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IN THE HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

 

Case No: 63519/2020

REPORTABLE: NO

OF INTEREST TO OTHER JUDGES: NO

REVISED: YES

06 MARCH 2023

 

In the matter between:

 

BUSINESS PARTNERS LTD                                                                             APPLICANT

 

and

 

MOOIKLOOF LA TRATTORIA (PTY) LTD                                        FIRST RESPONDENT

 

JOHAN THEUNIS ENGELBRECHT                                            SECOND RESPONDENT

 

THE UNLAWUL OCCUPIERS OF UNIT 18 OF

MOOIKLOOF VILLAGE SHOPPING CENTRE                                THIRD RESPONDENT

 

JUDGMENT

 

SWANEPOEL AJ

 

(1)          This is an application for eviction from a commercial premises described as Unit 18, Mooikloof Village Shopping Centre, situated on Portions 305 and 306 of the Farm Rietfontein 375 JR, Gauteng (“the premises” and/or “the property”).

 

(2)          It is common cause that the first respondent has in the past and is at present conducting a restaurant business at the premises.

 

(3)          The applicant has alleged in its founding affidavit that it is the owner and landlord of the property. The applicant has explained in its replying affidavit, pursuant to denials by the first and second respondents of the applicant’s alleged ownership of the property, that:

 

3.1      The applicant is a holding company;

3.2      The registered owner of the property is Business Partners Properties 002 (Pty) Ltd, a wholly owned subsidiary of the applicant;

3.3      The applicant holds its investment in the latter company (its subsidiary) and the property in question is one of its investments owned by Business Partners Properties 002 (Pty) Ltd;

3.4       The applicant has concluded a management agreement with its subsidiary, a copy of which is attached to the replying affidavit. Notably that agreement was dated in August 2021, after the date of the issuing of this application.

 

(4)          In terms of the management agreement the applicant is the Manager of the property responsible for a host of activities and functions, which include "eviction of tenants".

 

(5)          In its founding affidavit the applicant has failed to plead (as is customary in this Division) its full particulars and registered address. The applicant's full name appears only from the heading. However, in the remainder of the applicant’s Court papers, and in particular a copy of the schedule to the relevant lease agreement, its full name, registration number, as well as its physical address appear. The relevant annexure is ANNEXURE AD(3)(a). The company registration number is stated as 1981/000918/06. Its physical address is stated as 37 West Street, Houghton Estate, Johannesburg, 2198.

 

(6)          In terms of the lease agreement concluded between the applicant and the first respondent, the rental is described with reference to several annual periods commencing on 1 September 2017 up to 31 August 2020. The lease period is stated in clause 7 of the agreement to be from inception date, being 1 September 2017 up to 31 August 2018. Under clause 8 of the lease agreement headed "Option of Renewal", a manuscript entry is made on the document, next to which appear signatures in terms whereof it is recorded "By mutual agreement".

 

(7)          The application is founded on the common cause fact that the period of the lease agreement came to an end.

 

(8)          Although there appears to be some dispute whether the termination date was 31 August 2018 or 31 August 2020, nothing turns on this. The applicant alleges that the first and second respondents remain in unlawful occupation of the premises despite the expiration of the term of the lease agreement.

 

(9)          The first respondent has in its answering affidavit conceded that it is in continued occupation of the premises. The second respondent filed an answering affidavit (only on 16 August 2021). The application was issued on 02 December 2020 and served on first and second respondents on 22 April 2022.

 

(10)       In his answering affidavit, the second respondent stated that he has resigned as a director of the first respondent and he denies continued occupation by him of the property. Counsel for the applicant has indicated that on the basis thereof no relief is sought by the applicant in these proceedings against the second respondent, save for a costs order.

 

(11)       The issues for adjudication in this matter are according the following:

 

11.1   Whether the applicant has established its locus standi (for it to have instituted this application for the eviction relief that it seeks);

11.2   Whether any of the defences raised by the first respondent are meritorious.

 

Those defences are:

 

11.2.1        a denial of the applicant’s locus standi;

11.2.2        reliance on a lien, or a right of retention, based on the first respondent's alleged substantial expenditure incurred on improvements to the property;

11.2.3        that the applicant's refusal to agree to renew the lease or to extend it constitutes unreasonable conduct, regard had to the terms of the lease agreement; and

11.2.4        counsel for the first respondent also submitted that the option for mediation was available to the parties and that the applicant’s indication that it was opposed to mediation as contained in its notice dated 23 November 2020 was unreasonable. In addition, the issue of the costs of the application is in dispute.

 

(12)       Insofar as it concerns the applicant’s failure to insert a paragraph in its founding affidavit containing its complete citation, I am of the view that the following considerations are relevant:

 

12.1   Uniform Rule 6 stipulates the requirements for applications. Although there is no particular provision requiring an applicant to comprehensively plead its own description and particulars, Rule 6(1) provides that:

 

"Every application must be brought on notice of motion, supported by an affidavit as to the facts upon which the applicant relies for relief.”

