About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Kwazulu-Natal High Court, Pietermaritzburg
SAFLII
>>
Databases
>>
South Africa: Kwazulu-Natal High Court, Pietermaritzburg
>>
2011
>>
[2011] ZAKZPHC 48
|
|
Hansco Motors CC t/a Hansa Motors v BP Southern Africa (Pty) Ltd and Another (5980/2011) [2011] ZAKZPHC 48 (12 August 2011)
IN THE KWAZULU-NATAL HIGH COURT,
PIETERMARITZBURG
REPUBLIC OF SOUTH AFRICA
Case
No: 5980/2011
In
the matter beaten:
HANSCO
MOTORS CC t/a HANSA
MOTORS
…...............................................
Applicant
and
BP
SOUTHERN AFRICA (PTY) LTD
…...................................................
1
st
Respondent
THE
CONTROLLER OF PETROLEUM PRODUCTS
….........................
2
nd
Respondent
J
U D G M E N T
SEEGOBIN
J
INTRODUCTION
[1] The applicant is HANSCO MOTORS CC
t/a HANSA MOTORS (“the applicant”). The first respondent
is BP SOUTHERN AFRICA
(PTY) LTD which will hereafter be referred to
simply as “the respondent”. Although the Controller of
Petroleum Products
was cited as the second respondent, no relief is
sought against it nor has it participated in these proceedings.
[2] The relief sought by the applicant
is the following:
“
1.
That this Honourable Court dispense with the usual forms and services
provided for in the Uniform Rules and that this application
be
disposed with as a matter of urgency in terms of Rule 6(12);
That
a
rule nisi
be and is hereby issued calling upon the first
and second respondents and any interested parties to show cause, if
any, on the
day of 2011 why an order should not be granted, pendent
lite, in the following terms:-
That
the first respondent be and is hereby directed to comply with the
mediation and arbitration provisions of the lease agreement
and
ancillary agreements entered into between the applicant and the
first respondent on the 1
st
November 2008 and annexed to
the applicant’s founding affidavit marked “EYH1”
(“the agreements”)
and the arbitration proceedings
submitted to the second respondent in terms of
section 12B
of the
Petroleum Products Amendment Act No 58 of 2003
;
That
the first respondent be and is hereby directed to continue to
comply in all respects with the provisions of the agreements
pending the determination of an action to be instituted by the
applicant and the determination of this application and the
mediation and arbitration proceedings in terms of the agreements
and the determination of the arbitration proceedings submitted
to
the second respondent in terms of
section 12B
of the
Petroleum
Products Amendment Act No 58 of 2003
;
That
the costs of this application be paid by the first respondent and
any other respondents which may oppose this application.
That
paragraphs 2.1 and 2.2 hereof operate as interim orders with
immediate effect;
Such
further, other or alternative relief as this Honourable Court may
deem fit.
”
[3] The application which was launched
urgently on 26 May 2011 and set down on 30 May 2011, was opposed by
the respondent. Due to
the apparent urgency of the matter the learned
Acting Judge President was persuaded to afford the matter preference
on the opposed
roll on 1 July 2011.
[4] The respondent has not only
opposed the application but has also filed a counter-application in
which it seeks a declarator
and an order evicting the applicant from
the premises. The applicant’s application (the main
application) and the counter-application
were argued together. There
was no attempt on the part of the applicant to seek a stay of the
counter-application nor was any case
made out to convince the court
that both applications ought not to be determined
pari passu
.
The latter approach is generally favoured by the courts as being in
the interests of the parties and the final and proper determination
of all issues before it [
Truter v Degenaar
1990(1) SA 206(T)
;
Consol Ltd v Twee Jongegezellen (Pty) Ltd
2002(2) SA 580(C) page
584, paras (18) – (19)]. This is the approach that I intend
taking in this matter.
RELEVANT FACTUAL BACKGROUND
[5] The relevant facts giving rise to
the application as well as the counter-application which are either
common cause or not seriously
disputed are the following:
[5.1] On 1 November 2002 the applicant
and the respondent concluded a sub-lease agreement with regard to a
petrol station.
