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[2012] ZAKZDHC 79
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Interactive Trading 269 (Pty) Ltd v Cypress Entertainment CC (9919/2011, 793/2012) [2012] ZAKZDHC 79 (16 November 2012)
IN
THE KWAZULU-NATAL HIGH COURT, DURBAN
REPUBLIC
OF SOUTH AFRICA
CASE
NO: 9919/2011
In
the matter between:
INTERACTIVE
TRADING 269 (PTY) LIMITED
......................................
Applicant
and
CYPRESS
ENTERTAINMENT CC
....................................................
Respondent
________________________________________________
CASE
NO: 793/2012
In
the matter between:
INTERACTIVE
TRADING 269 (PTY) LIMITED
...............................
First Applicant
TEAZERS
COMEDY AND REVUE CC
.......................................
Second
Applicant
and
CYPRESS
ENTERTAINMENT CC
.............................................
First
Respondent
SHAUN
CRAIG RUSSOUW
................................................
Second
Respondent
______________________________________________________
JUDGMENT
______________________________________________________
Delivered : 16 November 2012
M PILLEMER, AJ:
[1] The late Emmanuel (Lolly)
Jackson and Shaun Craig Russouw (“Russouw”) operated a
nightclub known as Teazer’s-Durban
in Springfield Park, Durban.
The nature of their business relationship is an issue in the
litigation.
[2] Jackson died on 3 May 2010. At
the time of his death he was the sole director of Interactive Trading
269 (Proprietary) Limited
(“Interactive Trading”).
Jackson’s widow, Demi Megan Jackson (“Demi Jackson”),
replaced her late
husband as sole director of Interactive Trading
after his death.
[3] Interactive Trading owns
immovable property situated at 30 Aloefield Crescent, Springfield
Park, Durban. It is from these premises
that Teazer’s-Durban
conducts its business. It is common cause that a close corporation of
which Russouw is the sole member,
Cypress Entertainment CC, is in
occupation of the premises and operates the nightclub business.
[4] Interactive Trading instituted
proceedings as the applicant under Case No. 9919/11 for the ejectment
of Cypress Entertainment
CC from the Aloefield Crescent premises. In
this judgment Interactive Trading is referred to by name or as “the
applicant”
as is more suitable in the context and Cypress
Entertainment CC similarly is referred to by name or as “the
respondent”.
[5] The cause of action is the rei
vindicatio. The founding affidavit deposed to by Demi Jackson alleges
that Interactive Trading
is the owner of the property. She has
annexed a copy of the title deed demonstrating ownership. She makes
the allegation that Cypress
Entertainment CC is in occupation against
the applicant’s will and on behalf of the applicant seeks
ejectment. The affidavit
goes on to allege that an oral lease had
been concluded for a rental of R20,000 a month in February 2008, that
the respondent had
taken occupation under that lease and remained in
occupation notwithstanding the cancellation thereof. An ejectment
order is sought
by the owner to recover possession of its property.
[6] In the answering affidavit
deposed by Russouw, he makes the point that Demi Jackson has no
personal knowledge of the agreement
he had with her late husband; he
denies the existence of a lease; he points out that Cypress
Entertainment CC only came into existence
in 2009 and could not have
concluded the alleged lease and then contends that respondent has the
right to remain in occupation
of the premises by reason of a
partnership agreement he on behalf of the respondent had concluded
with Jackson representing the
applicant in September 2009. The case
he makes is that the partnership is one between his close corporation
and Jackson’s
property owning company, Interactive Trading. In
reply Demi Jackson does not challenge the evidence that she has no
personal knowledge
of the agreements between her late husband and
Russouw, accepts that there is no lease, but nonetheless
notwithstanding her lack
of direct knowledge of the facts places the
existence of the alleged partnership between Interactive Trading and
Cypress Entertainment
CC in issue, challenging the plausibility of
the version of that partnership as set out by Russouw in the
answering affidavit,
which she contends is fanciful and should be
rejected by the court on the papers.
[7] Not content with disputing the
existence of the partnership, Demi Jackson decided to cover her bets
and, on behalf of Interactive
Trading, gave notice terminating any
partnership that may exist between Interactive Trading and Cypress
Entertainment CC, or with
Russouw. This she did by letter dated 12
January 2012. She followed this up with an urgent application brought
by Interactive Trading
as a first applicant for an accounting and the
appointment of a liquidator to the estate of the partnership. This
second application
was brought under Case no. 793/2012.
[8] Both cases were set down for
hearing on the same date and argued together by agreement between the
parties.
