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[2012] ZAKZPHC 8
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South Coast Furnishers CC v Secprop 30 Investments (Pty) Ltd (AR 319/2011) [2012] ZAKZPHC 8; 2012 (3) SA 431 (KZP) (28 February 2012)
1
IN THE KWAZULU-NATAL HIGH COURT, PIETERMARITZBURG
REPUBLIC OF SOUTH AFRICA
CASE NO: AR 319/2011
In the matter between:
SOUTH COAST FURNISHERS CC
…..............................................
Appellant
and
SECPROP 30 INVESTMENTS (PTY) LTD
…...............................
Respondent
___________________________________________________________
JUDGMENT
___________________________________________________________
GORVEN J
The respondent, as owner, launched an application to
evict the appellant, as tenant, from business premises which were
subject
to a lease. I shall refer to the parties as in the court
a
quo
. Mnguni J found for the applicant. The matter comes before
us with the leave of the Supreme Court of Appeal after leave was
refused
by the court
a quo.
In an application for eviction, an applicant need only
aver that it is the owner of the premises and that the respondent is
in
occupation. The unlawfulness of the occupation is presumed in the
absence of an admitted right to occupy.
1
However, as soon as the applicant claims the
termination of a previously admitted right to occupy, on which the
respondent relies,
an onus rests on the applicant to prove that such
right has been terminated.
2
The following brief history of the matter is
undisputed. On 22 October 2001, a written lease was concluded
between Fedsure Life
Assurance Limited, the then owner of the
property, and the respondent which would run from 1 December
2001 to 31 January
2005 (the Fedsure lease). No provision was
made for a renewal period. The property was sold and transferred to
Armrest Investments
(Pty) Limited (Armrest) on 13 February 2002.
During or about November 2005 the property was sold to Artistic
Woodcarvers and
Turners (Pty) Limited which in turn sold and
transferred the property to the applicant on 21 December 2007. The
respondent has
remained in occupation throughout and is still in
occupation of the premises on the property. No further written lease
or written
amendment to the Fedsure lease was concluded.
It was also common cause that the applicant had
inherited a lease from the previous owner and was bound to it on the
basis of
the principle
huur gaat voor koop
. No breach of the
lease has been alleged. The applicant claims that the lease
inherited by it could be cancelled on one month’s
notice.
Implicit in that position is the standpoint that the Fedsure lease
had run its term prior to the applicant purchasing
the property and
that no further express lease had been concluded. That being so, the
new lease would have come into effect by
way of a tacit relocation.
Since the rental under the Fedsure lease was paid monthly and it is
common cause that rental continued
to be payable monthly, the new
lease could be cancelled on one month’s notice. This is
clearly the case relied on by the
applicant, even though no mention
is made in the founding affidavit of the Fedsure lease nor is the
above position spelled out.
The respondent, on the other hand,
contends as follows. An express, oral, lease was concluded between
it and Armrest in January
2003. This oral lease was to run for nine
years and 11 months with the respondent having an option to renew it
for a further
such period. The first such period elapses in October
2012. The only issue, both in the application and on appeal, is
whether
the lease under which the respondent occupied the premises
when the applicant took transfer was the monthly tenancy contended
for by the applicant or the term lease contended for by the
respondent. If the applicant’s contention as to a monthly
tenancy is correct, there is no dispute that the applicant gave
timeous notice to the respondent cancelling the lease and requiring
the respondent to vacate the premises. If, however, the respondent’s
contention as to a term lease is correct, the purported
cancellation
is of no force or effect.
As I have indicated above, the applicant approached the
court by way of application for final relief. Such proceedings are
appropriate
for the resolution of legal issues based on common cause
facts and are not designed to determine probabilities.
3
The approach to be taken to factual disputes on
application papers was set out in
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
4
by Corbett JA to the following effect:
‘
It is correct that, where in proceedings on
notice of motion disputes of fact have arisen on the affidavits, a
final order, whether
it be an interdict or some other form of relief,
may be granted if those facts averred in the applicant's affidavits
which have
been admitted by the respondent, together with the facts
alleged by the respondent, justify such an order. The power of the
Court
to give such final relief on the papers before it is, however,
not confined to such a situation. In certain instances the denial
by
respondent of a fact alleged by the applicant may not be such as to
raise a real, genuine or bona fide dispute of fact….
