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IN THE HIGH COURT OF SOUTH AFRICA

KWAZULU-NATAL, DURBAN

REPUBLIC OF SOUTH AFRICA

Case No. 13251/08

In the matter between:

SECPROP 30 INVESTMENT (PTY) LTD APPLICANT

and

SOUTH COAST FURNISHERS C.C RESPONDENT

______________________________________________________________

JUDGMENT

MNGUNI, J

[1] This is an application in which the applicant is seeking an order for the ejectment of the respondent and all those occupying through it from the premises described as shop 103, 102 Field Street (the premises), Durban, KwaZulu Natal.

[2] The applicant is the registered owner of the immovable property bearing the title deed description “ERF 11966 DURBAN REGISTRATION DIVISION FU, PROVINCE OF KWAZULU-NATAL, IN EXTENT ONE THOUSAND FOUR HUNDRED AND THIRTY FIVE SQUARE METRES“. The premises which is the subject of the dispute is situated on this property. The applicant alleges that the respondent is in unlawful occupation of the premises.

[3] The respondent resists the application on the basis that it occupies the premises pursuant to a new oral lease agreement concluded between it and Armrest Investments (Pty) Ltd (Armrest) during or about January 2003 which agreement is to endure until the end of October 2012. It avers that this lease agreement was extended to Artistic Woodcavers and Turners (Pty) Ltd when the latter purchased the property from Armrest.

[4] The facts giving rise to the application are the following:

On 1 December 2001 the respondent leased the premises from Fedsure Life Assurance Limited (Fedsure) for a period of four years. Fedsure sold the property on which the leased premises are situated to Armrest, and the property was registered into its name on 13 February 2002. On 14 February 2002 Fedsure advised all its tenants that the property had been sold to Armrest and that the transfer of the property to Armrest was effected on 13 February 2002. Sometime later, the property was sold to Artistic Woodcavers and Tuners (Pty) Ltd by Armrest, and Artistic Woodcavers and Tuners (Pty) Ltd took transfer of same on 16 August 2007. The property was eventually sold to the applicant and was registered in its name on 20 December 2007. On 21 December 2007 the applicant then took occupation of the property. The applicant contends that as at 21 December 2007 the respondent occupied the premises in terms of a monthly tenancy with the previous landlord, namely, Artistic Woodcavers and Turners (Pty) Ltd.

[5] It is common cause that on 18 January 2008 the applicant caused a letter to be sent to the respondent requiring the respondent to vacate the premises on or before 29 February 2008 and informing it, inter alia, that if it remained in occupation of the leased premises after 29 February 2008 then the applicant reserved its rights to institute ejectment proceedings against it. In response to that letter, the respondent addressed a letter to the applicant dated 11 February 2008 in which it, inter alia, denied the allegations contained in the applicant’s letter of 18 January 2008. On 5 March 2008 the applicant forwarded another letter to the respondent in which it cancelled the lease agreement and a further letter dated 31 May 2008 was sent to the respondent by the applicant in terms of which it reiterated, inter alia, that the notice period for the respondent to vacate the premises had expired, that its monthly lease had been duly cancelled, and the respondent was called upon to hand over the said premises and all keys, etc, relating thereto, to the applicant. In the same letter, the respondent was advised that it was liable for occupational damages with effect from 1 March 2008 and that the applicant is being forced to institute legal proceedings to enforce those rights in view of the respondent’s intransigence. In response to the aforesaid letter, the respondent addressed a letter to the applicant dated 12 June 2008 in which it, inter alia, disputed that the applicant’s notice was valid and proper.

[6] As the correspondence and meeting(s) between the parties did not yield results favourable to the applicant, the applicant then decided to press ahead and brought these proceedings. The respondent, as stated above, resists the application and its defence is set out in subparagraphs 4.6 to 4.13 of its answering affidavit and amounts to this:

“4.6 During or about the 14^th February 2002, Investec had given all the tenants notice that the premises was sold to Armrest Investments (Pty) Ltd and that such entity would now collect the rentals. I annex hereto marked “RD2”, a copy of the said letter;

4.7 It goes without saying that the terms of the said lease had extended and had operated in respect of the tenancy with Armrest;

4.8 I, being an existing tenant was offered a lengthy lease by one Ebrahim Simjee, the representative of Armrest, in order to ensure that the building remained tenanted by reputable businesses and the building did not deteriorate any further;

4.9 During the negotiations with Simjee, I had stressed that owing to the extensive repairs to the premises and the fact that the respondent was establishing a good name at the premises, in that the building profile had increased and more importantly that the respondent was on time with its obligations, the respondent would be seeking a comprehensive and lengthy lease for the premises, failing which the respondent would rather cut its losses and relocate where more stability could be provided.