[9] The line taken on behalf of the
applicant in the ejectment application was that the court should find
that the version of the
respondent should be rejected on the
affidavits without reference to oral evidence. Applicant sought as
primary relief an ejectment
order. In the alternative it was
contended that should I decide against the applicant on this approach
and dismiss the application
for ejectment, then Interactive Trading
as an applicant in the application for an account and the appointment
of a liquidator to
the partnership estate seeks relief under the
second application on the basis that the partnership has been
repudiated and thus
come to an end necessitating, in the light of the
disputes between the parties, the appointment of a liquidator. Apart
from costs
this is the only relief now persisted in conditionally in
relation to the second application.
[10] When the matter was argued Mr
Lamplough, counsel for Interactive Trading, made an unequivocal
election not to have the matter
referred for oral evidence for the
cross-examination of Russouw with regard to the existence of the
partnership and its terms.
Mr Lamplough was emphatic that his client
did not consider such an approach would provide meaningful relief due
to the delay that
would be inevitable on that approach and he made it
clear that a referral to evidence should not be made
mero motu
by the court. Mr Findlay SC, who with Mr Ungerer appeared for Cypress
Trading CC in both applications, also elected not to seek
a reference
to oral evidence.
[11] The ejectment case thus is to
be decided under the rule in
Plascon-Evans Paints Ltd v Van
Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(A) at 634E–F
(where it was held that the court must deal with the matter on the
basis of the respondent’s version
coupled with the admitted
facts in applicant’s papers).
[12] Mr Findlay submitted that the
double barreled approach to the litigation adopted by Interactive
Trading was not permissible
since it amounted to approbating and
reprobating. He contended that Interactive Trading had to make an
election either to accept
or reject the partnership. It was his
contention that it could not do both, even in the alternative or
conditionally as it has
attempted to do. Once having denied the
existence of the partnership and then persisting in that denial in
the ejectment application,
Mr Findlay submitted that it is not
permissible for an applicant to purport to terminate a partnership it
denies exists. He submitted
that a litigant in law may not base his
or her case on the defendant’s defence, which the litigant
contends is untrue.
[13] What has to be decided first is
whether or not on the papers the respondent has made a case that on
the application of the
Plascon Evans rule is sufficient to withstand
the ejectment application because, if that is answered in the
negative, then whether
or not the first applicant can change horses
after the first horse falls and ride off in the opposite direction on
the second horse
whose very existence she does not accept, does not
arise if the first horse does not fall.
[14] The evidence of Russouw with
regard to the partnership and its terms is of course not contradicted
by other testimony since
the only person who could have done so is
the late Emmanuel Jackson. This in itself does not mean that the
evidence has to be accepted.
In
Da Mata v Otto NO
1972 (3) SA
858
(A) at 869D–E, the following was said:
“
In regard to the
appellant’s sworn statements alleging the oral agreement, it
does not follow that because these allegations
were not contradicted
– the witness who could have disputed them had died –
they should be taken as proof of the facts
involved.
Wigmore
on Evidence
,
3ed., vol. VII, p.260, states that the mere assertion of any witness
does not of itself need to be believed, even though he is
unimpeached
in any manner, because to require such belief would be to give a
quantative and impersonal measure to testimony. The
learned author in
this connection at p. 262 cites the following passage from a decision
quoted:
‘
it
is not infrequently supposed that a sworn statement is necessary
proof, and that, if uncontradicted, it established the fact
involved.
Such is by no means the law. Testimony, regardless of the amount of
it, which is contrary to all reasonable probabilities
or conceded
facts-testimony which no sensible man can believe-goes for nothing;
while the evidence of a single witness to a fact,
there being nothing
to throw discredit, cannot be disregarded.’”
Also in
Siffman v
Kriel
1909 TS 538
, Innes CJ at 543 says:
“
It
does not follow, because evidence is uncontradicted, that therefore
it is true . . . The story told by the person on
whom the
onus rests may be so improbable as not to discharge it.”
[15] The evidence given by Russouw
to prove the existence of the partnership between Interactive Trading
and Cypress Entertainment
CC is set out in paragraphs 6 (d) to 6(i)
of the answering affidavit. I set this out below:
“
6
(d) The Respondent
remains in occupation of the premises in pursuance of an oral
partnership agreement entered into between the
parties on or about 14
September 2009 and at or near Durban.
(e) In concluding the
agreement the applicant was duly represented by Emmanuel Jackson
(Jackson), who at the time was the sole director
of the applicant and
I represented the respondent as its sole member.