[5.2] The signed agreement, as at the
date of its conclusion, had a fixed term of two (2) years and nine
(9) months to be calculated
from the commencement date, namely 1
August 2008. However, despite this and as will be seen later on, the
applicant contended that
the fixed term was in fact for five (5)
years and not that recorded in the written agreement.
[5.3] The agreement of sub-lease would
ordinarily terminate by effluxion of time on 31 May 2011.
[5.4] The applicant and the respondent
also concluded, amongst others, a franchise agreement which was
directly linked to the existence
of the lease agreement and would
terminate upon the termination of the sub-lease agreement.
[5.5] The lease agreement between the
applicant and the respondent was also linked to the existence of a
principal lease agreement
concluded between the respondent and the
owner (the Trust) of the leased premises.
[5.6] On 3 January 2011 the respondent
addressed a letter to the applicant confirming that the agreements
between the applicant
and the respondent would terminate on the date
as per the term of the agreement, namely 31 May 2011, and that such
agreement would
not be renewed, extended or relocated.
[5.7] On 9 March 2011, a period of two
(2) months after receipt of the letter from the respondent dated 3
January 2011, the applicant
for the first time reacts to the letter.
[5.8] On 29 March 2011, the applicant
attempted to invoke the mediation provisions in terms of the
agreements.
[5.9] In the period between April 2011
and May 2011 various letters were exchanged between the attorneys
representing the respective
parties.
[5.10] On 14 May 2011 the applicant
attempted to invoke the provisions of section 12B of the Petroleum
Products Act 120 of 1977
(the Act). Notice in terms of section 12B
was served on the respondent on 20 May 2011 (i.e. eleven (11)
calendar days before the
expected termination of the agreement).
APPLICANT’S CASE FOR INTERIM
RELIEF
[6] The applicant has raised three
main grounds for the relief it seeks. These relate to:
the institution of an action by it
for rectification of the lease agreement;
the invocation of the mediation and
arbitration provisions in terms of the agreement; and
the Notice in terms of section 12B of
the Act.
[7] A preliminary issue raised by the
respondent in its opposition to the application concerns the issue of
urgency. It is this
aspect that I intend dealing with first.
URGENCY
[8] The respondent contended that no
urgency whatsoever attached to this application and that on this
basis alone the application
should be dismissed. It submitted that
any urgency which arose was self-created and stemmed from the
applicant’s own dilatory
conduct in bringing the application at
an earlier stage. This is especially so when one considers the
following:
[8.1] On the applicant’s own
version the agreements between it and the respondent were concluded
during November 2008.
[8.2] The sub-lease agreement
specifically records the duration of the lease to be two (2) years
and nine (9) months.
[8.3] Had the applicant seriously
believed that it had grounds to do so, it could have referred the
section 12B Notice to the Controller
of Petroleum Products (second
respondent) at a much earlier stage.
[8.4] The applicant could have
declared a “
dispute
” in terms of any of the
clauses set out in the relevant agreements long before 23 March 2011.
[8.5] If the applicant genuinely
believed that it had a valid and
bona fide
case for
rectification, it could have instituted such proceedings much
earlier.
[8.6] The respondent’s letter of
3 January 2011 provided adequate notice to the respondent that the
agreement was coming to
an end and would not be extended or renewed.
[8.7] On the applicant’s own
version the first time it sought to take issue with the respondent
was on 9 March 2011. On 29
March 2011 it attempts to declare a
dispute, it lodges in terms of section 12B Notice in the middle of
May 2011 and institutes
its action for rectification in May 2011.
[8.8] The urgent application herein
was launched on 26 May 2011 i.e. five (5) calendar days before the
sub-lease was due to end.
The matter was set down on 30 May 2011 i.e.
one (1) day before termination of the sub-lease.
[9] It should be mentioned that while
the issue of urgency was pertinently raised by the respondent both in
its papers and in argument,
the respondent failed to address the
issue at all.