If in
such a case the respondent has not availed himself of his right to
apply for the deponents concerned to be called for cross-examination
under Rule 6(5)(g) of the Uniform Rules of Court…and the Court
is satisfied as to the inherent credibility of the applicant's
factual averment, it may proceed on the basis of the correctness
thereof and include this fact among those upon which it determines
whether the applicant is entitled to the final relief which he
seeks…. Moreover, there may be exceptions to this general
rule, as, for example, where the allegations or denials of the
respondent are so far-fetched or clearly untenable that the Court
is
justified in rejecting them merely on the papers….
Various judgments have dealt with the test to be
applied. In
Zuma
,
Harms DP said that where a ‘version consists of bald or
uncreditworthy denials, raises fictitious disputes of fact, is
palpably implausible, far-fetched or … clearly untenable’
5
the court is justified in rejecting it merely on the
papers. In
Buffalo Freight Systems (Pty) Ltd v
Crestleigh Trading (Pty) Ltd & Another
6
Shongwe JA said this could be done where ‘the
version propounded by the respondents was fanciful and wholly
untenable.’
Stated positively, it has been said 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’.
7
It is so, however, that a ‘court must always be
cautious about deciding probabilities in the face of conflicts of
fact in
affidavits. Affidavits are settled by legal advisers with
varying degrees of experience, skill and diligence and a litigant
should
not pay the price for an adviser's shortcomings. Judgment on
the credibility of the deponent, absent direct and obvious
contradictions,
should be left open.’
8
Having sketched the background to the dispute and the
principles governing such applications, it is appropriate to turn to
the
specific averments made by the respective parties on the papers.
In paragraph 8 of the founding affidavit, the deponent
states as follows:
‘
As at the 21
st
December 2007 the Respondent occupied a portion of the property in
terms of a monthly tenancy with the previous landlord namely
Artistic
Woodcarvers & Turners (Pty) Ltd. That portion of the property
occupied by the respondent bears the address Shop 03,
102 Field
Street, Durban….’
The founding affidavit then proceeds to deal with the
letter giving notice of cancellation and further correspondence
demanding
the vacation of the premises.
In paragraph 4 of its answering affidavit, the
respondent begins by setting out what it regards as the salient
features of the
history of the rental of the premises. Although this
paragraph is lengthy, it will be necessary to set it out almost in
full
because counsel for the applicant subjected it to close
scrutiny before us, submitting that the averments concerning a new
oral
lease agreement raised in it are so clearly untenable as to
have been capable of rejection on the papers by the court
a quo
.
The paragraph reads as follows:
‘
4.
During or about December 2001 I had leased the premises from
INVESTEC PROPERTY GROUP
9
for a period of four years…
I annex hereto marked “RD 1” a copy of the said lease
agreement.
As can be seen from the said agreement, the terms were rather
extensive and owing to the fact that the premises and the
surrounding area was rather rundown and bordering on dereliction,
the rental was for the premises as a whole and was not dependent
on
a rate per square metre;
I had, on behalf of the Respondent effected extensive repairs to
the premises which included replacing the shopfront glass
and
security gates at an approximate cost of R7 500.00, rewiring
the entire electrical circuitry at a cost of R13 000.00,
reconnecting all the internal planning at a cost of R2 000.00,
painting the premises at a cost of R4 800.00 and other
minor
repairs totalling approximately R 6 000.00….
I had subsequently made the premises fit for the purposes of
running a furniture store and had commenced business;
During or about the 14th February 2002, INVESTEC had given all the
tenants notice that the premises was sold to ARMREST INVESTMENTS
(PTY) LTD and that such entity would now collect the rentals….
It goes without saying that the terms of the said lease had
extended and had operated in respect of the tenancy with Armrest;
I, being an existing tenant was offered a lengthy lease by one
Ebrahim Simjee, the representative of Armrest, in order to ensure
that the building remained tenanted by a reputable businesses and
the building did not deteriorate any further;
During the negotiations with Simjee, I had stressed that owing to
the extensive repairs to the premises and the fact that the
Respondent was establishing a good name at the premises, in that
the building profile had increased and more importantly that
the
Respondent was on time with its obligations, the Respondent would
be seeking a comprehensive and lengthy lease for the
premises,
failing which the Respondent would rather cut its losses and
relocate where more stability could be provided.
