agreement between the Applicant and the First Respondent.
On 21
October 2011 the Applicant’s attorney notified the First
Respondent to obtain his own lease for the premises from the
Council
within 30 (thirty) days. On that condition the Applicant is prepared
to cancel the lease in the First Respondent’s
favour. On the
9th November 2011 the Applicant’s attorney wrote a further
letter to the First Respondent notifying the First
Respondent that
the monthly rental is in arrears and has not been paid for a period
of two months. The First Respondent was notified
that upon failure to
comply with the terms and conditions of the agreement, the Applicant
will proceed to cancel the agreement.
On the 29th November 2011 the
Applicant’s attorneys wrote a further letter to the First
Respondent informing him that he
was in breach of the agreement as
appears from paragraph 3 thereof. This letter was properly served on
the First Respondent’s
attorney by e-mail on 2 December 2011.
The Second Respondent admits in his opposing affidavit that he is now
occupying the leased
premises. Such occupation was in breach of
clauses 6.1 and 6.2 of the sub-lease agreement. The Applicant is
correct in stating
that the First Respondent was in default when the
contract was cancelled on 7 December 2012. The contract could not be
transferred
or alienated or sublet or ceded to the Second Respondent
or any other person at any stage. The Applicant was therefore
entitled
to cancel the contract, which he did. The First and/or
Second Respondents, who purchased the First Respondent’s
business,
are apparently still in possession of the said premises and
refuse to give occupation back to the Applicant. I say this for the
apparent reason that the Applicant is not obliged to contract with
the new owner, nor is he obliged to cede the existing lease
agreement
to anyone.
[11]
At this hearing, the Second Respondent was represented by counsel. I
made mention that no heads were filed on behalf of the
First or the
Second Respondents when the matter was set down for hearing and
therefore the Respondents did not comply with the
Rules of Practice
of this Court.
[12]
This morning, counsel for the Second Respondent attempted to hand in
a statement prepared by the Second Respondent in which
it is stated
that he, the Second Respondent, is now in possession of the premises
and that he obtained the permission of the City
Council to proceed
with the lease agreement in his name. The Applicant denies that the
Second Respondent obtained the permission
of the City Council to
occupy the premised. The said statement was not accompanied by a
proper application to join the proceedings
in terms of the Rules of
Court. In any event, the lease agreement between the Applicant and
the City Council has not been cancelled
and is still in existence.
[13]
There is no explanation as to why the Second Respondent’s
statement should be taken into account by the Court, or that
I should
deal with it. I accordingly refused to accept that statement. That
leaves me with the version of the Applicant before
me. There is
nothing to contradict his version that the sub-lease agreement
between himself and the First Respondent was lawfully
cancelled on
the ground that the First Respondent transferred occupation of the
premises to the Second Respondent. Under the circumstances
the
Applicant is entitled to an order as set out in the notice of motion.
[14]
Insofar as the counter-application is concerned, an order is sought
against the Applicant to sign a cession document. There
are no merits
in the counterapplication and/or allegations made by the First
Respondent in his opposing papers. Regarding
the cession, it is
common cause that the cession document was not signed by the
Applicant. The First Respondent’s attorney,
in his letter dated
10 November 2011, addressed to the Applicant’s attorney, said
“we now want to negotiate the cession
of the lease agreement”.
This proposal was obviously not accepted by the Applicant. In its
counter-application the Second
Respondent contends that he has
retention for necessary and useful improvements made to the property.
This was done without the
written consent of the Applicant. In terms
of the sub-lease agreement the only remedy available to the Second
Respondent is to
dismantle the improvements and to return the
property to the Applicant in the state that it was when it was let.
Therefore the
counter-application must be dismissed.
I
THEREFORE MAKE THE FOLLOWING ORDER:
1.
Declaring that the agreement of sub-lease concluded between the
Applicant and the First Respondent on the 21st July 2005 is cancelled
and no longer of any force and/or effect.
2.
That the First and Second Respondents and all persons in occupation
of the properties situated 164 Bloed Street, Pretoria, hereinafter
referred to as the property, are to vacate the property within 7 days
of the date of the granting of this order.
3.
That in the event of the First and Second Respondents not vacating
the property within 7 days of the date of the granting of
this order,
the Sherriff of the High Court is hereby authorised to do all things
and take all things as may be necessary and required
to evict the
First and Second Respondents and all persons holding title and
occupation of the property by, through or under the
First and Second
Respondents from the property.
4.
That both the First and Second Respondents are ordered to pay the
costs of this application jointly and severally, the one paying
the
other to be absolved.
H J DE VOS
JUDGE
OF THE NORTH AND SOUTH GAUTENG HIGH COURT
Representatives
for the Applicant:
Shaheed
Dollie Incorporated C/O Cassim Incorporated 333 Muckleneuck Street
Nieuw Muckleneuck Pretoria 012 460 7700
Representatives
for the 1st and 2nd Respondents:
Couzyn
Hertzog & Horak Attorneys
321
Middel Street
Brooklyn
Pretoria
012
460 5320