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[2013] ZAECMHC 14
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Windsor Hotel (Pty) Ltd v New Windsor Properties (Pty) Ltd and Others (1820/2013) [2013] ZAECMHC 14 (7 August 2013)
COURT
JUDGMENT
1
REPORTABLE
IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION - MTHATHA)
CASE No: 1820/2013
DATE : 07/08/2013
In the matter between:
WINDSOR HOTEL (PTY) LTD
And
NEW WINDSOR PROPERTIES (PTY) LTD
AND OTHERS
J U D G M E N T
BROOKS AJ
INTRODUCTION
[1] This is an application brought on notice of motion addressed to
the nine respondents but utilising a truncated time frame for
the
filing of notices of opposition and answering affidavits. Accordingly
the applicant seeks as preliminary relief the leave of
this Court for
the matter to proceed as an urgent application as envisaged by the
provisions of Rule 6(12) of the Uniform Rules
of Court. A provisional
order of substance is also sought.
[2] Personal service of the application papers occurred timeously
upon 2
nd
to 7
th
respondents and 9
th
respondent respectively. At the request of the firm of attorneys duly
instructed by 8
th
respondent who had got wind of the
imminence of the application, the application papers were served upon
them by facsimile transmission.
Service occurred upon the first
respondent by way of facsimile transmission to its
domicilium
citandi et executandi
nominated in a sale agreement which had
entered into with the applicant (“the sale agreement”)
and further upon it
in terms of Rule 4(1)(a)(v) of the Uniform Rules
of Court at the business premises which it occupies in Mthatha and
which belong
to the applicant (”the premises”).
[3] Only the first respondent opposes the application.
[4] The applicant seeks a
rule nisi
returnable on 5 September
2013 at 10h00 calling upon the respondents to show cause why a final
order should not be issued:
Terminating the leases that exist between the first respondent and
the 2
nd
to 9
th
respondents.
Substituting the applicant for the 1
st
respondent as the
lessor of the premises.
Directing the 2
nd
to 9
th
respondents to pay
their monthly rentals to the applicant.
Directing the first respondent to pay the costs of the applicant and
the 2
nd
to 9
th
respondents only in the event
of their opposition.
[5] The applicant seeks further that part of the order compelling 2
nd
to 9
th
respondents operate as an interim order with
immediate effect pending the finalisation of the application. The
order targeted seeks
the payment of the rental to the applicant in
the place and stead of the 1
st
respondent.
THE APPLICABLE LEGAL TEST
[6] For the granting of interim relief, the proper approach is to
take the facts set out by the applicant, together with any fact
set
out by the 1
st
respondent which the applicant cannot
dispute, and to consider whether having regard to the inherent
probabilities, the applicant
should, not could, on those facts,
obtain final relief at the trial.
Spur Steak Ranches Limited and
Others v Saddles Steak Ranch, Claremont, and Another 1996(3) SA706
(C) at 714 E-F.
POINTS IN LIMINE.
[7] As a preface to its opposition, the first respondent raises three
points
in limine
. For the sake of convenience, they are dealt
with in an order which differs from the manner in which they find
expression in the
answering affidavit.
[8]
Lack of urgency
. It is argued on behalf of the 1
st
respondent that the applicant has placed insufficient and unfounded
allegations before the Court in a single paragraph in the founding
affidavit, in an attempt to secure its order in terms of Rule 6(12)
of the Uniform Rules of Court, and that such an order should
not
issue in the result. The Court is urged to adopt the view that the
applicant has failed to set out explicitly in the founding
affidavit
the circumstances upon which it relies to render the matter urgent
and why it cannot be afforded substantial relieve
in due course,
resulting in an application which lacks the requisite element or
degree of urgency.
Luna Meubel Vervaardigers Edms Bpk v Makin
1977(4) SA135 (W) at 139 F to 140 A. Commissioner for South African
Revenue Service v
Hawker Air Services Pty Ltd in re Commissioner for
South African Revenue Service v Hawker Aviation Services Partnership
and Others
2006(2) All SA 565 (SCA) 2006(4) SA272 (SCA).
