Silverbalde Investments 17 (Pty) Ltd v Bay Tower Properties 247 (Pty) Ltd and Others (2017/38318) [2017] ZAGPJHC 420 (30 November 2017)

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG LOCAL DIVISION, JOHANNESBURG

CASE NO: 2017/38318

NOT REPORTABLE

NOT OF INTEREST TO OTHER JUDGES

REVISED.

30th November 2017

In the matter between:

SILVERBALDE INVESTMENTS 17 (PTY) LTD Applicant

and

BAY TOWER PROPERTIES 247 (PTY) LTD First Respondent

LANDMAN: DOUGLAS Second Respondent

VAN TONDER: JUAN REAN Third Respondent

JUDGMENT

ADAMS J:

[1]. The applicant launched an urgent application for an order for the eviction of the first respondent from commercial leased premises, as well as for a judgment against all three respondents for a monetary sum.

[2]. The applicant’s urgent application is founded on a written lease agreement concluded on the 14th December 2012 between the applicant’s predecessor – in – title and the first respondent in terms of which lease agreement the applicant leased to the first respondent immovable property situate at 4 Sproule Lane, Lambton, Germiston (‘the leased premises’). The application against the second and third respondents is based on Sureties signed by them in favour of the applicant, in terms of which the second and third respondents bound themselves as sureties and co – principal debtors to the applicant for the due and proper fulfilment of first respondent’s obligations in terms of the lease agreement. The lease agreement was in respect of commercial / business premises on which the first respondent operated a hotel under the name and style of Summer Place Boutique Hotel. The initial lease period was for nine years and eleven months, commencing on the 1st July 2013 and terminating on the 31st June 2013. The applicant’s case is that the monthly rental payable at the commencement of the lease agreement was an amount of R562 000 per month. In terms of the lease agreement the present monthly rental is the sum of R764 594.79 per month.

[3]. The first respondent, so it is alleged by the applicant, is at present in breach of the lease agreement in that it has failed to effect payment of the rental payable in respect of the months of July, August, September and October 2017. The first respondent has also failed to effect payment of discounted amounts agreed upon with the applicant. The first respondent accordingly cancelled the lease agreement, as it was entitled to do, with effect from the 3rd October 2017.

[4]. The first respondent opposes the application and has placed the lease agreement in dispute, contending that it had lapsed and was not revived. In the alternative, so the first respondent states quite bizarrely in its answering affidavit, and if it is found that the lease agreement did not lapse, then it is the case of the first respondent that, on a proper interpretation of the lease agreement the amounts mentioned as the rental payable were in fact annual rental and not monthly rental, as alleged by the applicant. This latter version of the first respondent is belied by the wording of the lease agreement which speaks of ‘monthly basic rental’ with reference to the amounts set out in the schedule, which in fact is a reference to the amount referred to supra. There can be very little, if any, doubt that the first respondent’s so – called interpretation of the lease

agreement is not sustainable and its version in that regard stands to be rejected on the papers in that it is far – fetched. This conclusion is strengthened by the application of the rule relating to contextual interpretation. In that regard, the common cause fact that up to the 31st of June 2017 the first respondent was paying a discounted rental of R300 000 per month, which equates to approximately R3 600 000

per annum, which is a far cry from the R764 594.79 contended for by the first respondent – the numbers don’t add up.

[5]. What is even more bizarre is the fact that on affidavit the first respondent deposes to two mutually destructive versions. In other words, first he swears that there is no lease agreement in existence, then in the same breath he declares that a particular interpretation should be attached to the lease. This is not sustainable. It strengthens my view that the version of the first respondent can and should be rejected on the papers.

[6]. A further difficulty with the version of the first respondent is that it disavows the lease agreement, but does not proffer an alternative

basis on which it claims entitlement to occupy the premises owned by the applicant. The point is this: On the first respondent's version, there is no legal basis on which the first respondent is entitled to be in possession and occupation of the applicant's property, and for that reason alone the applicant is entitled to an eviction order.

