Lanseria International Airport (Pty) Ltd v Imperial Bank Ltd (15860/2006) [2007] ZAGPHC 25 (13 April 2007)

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IN DIE HIGH COURT OF SOUTH AFRICA

(TRANSVAAL PROVINCIAL DIVISION)

CASE NO.: 15860/2006

NOT REPORTABLE DATE: 13/4/2007

In the matter between

,

LANSERIA INTERNATIONAL AIRPORT (PTY) LTD Applicant

CORAM: EBERSOHN AJ

DATE HEARD 23rd March 2007

.'

and

IMPERIAL BANK LTD. Respondent

JUDGMENT HANDED DOWN ON 13th APRIL 2007

JUDGMENT

EBERSOHN AJ.

[1] In this matter the prayers in the notice of motion read as follows:

"1.

An order confirming the cancellation of notarial deed of lease registered by the Registrar of Deeds, Pretoria under reference number K6754/94L;

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2.

An order directing the Respondent to vacate its premises forming the subject matter of the aforesaid lease, being lease area number 11 (also known as hangar site no. 4 of Erf 57)

situate on the remaining extent of Portion 12 (a portion of Portion 9) of the Farm Zwartkop or Rooiwal 530, Registration Division J.Q. Gauteng;

3.

An order directing the Respondent to pay the costs of this application on the attorney and client scale;

4.

Further and/or alternative relief."

[2] It is common cause that the applicant after negotiations with a representative of the respondent caused its attorney to address a letter to the defendant advising the defendant that the lease has been cancelled. This was done on the 3rd October 2005 being annexure FA23 to FA25 to the founding affidavit. The text of the letter reads as follows:

"Dears Sirs,

LEASE AGREEMENT- YOURSELF/LANSERIA INTERNATIONAL AIRPORT (PTY) LTD HANGAR SITE 4 LANSERIA INTERNATIONAL AIRPORT

We act for Lanseria International Airport (Pty) Ltd. your landlord in respect of Hangar Site 4 Lanseria International Airport.

It is our instructions that you are presently in arrears with your monthly rentals and other charges in respect of your lease agreement for the months of July 2005, August 2005 and September 2005 in the amount of R28 553,07.

As a result of your breach to pay your monthly rentals on due date you are herewith notified that your lease agreement is cancelled forthwith and you must accordingly vacate the leased premises immediately and arrange for all improvements to be removed in

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terms of the provisions of your lease."

There is a dispute whether the applicant has waived its right to rely on the notice of cancellation or not.

[3] The applicant sought similar relief in case number O5/29103 in the Witwatersrand Local Division. That application was dismissed and it was the applicant's contention that it was dismissed on the basis that the applicant failed to prove that it had the necessary locus standi to bring the application. The respondent on the other hand contended that it was a final judgment and raised a defence of res judicata in the matter before me. The matter was heard in the

WLD by Jordaan AJ. No typed judgment is available. The parties handed up as exhibit A, by consent, a letter by Jordaan AJ addressed apparently to the transcribers at the High Court in Johannesburg which letter reads as follows:

"I refer to your request, dated 13 March 2007 (which came to my attention some days later) for a "revision" of a judgment I had given in this matter during I believe April 2006.

Regrettably the typed "judgment" has been so badly transcribed and some of the typing errors therein are so gross that I am quite unable to accede to your request, this "judgment" is beyond revision, it would require a new judgment which I am neither empowered nor inclined to deliver almost a year after the original judgment was given.

If it is of any assistance to the parties I do recall, and this much does emerge from the transcript, that the issue before me was whether the Applicant had established that it had locus standi to proceed on a written lease to which it was not an original party . It was common cause that the Applicant would have to prove both a cession and a

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delegation in order to succeed. I found that the evidence did not establish the delegation of obligations necessary to enable it to proceed and I accordingly upheld the point that the Applicant had not proved that it had locus standi. It was for that reason that I dismissed the application.

Kindly advise the parties accordingly."

[4] Counsel agreed that the papers in matter O5/29103 be placed before me and I was addressed on it by counsel.

[5] In the founding affidavit of that matter the applicant relied on an "oral head­lease" resulting in Jordan AJ coming to a decision that the applicant did not have locus standi.

[6] After the initial application was dismissed a search was apparently done in the archives of the applicant and the written agreements were found and the applicant is now relying on a written agreement i.e. a different cause of action.

[7] It is clear that the respondent who relied on the defence of res judicata must prove all the elements underlying the defence (See: Tradex Ocean Transportation SA v MV "SILVERGATE" properly described as MV "Astyanx" 1999(4) SA 405 (SCA) at 417 D. All Jordaan AJ did was to find that on the papers before him the applicant did not prove that it had locus standi. In that regard I am of the opinion that Mr. Vorster's submission based

on Van Rensburg v Reid 1958 (2) SA 249 (E) at 252 B-C that the decision of Jordaan AJ amounted to absolution from the instance, is correct.