[9] In an associated argument the 1
st
respondent submits
that there is an unsatisfactory history of delay on the part of the
applicant before coming to court which is
unexplained. To the extent
that the applicant purports to rely upon the prospect that the King
Sabata Dalindyebo (“KSD”)
Municipality may cut off the
water and electricity supply to the premises due to an accumulation
of arrears in the hands of the
1
st
respondent, the
argument is that this is mere speculation until an email is sent out
on 18 July 2013, 10 days after the applicant
had already resolved to
institute proceedings. Information about the arrears was first given
to the applicant by KSD Municipality
on 4 July 2013. The resolution
is taken on 8 July 2013 by the applicant to take legal proceedings,
and the application issued only
on 22 July 2013. The unexplained
delay, says the first respondent, is indicative of self created
urgency resulting in circumstances
for which the applicant alone must
take responsibility.
Dan Bolman and Another v African National
Congress and Others 813/2011, 2011 ZAECGHC8, 31 March 2011
. In
that judgment Pickering J was critical of applicants who, by their
own delay, had created circumstances of extreme urgency,
then
prejudicial to their own case, whereas, had they acted sooner, they
would have been in circumstances where some deviation
from the
provisions of Rule 6 would have been justified. The circumstances are
very different in this matter and it is distinguishable
in the
result. No circumstances which would have justified this application
being brought as an urgent application on 8 July 2013
have been lost
because the applicant only issued its notice of motion on 22 July
2013. Moreover, no greater sense of urgency has
developed in the
passage of time before the issue of the notice of motion, resulting
in the extreme urgency which Pickering J found
had been created by
the applicants themselves. Accordingly, unlike the finding in that
matter, there are no consequences created
by the relatively
insignificant delay for which the applicant is to be held accountable
in the form of a dismissal of the application.
[10] The first respondent also warns against permitting the fact that
a complete set of affidavits and accompanying heads of argument
have
been placed before this Court to cloud the issue whether the
applicant’s modification of the rules on the grounds of
urgency
was unacceptable.
Caledon Street Restaurants CC v Monica D’Aviera,
unreported judgment of Kroon J, ECD Case No 2656/97, page 10, lines
16 to
21
. The warning is salutary. However I am of the respectful
view that the very practical considerations of factors such as the
incurring
of unnecessarily duplicated case preparation and
presentation procedures, with their concomitant increase in already
substantial
legal costs, and the undesirable duplication of the
requirement of the attention and preparation of more than one court
within
a judicial system that is at times overburdened, must be
weighed against any apparent prejudice to a respondent who has been
brought
to court on a truncated time frame. Indeed, such a respondent
is equally exposed to the risk of the undesirable duplications
identified.
Subject, of course, to limitations of capacity beyond the
control of all concerned, the legitimate demands of society
developing
in the urbane after-glow of the initiation of our
relatively young constitutional democracy must include an expectation
that access
to justice will not be impeded unnecessarily by an
over-formalistic approach to adjectival considerations surrounding
the resolution
of disputes amongst its members.
[11] The proper exercise of the judicial discretion is as important a
part of this assessment, as it is of the consideration of
the
substantive elements of any dispute. This is reflected in the
introduction of the directive to practitioners required from
a judge
in terms of Practice Rule 12(a)(i) of the Joint Rules of Practice
issued by the Judge President of the Eastern Cape High
Courts, (“the
Joint Rules of Practice”). This rule requires practitioners to
place a comprehensive certificate of urgency
before the Judge,
setting out fully the nature of the application contemplated and the
grounds relied upon for the assertion of
urgency, whenever the
applicant wishes to move the Court on a day which is not allocated
for Motion Court. A decision is then made
by the Judge, taking all
relevant factors into account, on the manner in which the matter will
initially be handled. The decision
is made on the content of the
certificate only, without reading the application papers. Should the
Judge determine that it is sufficiently
urgent, he or she will give
directions as to the time and place when and where the application is
to be heard. This decision in
no way binds any subsequent Judge in
the exercise of his or her discretion on the issue of formal relief
in terms of Rule 6(12)
of the Uniform Rules of Court when the matter
is heard.
