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[2011] ZAKZDHC 32
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Autumn Storm Investments 65 (Pty) Ltd v Daydat (12510/2010) [2011] ZAKZDHC 32 (30 June 2011)
IN
THE KWA-ZULU NATAL HIGH COURT, DURBAN
REPUBLIC
OF SOUTH AFRICA
CASE
NO. 12510/2010
In
the matter between:
AUTUMN
STORM INVESTMENTS 65 (PTY) LTD
.................................
APPLICANT
and
IMRAAN
DAYDAT
…..........................................................................
RESPONDENT
J
U D G M E N T
NDLOVU J
Factual Background
[1] The applicant company is the owner
of immovable property situated at 46 The Grand Floridian, Utshani
Close, La Lucia (“the
premises”) which, in terms of the
written lease agreement concluded between the applicant and the
respondent on 23 October
2009, the applicant leased to the respondent
for a period of 12 months, commencing on 1 September 2009 and
terminating on 31 August
2010. The lease has now expired.
[2] In this matter the applicant seeks
an order evicting the respondent from the premises as well as all
those who occupy the premises
by virtue of the respondent’s
occupancy thereof.
[3] The application was instituted in
terms of the provisions of the Prevention of Illegal Eviction from an
Unlawful Occupation
of Land Act, 19 of 1998 (“the PIE Act”)
and the provisions of section 4(2) thereof were complied with by the
applicant,
by virtue of the Court order dated 11 April 2011.
[4] Besides the 12 months’
duration period of the lease aforesaid, the other relevant or
material terms of the lease included
the following:
4.1 In terms of clause 3.1 the monthly
rental payable by the respondent to the applicant in respect of the
premises would be R15
000,00 per month with effect from the
commencement date, payable monthly in advance without any deduction
or demand and free of
exchange, on the first day of each and every
month. The respondent would, subject to clause 5.8 of the agreement
and provided the
respondent was not in breach in any of the terms of
the agreement at the time, be entitled to renew the lease for a
further period
of 12 months on the same terms and conditions, save
that the rental for the renewal period would be negotiated between
the parties
upon the receipt by the applicant of the respondent’s
written notice of renewal.
4.2 Clause 5.2 provided that, in order
to be effective, the written notice of such renewal must be received
by the applicant not
more than 60 days and not less than 30 days
prior to the expiry of the initial period. On this basis, it meant
that, in the present
instance, such written notice was to be received
by the applicant not later than 31 July 2010.
4.3 The agreement further provided, in
terms of clause 5.8, that notwithstanding anything to the contrary
contained in the agreement
it was expressly recorded that the
respondent’s right of renewal would automatically lapse,
whether or not the respondent
was in breach of any of the terms of
the lease at such time, on the execution of an agreement of sale
between the applicant and
a third party purchaser, in respect of the
premises, prior to the respondent exercising his right to renew the
lease.
[5] In terms of the lease agreement,
the respondent had the right of first refusal in the event of the
applicant deciding to sell
the premises. Indeed on or about 12 August
2010, when the applicant had decided to sell the premises, it
requested the respondent
to exercise his right of first refusal.
However, the respondent refused the applicant’s offer to
purchase the premises.
[6] It was common cause that as at 31
July 2010 the respondent had not furnished the applicant with the
written notice of his intention
to renew the lease and that on 31
August 2010 the lease agreement therefore expired.
The Applicant’s
Submissions
[7] According to the applicant’s
sole director and shareholder, Marco Dias, who is also the deponent
to the applicant’s
founding affidavit, during the latter part
of August 2010, which was just shortly before the lease expired, the
respondent approached
him telephonically and asked if he (the
respondent) could remain in occupation of the premises for a further
month during September
2010 as he had by then not found alternative
accommodation. Dias said he reluctantly acceded to the respondent’s
request
as he empathised with the respondent’s situation and
the proposed sale of the premises to a third party had fallen
through.
On 25 August 2010 Dias sent an email to the respondent
advising the respondent of the fact that the applicant was prepared
to give
the respondent occupation of the premises for a further month
at a rental of R22 500,00.
