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REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

 

                                                                                                   Case number:       14024/2019

                                                                                                            Heard on: 13 August 2019

                                                                                              Date of judgment: 16 August 2019

 

In the matter between:

 

 

KILWA PROPERTIES (PTY) LTD                                                                 Applicant

 

and

 

AFRICAWISE DEVELOPMENTS (PTY) LTD                                            First Respondent

 

SIBISI: IRVIN BAFANA                                                                           Second Respondent

 

 

JUDGMENT

 

KROMHOUT AJ:

[1]          On 1 March 2019 the applicant, Kilwa Properties Pty (Ltd), instituted application proceedings against Africawise Developments (Pty) Ltd (the first respondent) and Irvin Bafana Sibisi (the second respondent), for an order confirming cancellation of a written lease agreement concluded by the applicant and the first respondent on 22 July 2016 (“the lease”), for eviction of the first respondent and any person occupying through it, and for costs on the attorney and client scale.   

[2]          The cost order is not only sought against the first respondent, but against the respondents jointly and severally by virtue of a deed of suretyship incorporated in the document containing the lease, which suretyship was signed by the second respondent on the same day that he signed the lease on behalf of the first respondent (“the suretyship”).

[3]          The lease pertained to commercial premises described as 50% (East) of Unit 1, 6 Bondev Office Park, Wierda Road, Centurion (“the premises”).  The commencement date of the lease was 1 October 2016 (with a beneficial occupation date of 1 August 2016) and the termination date was 30 September 2019 (with an optional three year renewal period).

[4]          The affidavits reveal that, inter alia, the following facts are common cause:

[4.1]         The conclusion and the terms of the lease.

[4.2]         The first respondent fell into arrears with payment of rental, operating costs and related charges that were due by it in terms of the lease. 

[4.3]         On 21 November 2018 the applicant’s attorneys in writing notified the first respondent of its breach of the lease and called upon the first respondent to remedy its breach within seven days after receiving the notice. 

[4.4]         The first respondent failed to remedy its breach. 

[4.5]         The applicant’s attorneys, by way of a letter dated 7 January 2019, cancelled the lease and called upon the first respondent to vacate the premises.

[4.6]         The first respondent did not vacate the premises.

[4.7]         On 23 January 2019 a “without prejudice meeting” was held at the offices of Barnard Inc.

[4.8]         On 30 January 2019 a letter marked “without prejudice” was sent by the applicant’s attorneys to the first respondent (“the 30 January letter”).[1]

[4.9]         Subsequent to the launching of the eviction application, the parties’ respective attorneys exchanged further correspondence.[2]

[4.10]      The first respondent remains in occupation of the premises.

Respondents’ defence: the “second agreement”

[5]          As appears from the affidavits filed of record and as confirmed by both counsel during the hearing of the matter, the only issue to be determined with regard to the question whether the first respondent is in unlawful occupation, is whether a new agreement entitling the first respondent to continue occupying the premises was concluded subsequent to the cancellation of the lease.   The respondents refer to this agreement as “the second agreement” and Ms Ngqele, who appeared for the respondents, submitted that the defence based on the second agreement creates a real and bona fide dispute of fact.

[6]          In support of the second agreement the respondents refer to the without prejudice meeting of 23 January 2019.  The respondents also rely on the 30 January letter, which is attached as annexure “AA1” to their answering affidavit.  When the second respondent refers to the 30 January letter in paragraph 20 of the respondents’ answering affidavit, he states that:

“The Applicant’s recording of the agreement was sent to the respondents in correspondence dated 30 January 2019 ”. 

[7]          I pause to mention that the applicant initially objected to the respondents’ inclusion of the 30 January letter on the basis that it is marked “without prejudice” and that it contains settlement proposals.  However, the objection was not persisted with.

[8]          Ms Ngqele submitted further in her heads of argument and at the hearing of the matter, that in light of the second agreement, a month-to-month tenancy arose tacitly between the parties whereby the applicant continued invoicing the first respondent for rental and the applicant continued to accept rentals from the first respondent.  Reliance was placed on the fact that subsequent to the cancellation of the lease, the first respondent made a number of payments to the applicant, which payments were received and retained by the applicant.

[9]          The third point raised by Ms Ngqele was based on factual allegations of further negotiations (subsequent to delivery of the replying affidavit) which are contained in her heads of argument only.   Ms Halgryn, on behalf of the applicant, objected to the respondents relying on factual allegations not dealt with in the affidavits.  I requested Ms Ngqele to indicate what the relevance of the further negotiations would be and whether it is the respondents’ contention that the negotiations culminated in the conclusion of an agreement. She submitted that they did not result in the conclusion of an agreement, but that they indicate a failure to negotiate in good faith on the part of the applicant.   I did not allow the respondents to rely on the factual allegations contained in their heads of argument.

[10]       Ms Halgryn submitted that the respondents’ averments in relation to the second agreement do not result in a real or bona fide dispute of fact.