Mbizana Development Forum v Minister of Justice and
Constitutional Development and Others 1256/13 2013 ZAECMHC8 13 June
2013.
[12] Mr Botma, who appeared for the 1
st
respondent, raised
the issue of the history of this matter within the context of
Practice Rule 12(a)(i) of the Joint Rules of Practice.
It is common
cause that during the week commencing 15 July 2013 a certificate of
urgency was placed before one of the Judges of
this court, who
expressed the view that the matter was not urgent. During the
following week, the applicant placed a certificate
of urgency before
a different Judge, who then issued a directive in terms of Rule
12(a)(i) which was of assistance to the applicant.
For reasons not
germane to the present enquiry, the matter was postponed from its
designated court in due course and placed before
me. The 1
st
respondent argues that the applicant is bound by the decision of the
initial Judge, who first refused to issue a directive in terms
of
Rule 12(a)(i) and queries whether the first decision is not in fact
an order which is only appealable. At the very least, it
was argued,
the occurrence of this event should have been brought to the
attention of the duty Judge who was approached during
the following
week. I am of the view that the status of a directive issued by a
Judge in terms of Rule 12(a)(i) of the Joint Rules
of Practice cannot
be elevated to that of an order. Given its genesis prior to the issue
of the application, the directive cannot
even be regarded as a
ruling. Indeed an order in terms of Rule 6(12) of the Uniform Rules
of Court, which may or may not be issued
by the court thereafter
entertaining the application, is not final or definitive of the
rights of the parties, nor has it the effect
of disposing of at least
a substantial portion of the relief claimed in the main proceedings,
and it is therefore not appealable.
Ubambo v Presbyterian Church
of Africa 1994(3) SA241 (SECLD) at 242 G - H and 243 A - B
. The
refusal of a Judge to issue such a directive cannot be the final word
which binds an applicant. For example, an applicant
may revise the
certificate of urgency in such a way that informs the duty Judge
better of the grounds for urgency, or some factual
development in the
context of the matter may occur which makes it desirable to
re-approach the Court on an amplified certificate
of urgency within a
relatively short space of time. That said, at the very least, the
codes of professional conduct which govern
the two branches of the
legal profession which serve our courts demand that in cases such as
this, any prior history to an approach
to a Judge for a directive in
terms of Rule 12(a)(i) should be disclosed fully when such a
directive is again sought.
[13] In the present matter, for the reason given, I am not persuaded
that the applicant claims any urgency which may be termed
self-created. As far as grounds for urgency are concerned, there is
some merit in the first respondent’s criticism that to
some
extent the basis upon which urgency is claimed is unsubstantiated and
possibly speculative where it rests upon a fear that
the KSD
Municipality may cut off the services to the premises, but is this
enough, effectively, to non-suit the applicant at this
stage? For
reasons which follow, I am of the view that it is not.
[14] It is also apparent from a reading of the founding affidavit and
its annexures, that the ongoing occupation of the premises
by the 1
st
respondent is
prima facie
unlawful. In my assessment of
whether the applicant has done enough to bring itself within the
ambit of Rule 6(12) of the Uniform
Rules of Court, I am constrained
to confine myself to an analysis of the allegations in the founding
affidavit. That this may involve
an analysis of a broad conspectus of
all the allegations contained in the founding affidavit, not only
those which may or may not
be included in a restricted portion
devoted to the issue of urgency, is now established.
Cekeshe and
Others v Premier of Eastern Cape 1998(4) SA935(TKD) at 948 A -F.
[15] The applicant explains that the presence of the first respondent
upon the premises is consequent upon the occurrence of two
events.