[8] Dias further averred that on the
same day (25 August 2010) subsequent to his email to the respondent
(referred to in the preceding
paragraph), the applicant and the
respondent had a telephonic conversation during which it was agreed
between the parties that
the additional month’s occupation of
the premises by the respondent would be at the monthly rental of R20
000,00. Indeed,
on the same day the respondent sent the applicant an
email confirming this agreement. Both the applicant’s and the
respondent’s
email correspondence referred to in this paragraph
were attached and marked annexure “D” to the applicant’s
founding
affidavit. This is how they read:
Dias’ email to the
respondent:
“
Dear
Imraan
The
sale for the unit has not gone through, so I will be able to give you
1 more month should you require it.
However
the rental for this month will be at R22 500,00 which was my original
rental (I gave the discount to R15 000,00 per month
based on you
spending R90 000,00 on repairs, we then agreed to bring the repairs
figure down to R40 000,00 because you said you
would get the repairs
done cheaper).
Please
advise me in writing as to whether you do require one more months
occupation.
Also
note that I have not received your repairs cost yet.
Regards
Marco
Dias”
Respondent’s response
“
Hi
Marco
As
per our tele conversation I will be requiring one more months
occupation as discussed @ R20 000.
Thanks”
[9] The applicant further alleged
(through Dias) that on 29 September 2010 Dias telephoned the
respondent to make arrangements for
the collection of the keys to the
premises and to enable himself to carry out the inspection of the
premises. This, Dias did on
the basis that the respondent’s
occupation of the premises was terminating on 30 September 2010 in
terms of the latest agreement.
To Dias’ surprise, the
respondent indicated that he would not be vacating the premises at
the end of September 2010, as had
been agreed. Instead, the
respondent alleged that Dias had misled him with regard to the
renewal of the lease agreement, an allegation
which Dias said
surprised him as he had not in any way misled the respondent.
[10] In an email sent to the
respondent on 29 September 2010 the following was stated by the
applicant:
“
Dear
Imraan
As
per our lease agreement which expired at the end of August 2010.
You
requested that I give you one more month (September) occupation,
reluctantly (because my plan was to do the renovations to the
unit
myself during the September school holidays when I would be down in
Durban, but I put what I needed to do for myself aside
to help you) I
said ok you could stay till the end of September. As per the emails
between us below.
Under
no circumstances or any discussions I had with you since or before
did I express or intimidate that you could stay any longer.
Even the
emails & sms I sent requesting a time so that we could meet to do
the final inspection and return of keys, you did
not respond.
THIS
NOTICE IS TO ENSURE THAT YOU UNDERSTAND THAT I HAVE NOT GRANTED ANY
OCCUPATION TO YOU BEYOND SEPTEMBER 2010.
Regards
Marco
Dias”
[11] On 30 September 2010 the
applicant’s attorneys sent a letter to the respondent via email
calling upon the respondent
to vacate the premises before midnight of
the same day, failing which proceedings would be brought to eject him
from the premises.
A copy of that letter was included in the
applicant’s founding affidavit and marked exhibit “F”
and it read thus:
“
Dear
Sir
Re:
OUR CLIENT : AUTUMN STORM INVESTMENTS 65 (PTY) LTD
We
confirm that we act for AUTUMN STORM INVESTMENTS 65 (PTY) LTD.
OCCUPATION
We
are instructed that on or about 23
rd
October 2009 you
entered into a Lease Agreement with our client in terms of which you
leased the premises situate at Unit 46, The
Grand Floridian. In terms
of clause 2.1 the lease was for a fixed period of 12 months reckoned
from 1
st
September 2009 to 31
st
August 2010.
In
terms of clause 5.1 and 5.2 you were entitled to renew the lease for
a further period of twelve months subject to your written
notice of
renewal being received by our client not more than 60 days and not
less than 30 days prior to the expiry of the initial
period.
Our
instructions are that you did not exercise your right of renewal as
provided for in the agreement of lease.
The
lease accordingly to expired on the 31
st
August 2010.
