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[2012] ZAKZDHC 88
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Tsogo Sun Kwazulu- Natal (Pty) Ltd v Centre Court Buffet (Pty) Ltd (1388/2012) [2012] ZAKZDHC 88 (13 November 2012)
IN THE KWAZULU-NATAL HIGH COURT,
DURBAN
REPUBLIC OF SOUTH AFRICA
CASE NO: 1388/2012
In the matter between:
TSOGO SUN KWA-ZULU-NATAL (PTY) LTD
.................................................
Applicant
and
CENTRE COURT BUFFET (PTY) LTD
........................................................
Respondent
________________________________________________________________
JUDGMENT
________________________________________________________________
HENRIQUES J
Order:
1. The applicant is granted
condonation for its failure to comply with the rules relating to form
and service.
2. The respondent is directed to
vacate the premises occupied by it and described as Shop no. L 21,
Suncoast Casino & Entertainment
World comprising 778 square
meters on the ground level and a 75 meters square storeroom
forthwith.
3. The respondent is directed to pay
the costs of the application on the attorney / and own client scale.
4. The respondent’s counter
application is dismissed and the respondent is directed to pay any
costs occasioned by such application
on a party/party scale.
Introduction
1. This is an application for the
eviction of the respondent from the applicant’s premises at
Suncoast Casino & Entertainment
World (Suncoast) premises.
2. It is common cause that the
applicant is the owner of the Suncoast premises and that the parties
concluded a written agreement
of lease, Annexure “MD1”.
In terms of the written lease agreement the respondent’s right
to occupy would terminate
on the 30 November 2012. The applicant
alleges it cancelled the written lease agreement on 14 February 2011
and instructed its
erstwhile attorneys to institute any action for
eviction of the respondent.
3. The respondent is still in
occupation of the Suncoast premises as it disputes cancellation of
“MD1”, and avers that
after cancellation of an agreement
was concluded, Annexure “MD2” in terms of which it would
remain in occupation of
the Suncoast premises on a month to month
basis on the terms recorded therein.
4. Subsequently, the applicant
provided notice of termination of the month to month tenancy as
recorded in Annexure “MD2”.
The respondent does not
dispute receipt of the termination notice.
5. In order to
obtain such relief it is trite that the applicant need do no more
than allege and prove it is the owner of the Suncoast
premises and
the respondent is in occupation thereof. The onus rests on the
respondent to allege and prove the right to continue
to occupy the
Suncoast premises
1
.
6. On the facts of this matter, the
applicant concedes that the respondent has a right of occupation and
alleges a termination of
that right. The respondent however relied on
the right of occupation based on the non-cancellation of MD1.
Consequently I agree
with the submission of Adv Troskie.
7. The factual
position in relation to this matter however is that the respondent
denies that it occupies in terms of “MD2”.
It alleges
that “MD1” has not been cancelled and consequently its
rights of occupation emanate from “MD1”.
Consequently,
the law as it stands was enunciated in
Gordon
v Kamaludin
which
was subsequently followed in
Graham
v Ridley
2
and subsequently
adopted in
Chetty
v Naidoo
3
.
8. In Gordon’s
case supra the court held the following “
when
an owner sues for ejectment an allegation in his declaration that he
has granted the defendant a lease which is terminated
is an
unnecessary allegation and is merely a convenient way of anticipating
the defendant’s plea that the latter is in possession
by virtue
of a lease, which plea will call for a replication that the lease is
terminated. It is the defendant and not the owner
plaintiff who
relies on the lease, and if the lease itself is denied by the
defendant, as in the presence case, the allegation
of the lease is
surplusage.”
9. Consequently, this matter must be
decided on whether or not “MD1” had been cancelled, and
the respondent bearing
the onus to show it had not been cancelled.
10. If one has regard to “MD2”
titled Reinstatement of Lease Agreement, the preamble to records the
cancellation of
“MD1” on 14 February 2011. in addition it
records that the respondent had effected payment of all arrear
rentals and
other costs and charges due in terms of “MD1”
and the reinstated of lease with effect from 1 March 2011, subject to
terms and conditions recorded in “MD2”.
11. Paragraph 2.4 of “MD2”specifically
records that the lease agreement would continue to operate on a month
to month
basis until terminated by either party giving the other one
calendar month written notice of such termination.
12. Annexed to “MD2” is a
Deed of Suretyship signed by the deponent to the respondent’s
opposing affidavit, Panayiotis
Peter Economou (“Economou”)
and the other directors of the respondent.
13. The respondent opposes the
application on the following grounds and raises three points
in
limine
namely that of urgency, lis
pendens
and avers that
the application constitutes an abuse of the process.
14. Economou despite confirming the
signature of “MD2” in May 2011 alleges that the other
directors were not signatories
“MD2” and he did not have
the authority to sign on their behalf or bind them. He avers he
signed it without considering
it properly and without obtaining legal
advice.
