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[2024] ZAFSHC 334
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Emoya Prop Med (Pty) Ltd v X-Pharm (Pty) Ltd (A129/2023) [2024] ZAFSHC 334 (21 October 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE STATE DIVISION,
BLOEMFONTEIN
Not
reportable
Appeal
no: A129/2023
Case
no: 6458/2022
In
the appeal between:
EMOYA
PROP MED (PTY) LTD
APPELLANT
And
X-PHARM
(PTY) LTD
RESPONDENT
In
re:
X-PHARM
(PTY) LTD
APPLICANT
And
EMOYA
MED HOSPITAL (PTY) LTD
FIRST
RESPONDENT
EMOYA
PROP MED (PTY) LTD
SECOND
RESPONDENT
Neutral
citation:
Emoya Prop (Pty) Ltd v
X-Pharm (Pty) Ltd
(A129/2023) [2024]
ZAFSHC (__ October 2024)
Coram:
Daniso J et Nemavhidi AJ,
Greyling-Coetzer AJ
Heard:
11 October 2024
Delivered:
21 October 2024
Summary:
Motion proceedings – No case made out in
founding affidavit.
ORDER
On
appeal from
: Free State Division of the
High Court, Bloemfontein:
1.
The appeal is upheld with costs.
2.
The order of the court a quo in respect of
the Appellant (Second Respondent in court a quo) is set aside and
replaced with the following:
‘
That
the application against the Second Respondent is dismissed with
costs.’
JUDGMENT
Greyling-Coetzer
AJ (Daniso, J and Nemavhidi AJ concurring)
[1]
This is an appeal against the order made by
the court
a quo
in terms of which the Appellant, EMOYA PROP MED (PTY) LTD (Emoya
Prop) together with the First Respondent in the court a quo, EMOYA
MED HOSPITAL (PTY) LTD (Emoya Med), was ordered to restore X-PHARM
(PTY) LTD’s (X-Pharm) full access and its undisturbed
possession of the premises situated at Suite 14, Emoya Hospital, 7
Frans Kleynhans Avenue, Groenvlei, Bloemfontein.
[2]
Emoya Prop and Emoya Med were further
ordered to pay the cost of the application, the cost associated by
the application for condonation
and the cost associated by the
application for leave to appeal the rule
nisi
of 2 February 2023, on a party-and-party scale, the one paying the
other to be absolved.
[3]
In the court
a
quo
X-Pharm, applied on an urgent basis
for the restoration of control and possession of the premises which
X-Pharm leased from Emoya
Med
.
It
was common cause that Emoya Prop is the owner of the immoveable
property on which Emoya Hospital is constructed, and that it
leased
the hospital to Emoya Med.
[4]
X-Pharm leased a certain premises situated
within the hospital from Emoya Med, from where a pharmacy was being
conducted. X-Pharm
alleged that it was locked out of the leased
premises on 24 December 2022, and that it was in peaceful possession
of the leased
premises until such time as it was deprived of its
undisturbed possession by Emoya Med.
[5]
The application was opposed by both Emoya
Med and Emoya Prop. It was contended on behalf of Emoya Prop that
X-Pharm failed to make
out a case in its founding affidavit for the
relief which the court a quo ultimately granted. The court a quo in
dealing with aforesaid
contention, held that there was a clear nexus
between Emoya Med and Emoya Prop. Founded on aforementioned nexus,
the court a quo
found that the most plausible inference was that
Emoya Med and Emoya Prop are co-spoliators.
[6]
In examining the content of the founding
affidavit, it discloses:
a)
that Emoya Prop is the owner of the
building known as Phase 3A of Emoya Estate and leased the building to
Emoya Med;
b)
that Emoya Med sub-leased the premises to
X-Pharm;
c)
that the oral agreement pertaining to the
lease was reached between X-Pharm and Emoya Med;
d)
that a dispute regarding the provision of
pharmaceutical products arose between X-Pharm and Emoya Med;
e)
that Emoya Med disputed the validity of the
lease agreement of X-Pharm;
f)
that Emoya Med threatened X-Pharm with High
Court litigation;
g)
that the locks were changed by either Emoya
Med or Emoya Prop; and
h)
that X-Pharm further stated in its founding
affidavit that both Emoya Med and Emoya Prop were cited in an
abundance of caution ‘
due to the
ignorance of their identity
’.
[7]
It
is trite that in motion proceedings, such as which served before the
court a quo, the affidavits serve not only as pleadings
but should
also contain the essential evidence which would ordinarily be led at
trial.
[1]
Thus, the facts and
conclusions that stand to be drawn from said facts need to be set out
in the founding affidavit.
[2]
[8]
In
adjudicating upon such motion proceedings, a court stands to apply
the trite principle of
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
,
[3]
simply put, that final relief may only be granted if the facts
averred by an applicant, which have been admitted by a respondent,
justify such an order, unless the allegations and denial by the
respondent are so far-fetched or untenable that a court is entitled
to reject the respondent’s version merely on the paper.
[9]
A
respondent in motion proceedings is only called upon to meet specific
allegations made by the applicant in the founding paper,
and the
court is not enjoined to consider the respondent’s answering
affidavit in isolation and divorced from the context
of the case
which the respondent was called upon to meet.
[4]
[10]
There were simply no facts or evidence
presented to court a quo justifying a finding that Emoya Med locked
X-Pharm out from the
leased premises. Emoya Med fortified same by
contentions in the opposing affidavit. It was thus not open to the
court a quo to
conclude that because there is a ‘nexus’
between property owner and lessee (i.e., between Emoya Prop and Emoya
Med)
that Emoya Prop was a co-spoliator.
[11]
As
held in
Director
of Hospital Services v Mistry
,
[5]
a court is confined to resolve the dispute on the issues raised in
the founding affidavit and should not have regard to extraneous
issues and unproven facts.
[12]
For the reasons set out above, the appeal
should succeed. Consequently, the following order is made:
1.
The appeal is upheld.
2.
The order of the court a quo in respect of
the Appellant (Second Respondent in court a quo) is set aside and
replaced with the following:
‘
That
the application against the Second Respondent is dismissed with
costs.’
GREYLING-COETZER
AJ
I
concur and it is so ordered
DANISO
J
I
concur
NEMAVHIDI
AJ
Appearances:
For
the Appellant:
ADV.
J.S. RAUTENBACH
Instructed
by:
Symington
De Kock
For
the Respondent:
No
appearance
[1]
Transnet
Ltd v Rubenstein
2006
(1) SA 591
(SCA) at 600G-H.
[2]
Swissborough
Diamond Mine (Pty) Ltd and Other v Government of Republic of South
Africa and Others
1999
(2) SA 279
(T) at 324F-G.
[3]
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984
(3) SA 623
(A) at 634E-635C.
[4]
Administrator,
Transvaal and Others v Theletsane and Others
[1990] ZASCA 156
;
1991
(2) SA 192
(A) at 196C-E and H-I.
[5]
Director
of Hospital Services v Mistry
1979
(1) SA 626
(A) at 645H.