Marindafontein (Pty) Ltd v 16TEN Properties (Pty) Ltd and Another (046908/2022) [2023] ZAGPJHC 1470 (21 December 2023)

IN THE HIGH COURT OF SOUTH AFRICA,

GAUTENG LOCAL DIVISION, JOHANNESBURG

Case No: 046908/2022

In the matter between:

MARINDAFONTEIN (PTY) LTD Applicant and 16TEN PROPERTIES (PTY) LTD 1st Respondent UNLAWFUL OCCUPIERS OF HANGAR H9 PETIT AIRFIELD. 2nd Respondent

JUDGMENT

NOKO J

Introduction

[1] The applicant launched an application for the eviction of the respondents from the premises which were leased to the first respondent in terms of the lease agreement. The premises are situated on Portion 49 of the Farm Varkfontein No 25, which is registered in the name of the applicant. The first respondent is opposing the application and has raised arguments on merits and also raised three points in limine, viz, locus standi, arbitration and non-joinder.

[2] The second respondents are not participating in these proceedings and reference to respondent in this lis shall therefore refer to 16TEN Properties (Pty) Ltd.

Background

[3] The parties entered into a lease agreement (agreement) on 13 May 2019. The applicant was represented by Mr Hugo Vissers[1] (Mr Visser) and the respondent was represented Mr George Minnie. The applicant leased the premises defined “as the ground floor footprint of the hangar used by the lessee”.[2] The premise was 205.4 square metres in extent and was for a period of nine years and eleven months. The premises were leased for the purposes of storage of aircraft and activities related to the aviation.[3]

[4] The following clauses in the agreement are germane to the issues in dispute, first, that the respondent shall not be entitled to sublet the premises without written permission from the applicant.[4] Where written permission to sublet is granted the parties shall also agree on the amount of rental which shall be payable by the

sub-tenant.

[5] Secondly, that the respondent shall not be entitled to effect alterations or additions on the premises without written permission and approval of the applicant. The proposed alterations and additions shall be accompanied by the diagrams or plans and engineering documents which may be required by the local authority. If no such diagrams, plans are availed or cannot be procured the applicant shall be entitled to procure the services of the relevant professionals to prepare such documents.[5]

[6] Thirdly, that in the event of breach of any of the term of the agreement and subsequent failure to remedy the breach within 30 days the applicant shall be entitled to terminate the agreement.[6]

[7] Other clauses apropos this lis include general clause which will, inter alia, stipulate that the agreement represent full and final record of the parties’

intentions, that no waiver of any right shall be effective unless reduced to writing and signed off by the parties.[7] Lastly that disputes between parties shall be referred to arbitration.[8]

[8] The applicant avers that the respondent has breached the agreement, first, by subletting the hangar[9] to Messrs Loots, Botha, and Hickman. Secondly, the respondent made alterations and or additions on the premises without written

permission and was occupying, as at the time of the application, 500 square metres in extent. The applicant then sent out notice in writing dated 4 October 2022 notifying the respondent of the breach and demanding that the respondent should remedy the breach within 30 days. The respondent replied on 25 October 2022 and stated that Mr Visser granted written permissions in 2019. These written permissions were in the form of Whatsapp texts and email exchanged with Mr Visser.

[9] In view of the failure to remedy the breaches for the reasons set out above the applicant launched these proceedings for the eviction of the respondent and the sub-tenants from the premises.

Issues

[10] Issues for determination are the points in limine and a determination whether the applicant has made out a case for eviction.

Submissions and contentions by the parties.

Points in limine

[11] The respondent raised three points in limine, first, that the Mr Coetzee, as the deponent in the applicant’s papers, was not lawfully appointed as the sole director of the applicant and as such the application was not authorised. In retort the applicant attached CIPC search print out which confirms that Mr Coetzee was appointed and became the sole director of the applicant as of 24 June 2022. To this end the point in limine is found wanting, unsustainable and is not upheld.

[12] The second point in limine, was that the lease agreement provided in terms of clause 19 for the referral of disputes to arbitration. In retort the applicant

contended that it is trite that the reference of disputes to arbitration does not ipso facto oust the jurisdiction on the high court. Further that section 6 of the Arbitration Act[10] enjoins the respondent to bring an application for the stay alternatively raises a special plea. The respondent would be required

to set out the facts upon which the argument that the arbitration clause is applicable is based. The crafting of clause 19, so the argument goes, specifically applies only where a dispute has been specifically described in the agreement as a dispute which must be referred to arbitration. The implicated issues in this lis have not been captured in the agreement as envisaged in terms of clause 19.

