Ramodutoana Investments (Pty) Limited v City of Joburg Property Company (SOC) Limited and Another (2019/21855) [2019] ZAGPJHC 251 (23 July 2019)

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG LOCAL DIVISION, JOHANNESBURG

CASE NO: 2019/21855

DATE: 23rd JULY 2019

In the matter between:

RAMODUTOANA INVESTMENTS (PTY) LIMITED Applicant

and

CITY OF JOBURG PROPERTY COMPANY (SOC) LIMITED First Respondent

CITY OF JOHANNESBURG METROPOLITAN MUNICIPALITY Second Respondent

REGISTRAR OF DEEDS Third Respondent

JUDGMENT

Adams J:

[1]. This is an opposed urgent application by the applicant for interim interdictory relief against the first and second respondents (‘the respondents’). Pending the determination of final relief sought in part B of the notice of motion, the applicant seeks an order interdicting and restraining the respondents from processing proposals received in response to Requests for Proposals in respect of immovable Property in Meadowlands. The applicant also asks that the respondents be interdicted and restrained from entering into any lease or other agreements in respect of the said immovable property or to extend any existing lease relating to the property. Lastly the applicant urgently applies for an interim order interdicting the respondents from alienating, hypothecating,

encumbering and / or dealing with the property in any other way pending the finalisation of part B of the application.

[2]. The urgent application is founded on 99 – year leaseholds by the respondents over the property in favour of the applicant. These leases were concluded between the applicant and the respondents during 1990 and were registered as Notarial Leases and sub – leases in the Deeds Office also during or about 1991. The Notarial Leases and sub – leases were however cancelled by the respondents during July 1999 and these leases and the records of the Deeds Office were endorsed to that effect on the 27th of July 1999. The applicant alleges that he only became aware of the cancellation of the leases during or about 2015, and he communicated

with the respondents his dissatisfaction with the state of affairs. The respondents then were of the view that the leases had been

validly cancelled and they were not prepared to accede to the applicant’s request that the leases be re – instated and re – registered in the Deeds Office as Notarial Agreements of Leases and sub – Leases.

[3]. On the 15th of April 2019 the applicant became aware of the fact that the first respondent had published Requests for Proposals for the development and leasing of portions of the property. When the respondents refused to comply with their demand to halt the bidding processes the applicant instructed its attorneys to launch this urgent application, which was issued on the 21st of June 2019. The respondents delivered their answering affidavit on or about the 11th of July 2019.

[4]. At the commencement of the hearing of the urgent application, I requested the parties to address me on the issue of urgency, which they did. I had deemed this course necessary in the circumstances of the matter.

[5]. There are two difficulties which the applicant faces relative to the issue of urgency. The first relates to the fact that during or about 2015 the applicant became aware of the fact that the leases had been cancelled and that its right in and to the property had been wiped out. At that stage, on the applicant’s own version, the respondents were of the view that the leases had been validly cancelled and they were not prepared to take any representations from the applicant to have the leases reinstated. By then, it would have been crystal clear to the applicant that it had to take action in order to protect its alleged right in and to the property, lest the respondents decide to exercise their ownership rights in the property and alienate same as they would have been entitled to do. The applicant did nothing. Instead, it engaged in discussions with the respondents. These discussions, according to the applicant, were ongoing from 2014 to the 15th of April 2019, when the applicant ascertained that the development of portions of the property had gone out for tender. I find it strange that the applicant would have been engaged in ongoing discussions for a period in excess of five years when the respondents as far back 2015 had made it abundantly clear to the applicant that it was of the view that the leases had been validly cancelled. All the same, there is no explanation, let alone an acceptable one, why the applicant did nothing between 2015 and April 2019 to protect its rights in the property.

[6]. The second difficulty relates to the fact that even after the applicant became aware of the publication of the Request for Proposals on the 15th of April 2019, it only reacted on the 23rd of May 2019, that is more than a month later, by causing a letter of demand to be addressed to the respondents. Thereafter, another month goes by before the urgent application is issued.

[7]. It is the first and second respondents’ contention that the alleged urgency of the matter is self – created and that there was non – compliance with the provisions of Uniform Rule of Court 6(12). It was submitted on behalf of the respondents that despite the fact that the applicant was aware as far back as 2015 that the respondents had caused the Notarial Leases to be cancelled, the applicant failed to issue its application soon thereafter.

[8]. Rule 6 (12) (b) of the Uniform Rules of Court reads as follows that:

‘(b) In every affidavit or petition filed in support of the application under para (a) of this sub-rule, the applicant shall set forth explicitly the circumstances which he avers render the matter urgent and the reasons why he claims that he would not be afforded

substantial redress at a hearing in due course.’

[9]. On behalf of the applicant it was submitted that the application is urgent because it was only when the Request for Proposals were published that the exigency of the matter dawned on the applicant. There is no merit in this contention.

[10]. I am of the view that the urgency of this application is self – created. In my view, the applicant should have launched this application as soon as the respondents made it clear to him that they do not recognise his right to the property. If he did so, urgency would not have been an issue now. It was incumbent on the applicant to as soon as possible after 2015 to launch legal proceedings for an order rectifying the situation. There is no explanation as to why the applicants waited so long before deciding to take action. Even then they delayed in launching the urgent application.

[11]. I am not convinced that the applicant has passed the threshold prescribed in Rule 6(12)(b) and I am of the view that the application ought to be struck from the roll for reasons given above.

Costs

[12]. The general rule in matters of costs is that the successful party should be given his costs, and this rule should not be departed from except where there are good grounds for doing so, such as misconduct on the part of the successful party or other exceptional circumstances. See: Myers v Abramson, 1951(3) SA 438 (C) at 455.

[13]. I can think of no reason why I should deviate from this general rule.

[14]. Accordingly, I intend awarding costs in favour of the first and second respondents against the applicant.

Order

Accordingly, I make the following order:-

1. The applicant’s urgent application be and is hereby struck from the roll.

2. The applicant shall pay the first and second respondents’ cost of this urgent application.

_________________________________

L R ADAMS

Judge of the High Court

Gauteng Local Division, Johannesburg

HEARD ON: 17th July 2019 JUDGMENT DATE: 23rd July 2019 FOR THE APPLICANT Adv G F Porteous INSTRUCTED BY: Fluxmans Attorneys FOR THE FIRST AND SECOND RESPONDENT: Adv F J Nalane INSTRUCTED BY: Madhlopa & Thenga Attorneys