On
the 25
th
August 2010 and at your request the lessor agreed
to allow you to remain in occupation for one further month on the
understanding
that you would vacate the property by not later than
the 30
th
September 2010. Your continued occupation was
upon the same terms and conditions as contained in the prior lease.
On
the 29
th
September our client confirmed in writing that
the lease would not be extended for any further period and in fact
stated
“
THIS NOTICE IS TO ENSURE THAT YOU
UNDERSTAND THAT I HAVE NOT GRANTED ANY OCCUPATION TO YOU BEYOND
SEPTEMBER 2010.”
Inasmuch
as it may be necessary this letter serves to again confirm that the
lease will not be extended by any further period. You
are to vacate
the premises before midnight on the 30
th
September 2010.
You may contact Marco Dias on the following telephone number 082 568
1227 to arrange for the hand over of the keys.
In
the event that you fail to vacate the premises as aforesaid you will
be in unlawful occupation thereof and our instructions are
to
approach the courts on an urgent basis for your eviction without
further notice to you.
In
terms of clause 21.3 you are liable for any attorney and own client
costs incurred by our client in respect of its having to
instruct
attorneys and our instructions are to seek an order in this regard
should litigation become necessary.
We
trust that the above will not be necessary and we await your
confirmation in writing by close of business today that you will
vacate the premises by midnight tonight together with the
arrangements which you have made for the return of the keys to our
client.
ACCESS
On
a further and separate note clause 18.1 requires you to give our
client access to the premises.
Our
instructions are that you are refusing to do so. Should you continue
with this conduct in breach of the agreement of lease our
instructions are to approach the Durban High Court without further
notice to you for mandatory interdict compelling you grant our
client
access to the premises. Again, an order that you are liable for costs
on an attorney and own client scale in terms of clause
21.3 of the
lease will be sought.
Should
you wish to avoid the litigation contemplated above you are urged to
contact Marco Dias to arrange for his access to the
premises. You are
to then revert to us in writing confirming that you have done so, so
as to enable use to take instructions from
our client in respect of
halting the anticipated litigation.
Yours
faithfully
(Signed)
Haydn Friis
MEUMANN
WHITE”
[12] Ms
Law
, for the applicant,
submitted that, despite all the written correspondence which was
exchanged between the applicant and the respondent
and between their
attorneys, nowhere did the respondent ever raise the defence that
there was an oral monthly tenancy agreement
which was concluded
between the parties upon the written lease agreement having expired.
The alleged month-to-month tenancy was
raised by the respondent for
the first time in his answering affidavit. In any event, Counsel
submitted that the monthly tenancy
had since been terminated by the
applicant’s notice sent to the respondent via email on 30
September 2010 calling upon the
respondent to vacate the premises by
31 January 2011. (See annexure “MD 4” to the applicant’s
replying affidavit)
[13] Counsel further pointed out that
on the respondent’s own version, the respondent was, in terms
of the alleged verbal
monthly tenancy agreement, required every month
to give to the applicant prior written notification that the
respondent intended
to remain in occupation of the premises for the
next month. It was common cause that the respondent had not complied
with this
requirement.
The Respondent’s
Submissions
[14] In his answering affidavit the
respondent acknowledged that the written lease agreement expired on
31 August 2010. He pointed
out, however, that during July 2010 Dias
advised him that he intended to sell the premises as he was in
desperate need of cash.
Although he (the respondent) had all the time
the intention to renew the lease agreement, he had, after his
discussion with Dias,
empathised with Dias’ position and,
hence, agreed not to renew the lease agreement.
[15] With regard to the letter dated
30 September 2010 addressed by the applicant to the respondent
(annexure “G” to
the applicant’s affidavit) the
response thereto came from the respondent’s attorneys and
conveyed the following message:
“
Dear
Sir
RE:
MR I.C. DAYDAT/AUTUMN STORM INVESTMENTS 65 (PTY) LTD
We
act on behalf of Mr I.C. Daydat.