[13] The relevant portion of the clause states that “… any dispute or difference arising between the parties hereto relating to or arising out of this lease where provision is made for such dispute or difference to be submitted to arbitration, the said dispute or difference shall on written demand by any party to the dispute be submitted to arbitration…”. (underlining and emphasis added). The respondent has failed to substantiate the basis for invoking this clause. This point in limine is ill-advised, unsustainable and falls to be dismissed.

[14] The third point in limine was that sub-tenants should have been joined as parties to the lis. The applicant contended that this point has no basis in law since it is trite law that the subtenants need to be cited. In any event the description of the second respondent is intended to cater for the sub-tenants whose occupation of the premises is dependent and was premised on their agreement with the respondent. The point in limine as raised herein is also not upheld.

Merits

[15] The respondent gave a background of the acquisition of hangars 10/1[11] and 10/2[12]. They were both purchased by the respondent. The lease agreement which has been signed by the parties is in respect of hangar 10/2 but no lease agreement was entered into in respect of 10/1. The respondent contends however that “[O]f necessity a tacit lease agreement for Hangar H10/1 exists in law”.[13] Without the lease agreement, the argument continued, the purchase of the hangar would not have made commercial sense.

[16] The respondent noted the contention by the applicant that since the hangar now belongs to the applicant, as they were never bought by the respondent alternatively that ownership was transferred by accessio, the respondent should vacate the premises and the hangar. In retort the respondent contended that the agreement states that both hangars are movable properties and the sale and lease agreements in respect of H10/2 specifically states that the applicant shall be entitled to a right of first refusal in the event the respondent wishes to sell the hangars. As a result, there is no legal basis for the applicant to argue that the ownership has been transferred to the applicant in terms of accessio.

[17] Regarding the breach relating to sub-lease the respondent stated that at the time of acquisition of the hangar 10/2 in May 2019 both Messrs Loots and Botha were in occupation of the said hangar. Mr Hugo Visser was aware and agreed that they together with Hickman[14] could remain as subtenants.[15] Exchanges of emails indicates the amount which each of those sub-tenants were to pay as security fees.[16] The email, so went the argument, are data messages as contemplated in terms of Electronic Communication and Transaction Act 25 of 2002 (ECT Act) and should be admitted as evidence when read in accordance with sections 11, 12 and 15 of the ECT Act. The emails confirm and prove, so respondent continued, that “… permission therefor was given and it was sanctioned on monthly basis by the applicant when imposing the security fee. [17]

[18] The applicant in turn argued that the respondent’s contention that there was oral arrangement is denied by Mr Visser and in any event any oral arrangement is proscribed by the agreement. The reference to an implied written consent as stated in the emails exchanged makes no reference to sub-letting of the premises. Furthermore, the reference to monthly security fee cannot be construed as giving consent to sub-let as it refers to a fee for the presence of the persons at the hangar besides the respondent’s representatives.

[19] Regarding the applicant’s contentions on alterations and additions the respondent contends that through exchange of whatsapp messages with Mr Visser permission to embark on alterations was obtained. The messages confirms that Mr Visser also advised the respondent to rent another hangar during the period of alterations or renovation work. He even suggested 16TEN to purchase hangar 10/1 from Mr Smit and join same with H10/1 by opening between them.[18]

[20] The applicant wrote to the respondent’s attorneys enquiring whether the necessary consent and diagrams were submitted to which the response was that indeed same was furnished to Mr Visser.

[21] On Mr Minnie enquiring of the rental of the space to rent Mr Visser stated that the applicant should bill 16TEN for the space. The whatsapp messages, so the argument continues, should be construed as data messages for the purposes of ECT Act and be admissible. Further that the applicant has not raised any objection thereto. The messages indicate that the applicant “… was well aware of 16TEN’s alterations, raised no objections thereto, thereby providing its approval and these building operations

endured for three months, during which time Marindafontein knew that 16TEN was subletting alternate space.”[19]

[22] The applicant’s counsel argued that the respondent’s contention that the consent was given in WhatsApp exchanges is baseless as the WhatsApp message states, I want to do work on my hangar, any suggestions of a hangar I can rent for a shirt (sic) while?” and no reference is made of a consent to add or alter the premises. In addition, the agreement states that addition(s) and or alteration(s)

must be accompanied by building plans, diagrams and engineering requirements to the local municipality which was not done. The

respondent’s contention that such documentation are not required is irrelevant, so submit the applicant.

