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NOT REPORTABLE

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG LOCAL DIVISION JOHANNESBURG

CASE NO: 2013/17143

DATE:06/11/2013

In the matter between

LOVERS ROCK CC ….......................................................................FIRST APPLICANT

MARIA HESTER FOURIE NO …................................................SECOND APPLICANT

LEON ETIENNE OOSTHUIZEN …...................................................THIRD APPLICANT

and

JOHAN CHARL BEETGE …........................................................FIRST RESPONDENT

ANGELA HELEN BEETGE ….....................................................THIRD RESPONDENT

Opposed motion - application of ejectment from business premises and related interdicts - defence raised by occupiers considered and rejected - application granted

J U D G M E N T

VAN OOSTEN J:

[1] Lover’s Rock is a well-known leisure resort situated in the district of Magaliesburg. The immovable property on which it is situated is registered in the name of the first applicant (the property). The first applicant (Lover’s Rock) conducts the business of the leisure resort on the property. The second applicant’s husband, who died on 3 February 2008 (the deceased), was the sole member of the first applicant. The second applicant is the duly appointed executrix in the deceased estate. The third applicant acts herein as the duly appointed agent of the second applicant. He also acted as accountant for not only Lover’s Rock but also the respondents. Both respondents, who are husband and wife, were employed by Lover’s Rock: the first respondent as resort manager from 15 August 2007 and the second respondent in the administration and in particular the business of Lover’s Rock from 12 December 2003. As part of the first respondent’s remuneration package he and his wife were given the right of accommodation of the caretaker’s house on the property. The respondents’ right to occupy the caretaker’s house does not form part of this application and is the subject matter of a separate application. During 2012 the respondents became interested in and negotiations ensued for them purchasing the property and business. In order to afford the respondents sufficient time to arrange their financial affairs for purchasing the property, a written agreement was concluded on 12 December 2012 between the parties in terms of which inter alia the respondents leased the property and all moveable assets from Lover’s Rock for a period of three months, until 28 February 2013, for a nominal amount of R1,00 per month, the respondents were to obtain a pre-approved bond in order to purchase the property before the expiry of the lease period failing which the property would be sold at an auction at which the respondents could purchase the property (the agreement). The respondents in terms of the agreement took occupation of the property but were unable to secure a bond prior to the cut-off date. The agreement accordingly terminated. An auction for the dale of the property was subsequently arranged and negotiations for the sale thereof to the respondents prior to the date of the auction were unsuccessful. The property was sold in terms of an offer to purchase made to the auctioneer, dated 23 April 2013, which was accepted on 24 April 2013. The respondents are still in occupation of the property and refuse to vacate same on the grounds that I shall presently deal with.

[2] Based on the facts I have thus far alluded to, the applicants seek an order for the eviction of the respondents from the property, excluding the residence, as well as an interdict in effect restraining the respondents from conducting the business of the resort or alienating any of the moveable property of the resort.

[3] This brings me to the grounds relied on by the respondents for their continued occupation of the property. Central to the issue is a restaurant known as Route 24 Pub & Grill which had been conducted by the deceased on the property (the restaurant). The second respondent claims that she is the sole proprietor of the restaurant and that she conducts it for her own account. She asserts that an oral agreement for the lease of the property for the purpose of conducting the restaurant was concluded between her and the second applicant, represented by the third applicant, in terms of which the lease was for an indefinite period at a monthly rental of 15% of the monthly turnover of the restaurant business (the alleged lease). The alleged lease, she states, has not been cancelled and she accordingly remains entitled to occupation of the property. The applicants, and in particular the third applicant who is alleged to have concluded the lease on behalf of the second applicant, deny either the conclusion or existence of the alleged lease agreement.

[4] The allegations made by the second respondent when considered in the light of the facts of this matter are cursory, lacking not only essential detail but also supportive documentary proof, such as financial statements and records. Of significance is the second respondent’s reference in the answering affidavit to a document evidencing payment of all rental in terms of the lease, which she further states ‘was handwritten in the hand of the third respondent duly undersigned by him on behalf of the first applicant’. Although she states that the document was attached as annexure “A’ it remains glaringly absent from the papers. Although the applicants’ attorneys by formal notice required production of the document and the absence thereof moreover specifically criticised not only in the replying affidavit but also in the heads of argument by counsel for the applicants, it has still not seen the light of day. I am accordingly constrained to find that the document was nothing but a figment of the second respondent’s imagination.