Your
letter dated the 30
th
ultimo has been referred to us and
we have been instructed to respond thereto as follows:
1.
Our client denies that he is obliged to vacate the premises no later
than the 30
th
of September 2010.
2.
Our client accordingly advises that any action taken against him will
be resisted in the strongest possible terms with an appropriate
(??)
for costs.
3.
Insofar as access is concerned, our client has no difficulty in
furnishing your client reasonable access to the premises provided
that same does not interfere with the use and enjoyment of his
property and timeous adequate arrangements are made in respect of
same.
4.
We wish to advise further, that our failure to deal with the
remainder of the allegations contained in your aforesaid letter
does
not constitute an admission of the correctness of same, same is
denied and our client reserves his right to respond thereto
at the
appropriate time and in the appropriate forum.
Yours
faithfully
(Signed)
V CHETTY & CO”
[16] The respondent further alleged
that, despite not having renewed the lease, Dias had further advised
him that he would be flexible
with the respondent in that he would
grant him (the respondent) leeway to occupy the premises until he
obtained a suitable alternative
place to move into.
[17] According to the respondent the
applicant, duly represented by Dias, had then concluded a verbal
agreement with the respondent
whereby it was agreed that the
respondent could remain in occupation of the premises on a
month-to-month tenancy, but at an increased
rental of R20 000,00 from
the initial R15 000,00. On this basis, the respondent had remained in
occupation of the premises in September
2010 on a monthly tenancy
agreement at the rental of R20 000,00 per month.
[18] It was further agreed, so the
respondent alleged, that for each month that the respondent intended
to remain in occupation,
the respondent would have to give the
applicant prior written confirmation of his (respondent’s)
intention to stay on the
premises. (par. 14.2 of the respondent’s
answering affidavit) The respondent alleged that the representation
made by the
applicant during the verbal agreement induced him to
believe, to his own prejudice, that the applicant was flexible and
that he
(the respondent) would continue to enjoy occupation of the
premises indefinitely in terms of the verbal agreement without the
need
to renew the lease. On this basis, the respondent submitted that
the applicant should be estopped from denying him (the respondent)
his right to occupy the premises and further that the verbal tenancy
agreement had not been validly terminated.
[19] The respondent further pointed
out that he was currently still paying to the applicant every month
the sum of R20 000,00
which the applicant was also accepting. As
the respondent put it:
“
I
have dutifully and faithfully paid the applicant rent for the full
duration of my occupation. I continue to pay the applicant
rent.
There is no tangible prejudice to the applicant by my continued
occupation which it agreed to on the basis set forth above.”
[20]
Ms Moodley,
for the
respondent, submitted that there were numerous disputes of fact
present in this case which made it impossible or difficult
to
determine the matter on the papers. She contended that the issue of
the existence or otherwise of the verbal monthly tenancy
agreement
alleged by the respondent, for instance, was a matter which could not
be resolved on the papers.
[21] Counsel further submitted that
the applicant’s email dated 30 September 2010 (annexure “MD
4”) was issued
only after the applicant had pleaded its case in
the founding affidavit and that, therefore, the applicant was not
entitled to
rely on the email as this would amount to making up its
case in reply.
[22] In response to the respondent’s
claim that he continued to pay to the applicant the sum of R20 000,00
every month
for his occupation of the premises Ms
Law,
whilst
confirming that the respondent was paying the said amount every month
together with the municipal charges for the utility
bill, submitted
that the applicant’s acceptance of the said R20 00,00 from the
respondent every month after 30 September
2010 could not be construed
as being the applicant’s admission that the alleged monthly
tenancy agreement existed. In this
regard Counsel pointed out that
the applicant only accepted the payments by virtue of clause 21.5 of
the written lease agreement
which entitled the applicant, among other
things, to reserve its rights.
Analysis and Evaluation
[23] It is the elementary principle of
the law that the owner of immovable property is the one who has the
right of occupation of
the property unless someone else can prove a
better right than the owner in terms of occupation of the property.