[23] With regard to the defence of estoppel the applicant contended that it should fail as being unsustainable. The clause relating to non-variation is sufficient to derail the argument advanced by the respondent to underlie the estoppel argument.

[24] The respondent in addition, contended that the application is replete with factual disputes and the motion proceeding was not appropriate route to take by the applicant. The application should on this basis alone be dismissed. In retort the applicant contended that the assertion by the respondent is baseless and should not be accorded any credence.

Legal principle and analysis

[25] There are several legal principles implicated in this application, viz, relating to sanctity of contracts, non-variation clauses and dispute of fact. It is trite that in terms of the principle of sanctity of contracts the court should ordinarily give effect to contract entered into lawfully by the parties. This principle should be considered in tandem with the principle of pact sunt servanda. Unless where the provision or clauses in the agreement are contra bones mores the court should be able to give effect thereto and constrain itself from possible complaints that the court is creating agreement for the parties.

[26] Common clauses, in agreements as stated above, includes a clause on non-variation in terms of which parties would agree that no variation shall be of any effect unless reduced to writing and signed by both parties. In addition, thereto is non-waiver clause which provide that any indulgence or waiver of any of the terms of the contract will not affect the right of any party to enforce such a term.

[27] In pursuance of the aforegoing, attempts made by a party to rely on communications which were not introduced into the contact accordingly

or even verbal arrangement will automatically fall foul of common law principle relating to integration rule in terms of which

“[I]f a document was intended to provide a complete memorial of a jural act, extrinsic evidence may not be contradict, add or modify its meaning…”.[20]

[28] In instances where an agreement decrees that amendments should be reduced into writing and signed in keeping up with developments

exchanges via text and emails have been considered to be considered acceptable if they comply with the ECT Act. This was stated by the SCA in Spring Forest Trading 599 CC v Wilbery (Pty) Ltd t/a Ecowash and Another[21] that email exchanges are data in terms of ECT Act and except in certain specified instances[22] they can satisfy the requirements of writing and signed as commonly required in agreements.[23]

[29] On the question of dispute of fact it was held in Wightman t/a JW Constructions v Headfour (Pty) Ltd and Another[24] where Heher J quoted with approval sentiments from the locus classicus judgment of Plascon Evans Paints Ltd judgment stated at para 12 that “[R]ecognising that the truth almost lies beyond mere linguistic determination the courts have said that an applicant who seek a final relief on motion must, in the event of conflict, accept the version set up by his opponent unless the latter’s allegations are, in the opinion of the court, not such as to raise a real, genuine or bona fide dispute of fact or are so far-fetched or clearly untenable that the court is justified in rejecting them merely on papers.” In instances of dispute of fact incapable of resolution the court may refer to the matter for oral evidence alternatively dismiss the application.[25]

[30] Having alluded to the above implicated legal principles in this application, what is needed to determine in this lis is whether there was written permission granted via WhatsApp and by emails exchanged satisfy the requirements of “permission in writing” as contemplated in the agreement between the parties. The whatsapp and email exchanged do confirm that indeed indirectly that there was confirmation that the third parties are allowed on the respondent’s hangar subject to payment of monthly security fee. Ordinarily if they were visitors, one would not expect that the monthly security fee should be paid. Mr Visser, in his letter written in Afrikaans to the respondent’s attorney (translated in English),[26](the Afrikaans letter) does not dispute the allegations that he gave permission to the other three individuals to sub-let on the respondent’s hangar.

[31] The applicant states that the payment of security “… is a fee for the presence at the hangar of persons other than the First Respondent’s representative but is not a consent to

sublet”.[27] This is an acknowledgement of a continuous presence on the premise of specified third parties and not just “continuous visitors”

as the applicant may want to conjure up. The applicant’s statement referred to above was made after the applicant having

stated that “… I cannot comment on the e-mails as I was not a party to the emails”.[28] It is palpable that the fact that the said fee was payable monthly buttress the allegations that the second respondents were indeed

given permission to sublet. The respondent has correctly submitted that the agreement does not prescribe the format of the permission in the sense that it must be in express terms.