The first is the conclusion of the sale agreement between the
applicant and the 1
st
respondent on 6 August 2009. The
second is the conclusion of an agreement of lease between Eastern
Cape Development Corporation
established in terms of Act 2 of 1997,
of which the applicant is a wholly owned subsidiary, and the 1
st
respondent (“the lease agreement”). The lease agreement
was concluded on 5 January 2010. Both agreements regulate the
entitlement of the 1
st
respondent to beneficial occupation
of the premises.
[16] The founding affidavit correctly identifies that in terms of the
sale agreement, possession and occupation of the premises
was to be
given to the 1
st
respondent on the date of transfer, from
which date the 1
st
respondent would be come entitled to
all income derived from the premises, and would be liable for the
payment of rates and what
are described as “all other
outgoings”. Clause 7 of the sale agreement contains the
relevant provisions. The founding
affidavit also correctly identifies
that the sale agreement contained a suspensive condition to the
effect that the sale was conditional
upon the 1
st
respondent confirming in writing within a period of 60 days from the
date of signature of the sale agreement, that a bank has granted
a
loan to the 1
st
respondent to be secured by the
registration of the first mortgage bond over the property. The
founding affidavit specifically
records that if the 1
st
respondent failed to obtain the loan within the 60 day period, or
such extended period as may be agreed upon mutually, the sale
agreement would be null and void and of no further force or effect.
Clause 5 of the sale agreement contains the relevant provisions.
Clause 3.1 of the sale agreement also contains conditions which may
be regarded as suspensive conditions within the context of
the sale.
The case of the applicant is that these conditions too, were not
fulfilled timeously. The founding affidavit concludes
its reference
to the suspensive condition by alleging that the 1
st
respondent failed to furnish the guarantees within the time period
specified in the agreement and indeed within a subsequent extension
to 28 February 2010 and then again to September 2011.
[17] The lease agreement was the mechanism by which the 1
st
respondent gained access to and beneficial occupation of, the
premises ahead of taking transfer. The lease agreement was for a
period of two months as it was anticipated that the 1
st
respondent would have obtained the necessary guarantees for the
payment of the purchase price within that period. A copy of the
lease
agreement is annexed to the founding affidavit. Section 5 of the
schedule to the lease agreement records the duration of
the lease to
be from 1 January 2010 to 28 February 2010. Against the sub-heading
“Renewable period”, item 5.4 of the
Schedule, the
abbreviation “N/A” appears. The founding affidavit
alleges that notwithstanding cancellation of the agreements
and the
requirement that the 1
st
respondent vacate the premises in
the result, it has failed to do so. The applicant is in the process
of instituting proceedings
for the eviction of the 1
st
respondent and annexes a copy of its particulars of claim to the
founding affidavit.
[18] I am of the view that where, upon an objective analysis of the
entire content of the founding affidavit, it is clear that
by
operation of law the ongoing presence of the 1
st
respondent is unlawful, this Court should not permit the consequences
of the unlawful occupation to persist, simply because the
1
st
respondent has raised, as a point
in limine,
adjectival legal
principles which militate against the hearing of this matter on the
basis that insufficient allegations relating
to the grounds for
urgency have been set out in the founding affidavit. Whilst it may be
so that insufficient proof is presented
of the prospect of the KSD
Municipality actually taking drastic action as feared by the
applicant for this to establish grounds
for urgency in isolation, and
whilst there is a measure of unexplained delay in the founding
affidavit that demonstrates a period
of time where the applicant
appears to have been inactive after taking its resolution to proceed,
which time could have been utilised
in giving the respondents the
benefit of the full periods envisaged by Rule 6 of the Uniform Rules
of Court, rather than approaching
this Court for the issue of a
practice directive permitting the matter to proceed as one of
urgency, I am of the view that sufficient
grounds for urgency emerge
from the founding affidavit to entitle me to exercise my discretion
in favour of permitting the matter
to proceed in terms of Rule 6(12).
No considerations of resultant prejudice to any of the respondents
are apparent to suggest that
this decision is inappropriate. It
follows that the primary point
in limine
must fail.
