SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHERS JUDGES: NO
(3) REVISED: NO
Date: 11 March 2025
Case Number: 011335/2024
In the matter between:
MULTIFLAT RESIDENTIAL PROPERTIES Applicant
(PTY) LTD -EIKEHOF (M)
(REG NO: 2000/018447/07)
and
MD SHAR ALI Respondent
(ID NO:) 7 […]
This judgment is issued by the Judge whose name is reflected herein and is
submitted electronically to the parties/their legal representatives by email.
The judgment is further uploaded to the electronic file of this matter on
CaseLines by the Judge or her Secretary. The date of this judgment is
deemed to be 11 March 2025.
JUDGMENT
COLLIS J
INTRODUCTION
1. In this opposed application wherein , the Applicant is seeking an
order for eviction, against the Respondent from commercial immovable
property. The Applicant is the owner of the property registered in to its
name .
2. The Applicant alleges that the Respondent breached the terms of the
commercial lease agreement, specifically with reference to the use of
the leased premises, by failing to operate a laundry business, which was specificall y stipulated by the commercial lease agreement, and in
direct breach of the commercial lease agreement, attempting to operate a spaza shop from the Applicant’s premises.
3. The Respondent oppos es this application, on the alleged basis that
the Respondent had alleged oral agreements with the representatives
of the Applicant, to operate a spaza shop from the premises, an d on
this basis, he contend s, that the Applicant cannot evict him .
4. The Respondent further does not deny that he is in breach of the
written commercial lease agreement between the parties, in that he
was operating a business from the premises that was specifically not
provided for or that was prohibited by the commercial lease agreement,
or that the Applicant had properly terminated the agreement between
the parties. This termination occurred on the 9th January 2024.
BACKGROUND
5. This applicatio n as mentioned , is for the eviction of the Respondent,
from commercial property, where he conducts his business. The basis
for the Applicant’s a pplication for e viction is as follows:
5.1 The basis for the cancellation of the lease agreement by the
Applicant, is not due to non -payment of the monthly rental, but due to
the breach on the part of the Respondent, in failing to adhere to the
express terms of the lease agreement, specifically with reference to the use of the leased premises, by operating a business from the commercial premises which was not agreed to between the parties, and
therefore, which was specifically excluded by the commercial lease
agreement.
5.2 The Applicant specifically refers to the purpose for the use of the
leased premises by the Respondent, as expressly stated in paragraph
“E” of the Information Schedule of the Lease Agreement.
5.3 In terms of paragraph “E” of the information Schedule of the Lease
Agreement, the parties expressly agreed that the purpose for which the
leased premises were to be let, was for: “a laundry”.
5.4 In terms of paragraph “E” of the information Schedule of the Lease
Agreement, the parties expressly agreed that the lease of the leased
premises would be for a laundry, and for nothing else .
5.5 This paragraph “E” of the Information Schedule of the lease
agreement must be read in conjunction with clause 4.2 of the Conditions of Lease, which specifically provided for the following:
“4.2 The Tenant shall use the Leased Premises solely for the Permitted Purpose.”
5.6 The Respondent failed to adhere to the terms of the Lease
Agreement, and therefore the Applicant contends the Respondent was,
and still is, in breach of the lease agreement.
5.7 When the Applicant became aware of the fact that the Respondent
breached the agreement, by contravening the terms of the agreement,
and failing to adhere thereto, specifically with reference to the use of the leased premises, the Applicant, acting in terms of the lease
agreement, notified the Respondent of the breach of the lease agreement, on the 19th of September 2023.
5.8 As per Annexure “AS3” to the Founding Affidavit, the breach of the
Respondent was clearly set out and addressed. The Respondent,
despite being made well aware of this, and the Applicant’s position on the issue, however failed to remedy the breach.
ISSUES FOR DETERMINATION
6.This Court was called upon to determine whether the Applicant has
made out a proper case in the application to have an eviction order
granted against the Respondent. In this regard, the Applicant,
approaches this Court as the lawful and rightful owner of the
immovable property, and this is common cause between the parties. As
lawful owner the Applicant is relying on the rei vindicatio and the
Respondents ’ possession of the property.
