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contends that my interpretation of the clauses 12.1 and 12.2 1 of the lease
agreement which it relies on, is incorrect. The business rescue practitioner on
behalf of the applicant, sought interdictory relief, to remove certain assets off
the respondent’s premises, which the applicant leased in the 80”s and for an
order that the respondent is not to interfere with the business rescue process.
Blou SC submitted that the rights conferred as set out i n the clauses is clear
and there are no factual disputes , Plascon Evans has no application in casu,
the relief ought to have been granted.
[2] It was further argued that the clauses permit the applicants to remove “all
removable assets” upon termination of the lease and that the applicant is not
obliged to restore the property in any way. Counsel explained the applicant
received a piece of land, the plant was bespoke and the applicant installed
weighbridges and gantries and other structure with the specific intention to
operate the steel works. He referred me to clause 6.4 of the lease which
provides for removal, and he contends supports the applicant’s version that it
owns the items and can remove them upon termination. The clauses conferred
contractual rights on the applicants which included a right to remove its
property.
[3] Mr Blou submitted it is a matter for interpretation and that another court will
arrive at a different interpretation and therefore leave must be granted. He
reminded the court that the validity of the clauses was never attacked and
therefore no argument beyond the clauses and their meaning, can succeed.
1 Judgment para 5
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[4] He contended that Barne’s subse quent behaviour, the offers to purchase the
assets on three separate occasions for significant amounts must confirm that
he knew the items belonged to the applicant.
[5] Daniels SC for t he respondent argued that the items the applicant seeks to
remove have acceded to the property and belongs to the respondent, they do
not form part of the applicant’s estate and c annot be sold by the business
rescue practitioner. He contended that court is called upon to draw inferences
and determine the issue on probabilities . The motion court is not designed to
determine matters on probabilities. He submitted the issue of ownership is
fundamental, having regard to the action proceedings in which the applicant
claims it holds an improvement lien, on the property. It cannot hold a lien over
property it claims it owns.
[6] He further submitted that the judgment was correct in that , oral evidence will
need to be led, the business rescue practitioner has only recently learnt of the
applicant and its business, he arrive d long after the lease was concluded, the
court cannot rely entirely on his evidence. Mr Daniels argued that the assets
acceded to the property and expert evidence would have to be led at the trial
to confirm the accession. It was submitted that the clauses provide that all
removable assets may be removed, “if they are removable” and only an expert
can assist the court in tha t regard. He proffered there must be a process of
discovery, a trial and evidence from experts , for an understanding of the
intention of the parties at the time the lease was entered into . Mr Daniels
submitted that, whether the items are removable is an objective fact and not a
question of interpretation. He submitted the application must be refused with
costs.
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[7] Earlier in this judgment I referred to certain anomalies raised by both parties
and in the light of those facts, see paragraphs 4, 5 and 6 above, I am inclined
to grant the applicants the leave sought . If this is indeed a matter of
interpretation, another court may arrive at a different conclusion. Mr Blou in this
application alerted me to the language employed in clause 6.4 of the agreement
which may assist parties at another hearing of this matter.
[8] Condonation for the delay in filing the notice of appeal is not disputed and is
granted.
Accordingly, leave to the Gauteng Division of the High Court Johannesburg is granted,
the costs to be in the appeal.
I make the following order:
1. Condonation for late filing of the notice is granted.
2. Leave to appeal is granted to the Gauteng Division of the High Court
Johannesburg.
3. Costs of this application shall be costs in the appeal.
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Appearances: Blou SC for appellant instructed by Fluxmans Inc
Daniels SC for respondent instructed by Eversheds
Sutherland Inc