[10] It is trite that a party which
claims that its rights are being infringed, is required to approach
the court at the earliest
possible opportunity for relief. It must
not be dilatory in bringing the application and must show that its
interests warrant an
urgent hearing. [see:
Twentieth Century Fox
Film Corporation and Another v Anthony Black Films (Pty) Ltd
1982(3) SA 582(W) at 586 G]. Not only must an applicant show that
unless urgent relief is granted it will not be afforded substantial
redress in due course but it is also required to show that it
suffered loss which justifies the bringing of an urgent application
[see:
IL & B Marcow Caterers (Pty) Ltd v Greatermans SA Ltd
and Another
1981(4) 108 (C) at 110B and 114]. In the oft quoted
locus classicus
decision in
Schweizer Reneke Vleis Mkpy
(Edms) Bpk v Die Minister van Landbou en Andere
1971(1) PH F11
(T), Trengrove J (as he then was) held that a delay of one (1) month
was sufficient to disallow an urgent application.
[11] In the present matter, the
applicant waited until the eleventh hour before launching its
application for interim relief. The
timing of the application one day
before the sub-lease was due to expire, was opportunistic and
designed to gain the sympathy of
the court. In my view, the conduct
of the applicant constitutes an abuse of the process and for that
reason alone the application
falls to be dismissed. Notwithstanding
my findings in this regard and for completeness of the judgment, I
turn to consider whether
the applicant has made out a case for the
relief it seeks.
APPLICANT’S CLAIM FOR INTERIM
RELIEF
[12] The applicant seeks interim
relief
pendent elite
. It must therefore establish:
a clear right or, if not clear, that
it has a
prima facie
right;
that there is a well-grounded
apprehension of irreparable harm if interim relief is not granted
and the ultimate relief (by way
of the summons issued) is eventually
granted;
that the balance of convenience
favours the grant of an interim interdict; and
that the applicant has no other
satisfactory remedy.
(L F Boshoff Investment (Pty) Ltd v Cape
Town Municipality; Cape Town Municipality v LF Boshoff Investments
(_Pty) Ltd
1969 (2) SA 256
(C) at 267B-E). Where the applicant
cannot show a clear right, and more particularly where there are
disputes of fact relevant
to a determination of the issues, the
Court’s approach in determining whether the applicant’s
right is
prima facie
established, though open to some doubt,
is to take the facts set out by the applicant, together with any
facts set out by the
respondent which the applicant cannot dispute,
and to consider whether, having regard to the inherent
probabilities, the applicant
should (not could) on these facts,
obtain final relief at the trial of the main action. The facts set
out in contradiction by
the respondent should then be considered and
if serious doubt is thrown upon the case of the applicant it cannot
succeed.
(Webster v Mitchell
1948 (1) SA 1186
(W);
Gool v
Minister of Justice and Another
1995 (2) SA 682
(C) at 688C-E;
LF Bashoff Investment (Pty) Ltd v Cape Town Municipality
(
supra
at 267E-G;
Beecham Group Ltd v B-M Group (Pty) Ltd
1977
(1) SA 50
(T) at 55B-E).
In
Beecham Group Ltd v B-M Group
(Pty) Ltd (supra)
the Court stated at 54E-G with regard to the
various factors which must be considered:
‘
I
consider that both the question of the applicant’s prospects of
success in the action and the question whether he would
be adequately
compensated by an award of damages at the trial are factors which
should be taken into account as part of a general
discretion to be
exercised by the Court in considering whether to grant or refuse a
temporary interdict. Those two elements should
not be considered
separately or in isolation, but as part of the discretionary function
of the Court which includes a consideration
of the balance of
convenience and the respective prejudice which would be suffered by
each party as a result of the grant or the
refusal of a temporary
interdict.’
Where the applicant’s right is
clear and the other requisites of an interdict are present no
difficulty presents itself granting
an interim interdict. Where,
however, the applicant’s prospects of ultimate success are nil,
obviously the Court will refuse
an interdict (
Olympic Passenger
Services (Pty) Ltd v Ramlagan
1957 (2) SA 382
(D) at 383B-D;
Beecham Group Ltd v B-M Group (Pty) Ltd (supra
at 54H-55B).
