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2012
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[2012] ZAKZDHC 54
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Areff NO and Others v Mohamed Kolia t/a Spinners (13661/11) [2012] ZAKZDHC 54 (26 September 2012)
In
the KwaZulu-Natal High Court, Durban
Republic
of South Africa
Case
No : 13661/11
In
the matter between :
Abdool
Rahiman Areff NO
..........................................................................
First
Applicant
Abdul
Khalek Areff NO
..........................................................................
Second
Applicant
Nazeer
Ahmed Ballim NO
.........................................................................
Third
Applicant
and
Mohamed Kolia t/a Spinners
.........................................................................
Respondent
Judgment
Lopes J
[1] The applicants in this matter are
the trustees of the Ahmed Aruff Will Trust (‘the trust’).
The trust owns an immovable
property situated at Ballim’s
Building, 54 Hulett Street, KwaDukuza (‘the property’),
from which it seeks the
ejectment of the respondent.
[2] It is common cause between the
parties that :
a verbal agreement of lease of the
property was concluded by the first applicant, on behalf of the
trust, and the respondent acting
personally;
the agreement contained two clauses :
(i) that the trust let the property to
the respondent; and
(ii) that the respondent would pay a
monthly rental to the trust.
[3] The respondent alleges an
additional term of the agreement, namely that he was entitled to
occupy the premises for as long as
he wanted to, and that the
agreement would only be terminable upon him giving the trust
reasonable notice of his intention to vacate
the premises. He
maintains that it is that arrangement that has enabled him to occupy
the premises for the last ten years. The
respondent maintains that
the first applicant confirmed that arrangement with his son, and it
was also confirmed to him by the
second applicant.
[4] The trust avers that the
respondent fell into arrears with the payment of monthly rentals and
an action for the recovery of
the outstanding rent was instituted out
of the Stanger Magistrates’ Court. The respondent has defended
the action and filed
a plea and counter-claim.
[5] In his answering affidavit in this
application the respondent deals with the non-payment of the rental
as follows :
‘
I
purposely withheld the rental from the Applicant for the period
claimed in its summons as the Applicant refused to accept liability
for the losses I had suffered owing to the rain water damage
occasioned to clothing stocks warehoused on the premises.’
Those damages, together with others,
form the subject of his counter-claim in the Stanger Magistrates’
Court.
[6] The respondent raises two further
defences :
he admits having received the letter
dated the 21
st
July 2011 from the trust’s attorneys
requiring him to vacate the premises by the 31
st
August
2011. In this regard he refers to the defences set out above;
that the trust waived the notice
given by it to him, and continued to accept rental payments from him
for the months of November
and December of 2011, and January and
February of 2012.
[7] Ms
Singh,
who appeared for
the applicant submitted that the respondent’s counter-claim in
the Stanger Magistrates’ Court could
not provide a defence to
the application for the ejectment of the respondent from the property
in this court. In that regard she
relied upon the authority of
Amavuba (Pty) Ltd v Pro Nobis Landgoed (Edms) Bpk and Others
1984 (3) SA 760
(N). In
Amavuba
the applicant sought an order
ejecting the respondent as the occupier of premises. The respondent
raised a counter-claim of compensation
for improvements. Law J held
that the claim for ejectment was not capable of being extinguished,
either in whole or in part, by
any judgment given on the
counter-claim.
[8] That case may be viewed as being
somewhat distinguishable because the counter-claim was conditional
upon a finding by the court
that no valid lease had been concluded
between the parties, and it was accordingly inconsistent with the
existence of a lease.
The general rule provided for in Rule 22(4) of
the Uniform Rules, upon which the respondents in that case placed
reliance, is designed
for cases in which both claim and counter-claim
sound in money. He continued at page 766 H - I :
‘
It
would in general be inequitable that a plaintiff with a valid claim
for immediate ejectment should have his rights frustrated
by a
counterclaim having no bearing on his claim for ejectment.’
[9] In my view in the circumstances of
this matter the counter-claim for damages has no bearing on the grant
of an order for ejectment,
and, even if successful, does not negate
or extinguish the right of the applicant to claim ejectment.
[10] Mr
Dheoduth,
who appeared
for the respondent, conceded that the counter-claim would be dealt
with adequately in the Stanger Magistrates’
Court. I
accordingly find that the presence of the counter-claim in that court
is no bar to an order for the ejectment of the respondent
from the
property.
[11] Mr
Dheoduth
submitted that
the respondent was entitled to occupy at his instance and pleasure in
accordance with the agreement which he alleged
in his answering
affidavit. Even if such an agreement had been concluded by the
parties, it does not assist the respondent because
the respondent
does not allege that the occupation at his instance and pleasure was
not subject to his paying the rental. The property
being of a
commercial nature, I cannot envisage that any landlord would have
concluded a lease agreement in terms of which the
respondent had a
right to occupy indefinitely at his instance and pleasure, without
there being any possible repercussions for
a breach of the agreement
by the non-payment of rental. The payment of rental is an admitted
material term of the lease agreement.
It is not necessary for me to
decide whether the additional term alleged by the respondent is so
improbable, that I could dismiss
it as a defence without more. For
even were it to be accepted, it cannot assist the respondent.
[12] With regard to the defence raised
that the applicant had waived its rights to rely on the respondent’s
non-payment of
rental because it subsequently accepted rental
payments, it is pointed out in the applicants’ replying
affidavit that all
payment for rental were accepted on a ‘without
prejudice’ basis. In my view there is no substance in that
defence.
[13] The final matter raised is that
the letter of the 21
st
July 2011 requiring the respondent
to vacate the premises does not record a cancellation of the
agreement. It is clear, however,
from the applicants’ founding
affidavit that the applicant cancelled the agreement. I refer in this
regard to the statement
at paragraph 16 :
‘
I
respectfully aver that due to the cancellation of the lease agreement
the Respondent’s continued occupation of the premises
is
unlawful ...’
No point regarding this is made by the
respondent in his answering affidavits, and in my view, it was not
necessary to record the
cancellation of the agreement in the notice
to vacate. The only basis on which the notice is challenged as being
unlawful, is that
it was in breach of the alleged agreement that the
respondent could occupy the premises indefinitely at his instance and
pleasure.
[14] In the circumstances I grant the
following order :
The respondent and any person or
persons claiming to occupy through him are directed to vacate the
premises described as Shop
1, Ballim’s Building, 54 Hulett
Street, Kwa-Dukuza, KwaZulu-Natal within 30 days of the service of
this order upon the
respondent;
in the event of the respondent and/or
any person or persons claiming to occupy through him refusing or
neglecting to comply with
the order in paragraph (a) above
timeously, the sheriff of this court is directed forthwith to eject
the respondent an/or such
other persons together with their
belongings from the premises and to hand vacant possession thereof
to the applicants’
attorney or record, M S Mall Incorporated;
in the event of the services of the
sheriff being required as envisaged in paragraph (b) above, the
sheriff is authorised and
directed to do all things necessary and
take all such steps as are necessary to eject the respondent and any
other persons together
with their belongings from the premises. Such
steps may include the breaking of any lock or locks securing the
premises, the
employment of the services of any locksmith, and any
person or persons whose services might be necessary to obtain vacant
possession
of the premises;
the respondent is directed to pay the
applicants’ costs.
Date of hearing : 18
th
September 2012
Date of judgment : 26
th
September 2012
Counsel for the Applicant : R Singh
(instructed by M S Mall Incorporated)
Counsel for the Respondent : N
Dheoduth (instructed by Pretorius Mdletshe & Partners Inc)