4.10 The said Simjee had informed me that Armrest was desirous of entering into a long lease with the respondent and would honour a lease equivalent to nine (9) years and eleven (11) months on the exact terms as embodied in the existing lease save for the conditions relating to the duration of the lease and the further clause that the lease would be renewed subject to the respondent giving one calendar months notice to extend the lease for a second period of 9 years 11;

4.11 Based on the aforesaid representation by Simjee and the conclusion of the new oral lease during or about January 2003, the respondent continued to pay the rental together with an escalation of ten per cent (10%) , secure in the knowledge that the lease would endure until end of October 2012;

4.12 Subsequently, during or about November 2005, Artistic Woodcarvers and Turners (Pty) Ltd purchased the property from Armrest and the lease as existed with Armrest was extended to Artistic;

4.13 I might add that the respondent has not breached any of the terms of the lease agreement and has paid the rental requested and due on time or as promised”.

It is common cause that a reference by the respondent in subparagraph 4.6 of its answering affidavit to Investec should read Fedsure.

[7] The crisp issue which requires determination by the Court is whether the respondent’s occupation of the premises is pursuant to a new lease agreement concluded between it and Armrest in January 2003, which lease is to endure until the end of October 2012, or whether such occupation is in terms of a monthly tenancy with the previous landlord namely Artistic Woodcarvers and Turners (Pty) Ltd. Obviously, if it is found that such occupation is pursuant to a new lease agreement as asserted to by the respondent, the purported termination of the lease agreement by the applicant, on the facts presented before me, would be unlawful. Conversely, if the assertion by the applicant is correct, it will be necessary to establish whether the applicant has acted lawfully during the cancellation of the lease agreement herein.

[8] Mr Choudre, who appeared on behalf of the applicant together with Manikam, contended as follows:

(a) the conclusion of a long term oral tenancy agreement in January 2003 could enjoy no existence as such oral tenancy would be repugnant to the non variation provisions of the written lease agreement, the duration of which was only to expire on 31 January 2005.

(b) the evidence of the alleged oral long term tenancy agreement violates the parol evidence and is not admissible.

(c) he submitted that the applicant’s version of a monthly oral tenancy is supported by the probabilities, and that the respondent has admitted the applicant’s allegation that the respondent occupied the premises in terms of an oral monthly tenancy agreement as at 21 December 2007 with Artistic, at the time after expiration of the written lease agreement. He submitted that the oral monthly tenancy agreement continued to endure until terminated by the applicant.

[9] Mr Tobias, on behalf of the respondent, made the following submissions:

a) the applicant’s deponent was not the person who entered into the original lease nor the renewal thereof and no information is given in the founding affidavit as to why the applicant says that the lease is a monthly tenancy. As the applicant was not the original lessor, such statement is hearsay as the information could only have come from someone else.

(b) the respondent was offered a lengthy lease by one Ebrahim Simjee, the representative of Armsrest, in order to ensure that the building remained tenantable by reputable business and the building did not deteriorate any further and this was in fact a renewal for nine years and eleven months.

(c) the original lessor Fedsure had fallen out of the picture and Armrest became the new owner on or about 14 December 2002 and that there was nothing preventing the new owner dealing with its own property as it thought fit, including cancellation of the Fedsure lease to which it was a stranger and a new oral lease for nine years and eleven months with the tenant.

(d) when a new party enters the picture, particularly a new owner, there is nothing to prevent the written agreement being varied or even rescinded by a subsequent oral agreement.

[10] The whole question therefore which must be asked is whether before me there are any genuine dispute of fact raised in the papers which it is necessary to decide and which cannot be on affidavit. The following warning was sounded by Price JP in Soffiantini v Mould 1956 (4) SA 150 (E) at 154 F- H as follows:

“If by a mere denial in general terms a respondent can defeat or delay an applicant who comes to Court on motion, then motion proceedings are worthless, for a respondent can always defeat or delay a petitioner by such a device. It is necessary to make a robust, common-sense approach to a dispute on motion as otherwise the effective functioning of the Court can be hamstrung and circumvented by the most simple and blatant stratagem. The Court must not hesitate to decide an issue of fact on affidavit merely because it may be difficult to do so. Justice can be defeated or seriously impeded and delayed by an over- fastidious approach to a dispute raised in affidavits”.

Botha JA in Administrator, Transvaal and Others vs Theletsane and Others 1991(2) SA 192 (A) at 197 A-B refined this principle as follows:

“For my purpose it is enough to say that in motion proceedings, as a general rule, decisions of fact cannot properly be founded on a consideration of the probabilities, unless the court is satisfied that there is no real and genuine dispute on the facts in question, or that the one party’s allegations are so far fetched or clearly untenable as to warrant their rejection merely on the papers, or that viva voce evidence would not disturb the balance of probabilities appearing from the affidavits”.

[11] Accordingly, to be able to answer such question, it becomes necessary at this stage to refer to what is alleged in the applicant’s affidavit and also in respondent’s answering affidavit relating to the question whether the respondent’s tenancy is monthly or not. The applicant, in paragraph 8 of its founding affidavit, inter alia, stated:

“As at the 21^st December 2007 the respondent occupied a portion of the property in terms of a monthly tenancy with the previous landlord namely Artistic Wood cavers and Turners (Pty) Limited”

The relevant part of the respondent’s affidavit which deals with paragraph 8 of the applicant’s founding affidavit appears in paragraph 7 and it reads:

“I admit the allegations contained in paragraph 1, 2, 3, 4, 5, 6, 7 and 8 of the said founding affidavit….”