In
Chetty v Naidoo
1974 3) SA 13(A)
at 20B-D the Appellate
Division (Jansen JA) stated:
“
It
is inherent in the nature of ownership that possession of the
res
should
normally be with the owner, and it follows that no other person may
withhold it from the owner unless he is vested with some
right
enforceable against the owner (e.g. a right of retention or a
contractual right). The owner, in instituting a
reivindicatio
,
need, therefore, do no more than allege and prove that he is the
owner and that the defendant is holding the
res
–
the
onus
being
on the defendant to allege and establish any right to continue to
hold against the owner.”
[24] To the extent presently relevant,
section 4 of the PIE Act provides:
“
(1)
Notwithstanding anything to the contrary contained in any law or the
common law, the provisions of this section apply to proceedings
by an
owner or person in charge of land for the evicting of an unlawful
occupier.”
“
(8)
If the court is satisfied that all the requirements of this section
have been complied with and that no valid defence has been
raised by
the unlawful occupier, it must grant an order for the eviction of the
unlawful occupier, and determine-
(a)
a just and equitable date on which the unlawful occupier must vacate
the land under the circumstances, and
(b)
the date on which an eviction order may be carried out if the
unlawful occupier has not vacated the land on the date contemplated
in paragraph (a).
“
(9)
In determining a just and equitable date contemplated in subsection
(8), the court must have regard to all relevant factors,
including
the period the unlawful occupier and his or her family have resided
on the land in question.”
[25] It was common cause that the
written lease agreement terminated on 31 August 2010 and that the
applicant allowed the respondent
to remain in occupation of the
premises for the month of September 2010. The issue, therefore, is
whether there is presently any
legal right which the respondent has,
justifying him to remain in occupation of the premises.
[26] The Court has a wide discretion
in determining whether or not to refer a dispute for oral evidence.
(See
Lombaard v Droprop
2010 SA 1
at 10A;
Metallurgical &
Commercial Consultants (Pty) Ltd v Metal Sales Co (Pty) Ltd
1971
(2) SA 388
(W) at 396E-G.) Indeed, the allegations by the applicant
and the respondent vis-à-vis each other did raise some
disputes
of fact, but which, in my view, were not of such a nature as
to disable the Court from determining the matter on the papers
without
the need to revert to oral evidence. In my view, this was a
typical instance where the Court needed to use “robust
common-sense
approach” and not hesitate to decide the matter on
the papers. (
Soffiantini v Mould
1956 (4) SA 150(E)
at 154G-H;
See also
Reed v Witrup
1962 (4) SA 437
(D) at 443G;
Western
Bank Bpk v Trust Bank van Afrika Bpk
1977 (2) SA 1008
(O) at
10107E-H.)
[27] Concerning the respondent’s
defence of estoppel, in my view, this defence should fail.
Significantly, I note that in
her submissions, during argument, Ms
Moodley was virtually, if not absolutely, silent about the estoppel
defence. If this was a
sign on the part of Counsel to indicate that
the respondent no longer relied, or strongly relied, on this defence
then it would
have been prudent of Counsel to do so. The respondent
alleged that Dias promised to allow him (the respondent) indefinite
future
occupation of the premises. This alleged gesture by Dias
related to a future intention on the part of Dias, which then
excluded
the defence of estoppel in such circumstances. In
Hauptfleisch v Caledon Divisional Council
1963 (4) SA 53
(C)
the Court stated, in part:
“
In
amplification of this statement it may be emphasized that the
representation must relate to a statement of an existing fact (see
Baumann
v Thomas
,
supra
at
p. 436
;
Spencer Bower
,
pp
.
39-48;
Halsbury
,
3
rd
ed. Vol. 15 pp. 224-5) and that a mere statement as to, for instance,
a future intention will not found an estoppel (see
Kelsen
v Imperial Tobacco Co. Ltd.,
1957 (1) A.E.R. 343).