[13] In
Ladychin Investments v
South African National Roads Agency
2001(3) SA 344 NPD at page
353G-H, the following was stated with regard to prospects of success
and the balance of convenience:
“
The
stronger the prospects of success, the less need for such a balance
to favour the applicant; the weaker the prospects of success,
the
greater the need for the balance of convenience to favour him. By
balance of convenience is meant the prejudice to the applicant
if the
interdict be refused, weighed against the prejudice to the respondent
if it be granted
.”
[14] Bearing in mind that the
applicant seeks relief
pendent lite
, it is necessary to
determine whether it has any prospects of success in respect of any
future action (for rectification) and/or
its claim for mediation or
arbitration in terms of the lease agreement. Before considering these
issues it is useful to set out
the salient facts relied on by both
parties.
APPLICANT’S CASE
[15] According to the applicant, the
sub-lease was supposed to be for five (5) years and not for a period
of two (2) years and nine
(9) months as recorded therein. The sole
member of the applicant is one Haffejee who avers that when he sought
clarity from the
respondent, he was informed by its officials that
once the Head Lease was “
secured
”, the remainder
of the five (5) years would be added to the agreement which would
allow the sub-lease to terminate on 31
July 2013 (paragraphs 13 and
14 of founding affidavit). Referring to the top left hand side of the
front page of the agreements,
the rental calculation sheet provided
by the respondent and a letter (unsigned) allegedly received from the
respondent on 9 July
2009, all of which reflect the 31 July 2013 as
the expiry date of the sub-lease, the applicant contends that this is
consistent
with the representations made to it by the respondent’s
officials (paragraphs 15, 17 and 18 of the founding affidavit). The
applicant accordingly contends that all of this constitutes a
continuing common intention of the parties to terminate the sub-lease
on 31 July 2013.
[16] On 29 March 2011 the respondent
issued a notice in terms of which it purports to raise a dispute in
terms of clause 39 of the
Standard Terms and Conditions of the
Sub-Lease and clause 28 of the Franchise Agreement.
[17] The applicant contends that the
termination of the lease by the respondent in terms the letter dated
3 January 2011 constitutes
“
an unfair and unreasonable
contractual practice
” within the meaning of
section 12B
of
the
Petroleum Products Act. According
to the applicant the
respondents conduct is unfair for the following reasons, viz (a) the
termination disregards the fact that
over a period of twenty two (22)
years the applicant has traded from the same premises and has built
up a substantial good-will;
(b) the termination is inconsistent with
and contrary to the representations made by the respondent, in
writing, that the termination
date of the lease would be 31 July
2013, thereby creating a legitimate expectation of the same; (c) the
termination does not provide
the applicant sufficient time to
re-arrange its business affairs, and (d) the failure to renew, extend
or relocate the agreement
with the applicant is unreasonable.
RESPONDENT’S CASE
[18] The case made out by the
respondent both in its opposition to the main application and in its
counter-application is that a
Principal Lease Agreement (the
principal lease) commencing on 1 July 2005 was concluded between it
and the owner of the property,
namely the trustees for the time being
of the Kathrada Property Trust (the Trust). In terms of the
provisions of clause 7.2 a preferential
right to occupy the leased
premises as the sub-tenant of the respondent was granted to one
Muhammed Iqbal Goolam Nabee Kathrada
(Kathrada) with effect from 1
July until 31 December 2016.
[19] According to the respondent, a
meeting was held on 19 July 2006 with Haffejee, wherein the latter
was informed about the terms
of the principal lease and more
importantly, that the applicant’s franchise agreement would not
extend beyond June 2011.
Haffejee himself subsequently met with
Kathrada who confirmed that the sub-lease and franchise agreement
would not be extended
as he intended exercising his preferential
right to conduct the filling station business himself. While
previously the standard
period of the sub-lease between the applicant
and the respondent was always three (3) years, the current sub-lease
concluded in
November 2008 (the commencement date being 1 August
2008) was for a period of two (2) years and nine (9) months. On 20
October
2010 Kathrada, in writing, confirmed that he wished to
exercise the preferential right afforded to him in terms of the
principal
agreement.