(f) The partnership
agreement replaced a previous agreement of partnership between the
applicant and me in terms of which the applicant’s
contribution
was to make available the premises in which the partnership business
was to be conducted and my contribution was to
control its day to day
activities and generally manage the business under the trading name
of “Teazer’s-Durban”.
In addition as part of my
contribution I assumed interim liability for all expenses incurred in
improving the premises for the
successful operation of the
partnership business. It was a material term of the original
partnership agreement that in the absence
of any further contractual
arrangement to the contrary these expenses incurred by me would
constitute a loan to the partnership
in the sense that they would be
repaid should the partnership be dissolved. No further agreement in
respect of these expenses was
reached save for the transfer of my
right of repayment to the respondent referred to below. They
accordingly remained a repayable
loan.
(g) The effect of the
new partnership agreement was that the respondent simply replaced me
as a partner and save for the change
in partners would continue as
before. It was specifically agreed that the new partnership would
assume the liability for the monies
I had advanced to the old
partnership under the previous partnership agreement thereby
transferring my rights of repayment to the
respondent. The remaining
terms and conditions of the partnership remained the same.
(h) The material
express, alternatively implied, further alternatively tacit terms of
the new partnership agreement were,
inter alia
, as follows:
The partnership would
continue trading under the name “Teazer’s –
Durban”.
The applicant and
respondent in partnership would occupy and use the premises as the
previous partnership had before and the respondent
would continue to
fund any improvements to the premises as I had previously done. The
nature of the business caused this to be
a virtually an ongoing
liability.
Profit would continue
to be shared as and when available.
In the event that the
partnership were to be dissolved then, prior to such dissolution, a
proper accounting and debatement would
take place in which the costs
of improvement would be deducted from the profits as well as any
drawings made by the parties during
the currency of the partnership.
Thereafter a 50% division would take place. As it was anticipated
that such process would take
time due to the complexity thereof it
was a term of the partnership agreement that until the accounting
and debatement was finalized
and the partnership liquidated it would
continue to trade which it was viable and of financial benefit to do
so.
(i) During the course
of the new partnership between the parties hereto the applicant
represented by Jackson and me on behalf of
the respondent made such
drawings as the profitability of the partnership would allow.”
[16] The parties are
ad idem
that an email was sent setting out what emerged from a meeting held
to try and resolve issues. The accountant acting for Russouw
sent the
email to the attorney representing Demi Jackson. No issue was made as
to the admissibility of the email and both parties
referred to it in
their papers. It provides important insights and is quoted in full
below:
“
Hi Allan,
Thank you for affording
us the opportunity in settling the Durban Operation.
As I understand the
conclusion of the meeting was as follows:
Cypress Entertainment
CC will remain status quo for the operation known as Teazers –
Durban.
In return, they will
pay a monthly fee to be determined by Teazers Pty Ltd. A “license
agreement” or “franchise
type agreement” will be
entered into.
A lease agreement will
be entered into between Interactive Trading and Cypress for the
rental of the property. The rent to be paid
will also be negotiated
through you.
Please inform us as to
who is Interactive Trading and who is their legal representative.
These agreements are to
be retrospectively dated to 1 June 2010.
The agreement to be in
place ASAP as you require same for the winding up and liquidation of
Teazers Comedy and Revue CC.
Franchise Type
Agreement.
At the time of Lolly
Jackson’s death, there was an arrangement in place whereby
R100,000 (One Hundred Thousand rand) was paid
to him from Durban.
It was thought to be
pertinent to continue with this agreement.
However, the World Cup
came and went with a negative impact on the operation. In August
Durban was raided by home affairs resulting
in 3 dancers been able to
work. As you know this is totally unacceptable. Head Office knew of
the problem but did not assist by
sending dancers or any other form
of assistance was offered.
Business took a dive
and only in November did things start to get back to normal. Then the
Festive Season came and went with revenue
taking a hiding.
Whilst we agree with
the R100,000 charge for June & July, we feel that if all things
being equal, Mr Jackson would have reduced
his fee as the turnover is
not there to substantiate it. During the 3 famine months no fees
payable.
In summary our account
is as follows:
June R100,000
July R100,000
August 00.00
Sept 00.00
October 00.00
November R40,000
December R40,000
January R40,000
February R40,000
Total Due including
Rent R360,000
We have transferred
R200,000
Teazers fee from
Advocate re Corporate Visa
Paid by Durban Advocate
R100,000
Amount due for February
R 60,000
As you are well aware
the R100,000 paid to Mr Jackson was deemed to include VAT.