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[8] The defence of res judicata relied upon by the respondent in this Court thus fails.

[9] The land the Lanseria International Airport is situated on previously belonged to a company called Lanseria Airport Properties (Pty) Ltd.("LAP") which sold the land to the Southern Life Association Ltd. ("Southern Life") which took transfer thereof on the 9th December 1993. Southern Life in its turn

sold the property to a company called Lanseria Airport 1993 (Pty) Ltd. ("LA1993" (the name was obtained from an organogram prepared by the respondent's counsel) and transfer was registered in the Deeds Office on the

17th August 1998. LA1993 is still the owner of the property. LAP and LA1993 are different companies.

[10] On the 1st October 1993, LAP, the then owner of the land, concluded a written agreement of lease consisting of a part A and a part B, with Avfin

Marketing (Pty) Ltd. ("AVFIN") in respect of Lease Area 11 also known as site no. 4, Lanseria Airport. This lease contract appears on pages 142-160 of the record. In terms of clause 4 of the agreement the lease was to commence on the 1st June 1993 and the expiry date is 31 May 2013.

[11] Clause 18 of part B of the lease reads as follows:

"18. It is hereby recorded that­

a)

the LESSOR (landlord) has sold the properties on which the premises are situated to a new owner ("the new owner") in terms of a written agreement of sale ("sale agreement") and the new owner has leased the properties to Lanseria Airport (Pty) Ltd ("Airport") in terms of a

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written agreement of lease ("head-lease"), all with effect from the date upon which the properties are registered in the name of the new owner ("effective date"));

b)

In terms of the sale agreement and the head-lease, the LESSOR (landlord) Airport and the new owner have agreed that, with effect from the effective date, this lease will be ceded by the LESSOR (landlord) to the new owner and thereafter be ceded by the new owner to Airport;

c)

in terms of the sale agreement and the head-lease further, it was agreed that, upon the cancellation of the head-lease (for whatsoever cause or reason) the new owner shall immediately become the LESSOR (landlord) to the LESSEE (tenant) in terms of this lease and shall be entitled to all the benefits, and be obliged to perform all obligations, hereunder; and

(d) the LESSEE (tenant) has agreed to be bound by the

provisions of clause c) above."

[12] In terms of the provisions of clause 18(b) Airport would be the ultimate holder of the rights in and to the property as Lessor.

[13] Clause 11(a) of the agreement reads as follows:

"11. In the event of

(a)

(b)

(c)

The rental or any other amounts due in terms hereof not being paid on due date; or

...............

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(d)

(e)

then the LESSOR shall be entitled but not obliged notwithstanding any previous waiver or anything to the contrary herein contained, top cancel this lease forthwith,

without prejudice, and retake possession of the Premises "

[14] As postulated in clause 18(a) of the lease (referred to in paragraph 4 of this judgment) LAP in fact sold the property to Southern Life.

[15] Southern Life and Avfin duly entered into a Notarial Deed of Lease No. K6754/94 (pp. 172-187 of the record) in terms whereof Southern Life let the

same property to Avfin for the same period namely 1st June 1993 until the 31st May 2013. The wording of the notarial lease is mutatis mutandis the same as that of parts A and B of the original lease referred to in paragraph 7 of this

judgment. The wording of Clause 18 of part B of the Notarial Lease is for instance identical to clause 18 of the original lease with the result that Airport would be the ultimate holder of the rights in and to the property as Lessor. The wording of clause 11(a) of the notarial lease is exactly the same as the wording of the initial lease quoted in paragraph 6 (supra).

[16] Southern Life in fact sold the property to a company called Lanseria Airport 1993 (Pty) Ltd.

[17] There is a third lease agreement I must also refer to. This is the so-called "head-lease" entered into by and between Southern Life as lessor and Lanseria

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Airport (Pty) Ltd (" Airport" as referred to in clause 18 of the notarial lease. In tenns of this head-lease Southern Life was the lessor and Airport the lessee. In clause 2.2 of the head-lease it is stated that the lessor has purchased the property from LAP subject inter alia to the conclusion of the head-lease agreement. The properties leased are those referred to in clause 13.1 of the head-lease namely those properties appearing on annexure D to the head-lease.

The lease would commence on the "effective date" and be for 20 years and terminate on the 8th December 2013, as is provided for in clause 7 of the head­

lease, subject to certain rights to renew the lease for further periods.