[32] Notwithstanding the aforegoing the applicant’s cancellation of the agreement was incorrectly premised on the contention that the respondent did sub-let the hangar instead of referring to the premises as set out in the agreement. To this end the argument for eviction predicated on the breach for sub letting the hangar has no legal

basis and therefore unsustainable. The attempt by the applicant to add a second basis for cancellation as being repudiation is equally without merits. It was introduced in the court papers but not in the termination notice. In any event repudiation predicated on the subletting of the hangar and not the premises as contemplated in the agreement remain without legal basis.

[33] The respondent avers that the whatsapp communication support the submission that the discussions on the alterations and additions were held with Mr Visser who, at that time, was still the director of the applicant. It is correct that it is not vivid in the exchanges of the work that needs to be done on the respondent’s hangar. It does however appear in Mr Visser’s email to the respondent's attorneys which was translated that Mr Visser complain that the “[T]he area that Goerge and I talked about would make his hangar about 150sqm bigger, which would be a total of about 355sqm, now his hangar is apparently 504sqm- and a lot higher than which we gave permission.” (underlining added). Mr Visser seems to be stating that the additions were not as agreed with the respondent.

[34] The email was in respect of the alterations or additions that it is more than was consented to. It leaves one with the conclusion that indeed there could have been permission granted and same may have not been expressed unambiguously as set out in the whatsapp texts.

[35] In addition, Mr Visser stated in the WhatsApp text that the respondent should acquire H2/1 from Mr Smit and join the two by opening between them.[29] On being asked about the rental he responded that the respondent should be billed.

[36] The conduct of the respondent in investing huge resources in the alterations fortify the understanding that the respondent understood that all was within the parameters of the agreement between the parties.

[37] Of critical importance is the averment by the respondent that it was charged for the 500sqm. The respondent stated in para 90.5 of the answering affidavit that “[A]s soon as the first respondent’s renovation work started, the applicant began charging the first respondent levies for the additional 300sqm which were all fully paid by the first respondent.”[30] The applicant for some odd reason decided in its replying affidavit to deal with para 90.2 and thereafter jumped to paras 91 and 92 of the respondent’s answering affidavit[31] leaving out para 90.5 of the answering affidavit. It therefore follows that the applicant did charge and receive rental for the said additional 300sqm.

[38] Mr Visser in his Afrikaans statement does not dispute that he was given the plans and diagrams for the alterations as alleged by the respondent. The respondent further correctly stated that the agreement states that the applicant may proceed and procure the services of an engineer to prepare the necessary plan and drawings if the respondent cannot avail them. The inference that absence of the plans would not amount to breach warranting cancellation can reasonably be drawn under the circumstances. The fact that the correspondence exchanged with Mr Visser may not vividly spell out issues it lends credence to the contention that the court process should have been commenced through action proceedings. The oral evidence would not be used to offend the rule on parol evidence and will not “… seeks to vary, contradict or add to (as opposed to assist the court to interpret) the terms of the agreement…”.[32]

[39] Regarding the ownership of hangar is it clear that there are contradicting views between the parties. The applicant claiming that the hangar has acceded to the land and therefore forms part of the land belonging to the applicant. This is despite the argument that hangar has been identified as movable properties in the agreement. The eviction is in terms of the lease agreement which is limited to the premises as described.

[40] The applicant contends that the lease agreement made no provision for the sale of the hangar and no such proof of sale was attached. The respondent made allegation that his hangar was sold by Mr Visser who did not dispute such allegations. In addition, the second hangar was also bought from the Mr Smit whose details were also provided by Mr Visser. The sale agreements were attached to the supplementary affidavit filed on behalf of the respondent. All these discussions appear not to be relevant as the cancellation and the eviction is from the premises as described by the lease agreement and as set out in the Notice of motion. It therefore follows that because I am not invited to declare that the ownership of the hangar has passed through accessio and further having regards to the conclusion I arrived at the less I dwell on this issue the better.

Epilogue to the analysis

[41] Having regard to principles alluded to it is my conclusion that there are no merits in the points in limine raised by the respondent. The purported cancellation of the agreement on basis of breach of the agreement by sub letting the hangar instead of premises is found to be ill-conceived and wanting. The circumstances and the import of the communication between the respondent and the applicant represented by Mr Visser suggest that permission to the alterations and additions was indeed granted. This has been the position of the respondent from the beginning and should have been a cue to the applicant that the essence of its case is disputed, and such dispute (as will develop) would be incapable of resolution on the papers and on that basis the application would still have failed.