REQUIREMENTS FOR REI VINDICATIO
7. In order for the Applicant to thus succeed with an eviction, the
Applicant must allege and prove:1
1 Amler’s Precedent of Pleadings Eight Edition p 188.
7.1 the right of the Respondent to possess, i.e a lease agreement
between the parties;
7.2 a valid termination of the right to possess;
7.3 a continued occupation by the respondent or someone holding on
behalf of or through the Respondent;
7.4 compliance with the provisions of any statutory requirements;
7.5 damages (if any) suffered as a result of the holding over.
COMMON CAUSE FACTS
8. It is a common cause fact between the parties, that the Respondent
does not deny his breach of the commercial lease agreement, or that
the Applicant has properly terminated the agreement between the m.
Therefore, the Respondent is in unlawful occupation of the property.
POINTS IN LIMINE
9. The Respondent however had raised two points in limine in defence.
9.1 The first issue raised is taking issue with the deponent to the
Founding A ffidavit’s ability to depose to the a ffidavit on behalf of the
Applicant;
9.2 The second issue raised by the Respondent, is that the Applicant’s
application is premature as the Applicant was obliged to first proceed
by way of ADR as provided for in paragraph 13.3 of the lease
agreement, or on terms of Rule 41A.
10. It’s important to note that b ut for these points in limine raised, no
additional defences have been disclosed by the Respondent against the
eviction and breach claim of the Applicant. Deponent’s ability to deposed to the Founding Affidavit.
11. As per the Founding A ffidavit, the deponent alleges, that she is an
adult female Legal Advisor in the employ o f City Property
Administration (Pty) Ltd, and that her employer is the Applicant’s duly
authorised agent which handles and facilitates, inter alia , the
administration and legal aspects of the Applicants properties. As such the deponent further contends that she is duly authorised to deposed to this affidavit.
12. She further alleges that the file pertaining to the Respondent as
well as the leased premises falls under her direct control and that she
has acquainted herself with the content of the file and the facts of the matter.
2 These aspect s regarding the ability of the Applicant’s deponent
to depose to the affidavits, and her authorisation to depose thereto has been dealt with in detail in paragraphs 1.1 to 1.5 in the Founding
Affidavit, as well as paragraphs 4.1 to 4.16 of the Replying Affidavit.
13. It on this bas is that C ounsel submitted that it is clear that the
deponent has been properly authorised to depose to the affidavits on
behalf of the Applicant, as stated in the Founding Affidavit, as well as in
terms of Annexure “RA1” to the Replying Affidavit.
2 Founding Affidavit para 1 p 08 -7.
14. Furthermore , that apparent from the founding papers , it is clear
from that, not only is the deponent duly authorised to act on behalf of
the Applicant, but the facts of the matter fall within her personal knowledge, as she has personally dealt with this matter.
15. The deponent further indicates that the facts of the matter fall
within her personal knowledge, and that she can swear positively to the
facts, as is required by the Uniform Rules of Court, with specific reference to Rule 6.
16. Before this Court, C ounsel for Applican t submi tted tha t the
Respondent has not raised any issue in terms of Rule 7, and further
fails to place any evidence before this Court, as to why the deponent of the Applicant cannot act on behalf of the Applicant, in deposing to these
affidavits. The Respondent has also failed to invoke the provisions of
Rule 7, or to have filed any formal Notice in terms of Rule 7.
17. For the above reasons C ounsel had argued, that the Respondent is
making mere allegations with no proof whatsoever, to support his
contentions, and without any personal knowledge that would disqualify the deponent from making these affidavits, as per the requirements of
the Uniform Rules of Court.
18. In its Answering Affidavit the Respondent denies that the deponent
has the necessary locus standi to depose to the affidavit on behalf of
the Applicant. More so in the absence of a special resolution or confirmatory affidavit attached to the Founding Affidavit.
