Chicken Licken v Liberty Group Ltd (21597/2017) [2017] ZAGPJHC 199 (20 July 2017)

REPUBLIC

OF SOUTH AFRICA

IN

THE HIGH COURT OF SOUTH AFRICA

GAUTENG LOCAL DIVISION, JOHANNESBURG

CASE NO: 21597/2017

Not reportable

Not of interest to other judges

Revised.

20/7/2017

In the matter between

Chicken Licken Applicant

and

Liberty Group Ltd Respondent

Judgment

Van der Linde, J:

[1] This is an application to suspend execution of an order under Uniform Rule of Court 45A. that rule provides:

“45A Suspension of orders by the court

The court may suspend the execution of any order for such period as it may deem fit.”

[2] The order sought to be suspended was given by this court (Davis, AJ) on 28 June 2017, evicting the applicant from business premises that had been let to it by the respondent. The order set the eviction date as 30 June 2017, and on that day the applicant brought an application for leave to appeal the order. The respondent set the application for leave to appeal down for later that same day, but on the application’s application it was postponed to 18 July 2017.

[3] The application for leave to appeal was dismissed then, and the respondent instructed the deputy sheriff to evict the applicant

immediately. That process commenced at around 12h00 on the same day. The applicant thereupon launched the present application, which came before my colleague Molahlehi J later that day, after hours. The learned judge stood the matter down until 14h00 on 19 July 2017 to afford the parties to file papers, and it was argued before me then.

[4] There was a dispute between the parties as to whether the execution by the deputy sheriff had been completed by the end of Monday, 18 July 2017, with the respondent arguing that it had, and the applicant arguing that it had not, since by around 17h00 certain assets were still being removed from the premises by the deputy sheriff. At all events the respondent undertook not to proceed with the eviction, to the extent that there was still some evicting to be done, until the end of 19 July 2017; and during the hearing before me this undertaking was extended to when this application was disposed of by me. After hearing judgment, I reserved judgment until 20 July 2017 at 10h00.

[5] The typed judgments of Davis, AJ on the merits and on the application for leave to appeal are not available. I understand though from counsel that the learned judge found for the respondent on alternative bases: first, that the contractual relationship between

the parties was that of a monthly tenancy which was duly terminated by the respondent and, in the alternative, that even if the parties relationship was one of an oral five year lease as asserted by the applicant, the respondent had duly terminated that lease for the applicant’s failure timeously to have paid the rental, and to have short-paid the rental, over a period of time. Although the parties did not expressly address this, it may also be assumed that the learned judge found that there were no reasonable prospects of success on appeal.

[6] Before me the turning point of the debate was whether the applicant’s prospects of success on appeal were a relevant consideration before me. This came about because the applicant, although it said that it intended to apply to the Supreme Court of Appeal for leave to appeal against the order evicting it from the premises, had not actually filed such an application for leave to appeal. It seems to me that s.18 of the Superior Courts Act 10 of 2013 (“SPA”) accordingly does not apply.

[7] As regards the merits, considering these then before the question whether they are actually relevant, the applicant fairly accepted

that on the alternative basis of the judgment of Davis, AJ, its only defence was that the respondent had not shown breach, because the applicant had, on the affidavits, disputed the amounts allegedly short paid, and had also denied the late payments.

[8] It must be accepted that the applicant’s disputing of these two assertions by the respondent were bald denials. This was despite the fact that the respondent had asserted appropriate detail in its affidavit founding the case. A bald denial does not raise a true dispute of fact. It is accepted too that a debtor has the onus to prove payment. This principle is then a doubled reason for rejecting the applicant’s asserted factual defence to the eviction out of hand. The conclusion must then be that the applicant does not have prospects of success on appeal.

[9] Is his a relevant consideration under rule 45A? I believe it is. The applicant relied on Gois t/a Shakespeare’s Pub v Van Zyl 2011 (1) SA 148 (LC) and Firm Mortgage Solutions (Pty) Ltd v ABA BANK Ltd 2014 (1) SA 168 (WCC) for the proposition that the merits are irrelevant.

[10]I do not agree, with respect. If the merits were irrelevant, then s.18 of the SPA would have been irrelevant; then only considerations of balance of convenience would have been relevant. In South Cape Corporation (Pty) Ltd v Engineering Management Services (Pty) Ltd 1977 (3) SA 534 (A) the then court listed as one of the factors to be taken into account in considering whether an order should be suspended pending an appeal, the prospects of success on appeal.

[11]It is true that in Incubeta Holdings (PTY) LTD and another v Ellis and Another, 2014 (3) SA 189 (GJ) this court held that those principles no longer applied, having regard to the new statutory provision in s.18 of the SPA. But of course, as pointed out, this is not an application under s.18 of the SPA. The applicant has not actually brought the application for leave to appeal.

[12]It was accepted by both parties that I have a discretion in an application under rule 45A. And if the suggestion in Gois that I should approach the matter on the basis of an application for an interim interdict were adopted, then the applicant would have to show a prima facie right, although open to some doubt, to start off with. And I do not believe that the applicant has cleared that hurdle. The prospects of success on appeal have been found wanting by Davis, AJ, and I too believe they are absent.

[13]It follows that in my view the application should be dismissed with costs, and I so order.

WHG van der Linde

Judge, High Court

Johannesburg

Date argued: 19 July 2017

Date judgment: 20 July 2017

For the applicant: Adv. Cadjee

Instructed by : Ayoob Kaka Attorneys

52 Richmond Avenue

Auckland Park

Ref: E Kaka/ SAA 013/17

Tel: 011 726 1710

For the respondent: Adv. Stocwell, SC

Adv. Scholtz

Instructed by: Fourie Van Pketzen Inc

3rd Floor Quadrum 1

50 Constantia Boulevard

Constantia Kloof

Ref: FB/IVE/MAT3755