The said Simjee had informed me that Armrest was desirous of
entering into a long lease with the Respondent and would honour
a
lease equivalent to nine (9) years and eleven (11) months on the
exact terms as embodied in the existing lease save for the
conditions relating to the duration of the lease and the further
clause that the lease would be renewed subject to the Respondent
giving one calendar months notice to extend the lease for a second
period of 9 years 11;
Based on the aforesaid representations by Simjee and the conclusion
of the new oral lease during or about January 2003, the
Respondent
continued to pay the rent together with an escalation of ten per
cent (10 %), secure in the knowledge that the lease
would endure
until end October 2012;
Subsequently, during or about November 2005, Artistic Woodcarvers
and Turners (Pty) Ltd purchased the property from Armrest
and the
lease as existed with Armrest was extended to Artistic;
I might add that the Respondent has not breached any of the terms
of the lease agreement and has paid the rental requested
and due on
time or as promised;
I have in my possession all invoices and receipts received from
Investec, Armrest, Artistic Woodcarvers, the owners of the
property
prior to the Applicant and the Applicant itself in respect of the
Respondent’s indebtedness for rental. Due
to the voluminous
nature of same I shall only produce same if requested to do so by
this Honourable Court or in the event of
this matter being referred
for the hearing of oral evidence, which I respectfully submit is
the only way in which my contentions
can be tested or the denials
of the Applicant as to the facts stated herein may be contested
under pain of cross examination,
which I am willing to undergo with
pleasure as I verily believe that the Applicant is deliberately
attempting to mislead this
Honourable Court into granting the
relief that it is not entitled to.
During or about December 2007, the Applicant took ownership of the
premises.
During November 2007 a meeting was held at the premises between one
HAFIZ YUSUF BUCCAS, who purported himself to be an advocate
of this
Honourable Court and the representative of the Applicant;
The said Buccas intimated that the premises leased was not leased
in accordance to square metres and that the floor area was
greater
than that stipulated in the lease agreement with Investec by
approximately fifty (50) sq mtrs. Buccas demanded that
the
Respondent compensate the Applicant for such space and further
advised that the rental for November and each month subsequent
thereto shall be R116.00 a sq metre;
Needless to state, I was perplexed as the lease agreement was
always for the premises as it was and was not charged or invoiced
as per square metres. Buccas was rather confrontational and rather
rude and overbearing in his approach. I advised that I would
revert
to him simply to get rid of him on that occasion as he demanded the
sum of R66 560.22 as a rental to cover the
shortfall alleged
to be due.
During or about the 18th of January 2008 a letter was received from
the Applicant which appeared to be a letter of cancellation
of a
monthly tenancy. I disputed this contention and immediately
contacted Buccas on 072 450 3066 and advised him of the true
position of the lease, that being that the lease was to endure
until October 2012 and further that the Respondent was entitled
to
renew such lease for a further period of time and therefore the
notice was defective as the Respondent had not committed
any breach
of the tenancy agreement;
Needless to say, Buccas was furious and advised me that I would
live to regret my actions in not vacating the premises;
I immediately contacted the Respondents attorneys herein which
forwarded annexure “D” to the Founding Affidavit
hearin, wherein once again, the Applicants notice of cancellation
was challenged.
I therefore deny that the applicant was entitled to cancel the
agreement of lease, the terms of which had been passed on from
INVESTEC to Armrest, to Artistic and thereafter to the Applicant’…
After this paragraph, the respondent deals with the
various paragraphs of the founding affidavit. The relevant averments
for the
purposes of the application and this appeal are contained in
consecutive paragraphs, each numbered 7. The first of these begins
by admitting ‘the allegations contained in paragraph 1, 2, 4,
5, 6, 7 and 8 of the Founding Affidavit’. The second
of these
admits having received the notice of cancellation but denies that
the lease was capable of being cancelled. The lease
contended for by
the respondent is also mentioned in paragraph 10. Throughout the
answering affidavit, and in particular in paragraph
4, the
respondent denies being in unlawful occupation of the premises and
denies that the applicant was or is entitled to cancel
the lease.