19. In addition , the Respondent alleges that there is nothing in the
Founding Affidavit that suggest that Ms Agelique Smit who is an
employee of C ity Property Administration is in anyway authorised to
depose the Affidavit on behalf of the Applicant ,3 more so where
applications have been launched on behalf of juristic persons, where
such juristic person has resolved to bring the application and/or
institute the proceedings .
20. The Applicant herein has also failed to attach to the f ounding
papers a special resolution from the Applicant to the effect that the
mentioned person, is indeed authorised to depose the Affidavit on
behalf of the Applicant .
21. Absent such proof the Respondent therefore contends that there
has also been non -compliance with Rule 6(1).4
3 Amler’s Precedent of Pleadings page 67 “Legal standing must appear from the
description of the parties or must be dealt with. It must also appear ex facie the
initiating documents” .
4 Uniform Rule 6 (1).
22. The Respondent is further of the view that it is clear that the City
Property Administration has the substantial interest in the matter and
should have been joined and/or cited as a party to the proceedings .5
23. The Respondent further alle ges, that the Applicant has through its
Replying Affidavit attempted to cure such defects in the Founding
Affidavit by attaching a special resolution signed after the founding
statement was deposed by what it contends is a non e party to the
proceedings .6 This the Respondent argues is prejudicial and irregular to
the Respondent as it amounts to the introduction of new facts to which
it will not be afforded a right of reply.
24. Absent such special resolution attach to the Founding Statement ,
the attorney submitted that the statement remains a nullity and has no
legal effect in so far as issues raise in the notice of motion.
5 Uniform Rule 10 (1).
6 Para 3 Special Resolution, “The company hereby ratifies all and any actions
which Mrs Smith may already have taken in relation to the application and/or
action referred to above”.
THE LAW
25. The question of locus standi is not only a procedural aspect , but it is
also a matter of substance. It concerns the sufficiency and directness of
a person’s interest in the litigation in order for that person to be accepted as a litigation party.
26. The general rule is that it is for the party instituting proceedings to
allege and prove its locus standi; and onus of establishing that rests on
that party. It must accordingly appear ex facie the founding pleadings that the parties thereto have the necessary legal standing or locus standing in iudicio.
7
7 Amler’s Precedents of P leadings page 245.
27. According Erasmus Superior Court Practice Second Edition8 the
statement of facts must at least contain the following information:
27.1. The Applicant’s right to apply , that is, the Applicant’s locus standi,
27.2 In Scott v Hanekom9 it is said that it is ‘trite law that appropriate
allegations to establish locus standi of an applicant should be made in
launching affidavits and not in the replying affidavits,
27.3 That the deponent to the A ffidavit need not be authorized by the
party concerned to depose thereto,
27.4 That it is the institution of the proceedings and the prosecution thereof which must be authorized.
28. When Notice of M otion proceedings are brought by a legal persona
such a company , evidence must be placed before the court that the
8 Page D1- 54.
9 1980(3) SA 1182 (C) at 1188H .
applicant has duly resolved to institute the proceedings and the
proceedings are instituted at its instance.10
29. In a case where the deponent acting on behalf of an applicant
company lacks the capacity to launch application proceedings on behalf of the company, and the Respondent objects thereto, want of capacity
cannot later be remedied by a decision of the directors of the company
that did not exist at the stage when the application was launched.
30. From the founding papers before this Court it is clear that, not only
is the deponent duly authorised to act on behalf of the Applicant, but
the facts of the matter fall within her personal knowledge, as she has
personally dealt with this matter as managing agent of the Applicant.
10 Erasmus Superior Court Practice Volume 2 p D1-55.
31. Before this Court the deponent has qualified this assertion further in
that the file of the Applicant, pertaining to the Respondent, as well as
the leased premises, which is the subject of this application, falls under
her direct control, and she is familiar with the content thereof, as well
as the facts of this matter, as she has personally dealt with this matter.
32. As the deponent has indicated that the facts of the matter fall
within her personal knowledge, and that she can swear positively to the
facts, as is required by the Uniform Rules of Court, there has thus been
compliance with Rule 6.