[19]
Requirements for cancellation not followed
. Argument is
advanced on behalf of the 1
st
respondent to the effect
that both in respect of the sale agreement and the lease agreement,
the applicant has not followed the
agreed procedures before claiming
that the agreements have been cancelled. As far as the sale agreement
is concerned, reliance
is placed upon clauses 19 and 20 thereof in
support of this argument. Clause 19 describes a dispute resolution
mechanism involving
initial negotiation followed by arbitration.
Clause 20 requires both parties, if alleging a breach of contract, to
place the other
in mora
by way of written notice before
becoming entitled
inter alia
to cancel the sale agreement. The
1
st
respondent alleges that the applicant failed to comply
with either clause. The difficulty with this argument is that it is
dependent
upon the existence of the sale agreement, and a breach, for
its validity. Once the sale agreement falls away as null and void, as
a consequence of the non-fulfilment of the suspensive condition in
clause 5, recourse cannot be had to the terms of the sale agreement
which prescribe the procedures to be followed in circumstances of
dispute or breach. It is as if those clauses were never written.
[20] The question that arises is whether anything is contained in the
answering affidavit which disturbs the applicant’s
allegation
that the sale agreement is null and void. The 1
st
respondent claims that the sale agreement remains alive by virtue of
ongoing extensions of time being afforded to the 1
st
respondent to obtain the necessary guarantees for the payment of the
purchase price. The 1
st
respondent’s affidavit
contains the allegation that the extension is still the subject of
discussion between the 1
st
respondent and the applicant
and the delay is due to the resignation of the responsible member of
staff from the employ of the
applicant. This cannot be a sufficient
response to the applicant’s allegations that the already
extended time period has
expired. Indeed, clause 23 of the sale
agreement requires that any variation of the terms and conditions of
the sale agreement
be recorded in writing and signed by the parties
in order to be valid. No such written recordal of an extension of the
relevant
time period has been produced by the 1
st
respondent in support of its contentions. Just over one year has
passed since the final date to which, on the applicant’s
version, the time period was extended. No mention is made in the
answering affidavit of any prospect of securing the guarantees
in the
future, or indeed of any intention on the part of the 1
st
respondent to obtain this result. A written addendum to the sale
agreement concluded on 5 November 2011 and signed on behalf of
both
the applicant and the 1
st
respondent, makes reference to
the further extension of the time period within which the suspensive
condition in clause 5 was to
be fulfilled. Clause 8 of the addendum
records this as 20 April 2012. The addendum specifically concludes
its own terms of reference
with the following sentence:
“
All other terms and conditions in the
agreement of sale shall remain the same.”
Accordingly, by operation of law and according to the founding
affidavit and replying affidavit, the sale agreement fell away at
30
April 2012.
Against the background of this reality, there was no need for the
applicant to invoke the provisions of either clause 19 or clause
20
of the defunct sale agreement. The applicant’s perception that
the sale agreement was to be cancelled in the circumstances,
is
erroneous, but not in any way detrimental to the situation in which
it found itself. An enquiry into whether or not other conditions
of
sale were fulfilled becomes completely irrelevant.
Indeed, on writing the letter of cancellation, so called, on 25 March
2013, the applicant’s attorneys correctly stated in
the fifth
paragraph:
“
You are hereby informed that the sale
agreement has become null and void and of no further force or effect
and/or alternatively
the sale agreement is cancelled.”
[21] Similar reliance is placed upon the ongoing existence of a valid
lease agreement in resistance to the applicant’s claims.