APPLICANT’S CLAIM FOR
RECTIFICATION
[20] In order for the applicant to
establish that it has prospects of success in its claim for
rectification, and accordingly a
prima facie
right, it must
show the following, namely:
an agreement that was reduced to
writing;
that the written agreement does not
correctly reflect the common intentions of the parties;
an intention to reduce the agreement
to writing;
a mistake in drafting the written
agreement, and
the actual wording of the agreement.
(see:
Von Ziegler v Superior
Furniture Manufactures (Pty) Ltd
1962(3) SA 399 T).
[21] Bearing in mind that the primary
objective of rectification is to ensure that the written agreement
reflects the true or common
intention of the parties thereto, the
onus
rests on the party that claims rectification to establish
the requirements set out above. (see
Tesven CC v SA Bank of Athens
2000(1) SA 268 (SCA); also:
Benjamin v Gurewitz
1973(1) SA
418 (A) at 428).
[22] With regard to the requirement
set out in (b) above, it is necessary to establish the common
continuing intention of the parties
as it existed when the agreement
was reduced to writing (see:
Meyer Merchants Trust Ltd
1942 AD
244
; also:
City Council of the City of Durban v Rumdel
Construction
(1977) 3 All SA 20
(D).
[23] In so far as the requirement in
(d) above is concerned, the mistake could be as a result of either a
bona fide
mutual error or an intentional act of the other
party.
[24] The alleged representation relied
on by the applicant in its founding affidavit, is in the following
terms: “…
assured that upon ‘securing’
the Head Lease that First Respondent would provide me with the
‘balance’ of
the five year period …
”.
According to the applicant, it was only then and as a result of the
alleged representation and “
assurance
”, that it
signed the agreement.
[25] In my view, on the evidence of
the applicant alone it is clear that whatever representations may or
may not have been made,
there was no actual agreement reached between
the parties. No subsequent contract was in fact entered into to
extend the term of
the lease agreement. Therefore the applicant
cannot establish that there was an error common to both parties
resulting in the written
contract not reflecting their true
intention. Thus the applicant is not able to establish
prima facie
a ‘clear right’ in terms of the established legal
principles relating to rectification of a contract. The evidence
of
the first respondent strongly contradicts any assertion of the
alleged representation and discloses the applicant’s futile
attempts to obtain another sub-lease agreement and the refusal to
grant the same. The principal lease, the securing of which was
contingent to the extension of the sub-lease in question (according
to the alleged representations made to applicant), had already
been
concluded and applicant had been notified of its contents, as far as
they concerned it, prior to the conclusion of the sub-lease
agreement. Furthermore, both parties are barred from making any
variations to the contract other than in the manner prescribed
in the
non-variation clauses. An evaluation of applicant’s prospects
of success in the action for rectification accordingly
leads me to
the conclusion that the balance of convenience does not favour the
applicant in this regard.
MEDIATION/ARBITRATION INVOLVING AN
ALLEGED CONTRACTUAL DISPUTE
[26] Clause 39 of the sub-lease
records that:
Any dispute, question or difference
arising at any time between the parties to this Agreement out of or
in regard to any matters
arising out of; or the rights and duties of
any of the parties hereto; or the interpretation of; or the
termination of; or any
matter arising out of the termination of; or
the rectification of this Agreement; this Agreement, shall in the
first instance be
submitted to and decided by mediation on notice
given by either party to the other of them in terms of this clause.
[27] The declaration of a dispute in
terms of Clause 39 of the sub-lease and Clause 28 of the franchise
agreement relates to “
the dispute, question or differences
in regard to the termination of the lease or any matter arising out
of the termination of the
lease on the 31 May 2011
”
(page199). The reasons advanced for the dispute are firstly related
to whether or not the respondent actually represented
that it could
extend the agreement; thus creating a legitimate expectation on the
part of applicant. The evidence on the papers
points to a number of
instances where the applicant was specifically told that there would
be no renewal, despite his attempts
to obtain the same. Secondly, the
other grounds in sum assert that the failure of the first respondent
to enter into a further
sub-lease and franchise agreement (upon the
expiry of the present contract) constitutes an unfair or unreasonable
contractual practice
by the first respondent.
[28] In my view, a valid dispute can
only arise if the commencement date, duration or normal termination
date was not expressly
and in plain language specified. In the
instant matter the commencement date is specified as being 1
August
2008 while the duration of the lease is specified as being two (2)
years and nine (9) months.
