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[2011] ZANCHC 22
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Lodestone Investments 2 (Pty) Ltd v Daniel Zenegu Moses t/a Mini Boutique (656/2011) [2011] ZANCHC 22 (30 September 2011)
Verslagwaardig:
Sirkuleer
Aan Regters:
Sirkuleer
aan Streeklandroste
Sirkuleer
Aan Landdroste:
JA
/ NEE
JA
/ NEE
JA
/ NEE
JA
/ NEE
IN
THE HIGH COURT OF SOUTH AFRICA
(Northern
Cape High Court, Kimberley)
Saakno: / Case number:
656 / 2011
Datum
verhoor: / Date heard:
26 / 08 / 2011
Datum
gelewer: / Date delivered:
30 / 09 / 2011
In the matter between:
LODESTONE
INVESTMENTS 2 (PTY) LTD
…................................
Applicant
and
DANIEL ZEGENU MOSES
T/A MINI BOUTIQUE
…....................
Respondent
Coram:
Hughes-Madondo AJ
JUDGMENT
HUGHES-MADONDO AJ
The applicant seeks
the eviction of the respondent and/or any other occupant from its
premises at Shop 6 (previously shop 4) Old
Mutual Centre, Corner
York and Jones Street, Kimberley (“the premises”).
In April 2011 the
applicant first instituted eviction proceedings citing Daniel Zegenu
Moses t/a MINI BOUTIQUE as the respondent.
This is the present case.
Sometime in July 2011 the applicant then instituted the same
eviction proceedings against SELAM BOUTIQUE
CC under case number
1051/2011. The applicant contends that the respondents cited in both
cases are one and the same, and are
occupying its premises.
Initially, the
applicant sought to consolidate both matters however at the
commencement of the proceedings the applicant abandoned
the
consolidation application and opted to deal with this eviction
application instead.
This application was
brought on an urgent basis and was scheduled to be heard on 29 April
2011. The respondent opposed the application
and raised a
point
in limine
. The matter was postponed
sine die
and placed
on the opposed roll with the costs reserved. In addition the court
ordered that when the matter was heard, the
point in limine
raised by the respondent be dealt with in the merits of the
application.
I now turn to deal
with the respondent’s
point in limine.
The respondent
contends that in these proceedings the applicant has cited the wrong
party as being in occupation of its premises.
It is therefore
prudent to set out briefly the background in order to understand the
point raised by the respondent.
On 30 May 2006 the
applicant, being the owner of the premises, entered into a written
lease agreement with Henok-Mekuria Tefera
(“Tefera”).
The duration of the lease agreement would be for the period 1 April
2006 to 31 March 2011.
According to the lease
agreement there would be no cession of any rights pertaining to the
lease and there would be no subletting
of the premises without prior
consent from the applicant. Another relevant term of the lease was
that renewal of the lease had
to take place four months prior to the
expiration of the lease.
Tefera traded as MINI
BOUTIQUE at the applicant’s premises.
On 7 October 2009
Tefera sold his business MINI BOUTIQUE to Danial Zegenu Moges
(Moges). In the sale agreement Tefera ceded the
lease to Moges and
the latter would occupy the premises. Moges would also pay the
rental in respect of the leased premises directly
to the applicant.
The applicant stated
that it only became aware of the aforesaid sale between Tefera and
Moges in May 2010. Further, that it was
never a party to the sale
and had never consented to the cession and occupation of its
premises by Moges.
Be that as it may, the
applicant continued to accept rental payments from Moges and allowed
Moges to occupy the premises.
On 22 June 2010 the
applicant sent a “New Tenant Application form” to Moges.
Moges completed the form and returned
it to the applicant. In
completing this form Moges stated that the prospective new tenant
was “MINI BOUTIQUE (as its registered
business name) under
“SELAM BOUTIQUE CC”.
In addition Moges also
attached the following documents to the New Tenant Application form:
(a) CIPRO registration
of SELAM BOUTIQUE CC;
(b) tax clearance
certificate of SELAM BOUTIQUE CC;
(c) proof of Moges’s
residence from Phokwane Municipality;
(d) identity document
of Moges; and lastly
(e) bank statements of
SELAM BOUTIQUE CC.
Thus by June 2010 the
applicant became aware that MINI BOUTIQUE was in occupation of the
applicant’s premises. It was further
aware that though MINI
BOUTIQUE was the trading name, MINI BOUTIQUE traded so under SELAM
BOUTIQUE CC.
The law as regards a
close corporation is clear. Upon registration of a close corporation
it becomes a juristic person and continues
to exist as such
notwithstanding the change in its membership until it is
deregistered or dissolved. See
section 2(2) of
Close Corporations
Act 69 of 1984
.
A close corporation
would therefore have its own legal
persona
which is distinct
from the natural persons that make up its membership, and can sue
and be sued. See
Dadoo Ltd v Krugersdorp Municipal Council
,
1920 AD 530
as regards legal
persona
.
Having regard to the
law above, and if one examines the facts of this case, it is clear
that the SELAM BOUTIQUE CC, a close corporation,
would have its own
legal
persona
which would distinct from that of Moges.
[19] The applicant,
being well aware before it instituted these proceedings, that the
occupier of the premises was MINI BOUTIQUE
with the registered
business being SELAM BOUTIQUE CC, still opted to proceed against
Moges instead of against the close corporation.
[20]
Realising that it had erred, the applicant then proceeded to
institute proceedings against SELAM BOUTIQUE CC, in July 2011
under
case number 1105/2011. At this stage the applicant should have
withdrawn these proceedings as it was clearly now evident
that they
had proceeded against the incorrect party. In the result the
respondent’s
point
in limine
must
succeed.
[21] It is trite that
costs usually follow the successful party. The costs which were
reserved on the previous occasion become due
at this stage. The
applicant being aware as far back as June 2010 that SELAM BOUTIQUE CC
was suppose to have been cited as the
occupier of it premises, it
therefore stands to reason that the applicant is liable for all the
costs inclusive of those reserved
on the previous occasion.
[22] I therefore make
the following order:
The application is
dismissed with costs inclusive of the costs reserved on 29 April
2011.
_____________________________
W HUGHES-MADONDO
ACTING JUDGE
NORTHERN CAPE HIGH
COURT, KIMBERLEY
osts of such procee
Obo
Applicant:
Adv. De Beer obo L.Coetzee Attorneys
Obo
Respondent:
Mr. M. Fletcher of Fletcher’s Attorneys