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2011
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[2011] ZAKZDHC 75
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Ethekwini Municipality v Sensation Transport Services CC and Others (9300/2010) [2011] ZAKZDHC 75 (2 December 2011)
IN THE KWAZULU-NATAL
HIGH COURT, DURBAN
REPUBLIC OF SOUTH
AFRICA
Case No: 9300/2010
In the matter between
Ethekwini Municipality
…........................................................
Applicant
and
Sensation Transport
Services CC
….........................
First
Respondent
Wesand Freight
Logistics CC t/a
Freight Logistics
…...............................................
Second
Respondent
Louis Kisten
…...........................................................
Third
Respondent
JUDGMENT
2 December 2011
Steyn J
[1] This is an
application to evict the respondents from the premises situated at 10
Ebonyfield Avenue, more fully described as
Site MT1534 of Rem, Erf
391 Springfield, Durban pursuant to the termination of a lease
agreement.
[2] The matter was set
down as an opposed motion and argued on 20 November 2011. Mr Saks
acted on behalf of the applicant and Mr
Tobias acted on behalf of the
second and third respondents.
[3]
The background
The applicant is the
owner of the said property and through its predecessors-in-title,
leased the premises to the first respondent.
Applicant and first
respondent concluded a tenancy agreement that was for an indefinite
period of time terminable by each party
on a one month notice and it
could also be terminated in the event of any of the parties being in
breach of the terms of the agreement.
It was a material term of the
agreement that the respondent would pay a monthly rental which the
respondent failed to do.
The respondent
accordingly was in breach of the agreement. Notice was given to the
respondent to either remedy the breach or accept
that the lease would
be terminated. Another notice was sent to the respondent to confirm
the earlier termination of the lease and
to give the respondent one
month’s notice to vacate the property.
The second and third
respondents were joined as respondents based on the fact that they
indicated that they are in occupation of
the premises by virtue of a
sub-tenancy agreement entered into between them and the first
respondent. It is common cause that the
first respondent has been
wound up pursuant to a final order of liquidation.
[4] Mr Tobias in his
written heads of argument opposed the application on the following
grounds:
that there is no proper
evidence that the North Central and South Central Local Council were
in fact the predecessors-in-title
to the applicant; and
that there is no proper
evidence that the applicant is the owner of the premises as
described; and
that the agreement was
not properly terminated; and
that the third
respondent should not have been joined in these proceedings; and
that the notice as per
annexure “D”, was waived by the conduct of the lessor
since eight years have passed before
an application for ejectment
was launched.
[5] When the matter was
argued Mr Tobias no longer persisted in pursuing the arguments raised
under (i) and (ii) above. This was
a very wise approach since the
respondents previously stated under oath that the applicant is the
owner of the premises. In light
of the aforesaid I will therefore
deal with the contentions listed
supra
under (iii) to (v). I
will start with the notice as referred to under (v).
[6] Can it be said that
the notice that was sent to the first respondent was a clear and
unequivocal termination of the lease agreement?
In my view the
content of the notice should be considered to answer the question.
The notice reads as follows:
“
FINAL
NOTICE: Arrear Rental: Site MT1543: Ebonyfield Avenue: Account:
83074746038
The City Treasurer has informed me
that your rental account is still in arrears notwithstanding several
reminders by the Director:
Consolidated Billing requesting payment.
In terms of your Tenancy Agreement,
the rental is payable in advance on or before the 7
th
(seventh) day of each month and your failure to do so constitutes a
breach of the Agreement.
Accordingly, I hereby serve notice
upon you, in terms of clause 17 to remedy the breach within 14 days
of the date of this letter
by paying in full, the arrear rent,
administration charges and any tax due or by making suitable
arrangements with the Director:
Consolidated Billing to settle your
account.
Should you fail to remedy the
breach within the period stated above, you Tenancy Agreement will be
terminated without further notice
and the Council will require vacant
possession of the land.
Upon such cancellation and should you
have failed to vacate the land, not only will legal action be
instituted against you for
the recovery of all monies due to the
Council but also for eviction and damages, all costs being to your
account.
In the circumstance, it will be in
your best interests to give this matter your urgent attention.”
(My emphasis)
It is evident from the
content of the notice, if the first respondent fails to remedy the
breach within 14 days, then the agreement
would be terminated without
further notice. Mr Tobias has argued that the letter sent by the
applicant on 10 February 2009 should
be considered as being the
notice of termination, since the earlier notice was waived by the
lessor through its conduct.
