Quesbos Investments (Pty) Lts v Camelot Holdings CC and Another (67081/14) [2015] ZAGPPHC 1049 (4 September 2015)

SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

IN THE HIGH COURT OF SOUTH AFRICA

[GAUTENG DIVISION, PRETORIA]

CASE NUMBER: 67081/14

In the matter between :

QUEBOS INVESTMENTS (PTY) LTD

(REGISTRATION NO: 2011/011542/07)

APPLICANT

and

CAMELOT HOLDINGS CC FIRST

RESPONDENT

(REGISTRATION NO: CK97/51857/23)

LOUIS WILLIAM VAN LELYVELD SECOND

RESPONDENT

(IDENTITY NO: […..])

JUDGMENT

A.J. LOUW AJ

[1] The Applicant applies for the eviction of the First Respondent and all persons that occupy through it and/or through which it occupies the premises known as Portion 1 of Consolidated Erf [.....] in the Township of New Muckleneuk, Registration Division JR Transvaal and also known as [.....], New Muckleneuk, Pretoria be evicted from the said premises and for ancillary relief. I will hereinfurther refer to the said premises merely as "the premises". Mr Terblanche SC appeared for the Applicant and Mr Savvas appeared for both the First and Second Respondents.

[2] There were a number of preliminary applications. These applications need not be adjudicated upon. The parties addressed me on the basis of the merits of the dispute. I was requested to make an order that the costs incurred by the interlocutory matters must be costs in the cause. I will make such an order.

[3] It is common cause that the Applicant is the owner of the premises; that the First Respondent is in occupation of the premises and conducts the business of a BP filling station, a carwash and a confectionary/bakery from the premises; the lease agreement in terms whereof the First Respondent was entitled to occupy the premises terminated. In fact during argument Mr Savvas, quite correctly, conceded that all the requirements for a rei vindicatio exists.

[4] Accordingly, if the Respondents cannot discharge the onus on them to prove their defences as raised in the application against the rei vindicatio · of the Applicant, an order in favour of the Applicant must follow.

[5] The sub-lease agreement in terms whereof the First Respondent occupied the premises terminated on the 30th April 2012 on the

Applicant's evidence. The First Respondent was in occupation of the premises as a result of a cession of the said sub-lease to the First Respondent.

[6] The nub, as I see it, of the Respondents' defence against the application for eviction are set forth in paragraphs 23.1 to 23.5 of the opposing affidavit. I summarise it as follows: The First Respondent is entitled to hold onto the business and goodwill therein

in perpetuity subject to paying a fair market rental and not doing anything illegal or unlawful. On the First Respondent's version the sub-lease entitling him to possession came to an end already in 2002 and he stated that all land owners accept and work on the reality that people go into business to create an income earning goodwill and to be able to sell it. Accordingly the Applicant cannot take the goodwill value of the site as a petroleum station away from the First Respondent without paying the full value of the goodwill.

[7] In addition, so the defence further goes, the Petroleum Products Amendment Act 58 of 2003 came into operation on the 17th March 2006. In terms thereof all rights in any kind of activity related to retailing, distribution and manufacturing of petroleum products for commercial purposes or for retailing purposes became illegal in the absence of being a licence holder of one or the other sort as provided for in the Petroleum Products Act 120 of 1977.

[8] It is the case of the Respondents that it·is irrelevant whether a formal lease agreement is in place or not. Possession of the premises was given freely, voluntary and knowing that for retailing purposes the First Respondent's rights to possession accrue also by way of the legal grant of retail rights arising out of the retail licence under the petroleum legislation.

[9) It is further the case of the Respondents that a landowner who has relinquished the retailing rights (to a person in the First

Respondent's position) has no other right than to negotiate a reasonable market related rental from the retail licensee in terms of the petroleum legislation and when the time period of a lease runs out, the landowner is obliged to re­ negotiate a reasonable

market related rental unless there is an objectively acceptable reason not to do so.

[10] Having regard to the nature of a lease agreement, one has to point out that one of the obligations of a lessee is that, at the end of the lease, the lessee is bound to restore the property to the lessor. See: Voet 19.2.32; Pothier Letting and Hiring par 197; Van der Linden 1.15.12. In Boompret Investments (Pty) Ltd and Another v Paardekraal Concession Store (PtyJ Ltd 1 990 (1) SA 347 (A) the Supreme Court of Appeal pointed out that a lessee is not. entitled to question the lessor's right to occupy the premises unless he can show that on the facts and apart altogether from the lease, he has a better title to occupy the property. See: The Boompret-judgment at 351H and 3511 to 352J.

[11] The petroleum legislation creates, after the Petroleum Products Amendment Act 58 of 2003 came into operation, a regime of licences in terms whereof commercial activities with petroleum products are governed.