All charges to the bank
account were included in this amount.
PAYE, SDL, UIF, VAT was
also included in this payment.
In reality therefore
Cypress is contributing more than its fair share.
We would therefore
require invoices made out by the relevant companies from June 2010.
1) a franchise fee of
R20,000 inclusive of VAT
2) Advertising fee of
R10,000 inclusive of VAT. This is payable and due ONLY when the
advertising manager includes advertising for
the KZN region. For the
record the website regarding Durban still has Leon as the manager. He
left us in June 2006. So what are
we paying for?
3) Lease Charges direct
to the Property Company.
LEASE CHARGE
We were told that the
rental was R20,000 per month including VAT.
This is acceptable to
us however, when the building was purchased Mr Jackson told Shaun to
upgrade and extend the club. This meant
that walls had to be
demolished a mezzanine floor was to be erected plus tiling the entire
area.
The material cost
amounted to R380,000 and labour amounted to R470,000. A total cost of
R850,000.
Mr Jackson told Shaun
that he would be reimbursed him once the club was finished.
Mr Jackson came to
Durban for the Grand Opening and instructed Ricardo to repay Shaun
the money. Ricardo has all the invoices as
he was going to claim the
VAT on the alterations and repay Shaun. To date obviously nothing has
transpired.
We propose that we
recoup these charges from the “Landlord” amortized over
the 48 months.
Durban Loan 1 and 2
I am attaching a
schedule given to me by Paul. Neither Shaun nor myself can make out
what the “Loans” are for. The narratives
are not
descriptive and therefore make no logical sense.
All I can reiterate is
that with the R100,000 paid to Teazers covered all aspects of the
business.
Please investigate and
hopefully tell us that the schedules were given to us in error.
Looking forward to your
positive response.”
[17] The crucial question is whether
or not there was a partnership between the two corporate entities,
Interactive Trading and
Cypress Entertainment CC as opposed to one
between Russouw and Jackson or between Jackson and Russouw’s
close corporation,
Cypress Entertainment CC or a franchise type
agreement or some other arrangement.
[18]
Prima facie
it is
improbable that a partner to a venture like this would be a property
owning company. The whole purpose behind having a property
owning
company is to distance the property from the risky business
enterprise and to protect it from creditors should the business
enterprise fail. So one would have expected some explanation as to
why what is
prima facie
unusual would be agreed.
[19] A further feature is that a
partnership between individuals terminates on the death of one of the
partners. Russouw deals with
the death of Jackson in paragraph 6(k)
of his affidavit in the following manner: “Jackson died on 3
May 2010 although this
did not affect the partnership as Jackson was
not a partner in his personal capacity.” It was important
therefore for Russouw
for the applicant, Interactive Trading and not
Jackson personally to be the partner and he clearly appreciated this
since he expressly
mentions it and draws the distinction, when there
was no reason to have done so, which points to there being a
sensitivity on this
aspect and a motive to bend the truth.
[20] Russouw relies upon an oral
agreement and in those circumstances certain evidence is essential to
establish the
bona fides
of the defence. What one would expect
is evidence of the circumstances under which the contract of
partnership was concluded; why
it was to be the applicant rather than
Jackson personally that entered into the partnership; an explanation
as to why a property
owning company would take the risk of being a
partner in a business venture and why they decided to do things this
way; where the
agreement was reached and how the terms were expressed
if express terms were relied upon and which of the terms was express;
why
it is contended that terms were to be implied or were tacit and
what these terms were and how the conclusion that they are terms
arises; why there is no written agreement or tax records, accounts or
other documentation to support the version set out in the
affidavit.
None of this appears in the answering affidavit. Instead what Russouw
has done is to set out the terms as if in a cumbersome
pleading,
essentially setting out a legal conclusion without setting out the
facts that give rise to that conclusion. It is not
a written document
that is being summarised it is an oral arrangement where the detail
of the circumstances and what was said or
done is vital. The
defective approach is most evident in paragraph 6(h) where the
introductory words are: “The material express,
alternatively
implied, further alternatively tacit terms of the new partnership
agreement were ….” This is an unsatisfactory
way of
setting out evidence in an affidavit, particularly when it is not a
concluding paragraph following facts that could lead
to one of a
number of conclusions and where the wording may perhaps be
acceptable.