Whilst I agree with Mr
Tobias that the applicant has inordinately delayed the application
for ejectment I do not agree that such
delay constitutes a waiver of
the first notice. It is disturbing that the applicant could adopt
such a laid back approach, which
ultimately impacts on the ratepayers
of the area.
It is common cause that
there is no contractual nexus between the second and third respondent
and the applicant. The second and
third respondents are subtenants
and accordingly their rights can go no further than the main tenant
that is the first respondent.
The delay cannot be interpreted, given
the circumstances of this application, as abandoning the intention to
eject the respondents
from the property.
[7]
Proper termination
of the agreement
I shall now turn to the
submissions under (iii) above. The applicant had sent a notice of
breach to the first respondent. There
is no suggestion that the first
respondent remedied the breach within 14 days. Henceforth I do not
consider it necessary to decide
whether the agreement was terminated
by the
s 37(2)
of the
Insolvency Act 24 of 1936
since the agreement
was in my view properly terminated before the first respondent was
wound up.
[8]
Joinder of the
Third Respondent
The third respondent has
been joined by the applicant as a party which has a direct and
substantial interest in the application.
The third respondent deposed
to an answering affidavit and stated the following:
“
The
second Respondent and I concluded an oral agreement of sub lease of
the property from the first Respondent.”
In another affidavit,
attached to the papers as annexure “F” he stated:
“
I am the
sole member of Applicant . . . conducts business at 10 Ebonyfield
Place, Springfield Park, Durban.”
Based on the aforesaid
and what was stated by the Court in
Amalgamated
Engineering Union v Minister of Labour
1
it is clear to me that
the third respondent had an interest in this application, since, the
relief sought would certainly impact
on the third respondent. I am
therefore not persuaded that the third respondent should not have
been joined in these proceedings.
[9]
Costs
It is a recognised
principle in our law that costs follow the result. In
Letsitele
Stores (Pty) Ltd v Roets
2
the Court dealt with the
general principles that should find application:
“
In an
appeal of this nature two general principles should be observed. The
first is that the Court of first instance has a judicial
discretion
in regard to costs and this Court cannot interfere unless it is
satisfied that the discretion was not exercised judicially.
The
second is that the successful party should as a general rule, have
his costs.
This
is a rule which should not be departed from without the existence of
good grounds for doing so.
When
a successful party has been deprived of his costs an appeal Court
will enquire whether there were any grounds for this departure
from
the general rule and, if there are no such grounds, then ordinarily
it will interfere. Any grounds here mean any grounds on
which a
reasonable person would come to the conclusion arrived at. (
Merber
v Merber
1948
(1) SA 446
(A) at 452-453 and the cases there cited.) The discretion
of the Court
a
quo
is
therefore not unlimited and this Court should interfere if it can be
shown, for example, that the Court
a
quo
has
exercised its discretion capriciously or upon a wrong principle, that
it has not brought an unbiased judgment to bear on the
question or
has not acted for substantial reasons.”
(My emphasis)
It is common cause that
the applicant delayed the application for more than 7 years and that
the delay also negatively impacted
on the rights of the second and
third respondent. It is also common cause that applicant failed to
act in the interest of all ratepayers
in the district of the
Ethekwini Municipality. Whilst I am satisfied that applicant is
entitled to the relief sought, I am of the
view that this Court
should show its displeasure in the manner in which applicant acted. I
am not prepared to make a punitive costs
order against the applicant,
but in my view the applicant should bear its own costs.
[10]
Order:
Accordingly the following
order is granted:
That the respondents or
any person occupying through them, be and are evicted from the
premises known as 10 Ebonyfield Avenue,
Site MT1534 of Rem, Erf 391
Springfield, Durban.
That the Sheriff of this
Honourable Court be and is hereby authorised to give effect to the
terms of paragraph 1 hereof, in the
event that the respondents fail
to do so.
Each party to pay their
own costs.
____________________________
Steyn, J
Date of Hearing: 22
November 2011
Date of Judgment: 2
December 2011
Counsel for the
Applicant: Adv Saks
Instructed by: Berkowitz
Cohen Wartski Attorneys
Counsel for the First and
Second Respondents: Adv
Tobias
Instructed by: Naidoo &
Company Inc
1
1949
(3) SA 637
(A) at 657.
2
1959
(4) SA 579
(T) at 579H-580B.