[5] The second respondent merely relies on photographs of the business she had recently taken. No date of conclusion of the agreement is mentioned. The restaurant was moreover never once referred to in the extensive correspondence between the respective attorneys of the parties in the negotiations that followed after the termination of the agreement. The bank statements of the second respondent which were compiled by the third applicant and attached to the replying affidavit, show that no payments were made by the respondents to the second applicant as was alleged by the second respondent in the answering affidavit. No rent, water or gas was paid for. She was paid a salary until the date of conclusion of the agreement which flouts the claim to ownership of the business. The second respondent contradicts herself: she states that in the absence of the agreement being honoured ‘the status quo would revert and we would simply still be employed by the applicant as all other employees on the premises are which the first respondent and I have to date managed and ensured have received what is due to them, each month’. These allegations, significantly, cannot in any way be reconciled either with an alleged lease or sole proprietorship of the restaurant. I am accordingly satisfied that her reliance on the alleged lease agreement cannot be sustained and that it in fact did not exist.

[6] Counsel for the respondents submitted that a dispute of fact exists. I am unable to agree. The respondents have failed to show that the lease existed.

[7] Assuming the lease to have existed in any event does not assist the respondents. The question arising is whether the alleged lease can in any way be reconciled or co-exist with the agreement? In my view the answer hereto is clearly in the negative. The agreement refers to the respondents as ‘ex-employees of Lover’s Rock CC’. It further provides for the lease of ‘the Lover’s Rock property and all movable assets’ including ‘furniture fittings and kitchen equipment and all bedding’ to the respondents, that the respondents will be liable for ‘all running expenses of Lover’s Rock’ including wages, water and electricity, repairs and maintenance and that ‘all staff be transferred and taken over’ by the respondents. The agreement further records that the property is let for the sole purpose of ‘conducting therein (sic) offices and businesses’. Although the restaurant is not specified by name it obviously resorted under the businesses therein referred to. The intention of the parties to the agreement is clear: the property and all its businesses were let to the respondents. The second respondent, relying on the mora notice provided for in the agreement, denies termination thereof. The reliance is misplaced: the agreement specifically provides for termination thereof at the end of February 2013. So too did the respondents’ right of occupation of the property. The respondents have not alleged any subsequent agreement that would have entitled them to occupation. It follows that the there is no merit in the defence and it is rejected.

[8] Counsel for the respondents wisely did not persist with the other aspects raised in the respondents’ answering affidavit.

[9] In the result I make the following order:

1. The respondents and/or all persons in occupation through or under the respondents of the property known as Lover’s Rock Resort, Magaliesburg, situated at Portion 100, Farm Zeekoehoek 509 JQ in the Magaliesburg district, district Mogale City (excluding the “caretaker’s house” (dwelling) on the property currently occupied by the respondents) (hereinafter referred to as “the resort”), are ordered to vacate the resort on or before 7 December 2013 failing which the sheriff of this Court is authorised and directed to evict the respondents or any such persons from the resort.

2. The sheriff of this Court is authorised to request any person, including members of the South African Police Service, to assist him in the execution of this order.

3. The respondents and/or all persons in occupation of the resort through or under the respondents are interdicted from removing, selling or in any way whatsoever alienating any movable property or items from the resort or from any building on the resort.

4. The respondents and/or all persons in occupation of the resort through or under the respondents are interdicted from preventing the applicants or any person/s authorised by any of the applicants to enter the resort and to conduct the business of the resort and/or to perform any work on the resort or to post security guards on the resort.

5. The respondents and/or all other persons under or through the respondents are interdicted from conducting any business on the property including but not limited to the conducting of the business of the resort.

6. The respondents are ordered to forthwith hand all the keys to all buildings and gates on the property to the applicants.

7. The respondents are ordered jointly and severally, the one paying the other to be absolved, to pay the costs of the application.

_________________________

FHD VAN OOSTEN

JUDGE OF THE HIGH COURT

COUNSEL FOR APPLICANTS ADV BM HEYSTEK

APPLICANTS’ ATTORNEYS DF OOSTHUIZEN

COUNSEL FOR RESPONDENTS ADV CB GARVEY

RESPONDENTS’ ATTORNEYS KLINKENBERG INC

DATE OF HEARING 6 NOVEMBER 2013

DATE OF JUDGMENT 6 NOVEMBER 2013

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