33. The next question is whether the A pplicant has a right to apply for
the relief sought in these proceedings, that is, the A pplicant’s locus
standi . This refers to the ability of the Applicant to bring this
application, being an eviction application, and therefore, the Applicant,
being the owner of the immovable property, which is common cause, gives the Applicant the necessary locus standi to bring this application.
34. This Court agrees that the issue raised to the locus standi of the
Applicant has no merit as the Applicant is the owner of the leased
property which ownership has not been contested by the Respondent.
See Mars Incorporated v Candy World (Pty) Ltd 1991 (1) SA 567 (A) at 575H– I and Kommissaris van Binnelandse Inkomste v Van der Heever
1999 (3) SA 1051 (SCA) at 1057G –H.
35. As mentioned, the Respondent seems to take issue with the
authorisation of the deponent, and seemingly also the authorisation to
institute these proceedings.
36. The deponent to the affidavit as mentioned, need not be authorized
by the party concerned to depose thereto. It is the institution of the
proceedings and the prosecution thereof that must be authorized and
which authorization conc erns proper authority to act on behalf of a
party in the proceedings.
37. The provisions of Rule 7(1) should be invoked when ‘the authority
of anyone acting on behalf of a party’ is challenged. The Respondent
failed to invoke the provisions of Rule 7 and further fails to place any
evidence before this Court, as to why the deponent of the Applicant
cannot act on behalf o f the Applicant, in deposing to these affidavits.
Absent such challenge this is really the end of the matter on this
point.11
38. The Respondent by merely making the allegations of lack of
authority with no proof, whatsoever to support his contentions, and
without any personal knowledge that would disqualify the deponent
from making these affidavits, and without invoking the remedy in terms
of Rule 7, and by taking a further step in filing his Answering Affidavit,
11 Eskom v Soweto City Council 1992 (2) SA 703 (W) at 207D –E.
and not objecting to the Annexure to the Replying Affidavit, he has
failed to appropriately raise this issue.
39. Consequently, the first point in limine is found to be without merit
and is dismissed with costs.
The second point in limine, i.e . failure to first proceed by way of ADR.
40. The alleged second point in limine taken by the Respondent, is that
the Applicant’s Application was premature, as the Applicant was oblig ed
to first proceed by way of dispute resolution, as provided for in
paragraph 13.3 of the lease agreement, or in terms of Rule 41A.
41. Paragraph 13.2 of the lease agreement, p rovides as follows:
“Choice of Process:
13.2.1. Without excluding any rights of the Tenant prescribed by
the Consumer Protection Act, 2008 or any other legislation
applicable, from time to time, either party may elect whether a dispute in terms of this agreement is to be brought in a court with competent jurisdiction or by way of dispute resolution as set out in clause 13.3 below.”
42. From the above paragraph it is apparent that the Applicant is not
obliged to follow the dispute resolution route, if it elects not to, and the
Applicant has the right to proceed with legal process, through a court, if
the Applicant so elects. 43. In terms of this cl ause 13.2, the Applicant elected not to follow the
dispute resolution route, and elected to proceed by way of this
Application for Eviction.
44. In regard to Rule 41A, the Applicant indeed has filed the required
notice, indicating that mediation would be of no use, as the Respondent
is in breach of the agreement, the Respondent fails to remedy such breach, and as such, the Applicant has cancelled the lease agreement
and proceeded by way of Court proceedings.
12
45. Failure to have complied with ADR therefore, is a meritless point in
limine if regard is had to the provisions of clause 13.2 of the lease
agreement.
46. Consequently, this second point in limine is also dismissed with
costs.
12 Caselines 08- 9.
47. As for the remainder of the defence raised, the Respondent
contends that an alleged oral agreement, was reached with
representatives of the Applicant wherein he was given permission to use the leased premises a s a spaza shop and not as a laundry. In this
regard it should be mentioned that the Respondent fails to annex any
confirmatory affidavits of these specific individuals depicting such
permission.