[21] If these features that cause
disquiet are tested for consistency and credibility against the email
quoted earlier the problems
are significantly magnified. It is
decidedly odd for the author of the email to make the enquiry: “Who
is Interactive Trading?”
when it is on Russouw’s case the
principal and partner, the owner of the property and the central
player. The author of the
email was clearly not of that view and saw
Jackson as the business partner; not necessarily in the strict sense
of partnership
either from what else is set out in the email.
[22] The two sentences in the email:
“At the time of Lolly Jackson’s death, there was an
arrangement in place whereby
R100,000 (one hundred thousand rand) was
paid to him from Durban. It was thought pertinent to continue with
this agreement.”
are inconsistent with the Applicant being a
partner who shared in profits. The payments referred to were
obviously in the view
of the author of the email being made to
Jackson personally in terms of an agreement with him. The R100,000
per month is later
in the email described as a “fee”
earned by Jackson. This is inconsistent with any form of partnership
and totally
inconsistent with the partnership contended for by
Russouw. Finally the R100,000 is said at the end of the email to be a
payment
to Teazers (a reference to the “franchisor”) and
to cover all aspects of the business. Yet again this is inconsistent
with the partnership relied upon by Russouw.
[23] The total amount due to Jackson
is tabulated in the letter and appears against an entry reading: “
Total Due including
Rent”. This too is inconsistent with the
partnership that Russouw deposes to in the answering affidavit in
terms of which
no rental was payable. The rent referred to is
expanded upon later in the email where the author records: “We
were told that
the rental was R20,000 per month including VAT.”
The past tense is used and appears to refer to the historical rental
payable
by Russouw or his close corporation for the use of the
premises and included in the R100,000. The rental was also paid to
Jackson
or Teazers but not to the applicant, which is another feature
that is inconsistent with the alleged partnership.
[24] The email also deals with the
claim for the cost of improvements to the premises and to support the
claim the following is
said: “ Mr Jackson told Shaun that he
would reimburse him once the club was finished.” No mention of
Interactive Trading
and it is the late Mr Jackson that was going to
do the reimbursing not the applicant. This too is at odds with what
is said in
the affidavit.
[25] The author of the email was
clearly unclear as to the nature of the role played by Jackson and
Teazer’s (Pty) Ltd which
emerges from the manner in which the
payment of R100,000 to Jackson is dealt with in the email and
specifically when it is said
that “PAYE, SDL, UIF, VAT was also
included in this payment”. PAYE, SDL, and UIF would relate to
payment of remuneration
and VAT to a fee or royalty payment perhaps.
None would relate to drawings as a partner by a corporate entity. No
return is provided
to explain what was meant in the email, which in
this respect contradicts the version of the partnership as set out in
the answering
affidavit.
[25] The most telling thing about
the email is that it makes no reference at all to the alleged
partnership between Interactive
Trading and Cypress Entertainment CC,
yet it is dealing with a proposed formalising of the business
arrangement. The most crucial
feature was the termination of the
partnership, which is dealt with very specifically in the answering
affidavit yet in the email
where one would expect the implications
for the partnership to be dealt with, had it existed, nothing at all
is said. The affidavit
does not ring true and the question that has
to be answered is whether or not it must just be taken at face value
and the case
decided on that version as suspect as it is.
[26] The Supreme Court of Appeal in
the case of
Buffalo Freight Systems (Pty) Ltd v Crestleigh Trading
(Pty) Ltd and another
2011 (1) SA 8
(SCA);
[2011] 1 All SA 1
(SCA) at paragraphs 19 and 20 set out the approach that a court must
adopt in circumstances such as the present to decide whether
the
averments in the answering affidavit can be accepted or not. It is
the duty of the court to undertake an objective analysis
of the
disputes when required to do so as is explained in the following
extract from the judgment.
[19]
The court
a quo
approached the matter on the basis that the
facts pertaining to the agreement of 5 May 2008 were in dispute and
that there had been
no request by the appellant that the matter be
referred for evidence or trial. It then applied the principle in
Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984
(3) SA 623
(A) at 634E–F (where it was held that the court must
deal with the matter on the basis of the respondent’s version
coupled with the admitted facts in applicant’s papers).
However, in
Truth Verification Testing Centre CC v AE Truth
Detection CC and others
1998 (2) SA 689
(W) at 698H–J,
Eloff AJ said:
“
I
am also mindful of the fact the so-called robust common-sense,
approach which adopted in cases such as
Soffiantini
v Mould
1956
(4) SA 150
(E) in relation to the resolution of disputed issues on
paper usually relates to situations where a respondent contents
himself
with bald and hollow denials of factual matter confronting
him. There is, however, no reason in logic why it should not be
applied
in assessing a detailed version which is wholly fanciful and
untenable.”
