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[2023] ZAGPJHC 230
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Central City Investments (Pty) Ltd v Laljit Ajodha T/A Ajodha's Bottle Store (11316/2022) [2023] ZAGPJHC 230 (24 February 2023)
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Certain
personal/private details of parties or witnesses have been redacted
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IN THE HIGH COURT
OF SOUTH AFRICA
(GAUTENG LOCAL
DIVISION, JOHANNESBURG)
Case No. 11316/2022
(1)
REPORTABLE:
YES
/NO
(2) OF
INTEREST TO OTHER JUDGES:
YES
/NO
(3)
REVISED: YES/NO
DATE: 24 February 2023
In the matter between:
CENTRAL CITY INVESTMENTS
(PTY) LTD Applicant
and
LALJIT AJODHA T/A
AJODHA’S BOTTLE STORE Respondent
JUDGMENT
HOPKINS AJ
1.
The
applicant (“Central City”) has approached this court
seeking the eviction of the respondent (“Mr Ajodha”)
from
commercial premises situated at No. [….] G[....] S[....] in
Lenasia (“the premises”).
2.
Central
City owns the premises. It purchased them from the Estate Late
Soonpathee Ajodha (“the deceased”). The deceased
was Mr
Ajodha’s mother. It was her desire, recorded in her last will
and testament, that the premises be sold upon her death
and that the
proceeds of the sale be apportioned between her twelve children. The
executrix, as part of her functions, sold the
premises to Central
City after receiving an offer to purchase on 28 October 2020.
3.
Ownership
of the premises was subsequently transferred to Central City on 23
April 2021. Mr Ajodha, who had been operating a bottle
store from the
premises for several years, continued to remain in possession of the
premises from which he continued to trade,
even after Central City
acquired ownership. He refused to vacate. On the papers, it is common
cause that there is no lease agreement
between Central City and Mr
Ajodha. It is also common cause that Mr Ajodha has never paid any
rent to Central City nor ever offered
to do so.
4.
Slightly
more than a year after Central City became the owner, in May 2021, Mr
Ajodha and four of his twelve siblings instituted
an application
whose primary purpose was to set aside the sale of the premises from
the deceased estate late to Central City, ostensibly
on the grounds
that the executrix did not have the required consent of all of the
beneficiaries to sell the property and that,
consequently, the Master
erroneously issued the executrix with a certificate in terms of
section 4(2) of the Administration of
Deceased Estates Act No. 66 of
1965. That application, which was set down as an urgent application
on 18 May 2021, was struck from
the roll by the urgent court judge on
the basis that it was
not
urgent.
5.
Nothing
further happened until slightly more than a year later when, on 30
May 2022, Mr Ajodha’s then attorney, wrote to the
executrix and
Central City advising them that just because the matter had been
struck from the roll on 18 March for a lack of urgency
“does
not mean that it is the end of road…”. The letter went
on state that Mr Ajodha intends re-enrolling the
matter. As it turns
out, the matter was never re-enrolled (despite Mr Ajodha apparently
wanting it to be urgently adjudicated as
far back as May 2021).
6.
Not
only was the 2021 application never re-enrolled, but Mr Ajodha took
no further steps to actively prosecute it although he does
say that
he did intend to do so but those intentions did not materialise due
to difficulties that he experienced with his erstwhile
attorneys,
which he explained.
7.
Another
10 months passed until, on 23 March 2022, Central City launched these
eviction proceedings. By now, of course, some 22 months
had elapsed
since Central City had become the owner of the premises and it was
understandably anxious to obtain the benefit of
its ownership. Not
only does Mr Ajodha refuse to vacate the premises, but he also
refused to tender to pay anything to Central
City despite the fact
that he operates a trading business from its premises and earns an
income from doing so.
8.
Mr
Naidoo
,
who represented Central City, urged me to grant the eviction order on
the basis that his client is the owner of the premises and
that Mr
Ajodha has no right to occupy them.
9.
Mr
Roos
,
who represented Mr Ajodha, urged me to grant a stay of these eviction
proceedings so that the 2021 application, which has still
not yet
been re-enrolled, can be re-enrolled. I find it apposite to first
deal with the application for a stay.
