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[2012] ZAKZPHC 11
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Mohamed and Others v BP Southern Africa (Pty) Ltd (1341/10) [2012] ZAKZPHC 11 (7 March 2012)
IN THE
HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL,
PIETERMARITZBURG
CASE No :
1341/10
In the
appeal of:
ASHRAFF
DAWOOD MOHAMED
…........................................
First
Plaintiff
GAVIN
NEVILLE CROOKES
…............................................
Second
Plaintiff
DAWOOD
MOHAMED
…........................................................
Third
Plaintiff
vs
BP
SOUTHERN AFRICA (PTY) LIMITED
….................................
Defendant
JUDGMENT
_____________________________________________________________________
VAN ZÿL,
J.,
The three plaintiffs are the trustees of the Ashwood Trust. In that
capacity they instituted action against the defendant claiming
damages following the alleged termination of an agreement of
sub-lease, by virtue of alleged material breaches by the defendant
of the terms thereof. The defendant has excepted to the amended
particulars of the plaintiffs’ claim on the grounds that
it
lacks averments necessary to sustain a cause of action. That is the
issue which now requires decision.
The dispute between the parties concern the rights the plaintiffs
claim to have acquired as against the defendant relevant to
the
latter’s occupation of premises situated at 89 Playfair Road,
North Beach, Durban. According to the particulars of
claim and
pursuant to a notarial deed of sub-lease registered in the office of
the registrar of deeds on 15 May 1990, the defendant
sub-leased the
premises from North Beach Garage (Pty) Limited for the period from
12 February 1989 to 11 February 2009.
The plaintiffs allege that the lessor subsequently ceded its rights
in and to the sub-lease to Ambit Properties Limited in terms
of a
notarial deed of session registered on 30 January 2004. Ambit
Properties Limited in turn ceded its rights so acquired to
the
Ashwood Trust, herein represented by the plaintiffs, in terms of a
notarial deed of session duly registered on 14 March 2005.
In the exception the defendant attacks the entitlement of the
plaintiffs to claim against it on the basis that the plaintiffs’
claims are based upon “
an expired lease
”. In
setting out details of its approach in the course of the exception,
the defendant draws attention to the background
to the sessions
referred to above.
The “
expired lease
” is a reference to the
original notarial lease No. 14/1957L (“
the main lease
”),
granted by the then Durban City Council for a period of thirty(30)
years from 19 October 1956, but renewable for a further
three(3)
successive periods of twenty(20) years each, to Playfair Garage
(Pty) Limited and subsequently, after its liquidation,
transferred
to North Beach Garage (Pty) Limited under a notarial cession of
lease registered during 1961.
In developing his argument counsel for the excipient, to which and
as is done in the pleadings, I will for convenience refer
to as the
defendant, submitted that the particulars of claim does not allege
that the main lease was duly renewed at the end
of the initial
thirty year period during 1986, or thereafter.
On behalf of the defendant a distinction was drawn between the
plaintiffs title as cessionary and as lessor. Counsel for the
defendant submitted that the plaintiffs failed to allege or
demonstrate in the pleadings that their title as cessionary (as
opposed to lessor) was not defective. Effectively the argument is
that if the main lease failed, so would the sub-lease upon which
the
plaintiffs rely in their damages claim against the defendant.
Counsel for the plaintiffs countered that it was unnecessary for the
plaintiffs’ cause of action against the defendant
to allege in
detail the mechanics of sustaining the main lease. But, so counsel
submitted, it could in any event be inferred
from the particulars of
claim, as well as the annexures thereto, that the main lease
remained extant and in full force and effect.
In developing the argument on behalf of the plaintiffs counsel drew
attention to various references which, so it was submitted,
were
consistent with the continued existence of the main lease. These
included the allegation in paragraphs 5 and 6 of the particulars
of
claim that on or about 22 September 2004 the Ashwood Trust purchased
from Ambit Properties (Pty) Limited “
its right of
leasehold
” to 89 Playfair Road. It was submitted that such
reference inevitably implied that the main lease continued in
existence.
Counsel for the plaintiffs also drew attention to a similar
reference in paragraph 8.4, dealing with the terms of the sub-lease
concluded in 2004 between North Beach Garage (Pty) Limited and the
defendant and wherein the latter undertook to ensure due compliance
with the terms and conditions of “
the principal lease
”.