[18] Clause 13.1 of the head-lease reads as follows:

"13.1

This lease is subject to the cession of all sub-leases listed on annexure "D" together with any further sub-leases entered into after the compilation of annexure "D", from Lanseria Airport Properties (Pty) Limited to the lessor, and a copy of such written cession furnished to the lessor prior to the effective date failing which cession this agreement will be void."

[19] Hangar 4 is referred to in annexure D to the head-lease. The data relating to it in columns 3, 4, 5, 6 and 7 clearly is not on the same line as the data relating to Hangar 4 in the 1st and 2nd columns and annexure D must be read subject to this qualification.

[20] Lanseria Airport (Pty) Ltd. ("Airport") changed its name to Lanseria International Airport (Pty) Ltd. in terms of a form CM9 which appears on p. 39 of the record.

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[21] Avfin ceded its rights and interest in and to the notarial lease to a company called Transafrica Aviation (Pty) Ltd. which was liquidated and Imperial Bank

Ltd., the respondent, purchased all the rights and interest as Lessee of Transafrica Aviation (Pty) Ltd. in and to the notarial lease.

[22] Mr. Vorster, who appeared for the applicant pointed out that the respondent studiously avoided informing the Court of the identity of the landlord if it was not the applicant.

[23] Having considered the matter it is clear to this Court from the above that the applicant in fact acquired the rights as lessor against the respondent and thus has a possessory claim against the respondent (See Matador Buildings

(Pty) Ltd v Harman 1971 (4) SA 21 (C); Schnehage v Bezuidenhout 1977 (1) SA 362 (0)). This finding is supported by the contents of annexure D to the head-lease (pp. 80-82 of the record) reflecting details of more than 100 lessees, including the reference to hangar 4 being part thereof, the cession referred to

and also the documentary evidence in the form of invoices and proof of payment thereof forming part of the founding papers. Mr. Wepener's submission in this regard namely that the respondent after so many years still didn't know who the lessor of hangar 4 was, is untenable.

[24] this Court therefore also finds that there was privity of contract between the applicant and the respondent and that the applicant consequently had locus standi to seek eviction of the respondent as the respondent was in arrears with the payment of its rent.

- - --- --- ---­

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[25] The respondent was granted leave by this Court to file a further affidavit placing waiver in dispute and with regard to the two further defences namely waiver and estoppel, the parties have agreed that if this Court does not find in favour of the respondent with regard to any of the other defences, that those two defences be referred for the hearing of oral evidence and they handed up a draft order in that regard.

[26] I accordingly make the following order in terms of the draft handed up:

1.

It is declared that the applicant has the necessary locus standi to seek the relief set out in the notice of motion.

All the defences raised by the respondent in this application, save for the defences referred to in prayer 3 below, are dismissed.

The application is referred for the hearing of oral evidence, on a date to be arranged with the registrar, on the following issues:

3.1

Whether the applicant has waived its right to rely on the notice of cancellation dated 3 October 2005, being Annexures FA23 to FA25 to the founding affidavit; and

3.2

Whether the Applicant is estopped from cancelling the deed of lease, Annexure "FA10" to the founding

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affidavit.

The evidence shall be that of any witnesses whom the parties or either of them may elect to call, subject to what is provided in prayer 5 thereof.

5.

Save in the case of witnesses who have already deposed to affidavits in this application, neither party shall be entitled to call any other witness unless:

5.1

It has served on the other party at least 15 days before the date appointed for the hearing (in the case of a witness to be called by the Respondent) and at least 10 days before such date ( in the case of a witness to be called by the Applicant), a statement wherein the evidence to be given in chief by such a person is set out; or

5.2

The Court, at the hearing, permits such person to be called despite the fact that no statement has been so

served in respect of his evidence.

6.

Either party may subpoena any person to give evidence at the hearing, whether such person has consented to furnish a statement or not.

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7.

The fact that a party has served a statement in terms of prayer 5 hereof, or has subpoenaed a witness, shall not oblige such party to call the witness concerned.

8.

Within 20 days of the making of this order, each of the parties shall make discovery, on oath, of all documents relating to the issues referred to in prayer 3 above, which are or have at any

time been in the possession or under the control of such party. Such discovery shall be made in accordance with Rule 35 and the provisions of that rule regard to the inspection and production of documents discovered shall be operative.

9.

The incidence of the costs incurred up to now shall be determined after the hearing of oral evidence.

.P Z. EBERSOHN

ACTING JUDGE OF THE HIGH COURT

Applicant's counsel

Adv. J. VORSTER SC

Applicant's attorneys

MAGEZA LE ROUX VIVIER ATTORNEY

Respondent's counsel

Adv. L. WEPENER SC Assisted by A.C. BOTRA

Respondent's attorneys

NEGOTA SSH INC.