[29] I accordingly hold that the
applicant has also on this ground failed to show that it has any
prospects of success and accordingly
has failed to establish a
prima
facie
right entitling it to any relief. On this ground as well as
the application for interim relief falls to be dismissed.
SECTION 12B
OF THE
PETROLEUM
PRODUCTS ACT
[30
] In its referral notice in terms
of section 12B of the Act, the applicant avers that the termination
of the agreements between
it and the respondent amounts to an unfair
and unreasonable contractual practice. The relevant portion of
section 12B reads as
follows:
“
The
Controller of Petroleum Products
may
on request by a licensed retailer alleging an unfair or unreasonable
contractual practice by a licensed wholesaler, or vice versa,
require, by notice in writing to the parties concerned, that the
parties submit the matter to arbitration…” (my
emphasis),
And
“
An
arbitrator contemplated in subsection (2) or (3) – shall
determine whether the alleged contractual practices concerned
are
unfair or unreasonable and, if so, shall make such award as he or she
deems necessary to correct such practice…”
[31] There are no reported judgments
on the interpretation or effect of section 12B. In order to determine
whether the conduct of
the applicant can be classified as an “
unfair
or unreasonable contractual practice
”, it is necessary to
ascertain the intention of the legislature by looking at the
ordinary, literal and grammatical meaning
of the words as they appear
in the section. No reason exists to look outside the words used in
the Act as the ordinary meaning
thereof would not lead to any
absurdity nor result in any incongruities. This view finds support in
the unreported decision of
Boruchowitz J in the matter of
Engen
Petroleum Ltd v Thlamo Retail
(SGJ) case no.43846 which was
referred to by
Mr Van der Walt
on behalf of the respondent
herein. I am no doubt in full agreement with the interpretation
placed on the words in section 12B
by the learned judge who held as
follows:
“
Contractual” means “that
pertaining or relating to” a contract.
“
Practice” means “an
ongoing action, or habitual doing.”
The arbitrator may determine whether
an ongoing practice in the performance of an existing agreement or
contract is unfair or
unreasonable.
The arbitrator is empowered to make
an award necessary to correct an unfair or unreasonable practice in
the context of an existing
agreement and ongoing business
relationship.
The arbitrator may not make or
stipulate the terms of a new contract.
The arbitrators powers do not go
beyond determining how an existing contract is to be implemented.
The exercising of a legal right to
terminate a contract is not a “contractual practice” but
a single juristic act
intended to terminate an agreement.
It is beyond the powers of the
arbitrator to permit holding over where there is no contractual
right to occupy.
It is beyond the powers of the
arbitrator to stipulate the terms of a new agreement as this would
violate the most fundamental
principles of freedom of contract.
[32] The current dispute between the
parties in the present matter concerns the termination of the
sub-lease agreement and the franchise
agreement by effluxion of time.
In line with the interpretation placed on the provisions of section
12B and the clear intention
of the legislature in this regard, no
arbitrator, in my view, has the power to deal with this issue.
[33] Section 12B relates to an unfair
contractual practice and cannot be used to circumvent specific
unambiguous contractual terms,
such as duration. The contract was for
a fixed term of two (2) years and nine (9) months and upon the lapse
of the time the contract
ceases to exist. The applicant is not
alleging that while the contract is in existence the first respondent
is acting in a manner
that is unreasonable or unfair, nor does the
applicant allege that the contract itself is unfair. The complaint
relates to the
failure of the respondent to conclude another
sub-lease contract with the applicant once the current contact has
expired.
[34] Evidence of alleged
representations made about the extension of the contract are refuted
by evidence tendered by the respondent
to the effect that at the time
of the signing of the sub-lease contract the applicant was well aware
that there would be no further
renewal. The dates depicted on the
front or cover page of the agreement and on the rental calculation
sheet are explained as clerical
errors on the part of the respondent.
At no time is it alleged that there was a meeting of the minds
creating a further agreement
which extended the expiry date of the
contract. Any variation of the sub-lease or franchise agreements is
strictly governed by
non-variation clauses. That being the position
the applicant had sufficient time to re-arrange its business affairs.