”
[28] It is also quite clear that the
applicant was not accepting the sum of R20 000,00 every month in
the form of rent. This
could not be the case since the applicant
consistently denied the existence of any contractual arrangement for
the respondent’s
continued occupation of the premises. This
payment was, therefore, not founded e
x contractu
as no
contract existed between the parties then. In its acceptance of the
said payment the applicant relied on clause 21.5 of the
written lease
agreement, which provided as follows:
“
21.5
While for any reason or on any ground the lessee occupies the
premises and the lessor disputes its right to do so, then, until
the
dispute is resolved, whether by settlement, arbitration or
litigation, the lessee shall (notwithstanding that the lessor may
contend that this lease is no longer in force) continue to pay
(without prejudice to its rights) an amount equivalent to the monthly
rent provided for in this lease, monthly in advance, on the first day
of each month, and all other amounts payable in terms of
this lease
on the due date of payment thereof and the lessor shall be entitled
to accept and recover such payments, and such payments
and the
acceptance thereof shall be without prejudice to and shall not in any
way whatsoever affect the lessor’s claim then
in dispute.
Should the dispute by resolved in favour of the lessor, then the
payments made and received in terms of this clause
21.5 shall be
deemed to be amounts paid by the lessee on account of damages
suffered by the lessor by reason of the unlawful occupation
or
holding over by the lessee.”
[29] This clause, in my view, clearly
imposed an obligation on the part of the respondent to continue
making monthly payments “equivalent
to the monthly rent”
(which was R20 000,00) even at the time when the written lease
was no longer in force, as long
as the respondent remained in
occupation of the premises. In any event, the applicant would still
be entitled, under the common
law remedy of undue enrichment, to
recover from the respondent the said amount in the form of damages.
[30] Ms
Moodley
submitted that
the applicant’s email purporting to give notice of termination
of the monthly tenancy was issued after the
applicant had made out
its case in the founding affidavit and that for the applicant to rely
on the email (which was attached to
the applicant’s replying
affidavit – annexure “MD4”) amounted to making up
its case in reply. However,
it was clear from the written
communication exchanged between the parties (including their
attorneys) that at no stage did the
respondent or his attorneys ever
notify, or even slightly indicate, that the respondent sought to rely
on the alleged existence
of an oral monthly tenancy agreement as his
defence. Indeed, this defence was raised by the respondent for the
first time in his
answering affidavit.
[31] I agree with Ms
Law
that
all along, prior to the filing of the respondent’s answering
affidavit, there was a veil of secrecy as to what the real
defence
the respondent sought to rely on was. Therefore, in such a situation
the applicant could not reasonably have been expected
to have issued
the termination notice in respect of an alleged verbal contract which
the applicant knew nothing about and which,
prior to the founding
affidavit, had not been alleged by the respondent to have existed. In
the circumstances, the respondent’s
election to resort to the
veil of secrecy as to his defence was an election to his own peril.
It is trite that both an oral monthly
lease and the so-called “tacit
relocation” are terminable at the instance of either party on
one calendar month’s
notice to the other. (See
Raner and
Bernstein v Armitage
1919 WLD 58
at 62;
Pareto Ltd &
Others v Mythos Leather Manufacturing (Pty) Ltd
2000 (3) SA 999
(W) at 1005 par.12.). On the facts of this case, there was hardly any
doubt in my mind that, had the respondent indicated that
his defence
was the existence of an oral monthly lease before this application
was launched, the applicant (although denying the
existence of such
oral agreement) would have given the one calendar month’s
notice of termination prior to lodging the application.
By its notice
of 30 September 2010 (annexure “MD4”) the applicant
satisfies me that it would have taken precisely the
same step had it
known about the respondent’s defensive stance earlier.
[32] On the contrary, the respondent’s
version appears to me to be highly improbable. For instance, (1) his
apparent deliberate
failure or omission to make known his defence of
the alleged existence of a month-to-month tenancy agreement well in
advance (as
alluded to in the preceding paragraph), and (2) his
failure to comply with what would be a material term of the alleged
monthly
tenancy agreement, namely, in that he alleged that it was a
precondition of his continued occupation of the premises that every
month he was required to furnish the applicant with a prior written
notification of his intention to remain on the premises for
the next
month which, on his own version, he complied with only for September
2010. There was no plausible admissible explanation
why, if such an
agreement existed, he failed to continue complying with this
important requirement. Even if he was no longer in
talking terms with
the applicant’s representative, Dias (which Counsel sought to
argue was then the case), this would not
have prevented him from
complying with such a material term of the alleged verbal contract.