In the first paragraph 7 the respondent, dealing with a
number of paragraphs in the founding affidavit, includes paragraph 8
of
the founding affidavit in a blanket admission. As can be seen
from paragraph 8, the first sentence asserts that a monthly lease
was in existence when the applicant took transfer. This blanket
admission appears to have been the basis upon which Mnguni J
decided
the matter in favour of the applicant. It is, at the very least, the
primary basis upon which it was decided. I say this
because, after
stating that no affidavit had been placed before him to the effect
that the admission was made in error, he found
s 15 of the
Civil Proceedings Evidence Act 25 of 1965 applicable. This provides
that, where an admission is made in civil
proceedings, no party is
required to prove, nor is any party entitled to disprove, the fact
admitted. On appeal before us an
application was made on notice to
withdraw the admission if it was found that such an admission had
been made. Counsel for the
respondent submitted that, on analysis,
what is said in the first paragraph 7 does not amount to the kind of
judicial admission
envisaged in s 15. The applicant abided the
outcome of the application to withdraw any omission found to have
been made
and made no submissions on the point. Taken within the
context of the answering affidavit as a whole, and coming as it does
after
paragraph 4 thereof in particular, I am not convinced that the
first paragraph 7 amounts to a judicial admission. The whole thrust
of the answering affidavit is to assert the oral lease for nine
years and 11 months. The inclusion of this part of paragraph
8 in
the blanket admission was clearly done in error. The second sentence
of paragraph 8, relating to the location of the premises,
is clearly
admitted. There is therefore no binding admission to withdraw. If,
contrary to what I have found, the first paragraph
7 of the
answering affidavit does amount to an admission of the first
sentence in paragraph 8 of the founding affidavit, the
application
to withdraw that admission can clearly cause no prejudice whatsoever
to the applicant in the light of the thrust
of the entire answering
affidavit. Any such admission was clearly made in error and the
applicant could have been under no illusion
as to the case made out
by the respondent. If it did amount to an admission, therefore, I
would have been disposed to grant the
application to withdraw the
admission in question.
It remains then to establish whether the averments in
the answering affidavit, and in particular those in paragraph 4
thereof,
are such that they are clearly untenable and can be
rejected outright on the papers or whether they give rise to a
genuine factual
dispute relating to the coming into effect of the
oral lease contended for by the respondent. The respondent submitted
that a
genuine factual dispute arises on the papers which cannot be
resolved in favour of the applicant without oral evidence being led.
The applicant submitted otherwise.
Counsel for the applicant submitted that there are a
number of highly improbable aspects of the version which, taken
together,
would have justified the court
a quo
to reject it
as untenable and which therefore did not raise a genuine factual
dispute. He submitted that Mnguni J was correct
in finding for the
applicant on the papers. Some of the points raised by the applicant
were the following. First, when Armrest
purchased the property in
February 2002, the Fedsure lease had only endured approximately
three months and the unexpired portion
was some two years and 11
months. In January 2003, when the respondent says a new oral lease
came into existence, it had endured
for one year and two months and
the unexpired portion was some two years. It is therefore improbable
that the parties would have
concluded a lease at that time with
identical terms, other than those relating to the duration of the
lease. In addition, since
there was certainly no need for haste and
plenty of time while the Fedsure lease was running, it is improbable
that, if a lease
was concluded at that time, it would not have been
reduced to writing. No explanation is given as to why this did not
take place
in the light of the evidence that both parties wanted to
secure their long term positions. In the light of the respondent
claiming
to be able to produce all the receipts for rental during
its occupation, thus demonstrating administrative efficiency and a
reliance
on paper proof, the contentions as to an oral lease are
highly improbable. Further, the claim that the period of the oral
lease
was nine years and 11 months shows knowledge that a lease of
ten years and longer requires registration in order to secure the
rights of the lessee against purchasers who do not have knowledge of
the lease. Also, no mention of the new oral lease is said
to have
been made to Buccas at the meeting in November 2007. The deponent to
the respondent's affidavit says she told Buccas
that she would
revert on his demand for what he claimed was arrear rental purely in
order to get rid of him. It was submitted
that, if there was a
binding lease in existence at the time, the probabilities are that
she would simply have told him so. Further,
because the deponent
states that she contacted Buccas after receipt of the letter of
cancellation and informed him of the date
on which the lease would
expire, one would expect the letter written by the respondent’s
attorney thereafter to mention
either the conversation with Buccas
or the contention of the respondent, disclosed in that conversation
concerning the duration
of the lease or both. Since no such mention
was made in that letter or in a later one sent by the respondent’s
attorney,
the claim to the lease must be rejected.