The
1
st
respondent’s answering affidavit claims that the
lease agreement provides that in the event of the lease agreement
coming
to an end on the expiry date, 28 February 2010, prior to the
parties reaching agreement, the lease shall continue on a month to
month basis on the same terms and conditions with the right of either
party to terminate the lease on one month’s written
notice. By
“reaching agreement” I am assuming in the 1
st
respondent’s favour that the allegation is intended to mean the
production of the prerequisite guarantees for payment of
the purchase
price in fulfilment of the suspensive condition in clause 5. The
affidavit continues with the statement that no written
notice to
terminate the lease has ever been issued by either party. This
allegation cannot stand. In the founding affidavit the
applicant
alleges that with the failure to furnish the guarantees timeously,
the applicant cancelled the agreements. Both agreements
are referred
to. It alleges that in these circumstances, the 1
st
respondent became obliged to vacate the premises. In answer to these
allegations, the 1
st
respondent admits that guarantees
have never been furnished, but denies that there was any lawful
termination of the lease. It
puts the applicant to the proof of this
allegation. Accordingly, in the replying affidavit, the applicant
produces the proof. It
is the letter addressed by the applicant’s
attorney to the 1
st
respondent on 25 March 2013. Paragraph
5 of the letter concludes with the sentence:
“
Consequently, your month to month lease
agreement is also cancelled, and you are hereby required to vacate
the premises by no later
than 30 April 2013.”
The 1
st
respondent argued before me that this cannot stand
as a letter of termination, given that the verb “cancel”
is utilised
in the terminology.
I am of the respectful opinion that in the business environment in
which this communication occurred, and against the facts which
have
been demonstrated on the papers to be undisputed between the parties
relating to the fate of the sale agreement, the letter
cannot be
understood as anything other than a notice to the 1
st
respondent, that the agreement of lease has been terminated. By that
written instrument, the prerequisite notice period of one
month was
given to the 1
st
respondent and the obligation to vacate
the premises was spelt out. This is followed by emailed
correspondence addressed to the
deponent of the answering affidavit
on 18 April 2013 confirming the date of vacation of the premises.
These allegations are surely
sufficient for purposes of an
interlocutory order to enable me to reach the conclusion that the
ongoing occupation of the premises
is without legal basis.
[22] It follows that both elements of the second point
in limine
must fail.
[23]
Lack of authority
. The third point
in limine
is
based upon the challenge that there was no proof in the founding
papers that the deponent to the founding affidavit was duly
authorised to depose to it. In the founding affidavit the deponent
describes herself as an adult female director of Windsor Hotel
Pty
Ltd, a company registered in accordance with the company laws of the
Republic of South Africa, which is the applicant. She
states further
that she is duly authorised by the applicant to depose to the
founding affidavit, and indeed, to do all that is
necessary to sue
the respondents. In meeting the challenge in the answering affidavit,
the deponent attaches a copy of written
extracts from the minutes of
a board meeting held by the applicant’s board of directors on 8
July 2013 as an annexure to
the replying affidavit. The minute
reflects a resolution to institute legal proceedings against the
respondents and to authorise
the deponent to sign the necessary
documents, including affidavits, and specifically to institute motion
proceedings against the
first respondent. Where the allegation of
authorisation is made in the founding affidavit, but the documentary
proof is omitted,
this may be attached to the replying affidavit.
Moosa and Cassim NN.O v Community Development Board 1990(3) SA175
(A) at 180 H to 181 C
. It follows that the third point
in
limine
is without substance.
ENTITLEMENT TO RELIEF
[24] Much of the main defence to the relief claimed by the applicant
was covered by the 1
st
respondent in the answering
affidavit where the points
in limine
were advanced. What must
be borne in mind is that against the background of the continued
unlawful occupation of the premises by
the 1
st
respondent,
which is
prima facie
demonstrated in the papers before me, no
relief contemplating the eviction of the 1
st
respondent is
contained in the notice of motion. The applicant’s entitlement
to such an order is the subject of the action
which the applicant has
already instituted.
Issues relating to outstanding rates and taxes which may or may not
be payable to KSD Municipality or electricity and water charges
liability for the cost of necessary repairs to the premises and the
like, similarly, need not occupy the attention of this Court.
What the applicant seeks in these proceedings is a mechanism whereby
it can address its relationship as owner of the premises with
those
tenants of the premises who hold leases currently with the 1
st
respondent.
