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FMT

IN THE HIGH COURT OF SOUTH AFRICA

(NORTH GAUTENG HIGH COURT, PRETORIA)

CASE NO: 53642/09

DATE: 4 APRIL 2010

In the matter between

FARHAD AYOB....................................................................................................................1^st APPLICANT

WIERDA PARK BAKERY (PTY) LTD.............................................................................2^nd APPLICANT

And

MAYBORN INVESTMENTS 14 (PTY) LTD.................................................................1^st RESPONDENT

JOOSUB HAROON ABOO BAKER..............................................................................2^nd RESPONDENT

GANI AKBAR AHMED...................................................................................................3^rd RESPONDENT

JUDGMENT

MSIMEKI, J

INTRODUCTION

[1] The Applicant in this application seeks an order in the following terms:

“1. Hearing this application as one of urgency in accordance with the provisions of Rule 6 (12) and dispensing with the usual forms and time limits as envisaged in terms of Rule 6 (5);

2. That the first and second Applicants possession of the property situate at 582 Church Street West, Pretoria West (“the Property”) be restored;

3. The first, second and third Respondents are ordered to remove all chains, locks and gates they installed at the property forthwith;

4. The first, second and third Respondents are interdicted and restrained from entering the property and disturbing the first and second Applicants use and possession of same;

5. The first, second and third Respondents are directed to immediately vacate the property.

6. The first, second and third Respondents are ordered to pay the costs of this application on the scale as between attorney and own client.

7. Further and/or alternative relief. ”

BRIEF FACTS OF THE MATTER

[2] The first Applicant is the sole director of the second Applicant. On 23 June 2005 the second Applicant concluded a lease agreement with Shell South Africa (PTY) LTD (“Shell”). The second Applicant, in terms of the lease agreement leased the premises situated at 282 Church Street West, Pretoria West (“the property”) for a period of five (5) years from 1 July 2005. Clause 26 of the lease agreement provides that:

“The Lessee shall have theright of first refusal to purchase the premises should Shell wish to sell the premises at any time during the currency of this agreement. ”

It is noteworthy that the words ‘property’ and ‘premises’ are used interchangeably.

Shell, notwithstanding the second Applicant’s right of first refusal, the property to the first Respondent and transferred it on 1 May 2008. The second Respondent contends that the second Applicant waived its right of first refusal to purchase the premises. This is denied by the Applicants on the basis that the sale of the premises by Shell to the first Respondent had been fraudulent. This caused Shell to institute an action under case no 52578/08 against the second Applicant as first Defendant and the first Respondent as the second Defendant in which action Shell as the Plaintiff claims an order declaring that the deed of sale between itself and the second Defendant is valid and that the first Defendant has no right to claim transfer of the property in terms of any agreement. In claim B Shell claims that it is entitled to an order that the deed of sale be rectified by the deletion of clause 5 thereof while in the alternative Shell claims an order declaring the agreement of sale dated 15 October 2007 cancelled. Clearly the question of ownership and related issues will be decided in this action under case number 52578/08. The Respondents contend that the lease agreement terminated upon the transfer of the property to the first Respondent. It must be remembered that the lease agreement was for 5 years.

The Applicants contend that they were in peaceful and undisturbed possession of the premises when the Respondents unlawfully deprived them of their possession of the premises by forcibly entering the premises and threatening to harm the first Applicant if he did not leave the premises. The Respondents moved into the premises and took various positions therein thereby depriving the Applicants of the commercial premises that they used. The Respondents, by Notice of Motion also bought a similar application against the Applicants.

THE ISSUES

[3] The issues to be determined are whether:

1. the Applicants were in peaceful and undisturbed possession of the premises;

2. there was unlawful deprivation of possession;

3. whether the Respondents have laid out a proper basis for the relief that they seek in their counter application.

COMMON CAUSE FACTS

[4] The common cause facts are the following:

1. that on 23 June 2005 the second Applicant and Shell concluded an agreement of lease in terms of which the second Applicant leased the premises for a period of 5 years;

2. that clause 26.1 of the lease agreement afforded the second Applicant a right of first refusal to purchase the premises as and when Shell wished to sell the premises at any time during the currency of the lease agreement;

3. that the premises was sold by Shell to the first Respondent;

4. that the premises was transferred to the first Respondent on 1 May 2008;

5. that Shell has instituted an action against the second Applicant and the first Respondent regarding the sale of the premises by it to the first Respondent;

6. that Micom Motors (Pty) (“Micom Motors”) Ltd occupied the premises due to a subletting arrangement.

[5] The Respondents contend that the Applicants were never in physical occupation of the premises, that they never conducted any business thereon or therefrom and that the second Applicant never took possession of the premises. It has been submitted on behalf of the Applicants that the contention is wrong in that:

1. Paragraph 13 of the particulars of claim in the action that Shell brought against the second Applicant and the first Respondent says:

“13 The written deed of sale does not correctly record the intention of the parties in that to the knowledge of the second defendant, the first defendant was in possession and occupation of the property in terms of the lease agreement annexed hereto marked “A” for a period of five years, commencing on 1 July 2005.” (My emphasis)

To this in paragraph 7 of its plea, the first Respondent pleaded as follows:

AD PARAGRAPH 13 THEREOF

“7.1 the second defendant admits that at the time of conclusion of the deed of sale the second defendant had knowledge that the first defendant was in possession and occupation of the propertu in terms of a lease agreement. ”

2. The first Respondent, also instituted a counter claim where in paragraph 4.4 thereof, it alleged as follows:

“4.4 On the date of the transfer of the property by the Plaintiff to the second defendant the lease between the plaintiff and the first defendant was still of force and effect. and the first defendant was in occupation and possession of the propertu(My emphasis)

3. The Respondents’ attorney, on 31 March 2009 addressed a letter to the second Applicant saying as follows in paragraph 3 and 6.3 thereof:

“3. You. and others whose rights and interests will be dealt with below, are currentlu in occupation of the property.