[12] The First Respondent is a site retail licence holder. Having regard to the regulations regarding such a licence, one of the requirements is that an applicant for such a licence must either be the owner of the particular site or must.have the permission of the owner.

[13] In its purest form ownership is "the most extensive private right in and to a corporeal thing. It entitles the owner to deal with the thing as he pleases within the limits allowed by law."

See: Lee and Honore, Familv Things and Succession Second Edition p260 par 284.

In addition in the said text book the following is said in paragraph 285 with regard to the content of ownership:

"Ownership is a composite right consisting of a conglomeration of rights including not only the right to use ..., the right to enjoy the fruits ... and the right to abuse the thing ..., but also the right to possess ..., the· right to alienate ..., the right to reclaim the thing from anyone who wrongfully withholds it ... and the right to resist any unlawful invasion of a right ...".

[14] I can see no basis for a change in ownership arising from the provisions of the Petroleum Products Act 120 of 1977. That Act intends to, as the long title of that Act states: "To provide for measures in the saving of petroleum products and an economy in the cost of distribution thereof, and . for the maintenance and control of a price therefore, for the furnishing of certain information regarding petroleum products, and for the rendering of services of a particular kind, or services of a particular standard, in connection with petroleum products; to provide for the licencing of persons involved in the manufacturing and sale of certain petroleum products; to promote the transformation of the South Africa petroleum and liquid fuels industry, to provide for the promulgation of regulations relating to such licences; and to provide for matters incidental thereto."

[15] On the authority of Engine Petroleum Ltd v Gundu Service Station CC and Two Others case number 1633312012 (South Gauteng), Johannesburg, the judgment of Bashall AJ and in Engen Petroleum Ltd v Mightv Solutions CC trading as Orlando Service Station case number 20344/2013 (Gauteng Local Division) Johannesburg, the judgment of Matthee AJ I find against

the Respondents' defences based on the petroleum legislation as well as the . reliance placed on sections 22, 24 and 25 of the

Constitution.

[16] The First Respondent is not exercising a lien. A lien is an extremely limited defence against a rei vendicatio in terms whereof the lien holder has a right to retain possession of the . owner's property until the lien holder's claims for money or labour expended on the property have been satisfied. In this instance the First Respondent is trading on the premises.

See: Lee and Honore supra at page 348 par 489 and 490.

[17] The so-called goodwill lien is in part based upon the discussion of goodwill .in the matter of A-Team Drankwinke/ BK en 'nAnder v Botha en 'n Ander NNO 1994 (1) SA (1) at inter alia 14A - B. It was found that it is not clear whether goodwill is property in a property law sense and whether it does not rather fall under the Immaterial Property Law.

[18] In.any event I am in agreement with the submission of Mr Terblanche SC that any-goodwill is the goodwill of the business of the First Respondent.

[19] The payment of the R48 854.95 to the Municipality of Pretoria in order to restore electricity usage would, if it is indeed a basis for a lien, constitute a salvage lien. In view of the fact that the First Respondent is conducting business on the premises, it does not have a lien.

See: Rekdurum (Pty) Ltd v Weider Gym Athlone (Pty) Ltd 1997 (1) SA 646 (CPD) at 6540 - E.

[20] The joinder of Biotrace and BP is unnecessary in view of the written undertakings to abide by the decision of the court by these entities (see pages 398 and 399 of the application papers).·

[21] With regard to the matter of Everfresh Market Virginia (pty) Ltd v Shoprite Checkers (Pty) Ltd 2012 (1) SA 256 CC it appears to me that that matter is distinguishable on the facts. In that matter the applicable agreement between the parties in peremptive terms required negotiation about a further lease agreement. In this .case the First Respondent is in unlawful occupation of the premises on its own version since 2002 and on the Applicant's version since 2012. See par 69 at p276 of the Everfresh-judgment.

[22] Both parties initially asked for punitive costs orders. I do not regard this a matter where any of the parties ought to be mulcted with such a costs order.

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

1. The First Respondent; and all persons that occupy through it and/or persons through which it occupies the premises known as Portion 1 of Consolidated Erf [.....] in the ,Township of New Muckleneuk, Registration Division JR Transvaal and also known as [......], New Muckleneuk, Pretoria ("the premises") be evicted from the said premises;

2, That in the event of the First Respondent and/or person occupying through it and/or persons through which it occupies, fails to vacate the premises within 15 days from date of this order, the Sheriff of Pretoria East is authorised and instructed to evict them from the premises;

3. The costs incurred through all interlocutory applications are costs in the cause;

4. The First Respondent is ordered to pay the costs of this application together with the Second Respondent jointly and s ra , the one paying the other to be absolved,

_________________

AJ LOUW, AJ