Interactive Trading 269 (Pty) Ltd v Cypress Entertainment CC (9919/2011, 793/2012) [2012] ZAKZDHC 79 (16 November 2012)

Interactive Trading 269 (Pty) Ltd v Cypress Entertainment CC (9919/2011, 793/2012) [2012] ZAKZDHC 79 (16 November 2012)

The court found that the respondent's defence of a partnership agreement with the applicant was fanciful and unsupported by credible evidence. The answering affidavit lacked essential detail regarding the circumstances, terms, and documentation of the alleged oral partnership. The supporting email correspondence contradicted the respondent's version and indicated payments and arrangements inconsistent with a partnership. The respondent failed to take the court into its confidence and did not provide sufficient facts to substantiate the defence. Applying the robust approach endorsed by the Supreme Court of Appeal, the court rejected the respondent's version on the papers. The applicant, as...

Citation
[2012] ZAKZDHC 79
Parties
Applicant: Interactive Trading 269 (Pty) Limited; Applicant: Teazers Comedy and Revue CC; Respondent: Cypress Entertainment CC; Respondent: Shaun Craig Russouw
Court
Kwazulu-Natal High Court, Durban
Jurisdiction
South Africa
Judgment Date
16 November 2012
Case Number
9919/2011, 793/2012
Procedural Posture
Civil Application / Judgment After Opposed Motion; Two Applications Heard Together
Outcome
Ejectment order granted in favour of the applicant under Case No. 9919/11. No order made in Case No. 793/12. Costs awarded to the applicant in the ejectment application; each party to bear its own costs in the second application.
Judges
M Pillemer
Legal Topics
Rei Vindicatio, Oral Partnership Agreement, Ejectment, Robust Common Sense Rule, Burden of Proof
Land and Property Civil Procedure Rei Vindicatio Oral Partnership Agreement Ejectment Robust Common Sense Rule Burden of Proof

Case Brief

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Parties

Interactive Trading 269 (Pty) Limited

Applicant

Teazers Comedy and Revue CC

Applicant

Cypress Entertainment CC

Respondent

Shaun Craig Russouw

Respondent

Procedural Posture

Civil Application / Judgment After Opposed Motion; Two Applications Heard Together

Legal Issues

  1. 1 Whether Cypress Entertainment CC has a valid defence to ejectment based on an alleged partnership agreement with Interactive Trading 269 (Pty) Ltd.
  2. 2 Whether the oral partnership agreement alleged by the respondent is credible and sustainable on the papers.
  3. 3 Whether the applicant is entitled to an ejectment order under the rei vindicatio.

Ratio Decidendi

The court found that the respondent's defence of a partnership agreement with the applicant was fanciful and unsupported by credible evidence. The answering affidavit lacked essential detail regarding the circumstances, terms, and documentation of the alleged oral partnership. The supporting email correspondence contradicted the respondent's version and indicated payments and arrangements inconsistent with a partnership. The respondent failed to take the court into its confidence and did not provide sufficient facts to substantiate the defence. Applying the robust approach endorsed by the Supreme Court of Appeal, the court rejected the respondent's version on the papers. The applicant, as...

Court Disposition

Ejectment order granted in favour of the applicant under Case No. 9919/11. No order made in Case No. 793/12. Costs awarded to the applicant in the ejectment application; each party to bear its own costs in the second application.

Orders

  • The respondent, its successor in title and all persons holding under or through it, is ordered to vacate the premises at No 30 Aloefield Crescent, Springfield Park, also known as Portion 79 of Erf 391 Springfield, Registration Division FT, Province of KwaZulu-Natal.
  • If the occupier fails to vacate by 30 November 2012, the Sheriff is authorised to evict the occupier from the premises.