Costs

[42] There is no reason why the costs should not follow the results.

[43] In the premises I make the following order:

The application for eviction is dismissed with costs.

Mokate Victor Noko

Judge of the High Court

This judgement was prepared and authored by Noko J and is handed down electronically by circulation to the Parties / their legal representatives by email and by uploading it to the electronic file of this matter on CaseLines. The date of the judgment is deemed to be 21 December 2023.

Appearances

For the Applicant: Attorney L Hollander

Attorneys for the Applicant: Swanepoel Attorneys

For the Respondent: Adv A Bishop

Attorneys for the Respondent Dewey McLean Levy Inc

Date of hearing: 5 September 2023

Date of judgment: 21 December 2023

[1] Mr Hugo Visser was one of the directors of the applicant (together with his wife) until 24 June 2022 when Mr. Stefan Coetzee was appointed and became the sole director of the applicant.

[2] See clause 1.1.3.5 of the Agreement of Lease, at 002-19.

[3] See para 10.7 of the Agreement of Lease at 002-25-25.

[4] Clause 12 of the agreement, at 002-07.

[5] See clause 10.12 of the Lease Agreement at 002-26.

[6] See clause 18.1.2. of the Lease Agreement at 002-31.

[7] See Clause 23 of the Lease Agreement at 002-36.

[8] See clause 19 of the Lease Agreement at 002-32.

[9] See paragraph 3 of the letter from the Applicant’s Attorneys dated 4 October 2022 at 002-40.

[10] Arbitration Act 42 of 1965.

[11] Purchased from Mr. Paul Smit on or about 26 November 2019, CL 020-8.

[12] Purchased from Ystervlerk Enterprise (Pty) Ltd, CL 020-5

[13] See para 10 of the respondent’s Heads of Argument, CL 020-10.

[14] Who was the co-tenant of hangar H3/2 with Mr. Minnie of 16TEN.

[15] CL 020-18.

[16] CL 020-19 at para 29.5.3.

[17] CL 020-22, Respondent’s Heads of Argument at para 33.

[18] See CL 007-68.

[19] See para 44 of the Respondent’s Heads of Argument at 020-29.

[20] See KPMG Chartered Accountants (SA) v Securefin Ltd & Another 2009(4) SA 399 (SCA), at para 39 quoted with approval in Beijers v Harlequin Duck Properties 231 (Pty) Ltd t/a Office Space Online (1216/2017) [2019] ZASCA 89 (31 May 2019). The constitutional court having stated in University of Johannesburg v Auckland Park Theological Seminary and Another 2021 (6) SA 1 (CC) at par 68 that the [T]he rule is concerned with cases where the evidence in question seeks to vary, contradict or add to (as opposed to assist the court to interpret) the terms of the agreement…”.

[21] Spring Forest Trading 599 CC v Wilbery (Pty) Ltd t/a Ecowash and Another 2015(2) SA 118 (SCA). This judgment deals with cancellation of agreements by emails and was cited on the basis of parity of reasoning.

[22] In agreement of sale of immovable property, Wills, bills of exchange and Stamp duties. See ss4(3) and 4(4) of the ECT Act read with applicable schedules.

[23] See also section 22(1) which provides that the agreement is not without legal force and effect merely because it was concluded partly or wholly by means of data messages.

[24] Wightman t/a JW Constructions v Headfour (Pty) Ltd and Another 2008(3) SA 371 (SCA), Plascon-Evans Paints Ltd v Van Riebeck Paints (Pty) Ltd [1984] ZASCA 51; 1984 (3) SA 623 (A), Stellenbosch Farmers Winery (Pty) ltd v Stellenvale Winery Pty Ltd (1957) 4 SA 234 (C).

[25] See rule 6(5)(g) of the Uniform Rule of Court.

[26] See para 85 of the Applicant’s Replying Affidavit, at 008-26.

[27] See para 67 of the Applicant’s Replying affidavit, at 008-21.

[28] See Applicant’s Replying Affidavit para 67, at 008-21.

[29] See WhatsApp from Mr Visser on 007-68.

[30] See para 90.5 of the Respondent’s Answering Affidavit, at 007-28.

[31] See para 104 – 106 of the Applicant’s Replying Affidavit, at 008-30.

[32] See quotation from the constitutional court judgment in note 20 above.