[7]. However this matter is viewed, it is abundantly clear that the first respondent does not have a defence to the claim for its eviction by the applicant. I find it rather strange that the first respondent in its answering affidavit raises issues which to my mind have very little, if anything, to do with the legal relationship between it (the first respondent) and the applicant. For example, the deponent to the first respondent’s answering affidavit goes into much detail of the internal ‘politics’ of the first respondent. There appears to have been a concerted effort on the part of the first respondent to cloud the issues in the hope that it would be able to defeat the claim for eviction by the applicant in circumstances where it does not pay any rental for the occupation of the applicant’s property.

[8]. At the hearing of the application it was conceded by Mr Vetten, Counsel for the applicant, that the applicant is not entitled in these urgent court proceedings to obtain a default judgment against all of the respondents for the amount claimed. An urgent application court is not the forum for such a claim, and should not have been launched in the first place. The application for default judgment therefore stands to be postponed struck from the roll.

[9]. I am satisfied that the applicant on the papers before me has made out a case for an order for the eviction of the first respondent from the premises.

[10]. This then brings me to the issue of urgency. The first respondent contends that the applicant’s urgent application should be dismissed due to non – compliance with practice directives applicable in this division. Closely linked to this contention is the first respondent’s submission that the application should fail for lack of urgency. I do not agree with these submissions for the simple reason that the applicant’s case for the eviction of the first respondent is overwhelming. It would not be in the interest of justice not to grant the applicant the eviction order, especially if regard is had to the fact that, according to the uncontested evidence of the applicant that it stands to lose out on a new lease agreement with a new tenant, who has indicated that he would conclude a lease agreement with the applicant provided he be given occupation during January 2018.

[11]. The applicant asked for an eviction order, and alleges that the application is urgent because, so it claims, the first respondent at present occupies the premises without paying rental, thus causing irreparable harm in the form of a loss of income for the applicant. Moreover, a new prospective lessee has indicated that it would lease the property from the applicant provided the property becomes available by January 2016.

[12]. These factors in my view warranted the launching of the urgent application. I therefore intend granting the eviction order, and striking the application for default judgment from the roll.

Cost

[13]. The applicant has been successful with his application for an eviction order against the first respondent. This means that, applying the general rule, it is entitled to a cost order.

[14]. The respondents, on the other hand, were also successful in their opposition to the application for judgment against them in favour of the applicant for payment of the sum of R4 058 379.16, which also entitles them to a cost order relative to that application. This cost order would however probably be cancelled out by the cost order to which the applicant is entitled to in respect of the eviction application.

[15]. Accordingly, I am of the view that no order as to cost would be fair, reasonable and just to all concerned, and in the exercise of my discretion I intend granting no cost order.

Order

In the result, I make the following order:-

1. The applicant’s urgent application for judgment against the respondents for payment of R4 058 379.16 be and is hereby struck from the roll.

2. The first respondent and any and / or all persons that may hold title by, through or under it, be and are hereby evicted from the premises known as ‘Summer Place Boutique Hotel’ situate at 4 Sproule Lane, Lambton, Germiston (‘the premises’).

3. The first respondent and any and / or all persons that may hold title by, through or under it, shall vacate the premises known as ‘Summer Place Boutique Hotel’ situate at 4 Sproule Lane, Lambton, Germiston (‘the premises’) within seven days from date of this order.

4. In the event of the first respondent and any and / or all persons that may hold title by, through or under it, not vacating the premises within seven days from date of this order, the sheriff be and is hereby ordered and directed to evict from the premises the first respondent and such other persons, and to do all things necessary to evict the first respondent and any and / or all persons that may hold title by, through or under it from the premises.

5. Each party shall bear his / its own costs.

_________________________________

L ADAMS

Judge of the High Court

Gauteng Local Division, Johannesburg

HEARD ON: 23rd November 2017 JUDGMENT DATE: FOR THE APPLICANT: 30th November 2017 Adv Dirk Vetten INSTRUCTED BY: Chiba – Jivan Incorporated FOR THE FIRST RESPONDENT: Adv Courtenay INSTRUCTED BY: A Kaplan Attorneys FOR THE SECOND & THIRD RESPONDENTS In Person INSTRUCTED BY: In person