These submissions have some force. However, they cannot
be viewed in isolation. There are features of the applicant’s
case
which must be weighed against the apparent improbabilities on
which the applicant relies. In the first place, the applicant in
reply simply disregards the detailed mention of both Simjee and
Buccas and all their alleged actions set out in the respondent’s
answering affidavit. The applicant satisfies itself in reply with
arguing the improbabilities of the version of the respondent
without
dealing at all with these averments. The replying affidavit does not
state that these persons were not available to furnish
affidavits
which could deal with these averments. Nor does it say that any
attempt was made to contact either person and, in
particular,
Buccas, for whom a telephone number is supplied and who is said by
the respondent to be the applicant's representative.
Nothing at all
is even mentioned as to whether or not he was in fact the
representative of the applicant at the time. In addition
to these
lacunae, the version of the respondent, although the abovementioned
features may be argued to be improbable, is a full
and detailed one.
I have referred to the detail with which the applicant failed to
deal in reply. By no stretch of the imagination
can the answering
affidavit be said to amount to a bald denial. It raises facts which,
on the face of it, are capable of investigation
and mentions people
which, on the face of it, can take issue with what is said. This is
particularly so of Buccas because he
is said to have been the
applicant’s representative. Finally, the reference to the
dispute about the question of square
metres arose, on the
respondent's uncontested version, from Buccas having confronted the
respondent concerning the discrepancy
between the actual number of
square metres leased and the number referred to in the Fedsure
lease. The question arises why the
applicant would have been
furnished with, or even told about, the Fedsure lease when it had
purchased the property well after
the Fedsure lease had expired.
This is also not dealt with in reply, either by way of a denial of
such a conversation or by way
of an explanation of how the Fedsure
lease came into the possession of the applicant and was used to
claim arrear rental almost
three years after it had expired. The
failure to contest or explain this evidence is open to the inference
that the terms contained
in the Fedsure lease had continued at least
in part to govern the relationship between the various owners and
the respondent,
which is consistent with the version of the
respondent.
I conceive that the test to be applied as to whether a
genuine factual dispute has been raised on the papers is similar in
nature
to that in a trial at the point where the plaintiff’s
case has been closed and absolution is sought before the defence is
embarked upon. Here, the test is whether there is evidence upon
which a reasonable presiding officer might or could find for
the
plaintiff. If there is, absolution should be refused. The court does
not enter into an evaluation of the credibility of witnesses
unless
they have ‘palpably broken down, and where it is clear that
they have stated what is not true’.
10
Similarly, in motion proceedings, a robust approach can
only be taken, and the matter decided on the probabilities, if that
clear
falsity emerges from the papers. This was clearly stated by
Leon J in
Sewmungal & another NNO v
Regent Cinema
11
where
he said:
‘
There are, however, more serious
improbabilities to which the learned Judge has referred. But they are
not of such a nature as to
justify the conclusion that they are so
inherently improbable that the respondent’s version is
incredible.’
In the light of what I have set out above, I do not
believe that it can be said that the version of the respondent raises
‘bald
or uncreditworthy denials…fictitious disputes of
fact, is palpably implausible, far-fetched or so clearly untenable
that
the court is justified in rejecting them merely on the papers’
12
or is ‘fanciful and wholly untenable’
13
or so ‘inherently improbable that the respondent’s
version is incredible.’
14
I am satisfied that the respondent ‘has in [its]
affidavit seriously and unambiguously addressed the fact said to be
disputed’.