15. I propose to deal with the points
in limine
raised by the respondent. Given the nature of the
application and the fact that the lease terminated in December 2011
it was clear
that the matter was of some urgency to the applicant. In
so far as the point
in limine
in relation to that of
lis
pendens
is concerned, the applicant confirms that an initial
summons was issued and that action was subsequently withdrawn. If one
has
regard to the opposing affidavit filed, it is clear that the
action was withdrawn despite the fact that there was no tender for
costs. Consequently this point
in limine
is without merit
cannot succeed.
16. In so far as the point
in
limine
relation to an abuse of process is concerned the
respondent’s rely on lack of urgency and
lis pendens
for
this ground of opposition. In light of the conclusion that I have
come to in relation to urgency and in
lis pendens
I am of the
view that there has not been an abuse of process.
17. The question to be determined is
whether or not the denial by the respondent of the valid termination
of “MD2” raises
a genuine of
bona fide
dispute.
18. If the respondent is correct that
then its counter application must succeed.
19. The approach taken to factual
disputes was set out in Plascon Evans Paints Ltd v Van Riebeck (Pty)
Ltd
4
.
Gorbet JA held the following:
“
It
is
correct that, were in proceedings are notice of motion disputes of
fact have arisen on the affidavit, a final order, whether
it be an
interdict or some other form of relieve maybe granted if those facts
averred in the applicants affidavit’s 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 in 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
Uniformed Rules of Court… and the Court is satisfied as to the
inherent credibility of the applicants
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, they
maybe exceptions to this general rule,
as, for example, were the
allegations or the denials of the respondents are so far fetched or
clearly untenable that the Court
is justified in rejecting them
merely on the papers.
20. Various decisions have dealt with
the test to be applied
5
Da Mata v Otto N O
1972 (3) SA 858
(A)
@ 882 D-H. In
National
Director of Public Prosecutions V Zuma
6
held that were a version consists
of “bald or uncredit worthy denials raises vicious decisions of
fact, is palpably implausible
far fetched or so clearly untenable
that the court is justified in rejecting them merely on the papers.
21. The respondent contends itself
with a mere denial of the cancellation of “MD1”. No facts
are placed before the court
to justify such a conclusion.
Economou
on behalf of the respondent in fact confirms signature of “MD2”
but alleges that same was signed under pressure
and without any
resolution from his fellow directors. In addition he avers that in
light of the fact that the other directors did
not sign “MD2”
it cannot be valid.
22. The applicant alleges that the due
to the fact that “MD2” was concluded, a reinstatement of
lease agreement, there
was no need to contain the action.
Instructions were given to its erstwhile attorneys to withdraw the
actions at the time of arguing
the matter the action had been
withdrawn.
23. The negotiation in respect of the
“MD1” and “MD2” done by Economou on behalf of
the respondent and Dowesly.
Economou signed “MD1” on
behalf of the respondent as tenant and signed “MD2” as
well. In “MD2”
he specifically records that he denies the
above mentioned to depose on behalf of the respondent .The fact of
cancellation of “MD1”
is recorded in the preamble of
“MD2”. “MD2” further records the change in
tenancy on a month to month basis,
the non- variation clauses and the
retention of clauses in “MD1” which have not been by
“MD2”
24. In so far as the cancellation of
“MD1” is concerned, the respondent’s rely on the
following:
1. Economou does not have authority to
lay the other directors without a resolution;
2. “MD 5” which records
denial of the valid cancellation of “MD1” on the basis of
a breach by the respondent.
The letter further records that the
breach has been remanded and cannot be relied on;
3. “MD 6” which once again
records that the respondents dispute the validity of the cancellation
of the lease agreement
and the fact that it is subject to a month to
month tenancy.
25. No basis for the denial of the
cancellation or the monthly tenancy are recorded in “MD 5”
and “MD 6”.
DATE OF HEARING: 12 MARCH 2012
DATE OF JUDGMENT: 13 NOVEMBER 2012
APPLICANT’S ATTORNEYS: GIDEON
PRETORIUS INC
8
TH
FLOOR, OLD MUTUAL
BUILDING
300 ANTON LEMBEDE STREET
DURBAN
REF: ABRI KRITZINGER
APPLICANTS COUNSEL: AJ TROSKIE SC
RESPONDENT’S ATTORNEY: THOMPSON
WILKS INC
C/O DEAN CARO & ASSOCIATES
147 COWEY ROAD
MORNINGSIDE
DURBAN
REF: MR CARO
RESPONDENT’S COUNSELS: K W
LUDERITZ
HJ SNYMAN
1
See
Chetty v Naidoo
1974 (3) SA 13
(AD) @ 20 B-D
2
1931
TPD 476
@ 479
3
Chetty
v Naidoo @ Supra @ 21 D- 24 A
4
[1984] ZASCA 51
;
1984
(3) SA 623
( A) @ 634 H – 635 C
5
Room
Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd
1949 (3) SA 1155
(T) @ 1163-1165
6
[2009] ZASCA 1
;
2009
(2) SA 277
SCA @ para 26 Harums DP