 

12.2   The first respondent has in its answering affidavit alleged that it is unclear who the actual applicant is in this application. In my view, the stance adopted by the first respondent has no merit. The name of the applicant appears from the notice of motion and founding affidavit headings. In addition, the further particulars of the applicant appear from the lease agreement schedule attached to the founding affidavit. Moreover, the first respondent, in its answering affidavit, acknowledged conclusion of the lease agreement with the applicant. In addition, counsel for the first respondent, Ms Ellerbeck, reasonably conceded that the first respondent does not dispute that the lease agreement was indeed concluded by and between the applicant and the first respondent.

 

(13)       In my view it would lead to an undesirable outcome if the mere fact that an applicant who has failed to include a customary citation paragraph in its founding affidavit (containing its full description and further particulars), in circumstances where all its particulars do appear from a reading of the documentation attached to its founding affidavit, is non-suited (on such basis alone).

 

(14)       As regards the issue of locus standi, it is trite that an applicant need not prove any title to immovable property from which a respondent is to be evicted. It is further trite that a lessee is bound to the terms of a lease, even if a lessor who seeks the eviction of such a lessee has no title to the relevant immovable property. It also does not avail a lessee to show that a litigant who seeks its eviction has no right to occupy the property. This much is clear from the decision by the Constitutional Court in Mighty Solutions CC trading as Orlando Service Station v Engen Petroleum Limited & Another 2016 (1) SALR 621 (CC), in particular on pp 627 to 628 and 629 in paragraphs [28] and [33].

 

(15)       I therefore find that the applicant has the requisite locus standi to institute this application for the relief that it seeks.

 

(16)       As regards the lien, or right of retention upon which the first respondent relied as part of its opposition to the relief sought:

 

16.1   The first respondent cannot escape the provisions of the admitted lease agreement, in particular clause 19.5 thereof which provides that the lessee shall have no right of retention in respect of expenditure in relation to improvements.

 

16.2   Ms Ellerbeck's reference to that part of clause 19.5 of the lease agreement which provides for the lessor's waiver of its potential reliance on an enrichment lien is of no moment and does not serve as a defence to the eviction relief sought by the applicant, because the applicant does not assert any entitlement to (and does not rely on) an enrichment lien.

 

(17)       In the circumstances the first respondent cannot rely on a real right to the property based on an enrichment lien.

 

(18)       Insofar as it concerns the applicant's alleged refusal to agree to renew or extend the period of the lease: In my view, the first respondent's contention that the applicant improperly and prematurely indicated that the lease would not be renewed is of no moment and it does not in law assist the first respondent and it does not serve as a valid reason for its continued occupation of the property. At best the first respondent’s contention amounts to a concession that the parties to the lease agreement could not reach agreement as regards renewal of the lease.

 

(19)       Insofar as it concerns the first respondent's reliance on potential mediation with the applicant: It is common cause that the lease period has expired. The first respondent has not asserted non-compliance by the applicant with the provisions of Uniform Rule 41A. In my view there does not appear to be any issue in dispute that can reasonably form the subject matter of mediation between the parties.

 

(20)       Insofar as the position of the second respondent is concerned: From a reading of the email correspondence included in the papers [on CaseLines reference 02- 55] it is evident that the second respondent's answering affidavit was electronically served on the applicant's attorneys on 17 August 2021. The applicant has elected not to file a replying affidavit in response to the second respondent's answering affidavit. Counsel for the applicant indicated that no relief

 (save for a costs order) is sought against the second respondent. However, the applicant has provided no explanation why it did not earlier elect to inform the second respondent that no relief would be sought against him. There is therefore no reason why the second respondent ought not to be entitled to his costs of opposition of the application.

 

(21)       Insofar as the issue of the costs of the application is concerned: It is so that the founding affidavit is not a model of clarity. The failure to include the citation of the applicant ( a comprehensive description of its name and full particulars) is an example thereof. This Court has a discretion to make an order for costs which must be exercised in a judicial manner. In my view, there is no reason why the applicant as the successful litigant should not be entitled to its costs of the application.

 

(22)       In the circumstances, I grant an order in the following terms:

 

(1)       The first respondent (and all those occupying the premises by, through or under it) is ejected from the premises known as Unit 18 in Mooikloof Village Shopping Centre, Portions 305 and 306 of Farm Rietfontein JR 375, on the corner of Garsfontein and Jollify Roads, Mooikloof, Pretoria.

(2)       In the event that the first respondent and/or all those occupying the premises by, through or under it do not vacate the premises within ten (10) days from the date of this order, the Sheriff of this Court is permitted to eject the said continued occupiers.

(3)       The Sheriff is permitted to approach the South African Police Service for any assistance or support to enforce this order.

(4)       The first respondent is ordered to pay the applicant's costs of the application.

(5)       The applicant is ordered to pay the second respondent's costs of opposition of the application.

 

SWANEPOEL AJ

ACTING JUDGE OF THE HIGH COURT

GAUTENG DIVISON, PRETORIA

 

APPEARANCES

APPLICANT’S COUNSEL                                          : K Simango (attorney)

APPLICANT’S ATTORNEYS                                      : Memela Jones Inc

RESPONDENT’S COUNSEL                                     : T Ellerbeck

RESPONDENT’S ATTORNEYS                                 : Allnut Inc

DATE OF HEARING                                                  : 11 October 2022

DATE OF EX TEMPORE JUDGMENT                      : 12 October 2022

DATE OF SIGNED JUDGMENT                                : 06 MARCH 2023

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