48. Clause 13.6 of the lease agreement, is what is known as a “non-
variation clause” and it reads as follows:
“No addition to or variation, consensual cancellation or
novation of the Agreement and no waiver of any rights arising out of this Agreement or its breach or termination
shall be of any force or effect unless reduced to writing and
signed by both Parties.”
49. The alleged ratification alleged by the Respondent not only holds no
merit, but is specifically denied by the Applicant, and as mentioned the
Respondent fails to provide any proof thereof, that complies with the
terms of the lease agreement, specifically clause 13.6 thereof.
50. Clause 13.6 of the agreement between the parties, specifically
require any variation to be done in writing, and signed by the parties.
This was clearly not done. This clause specifically provides for a non -
variation clause, and which specifically indicates that no variation of this agreement will be of any force and effect, unless it is reduced to writing, and signed by both parties.
51. Therefore, apparent from the above it is clear what the terms and
conditions between the parties were when they entered into the
agreement. The agreement therefore contains a non -variation clause,
which is also referred to in practice as the Shifren clause.
52. The Respondent further fails to explain how, when and where the
terms of the agreement , was ever varied, altered or changed by both
the parties, in writing, and signed by them. The lack of detail provided
by the Respondent further supports the Applicant’s version that no such
alleged oral agreement or agreements were ever concluded.
53. The Respondent also fails to plead any compliance, whatsoever,
with this paragraph of the agreement, requiring any such alleged variation to be in writing, and signed by both parties. As the Applicant specifically denies such compliance with clause 13.6 the Respondent carried the onus to proof same which in casu he has failed to do.
54. As a result, the Respondent is bound by the written lease
agreement. The principal of caveat subscriptor further finds application
in this matter, and the Respondent is bound by the written agreement
between the parties, as signed and concluded by them.13
55. Consequently , this Court finds that the Respondent has also failed
to disclose a defence on the merits and for that reasons his eviction will
be ordered.
COSTS
56. The Lease Agreement concluded between the parties makes
provision for costs on attorney and client scale in the event of legal
proceedings being embarked upon to enforce any of its rights in terms
of this agreement.14 Herein, there is no basis to deny the successful
13 SA Sentrale Ko- op Graanmaatskappy Bpk v Shifren and Others 1964 (4) SA
760 (A) and the reported judgment of Brisley v Drotsky 2002 (4) SA 1 (SCA),
which simply again confirmed the Shifren principle.
14 Clause 13 .7 of the Lease Agreement.
party of such costs or to deny the scale as agreed to in the agreement.
This Court in exercising its discretion will proceed to award such costs.
ORDER 57. In the result the following order is made:
57.1 The point s in limine are dismissed with costs;
57.2 The Lease Agreement between the Applicant and the Respondent,
entered into on the 27th of July 2023, is hereby cancelled;
57.3 The Respondent and all other occupants, occupying through or
under him , are to vacate the premises situated at SHOP 1506 EIKEHOF
(M), 58 BOURKE STREET, SUNNYSIDE, PRETORIA, GAUTENG PROVINCE
(the premises), together with any movable property that is on or in the said premises, within 5 court days of service of the order on him ;
57.4 In the event that the Respondent, and all those occupying through
or under him, fail to vacate the premises, known as at SHOP 1506
EIKEHOF (M), 58 BOURKE STREET, SUNNYSIDE, PRETORIA, GAUTENG PROVINCE, within time period as stated in par agraph 57.3 above, the
Sheriff of the area, where the immovable property is situated, is authorised to assist the Applicant in evicting the Respondent, and all those occupying through or under him, from the premises;
57.5 The Respondent is ordered to pay the costs of this application, on
an attorney and client scale.
___________________
C COLLIS
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
APPEAR ANCES
Counsel for the Applicant: Adv. Z Schoeman
Instructing Attorney: Savage, Jooste and Adams Inc.
Legal Representative for the Respondent: Mr. M J Mahl anya
Instructing Attorney: Mah lanya Matsobane and Associates
Date of Hearing: 12 November 2024
Date of Judgment : 11 March 2025