[12] It will be seen, therefore, that the respondent has admitted the allegation on which the applicant’s case rests and there has been no affidavit before me stating that the admission was made in error. On this issue, in Sliom v Couzyn 1927 TPD 438 at 441 Tindall J stated:

“The said affidavits accordingly amounted to an admission that the cession was by way of security. If a similar admission had occurred in a pleading in a trial case, it is clear that leave would not have been given to withdraw the admission, in the absence of evidence explaining the circumstances under which the admission was made (see authorities cited in (Young v Land Values, Ltd 1924 wld 216). It seems to me, therefore, that in the absence of an affidavit stating that the admission that the cession was by way of security was made in error, and explaining how that admission came to be made, the learned Judge was not entitled to allow oral evidence to be heard. Counsel for the appellant objected to the course proposed at the time, and in my opinion in the face of that objection, evidence ought not to have been heard”.

This decision was followed in Van Deventer vs De Villiers 1953(4) SA 72 (c) at 76F where Herbstein J stated:

“In my view the magistrate’s approach to the application for absolution was wrong and he should have dismissed that application leaving it to the defendant, if he could, to explain how the admission came to be made, and to apply to have it withdrawn”.

[13] It is also apposite to refer to section 15 of the Civil Proceedings Evidence Act 25 of 1965, which in my view, is applicable in this instance, and which provides:

“It shall not be necessary for any party in any civil proceedings to prove nor shall it be competent for any such party to disprove any fact admitted on the record of such proceedings”.

[14] It is surprising that the respondent’s counsel chose to deal with this important admission as follows:

“Quite clearly the admission to paragraph 8 of the founding affidavit in paragraph 7 of the reply was a slip and is erroneous and was intended to refer to the fact that the respondent occupied the property via Armrest and thereafter Artistic”.

[15] The lease agreement entered into between Fedsure and the respondent contains the following relevant clauses:

Clause 35.1 of the lease agreement provides:

“This document incorporates the entire agreement between the lessor and the lessee and no alteration, cancellation or variation hereof shall be of any force or effect unless it is in writing and signed by both the lessor and lessee, nor are there understandings or terms of lease other than those set out herein”.

[16] Clause 35.2 provides:

“No relaxation or indulgence which the lessor may show to the lessee shall in any way prejudice its rights hereunder and, in particular, no acceptance by the lessor of rent after due date (whether on one or more occasions) nor any other act or omission by the lessor including without limitation, the rendering of accounts after due date, shall preclude or estop it from exercising any rights enjoyed by it hereunder by reason of any subsequent payment not being made strictly on due date. Unless otherwise stated by the lesser in writing, the receipt by the lesser or its agents of any rent or other payment shall in no way whatsoever prejudice or operate as a waiver, rescission or abandonment of any cancellation or right of cancellation effected or acquired prior to such receipt. The lesser shall be entitled in its sole discretion to appropriate any amounts received from the lessee towards the payment of any cause, debt or amount owing by the lessee whatsoever”.

[17] Mr Choudree’s contention was that the conclusion of a long term oral tenancy agreement in January 2003 could enjoy no existence as such oral tenancy would be repugnant to the non variation provisions of the written lease agreement, the duration of which was only to expire on 31 January 2005. Mr Tobias, however, contended that the original lessor, Fedsure, had fallen out of the picture and that Armrest became the new owner on or about 14 December 2002 and that there was nothing preventing the new owner dealing with its own property as it thought fit, including cancellation of the Fedsure lease to which it was a stranger and entering a new oral lease for nine years and eleven months with the tenant. Both counsel referred me to case law relating to parole evidence in support of their submission on this issue. I am, however, of the view that it is not necessary to deal with argument raised and authorities referred to by counsel relating to parole evidence in the light of the decision I have reached in this matter.

[18] Having considered the matter I am satisfied that the respondent occupies the premises in question in terms of a monthly oral tenancy agreement, and that proper notice of termination and notice to vacate the premises was given by the applicant.

[19] With regard to the question of costs, it is my view that the applicant has been substantially successful in that the main legal opposition to the relief sought by the respondent has failed and the costs should follow the result of the application. I am, however, not inclined to make an order of such costs to be in a scale as between the attorney and client.

In the result the following order will issue,

[1] The application is granted in terms of paragraphs 1, 2 and 3 of the Notice of Motion dated 14 October 2008,

[2] Paragraph 3 of the notice of motion is amended to read “The respondent is ordered to pay the costs of this application and such costs to include the costs occasioned by the employment of two counsel”.

Date of Hearing : 8 December 2009

Date of Judgment : April 2010

Counsel for the Applicant : RGB Choudree SC, assisted by M.

Manikam

Instructed by : Ebi Moolla and Singh Attorneys

Counsel for the Respondent : D. G. Tobias

Instructed by : Shaukat Karim and Company

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