15
In the absence of ‘direct and obvious
contradictions’
16
judgment on the credibility of the deponent to the
respondent’s answering affidavit must be left open.
As a result, I find, with respect, that there was no
basis for Mnguni J to have granted the order on the papers before
him. He
should have found, on the test set out above, that the
respondent had raised a genuine factual dispute as to the existence
or
otherwise of the oral lease contended for by it.
The respondent requested that, if this court found that
to be the case, the matter should be referred for the hearing of
oral
evidence in order to determine that factual dispute. This
appears to me to be warranted. It is a narrow dispute and readily
capable
of speedy disposal. I am also aware that, if the court
a
quo
had come to this conclusion in April 2010 when judgment was
handed down, the oral evidence would probably have been heard by
now. In the light of that fact and in the light of the respondent’s
contention that the lease endures until October 2012,
it is my view
that preference should be accorded to this matter.
The question of costs arises. Although the learned
judge
a quo
appears to have determined the matter on the
issue of an admission having been made, and despite the application
to withdraw
the admission having been made some two days prior to
the appeal hearing, the applicant did not rely on that admission on
appeal,
either in argument or in its heads. No indication was given
that, if the application had been made earlier, the applicant would
have consented to the appeal being allowed and the matter being
referred to oral evidence. In addition, as mentioned above, I
am
unpersuaded that the application was necessary. In all the
circumstances, therefore, the costs must follow the result of the
appeal. The Supreme Court of Appeal, in granting leave to appeal,
ordered that the costs of the applications for leave to appeal
in
the court a quo and before it would be costs in the cause. It is
therefore not necessary to deal with these separately.
In the result, the following order issues:
The appeal is allowed with costs.
The order of the court a quo is set aside and replaced
with the following order:
The application is referred for the hearing of
oral evidence on the issue as to whether the oral lease
agreement contended
for by the respondent in paragraph 4 of
its answering affidavit came into effect.
The deponents to affidavits shall be available to
be called as witnesses and to be cross-examined if so
required.
Further witnesses may be called by either party
in the discretion of the court.
The provisions of Uniform Rules 21(2), 35 and 37
shall apply to the hearing of oral evidence.
The costs of the application to date are reserved
for decision by the court hearing oral evidence.
The registrar is requested to accord this matter such
preference as is possible.
___________________________
GORVEN J
I agree:
___________________________
VAHED J
I agree:
___________________________
STRETCH AJ
DATE OF HEARING: 10 February 2012
DATE OF JUDGMENT: 28 February 2012
FOR THE APPELLANT: M Pillemer SC and D Tobias,
instructed by SHAUKAT KARIM & COMPANY
FOR THE RESPONDENT: D Gordon SC, instructed by EBI
MOOLLA & SINGH ATTORNEYS.
1
Chetty
v Naidoo
1974 (3) SA 13
(A) at 20 where Jansen JA said: ‘It
is inherent in the nature of ownership that possession of the
res
should normally be with the owner, and it follows that no other
person may withhold it from the owner unless he is vested with
some
right enforceable against the owner’.
2
Chetty
at 21G-H.
3
National
Director of Public Prosecutions v Zuma
[2009] ZASCA 1
;
2009 (2) SA 277
(SCA)
para 26.
4
[1984] ZASCA 51
;
1984
(3) SA 623
(A) at 634G-H (references omitted).
5
Footnote
3, para 26.
6
2011
(1) SA 8
(SCA) para 21.
7
Per
Heher JA in
Wightman t/a JW Construction v Headfour (Pty) Ltd &
Another
[2008] ZASCA 6
;
2008 (3) SA 371
(SCA) para 13.
8
Buffalo
para 20.
9
The
Fedsure lease was administered on its behalf by Investec Property
Group (Pty) Ltd. Although reference is here made to Investec
as
being the landlord, it is not disputed that Fedsure was the
landlord.
10
Per
Solomon J in
Siko v Zonsa
1908 TS 1013
at 1015.
11
1977
(1) SA 814
(N) at 822D-E
12
Zuma
note 3, para 26.
13
Buffalo
note 7, para 21.
14
Sewmungal
at p822E.
15
Wightman,
note 8, para 13.
16
Buffalo
para 20.