Mr Botma properly conceded that the entitlement of the applicant to
the relief set out in the notice of motion, was a question
that
inherently involved an assessment of the status of the lease
agreement between the applicant and the 1
st
respondent. He
agreed that there will be no prejudice to the 1
st
respondent if this issue was inserted as the necessary preface to any
other relief which may be issued as part of the
rule nisi.
This
inter alia
will ensure that proper attention is given to
this aspect upon the return day. Obviously Mr Nyangiwe, who appeared
for the applicant,
together with Mr Dukada, welcomed the approach.
It follows that if the 1
st
respondent’s occupation
of the premises is unlawful, it cannot continue to operate as a
landlord in respect of those tenants
with whom it has arranged
sub-leases. These are the 2
nd
to 9
th
respondents. Those leases must be tainted by the unlawful status of
the 1
st
respondent in its position is purported landlord.
A sub-lessee cannot acquire from a lessee greater rights than the
lessee has.
AJ Kerr, The Law of Sale and Lease 3
rd
Edition, Butterworths 2004 page 445.
The ongoing tenure in the premises owned by the applicant by those
respondents must be regularised in the hands of the applicant.
The
applicant must be placed in a position to renegotiate lease
agreements with the 2
nd
to 9
th
respondents.
[25] It follows that I am persuaded that an interim order should be
issued. The relevant urgency of the situation requires intervention
on the part of the applicant in a practical manner and as soon as
possible. The applicant seeks that one of the elements of the
interim
order come into effect immediately. This relates, as I have
indicated, to the payment of rent by the 2
nd
to 9
th
respondents to the applicant. Such an order would be an interim
mandatory interdict. Such an order is competent if the requirements
for an interim interdict are met. I am satisfied that on the
so-called Spur Steak Ranches Ltd test, to which I have made
reference,
they are.
ORDER
[26] Any order which this Court may issue must reflect the issues
between the parties as accurately as possible. With some amendments
to the notice of motion, in the light of the debate held with
counsel, I make the following order.
1. The applicant is hereby given leave to bring
this application as one of urgency in terms of Rule 6(12) of the
Uniform Rules of
Court.
2. A
rule nisi
is hereby issued, calling upon the respondents to show cause on 12
September 2013 at 10h00, or so soon thereafter as the matter
may be
heard, why an order in the following terms should not be made final:
2.1 That the termination of the lease agreement
entered into between the applicant and the 1
st
respondent on 5 January 2010 is confirmed.
2.2 That the applicant be and is hereby
substituted for the 1
st
respondent as the lessor of the premises situated at number 36
Sutherland Street, Mthatha, and known as Windsor Hotel “the
premises”.
2.3 That the leases which exist between the
1
st
respondent
and 2
nd
to 9
th
respondents
in respect of their occupation of various sections of the premises,
be and are hereby terminated.
2.4. That the 2
nd
to 9
th
respondents be and are hereby directed to pay their monthly
rentals to the applicant.
2.5 That the 1
st
respondent be and is hereby directed to pay the
costs of this application, jointly and severally,
together with such additional respondent or
respondents who may oppose this application
unsuccessfully.
3. Paragraph 2.4 of this order shall operate as an interim interdict
with immediate effect, pending the finalisation of this application.
_______________
R.W.N.
BROOKS
JUDGE
OF THE HIGH COURT (ACTING)
IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION - MTHATHA) REPORTABLE
CASE No: 1820/2013
DATE : 07/08/2013
In the matter between:
WINDSOR HOTEL (PTY) LTD
And
NEW WINDSOR PROPERTIES (PTY) LTD
AND OTHERS
PRESIDING JUDGE : BROOKS AJ
ON BEHALF OF APPLICANT : ADV NYANGIWE &
ADV DUKADA
ON BEHALF OF RESPONDENT : ADV BOTMA
INTERPRETER : NOT REQUIRED
STENOGRAPHER : J NOMKUSANE
JUDGMENT
CONTRACTOR:
IKAMVA VERITAS
TRANSCRIPTION SERVICES CONSORTIUM
CD07082013 /…