Failure to
enter into a further agreement is not related to the
practice of the respondent in terms of the contract in question and
as such
cannot be raised as a matter which falls within the ambit of
section 12B.
[35] In as much as the applicant has
failed to show that he has a
prima facie
right to
rectification, it has also failed to establish
prima facie
that it is entitled to resort to arbitration on grounds of unfair
contractual practices on the part of the respondent either in
terms
of clause 39 (of the sub-lease) and clause 28 (of the franchise
agreement) or in terms of
section 12B
of the
Petroleum Products
Amendment Act.
>
[36] In my view, the applicant is only
entitled to tenancy and occupation as a result of the sub-lease which
exists between it and
the respondent. This agreement has now come to
an end by effluxion of time. On the other hand, the respondent is
contractually
bound in terms of the principal lease agreement between
it and the Trust to allow Kathrada undisturbed occupation of the site
by
1 July 2011. The respondent runs the risk of a claim for damages
should it fail to comply with its obligations in this regard. To
allow the applicant to continue occupying the premises would assist
the applicant to hold over. The result and prejudice to the
respondent in these circumstances outweighs any prejudice which the
applicant claims. I accordingly find that the balance of convenience
clearly favours the respondent. For all of these reasons the
applicant has not made out a case for any relief.
RESPONDENT’S COUNTER
APPLICATION
[37] The full relief claimed by the
respondent in its counter application is the following:
“
1.
An order declaring that the sub-lease agreement between the applicant
and the first respondent (annexure “EYH1” to
the founding
affidavit of the applicant), has terminated due to the effluxion of
time.
An
order directing the applicant to forthwith, but by no later than 7
days after the granting of this order, vacate the premises
described
in the sub-lease agreement concluded between applicant and first
respondent.
An
order authorizing the Sheriff of this Honourable Court to evict the
applicant, should applicant fail to comply with the order
set out in
paragraph 2 above.”
[38] It is clear from the express
terms contained in the sub-lease agreement that the termination date
was the 31 May 2011. The
applicant’s contentions to the
contrary in this regard are without foundation. I find it quite
extraordinary that the applicant
on the one hand contends that the
lease agreement would terminate in 2013 and yet on the other was
prepared to approach the court
on 30 May 2011 for urgent relief. It
is clear, in my view, that the applicants continued tenancy of the
premises after 1 June 2011
is illegal.
[39] The applicants contentions that
the inclusion of a preferential right in the principal lease is
contra bonos mores
and accordingly unlawful, are, in my view,
ill-conceived and without any merit whatsoever. The respondent had
every right to afford
the Trust, being the owner of the site, a
preferential right to operate a service station if it wanted to. The
applicant was no
doubt aware of the inclusion of the preferential
right in the principal agreement as he made various attempts to
persuade Kathrada
not to exercise the right.
[40] I accordingly find that the
conduct of the applicant constitutes an illegal holding over. It
follows therefore, in my view,
that the respondent has a clear right
to a declaratory order and to an order for the eviction of the
applicant from the said premises.
ORDER
[41] For all the reasons set out
herein, I grant the following order:
The applicant’s application is
dismissed with costs.
It is hereby declared that the
sub-lease agreement between the applicant and the first respondent
(annexure “EYH1”
to the founding affidavit of the
applicant), has terminated due to the effluxion of time.
The applicant is ordered forthwith,
but by no later than seven (7) days after the granting of this
order, to vacate the premises
described in the sub-lease agreement
concluded between applicant and first respondent.
Should the applicant fail to comply
with the order set out in paragraph (c) above, the Sheriff is
authorized and directed to evict
the applicant.
The applicant is ordered to pay the
costs of the counter-application.
Date of Hearing : 1 June 2011
Date of Judgment : 12 August 2011
Counsel for Applicant : Advocate S
Edwards
Instructed by : M B Pedersen &
Associates
Counsel for 1
st
Respondent
: Advocate CG van der Walt
Instructed by : Eversheds Attorneys
c/o Thomlinson Mnguni James
Counsel
for 2
nd
Respondent : Not represented