I
respectfully agree. The court should be prepared to undertake an
objective analysis of such disputes when required to do so. In
JW
Wightman (Pty) Ltd v Headfour (Pty) Ltd and another
[2008] ZASCA 6
;
2008
(3) SA 371
(SCA), it was suggested how that might be done in
appropriate circumstances. The present case calls for a similar
analysis.
[20]
A court must always be cautious about deciding probabilities in the
face of conflicts of facts 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. Nevertheless,
the courts have recognised reasons to take a stronger line to avoid
injustice.”
[27]
In the
Wightman
case Heher JA added that:
“
There
is thus a serious duty imposed upon a legal adviser who settles an
answering affidavit to ascertain and engage with facts
which his
client disputes and to reflect such disputes fully and accurately in
the answering affidavit. If that does not happen
it should come as no
surprise that the court takes a robust view of the matter.”
[28] The first applicant had no
knowledge of the partnership. Russouw was aware that the relevant
facts were within his knowledge.
He had a duty in such a circumstance
to take the court into his confidence and set them out fully. His
silence on the circumstances
under which the improbable partnership
was established is inexcusable and leads to the inference that it was
not capable of substantiation
because it was untrue. There is no
evidence at all as to how the oral agreement came to be concluded.
The “where, when, how”
is the very least one would expect
would be set out. Simply pleading a conclusion and deposing to it
does not constitute evidence,
yet that is what the answering
affidavit largely consists of. If these terms were expressly agreed
one would expect the occasion
where this occurred to be given and the
reasons why the agreement was not reduced to writing provided. If the
terms were implied
or tacit then the evidence of the reasons why this
conclusion is drawn and the evidence on which it is based should be
provided.
Yet the deponent contends himself with the form “express,
alternatively implied, alternatively tacit” to set out the
terms of the partnership agreement. Heher JA in
Naidoo v Sunker
(126/11)
[2011] ZASCA 216
deals with situation not dissimilar to
the present situation in an ejectment case where he referred to his
earlier judgment in
Wightman t/a J W Construction v Headfour (Pty)
Ltd and another
[2008] ZASCA 6
;
2008 (3) SA 371
(SCA) paras 11 to 13 and went on
to say:
“
The
alleged knowledge of the respondents concerning the long lease was
averred without reference to any detail as to when, where
and how the
information was communicated to them. Such facts being peculiarly
within the knowledge of the first appellant, his
silence on the
matter is inexcusable and explicable only by the inference that the
bald allegation was false or not capable of
substantiation.”
[29] I have come to the conclusion
that the defence of the partnership existing between the applicant,
Interactive Trading, and
the respondent, Cypress Entertainment CC is
fanciful and not sustainable on the papers before me. This is one of
those rare cases
where the respondent’s version is so clearly
untenable that the court is justified in rejecting that version
merely on the
papers. The rei vindicatio accordingly succeeds and so
in application under Case No. 9919/11 the applicant is entitled to an
ejectment
order as prayed to take effect on 30 November 2012. Costs
will follow the result.
[30] In the application under Case
No. 793/12 no order is made, which is what the applicant sought if I
found for it in the first
application. The two cases are closely
linked and having regard to the result I am of the view that the
appropriate costs order
in the second application is one where each
party will bear its or his own costs.
[31] In the result the following
orders are made:
Case No. 9919/11
(a) The respondent, its successor in
title and everybody holding under or through it (“the
occupier”) is ordered to
vacate premises situated at No 30
Aloefield Crescent, Springfield Park, also known as Portion 79 of Erf
391 Springfield, Registration
Division FT, Province of KwaZulu-Natal
(“the premises”)
(b) In the event of the occupier
failing to comply with paragraph 1 on or before 30 November 2012,
that the Sheriff be and he is
directed and authorised to do all
things necessary to evict the occupier from the premises.
(c) The respondent is ordered to pay
the applicant’s costs.
Case No. 793/12
No order is made on the application
Each party is to bear its/his own
costs
____________________
M PILLEMER, AJ
Counsel for the Applicant: AJ
Lamplough
Applicant’s Attorneys: Beukes
& Sonja Nel Attorneys
Counsel for the Respondent: A
Findlay SC and RG Ungerer
Respondent’s Attorneys: Weber
Attorneys
Date of hearing
: 9 November 2012
Date of Judgment
: 16 November
2012