10.
It
is trite that an applicant for a stay of proceedings must make out a
clear case for such relief. The court considering an application
for
a stay has a discretion to either grant the stay or not, see
Caeserstone
Sdot-Yam Ltd vs. World of Marble and Granite and Others
2013 (6) SA 499
(SCA). A court will favourably consider a stay when real and
substantial justice requires it or where an injustice would otherwise
result. However, a court will not favourably consider a stay if it
appears that it has been sought simply to obstruct an eviction.
As to
the requirements for a stay, our courts have held that the
requirements for an interim interdict should be taken into account
as
guidance in determining whether or not to grant a stay, see
Gois
t/a Shakespeare’s Pub vs. Van Zyl and Others
2011 (1) SA 148
(LC) at paras 32-33. Mr Ajodha, however, does not engage with these
requirements at all. He based his request for a stay entirely
on the
existence of the 2021 application.
Mr
Naidoo
argued strongly that Mr Ajodha’s failure to so-engage is fatal
to his endeavours to get the stay that he wants. I agree.
11.
However,
aside from Mr Ajodha’s non-engagement with the requirements for
an interim interdict, which he should have done,
there is another
reason why I am not persuaded to grant a stay. It is because Mr
Ajodha has unreasonably delayed in bringing the
2021 application to
finality. He appears only to have sought to revive it in
circumstances that appear to be driven principally
in an effort to
avoid being evicted. I agree with
Mr
Naidoo
that Mr Ajodha’s actions are a contrivance and an abuse of
court. I was referred
Robor
(Pty) Ltd (Tube Division) vs. Joubert NO & Others
(2009)
30 ILJ 2779 (LC) where it was held that
the
interests of justice must be taken into account by courts when
considering applications for a stay. One of the reasons that
it was
deemed not to be in the interests of justice to grant a stay in
Robor
was because of the unexplained delay in prosecuting the “other”
application. In this matter, I take the view that Mr
Ajodha has not
adequately explained his delay in more actively prosecuting the 2021
application, which he claimed was urgent as
far back as 22 months
ago.
Mr
Naidoo
amplified his case against the granting of a stay, against this
background of delay, with reference to the
maxim
vigilantibus non
dormientibus jura subveniunt
(a
man whose legal interests are threatened should be vigilant in
protecting them) which been received into our law, see
MG Holmes
(Pty) Ltd vs. National Transport Commission
1951
(4) SA 659
(T),
Cape
Town Municipality vs. Abdulla
1974
(4) SA 428
(C) at 438, and
Wolgroeiers
Afslaers (Edms) Bpk vs. Muni van Kaapstad
1978
(1) SA 13
(A). I agree that the maxim finds application in this case
too and operates against Mr Ajodha who appears to have been
relatively
disinterested in actively protecting his rights until
faced with eviction.
12.
In
the final analysis. I am of the view that it will not be in the
interests of justice to grant a stay in these circumstances.
I am
inclined to grant the eviction. Should Mr Ajodha elect to once again
take up the reins in the 2021 application, and diligently
pursue it,
he will be entitled to seek whatever remedies the law provides to him
if he succeeds.
13.
In
the circumstances, I make the following order:
1.
The
respondent, and all those who hold occupation under him, are hereby
evicted from the premises situated at Erf [....] Lenasia
Extension 1
Township, also referred to as No. [….] G[....] S[....] ,
Lenasia, Extension 1 (“the premises”).
2.
The
respondent, and all those who hold occupation under him, must vacate
the premises within 10 days of this order.
3.
In the event of the
respondent, and all those holding occupation under him, failing to
comply with the terms of paragraphs 1 and
2 above, the Sheriff is
authorised to compel compliance by evicting them from the premises.
4.
The respondent is to pay the
costs of the application.
HOPKINS
AJ
Date
of Hearing: 14
February 2023
Date
of Judgment: 24
February 2023
Appearances
For the applicants:
Adv. Kuvashkir Naidoo
Instructed
by:
Sookayee Inc Attorneys.
Johannesburg
For the
respondent:
Adv. JM Roos
Instructed
by:
Baoyi Attorneys
Johannesburg