6.3 You have sublet portions of the premises in circumstances where the lease specifically precludes from doing so without the written consent of the landlord and in circumstances where such written consent has to date not been provided. ”

The letter, therefore seems to acknowledge that the Applicants have partial possession of the premises. This, appears to be the view of the Applicants’ counsel too.

4. On 19 August 2009 the Applicants’ attorney addressed a letter to Shell’s attorneys and copied it to the Respondents’ attorney. This was after the electricity meter had been forcibly removed from the premises. Paragraph 8 of the letter reads:

“8. Our client is unable to trade from the premises and is thus suffering substantial damages as a consequences of the unlawful conduct of the representatives of Maybom Investments and/or Shell SA (Pty) Ltd.”

The Respondents did not respond to this letter denying the Applicants’ possession of the premises. The instances mentioned above demonstrate the Respondents’ admission of the Applicants’ occupation and possession.

5. The Respondents in their answering affidavit state:

1.“5.11 upon signing the lease the whole of the property was immediately let directly to Micom Motors (Pty) Limited who paid the rent over to Wierda Park Properties who in turn paid it to Shell.”

2. That Micom Motors voluntarily vacated the premises and handed possession thereof.

6. It is noteworthy that the deponent to the answering affidavit in paragraph 33.2 states:

“33.2 At this stage I also need to reiterate that the statement in paragraph 7.1 of the plea of the first Respondent is incorrect as the first Applicant never took occupation in terms of the lease. The averment made therein was not brought to my attention or confirmed by me before filing thereof. The necessary amendments will be made in due course”.

This, according to Applicants’ counsel, was caused by the fact that the deponent realised the contradiction between the plea and the answering affidavit. This appears to be the case. It is submitted on behalf of the Applicants that this explanation is vague, unsatisfactory and should be rejected. I am obliged to agree because as Applicants’ counsel correctly states:

1. The answering affidavit fails to state that the first Respondent’s allegation in paragraph 4.4 of its counter claim, in the action, that states that the second Applicant was in occupation and

possession of the property on the date of transfer of the property, is wrong.

2. The Respondents’ attorney, on 31 March 2009, confirmed that the second Applicant and others “are currently in occupation of the property.”

3. the Applicants’ attorney’s letter of 19 August 2009 dealing with their inability to trade from the premises was never reacted to. The Applicants’ occupation of the premises was never denied either.

THE LAW

[6] A party in a spoliation matter must allege and prove that he or she was in peaceful and in undisturbed possession of the property or right (See Kgosana v Otto [1991] 3 All SA 665 (W), 1991 (2) SA 113 (W) and Impala Water Users Association v Lourens NO and Others 12004/ 2 All SA 476 (SCA), 2008 (2) SA 495 (SCA).)

It is sufficient if the holding was with the intention of securing some benefits for a party. It does not matter whether the Defendant has a stronger right or claim to possession. What is protected is the actual physical possession, not the right to possession. Good title is irrelevant (See Yeko v Qana [1973] All SA 512 (A), 1973 (4) SA 735 (A)). The protection is given where there is deprivation of possession without following legal procedures. All it means is that the dispossession has to be without the party’s consent or without due legal process. (See Sillo v Naude 1929 AD 21, Ntai and Others v Vereeniging Town Council and Another [1953] 4 All SA 358 (A), 1953 (4) SA 579 (A) and George Municipality v Vena and Another [1988] ZASCA 166; [1989] 2 All SA 125 (A), 1989 (2) SA 263 (A).)

COUNTER APPLICATION

[7] The Respondents brought a counter application similar to the Applicants’ application. As the Applicants’ counsel correctly pointed out -

1. There does not seem to be any basis laid for the application;

2. The Respondents are in possession of the premises without the consent of the Applicants or due process of the law (they admit that they took possession of the property on 30 August 2009);

3. The opposing papers fail to properly deal with or refer to the counter application. Only the Notice of Motion refers to the application without any affidavit dealing specifically therewith.

[8] The urgency of the matter which has been admitted cannot be denied. It remains urgent.

[9] The facts of the matter, the law as well the inconsistencies in the version of the Respondents clearly reveal that the Applicants have made out a proper case for the relief that they seek. The counter application, therefore, stands to be dismissed with costs while the Applicants’ application ought to succeed with costs.

COSTS

[10] The Respondents, without the consent of the Applicants or the due legal process, unlawfully deprived the Applicants of their possession of the property. This kind of behaviour cannot be countenanced and, indeed, warrants a punitive cost order.

[11] In the result the order I make is as follows:

1. That the first and second Applicants’ possession of the property situate at 582 Church Street West, Pretoria West (“the property”) be restored.

2. The first, second and third Respondents are ordered to remove all chains, locks and gates they installed at the property forthwith;

3. The first, second and third Respondents are directed to immediately vacate the property.

4. The first, second and third Respondents are ordered to pay the costs of this application on the scale as between attorney and client. The costs include the reserved costs of 1 September 2009.

5. The counter application is dismissed with costs.

M. W. MSIMEKI

JUDGE OF THE HIGH COURT

Heard on: 15 September 2009

Judgment delivered on: 16 April 2010

For the Applicants: Adv. B. H. Swart (SC)

Instructed by: Shaheed Dollie Inc. c/o Cassin Inc.

For the Respondent: Adv. B. Geach (SC)

Instructed by: A. W. Jaffer & Co.

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