Breytenbach N.O and Others v Mohammed Ahmed and Others (1676/06) [2007] ZANWHC 31 (12 July 2007)

IN

THE HIGH COURT OF SOUTH AFRICA

BOPHUTHATSWANA

PROVINCIAL DIVISION

CASE NO.: 1676/06

In the matter between:

JOHANNES PAULUS BREYTENBACH NO 1ST

APPLICANT

LENZA CLARISSA BREYTENBACH NO 2ND

APPLICANT

CASPER DIPPENAAR NO 3RD

APPLICANT

and

ABDUL WEHAB MOHAMMED AHMED 1ST

RESPONDENT

MELATI ERSULO DUBIYO 2ND

RESPONDENT

HERMANUS LAMBERTUS BOTHA 3RD

RESPONDENT

JUDGMENT

LANDMAN J:

[1] The Trustees of the Klopperstraat Trust and the Trustees of the HB Investment Trust apply for the eviction of Mr A H M Ahmed (first respondent) and Mr M E Dubiyo (second respondent) from a shop situated at 134 Klopper Street, Rustenburg.

[2] The HB Investment Trust is the owner of the premises. The Klopperstraat Trust was the lessee of the premises. The Klopperstraat Trust has ceded its rights to the HB Investment Trust but must give vacant possession of the property to HB Investment Trust.

[3] During the subsistence of the lease agreement the Klopperstraat Trust sublet the premises to one H L Botha who is the third respondent. Mr Botha’s sublease is dated 13 June 2000. The property was sublet to Mr Botha from 1 June 2000 till 30 June 2003 and was extended until 30 June 2005. The sublease expressly states that it is subject to the same terms and conditions as these contained in the “Onder-huurkontrak” ie annexure “A” to the agreement. See clause 5.5. Unfortunately annexure “A” has not been included in the papers. I therefore do not know what the terms and conditions of the “Onder-huurkontrak” are.

[4] Mr Botha sub sublet the premises to the first and second respondents in terms of a written agreement dated 9 March 2005 i.e while his sublease was still in existence. The sub sublease runs from 1 June 2006 until 31 May 2008.

[5] Mr P A Swanepoel, for the applicants, submitted that the applicant needed to show the following to secure an order of eviction:

(a) a valid termination of the first and second respondents rights to occupation;

(b) that the first and second respondents are in occupation of the premises; and

(c) the applicants have a right to posses the premises.

[6] The only issue in dispute is whether the first and second respondents’ right to validly occupy the premises has terminated. I must assume, in the absence of annexure “A” to Mr Botha’s sublease with Klopperstraat Trust and the absence of a prohibition in the sublease itself, that he could validly sub sublet the premises. See Total Oil Products (Pty) Ltd v Perfect and Another 1964 (2) SA 297 (D).

[7] The sublessor cannot confer more rights to occupation of the property than he had himself. Therefore when Mr Botha’s sublease terminated on May 2005 so did his sublease with the first and second respondent. Although Mr Botha had an oral agreement with the Klopperstraat Trust, which I will assume, but not decide, was an extension of his written lease it is common cause that this terminated on 30 November 2006. Therefore the sub sublease of the first and second respondents’ terminated on this day. They have no legal right to continue to occupy the premises.

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

1. The first and second respondents are ordered to vacate the premises situated at 134 Klopper Street Rustenburg within 5 (five) days of this order.

2. Should the first and second respondents not vacate the premises within 5 (five) days of this order the Sheriff is authorised to evict them and any other person occupying the premises them.

3. The first and second respondents are ordered to pay the costs of this application jointly and severally the one paying the other to be absolved.

____

A

A LANDMAN

JUDGE

OF THE HIGH COURT

APPEARANCES:

FOR THE APPLICANTS : ADV P A SWANEPOEL

FOR 1ST & 2ND RESPONDENTS : ADV G E NAMENG

ATTORNEYS:

FOR THE APPLICANT : BOTHA COETZER & SMITH

FOR THE 1ST & 2ND RESPONDENTS : HLAHLA MOTLHAMME

DATE OF HEARING : 28 JUNE 2007

DATE OF JUDGMENT : 12 JULY 2007