This is a reference to original notarial lease No. 14/1957L (“
the
main lease
”), granted by the then Durban City Council and
the continued existence of which the exception questions. Counsel
submitted
that the reference in paragraph 8.4 of the particulars of
claim, especially when read with Clause 21 of the sub-lease to the
defendant (annexure “C” to the particulars of claim) and
headed “
NON CONTRAVENTION OF THE MAIN LEASE
”, are
consistent only with the continuance of the main lease.
Attention was also drawn to annexure “E” to the
particulars of claim. This is a consent document alleged to have
been duly signed on behalf of the defendant on the 13
th
January 2005 and wherein the defendant acknowledged notice of the
sale and transfer of rights from Ambit Properties Limited to
the
Ashwood Trust, including the rights flowing from the main lease in
terms of the notarial deed of lease registered under number
14/1957L. It was submitted that reliance in the particulars of claim
on such consent was also consistent only with the continuance
of the
main lease.
In the view I take of the matter and insofar as it may be material
to the plaintiffs’ cause of action against the defendant
based
upon alleged breach of the terms of the sub-lease, the plaintiffs
have impliedly alleged that the main lease continues
in existence
and must therefore have been renewed from time to time in accordance
with its terms. Certainly that is an interpretation
that may be
applied to the particulars of claim, read with the annexures
thereto.
The purpose of an exception that a pleading lacks averments
necessary to sustain an action is to dispose of the need to go to
trial and present evidence. It is therefore necessary that the
pleading excepted to must be unambiguous. Where ambiguity exists,
that means that the exception can only succeed if, on each possible
interpretation thereof, no cause of action can be shown to
exist. If
this is not possible then the pleading may be open to exception on
the ground that it is vague and embarrassing, but
not on the ground
that no cause of action is disclosed.
That being so where, as here, the averment claimed by the defendant
to be vital to the plaintiffs’ cause of action may
reasonably
be implied, there is no room for exception on the ground that the
plaintiffs particulars of claim do not disclose
a cause of action.
But, even if I were mistaken in the conclusion which I have reached
in this regard then Ms Olsen, who appeared for the plaintiffs,
sought to rely upon a further impediment to the granting of the
exception. In the alternative counsel submitted that the averment
relevant to continued existence of the original notarial lease No.
14/1957L (“
the main lease
”), as granted by the
then Durban City Council, is irrelevant to the plaintiffs’
cause of action as against the defendant.
Consequently and even if
it were to be found that the plaintiffs had made insufficient
averments in this regard, it would be
of no consequence.
Counsel submitted that the plaintiffs merely had to allege and prove
at the trial that they were party to a sub-lease agreement
with the
defendant, the terms of which the latter had breached. This was
because a lessor is obliged to protect the lessee from
eviction, but
may in law let property to which it has no title. A lessee is not at
liberty to question its lessor’s title.
Accordingly, so counsel for the plaintiffs argued, there was no
merit in the distinction which counsel for the defendant sought
to
draw between the position of a cessionary, which had to allege and
prove that it had acquired a legitimate title and a lessor
who had
no need to prove its title.
Whilst counsel for the defendant’s exposition of the law in
regard to the position of a cessionary is in principle sound,
it has
no relevance to the position of the plaintiffs with regard to the
rights conferred by the original notarial lease No.
14/1957L (“
the
main lease
”), as granted by the then Durban City Council,
or indeed the extensions or transfers, or failure to extend or to
transfer
such rights.
Essentially the plaintiffs rely upon the cession to them of the
rights flowing from the sublease, as concluded between the defendant
and North Beach Garage (Pty) Limited during 1990 and in respect of
which adequate averments of transfer by cession to the plaintiffs
are made in the pleadings.
It follows that even if plaintiffs’ main contention were to
fail, namely that the allegation regarding the extension and
transfer of the original notarial lease No.14/1957L, as granted by
the then Durban City Council, may be implied in the particulars
of
claim, then the exception still cannot succeed because such
allegation is not material to the plaintiffs’ cause of action
in any event.
There does not appear to be any compelling reasons why costs should
not follow the result.
The exception is dismissed, with costs.
____________________
VAN ZÿL, J.
APPEARANCES:
For Defendant/Excipient: Adv L E Combrink
Instructed by Eversheds,
c/o Tomlinson Mnguni James Inc of Pietermaritzburg (Ref: R
Wills/mp/64E0074/10).
For First Second & Third
Plaintiffs/Respondents : Adv Ms L K Olsen
Instructed by Von Klemperers of Pietermaritzburg (Ref: J von
Klemperer).
Date argued : 16 November 2011
Judgment delivered on : 7 March 2012