After all, the furnishing of “prior
written notification”
to the applicant did not necessarily require him to talk to Dias or
anyone from the applicant company.
[33] I am inclined, in the
circumstances, to reach a reasonable inference that this defence of
an existing oral monthly tenancy
agreement is nothing but a
fabrication and an afterthought on the part of the respondent, which
falls to be rejected on the papers.
[34] In any event, it did appear, on
the respondent’s own version, that as at 29 November 2010 (when
he deposed to his answering
affidavit) that he had found alternative
suitable accommodation. In particular, this is what he said at the
time at paragraph 19
of his affidavit:
“
19.1
Influenced by the email received from Dias dated 29 September 2010
(Annexure “E” to Dias’ Affidavit) I sought
alternative suitable premises which I have located in Morningside,
Durban.”
“
19.2
I anticipate that those premises in Morningside will become available
to me for occupation during or about January 2011. Since
those
premises are not yet ready for occupation, I am not able to take
immediate occupation of them.”
[35] Even if the premises referred to
by the respondent in the preceding paragraph were not available
“during or about January
2011” it is highly inconceivable
and, indeed very difficult to accept, that at the present moment
(being the end of June
2011) those premises, or some other
alternative premises, for that matter, were still not available. The
respondent’s conduct
in this regard reflected on his state of
mind, that is, not to co-operate with the applicant but simply to
remain in unlawful occupation
of the premises and to resist his
eviction therefrom at all costs.
[36] I am satisfied that the
respondent’s lawful occupation of the premises terminated on 30
September 2010 and that his occupation
of the premises after that
date has been and remains unlawful. The applicant is, therefore,
entitled to the relief sought in terms
of the notice of motion.
[37] The applicant has sought an order
directing the respondent to vacate the premises within one week of
the date of the Court
order. Indeed, given the respondent’s
apparent arrogant and stubborn attitude, the Court could be tempted
to direct his vacation
from the premises within that timeframe.
However, I have considered the position of his family. These are
residential premises
which the respondent occupies with his wife and
two children. Therefore, I think it would be just and equitable to
give the respondent
a reasonable time within which to vacate the
premises. A period of one month for this purpose should, in my view,
in the circumstances
of this case be more than sufficient.
[38] On the question of costs, I do
not believe that an award of costs on an attorney and client scale
would be reasonable and fair
in the circumstances of this case. The
nature of the premises is well described by the respondent at
paragraph 28 of his answering
affidavit. His summing up that the
premises are a “luxury unit” appears to be justified.
There is, therefore, no doubt
that his vacation of the premises
together with his family will be a depressing and somewhat
humiliating blow to him and his family.
To impose on him a further
burden of punitive costs order would not, in my view, be in the
interests of justice.
The Order
[39] In the event, the following order
is made:
1. The respondent and all those who
occupy the premises situated at 46 The Grand Floridian, Utshani
Close, La Lucia by virtue of
the respondent’s occupancy
thereof, are hereby evicted from the premises.
2. The respondent and all those who
occupy the premises by virtue of the respondent’s occupancy
thereof, are hereby directed
to vacate the premises on or before 31
July 2011.
3. In the event of the respondent
and/or any person occupying the premises through the respondent
failing to comply with the provisions
of paragraph 2 hereof, the
Sheriff or his deputy is hereby authorised and directed to evict the
respondent and/or such other person(s)
from the premises forthwith.
4. The respondent is directed to pay
the costs of the application.
____________________________
Date of hearing : 29 June 2011
Date of Judgment : 30 June 2011
Appearances
:
For the applicant : Ms ES Law
Instructed by : Meumann White
Attorneys, Durban
For the respondent : Ms A Moodley
Instructed by : V Chetty and Company,
Durban