[11]       Ms Halgryn submitted further that the contents of the 30 January letter clearly do not reflect an agreement allowing the first respondent to remain in occupation of the premises and are destructive of the alleged second agreement.  She submitted that the 30 January letter amounts to a settlement proposal which, even if it had been accepted, would not grant the first respondent any right to occupy the premises.

Analysis of the defence based on the “second agreement”

[12]       By virtue of the cancellation of the lease on 7 January 2019, the first respondent’s occupation of the premises became unlawful and the applicant acquired a right to demand that the first respondent vacate the premises.

[13]       Such a demand was indeed made in the letter dated 7 January 2019.  In paragraph 9 thereof, the first respondent was requested to vacate the premises and to return occupation thereof to the applicant within three calendar days.  In paragraph 10 of the letter the first respondent was informed unequivocally that should it fail to vacate the premises and return occupation thereof to the applicant, the applicant would have no option but to proceed to issue an eviction application and seek a costs order against the first respondent and against the second respondent (as surety) on a scale as between attorney and client.

[14]       As appears from the above facts, the applicant had a right to demand that the first respondent vacate the premises, the applicant’s intentions were clear and unambiguous and they were conveyed as such to the respondents.

[15]       The respondents contend in their answering affidavit, under the heading “INTRODUCTION”, that on 23 January 2019 there was a meeting between the second respondent, in his personal capacity and representing the first respondent on the one hand, and Mr Strydom representing the applicant on the other.  The respondents state that following:

“The purpose of the meeting was to address the ongoing dispute regarding the leased premises, specifically the occupation thereof and secondly, the issue of arrear rental and future rentals.” 

[16]       However, the answering affidavit provides no direct evidence of the actual discussions at the meeting of 23 January 2019.  It does not set out any evidence of proposals made by any party, how any such proposals were made and whether any such proposals were accepted by the other party.

[17]       Under the next heading in the answering affidavit, “OCCUPATION”, it is averred that:

“The parties accepted that there had been a breach of the lease agreement.

The parties accepted that the relationship had not deteriorated to a point where it was necessary for the First Respondent to vacate the leased premises. 

Accordingly, the parties resolved, as will be explained more fully below, that the First Respondent will remain in occupation of the said premises pending the finalisation of the dispute and whether or not the breach of the lease agreement persisted.

In the event, the First Respondent and the Applicant reached an agreement (hereinafter referred to as the “second agreement”) in terms of which the First Respondent could continue occupation of the leased premises subject to the repayment conditions set out below.”

[18]       It is not at all clear whether the above allegations pertain to the meeting of 23 January 2019, to a subsequent event, or to the 30 January letter.

[19]       In paragraphs 7 and 20 of the answering affidavit the respondents contend that on or about 23 January 2019 it was agreed between the parties that the respondents would settle the arrear amount according to the following repayment conditions:

[19.1]      The respondents would remedy the breach within 6 months from the date of 23 January 2019;

[19.2]      The respondents were to make payment of R20 000 before or on 31 January 2019;

[19.3]      The respondents were to make payment of R20 000 on the first day of every succeeding month starting 1 February 2019 and ending 1 July 2019;

[19.4]      At the end of paragraph 20, the second respondent then refers to the 30 January letter, as being the applicant’s recording of the agreement, which was “sent to the respondents in correspondence dated 30 January 2019.” 

[20]       Paragraphs 7 and 20 of the answering affidavit similarly contain no direct evidence of the actual discussions at the meeting of 23 January 2019.  The respondents do not expressly state whether the second agreement was concluded verbally or in writing.  However, as mentioned above, they specifically refer to the 30 January letter as being the applicant’s recording of the agreement.

[21]       Other than the 30 January letter, the respondents’ answering affidavit does not contain any evidence of primary facts to establish the conclusion of the second agreement, and specifically the term to the effect that the first respondent could continue occupying the premises. 

[22]       One should be mindful that in motion proceedings the affidavits constitute both the pleadings and the evidence.[3]  Put differently, bearing in mind that the founding affidavits in motion proceedings take the place not only of the declaration in action proceedings but also of the essential evidence which would be led at a trial, if there are absent from the founding affidavit such facts as would be necessary for determination of the issue in the applicant’s favour, an objection that it does not support the relief claimed is sound.[4]  The principle applies equally to answering affidavits and replying affidavits.[5]

[23]       The facts set out in the founding affidavit (and equally in the answering affidavit and replying affidavit) must be set out simply, clearly and in chronological sequence and without argumentative matter.  A distinction is drawn between primary facts and secondary facts.  Facts are conveniently called primary when they are used as the basis for inference as to the existence or non-existence of further facts, which may be called, in relation to primary facts, inferred or secondary facts.  In the absence of the primary fact, the alleged secondary fact is merely a conclusion of law.[6]

[24]       The applicant disputes the respondent’s vague contentions with regard to the second agreement.  The applicant confirms that there were without prejudice discussions on the 23^rd of January 2019, but the applicant is adamant that no agreement was reached and that no settlement proposal was even made during the meeting.  The applicant’s deponent avers that it was specifically stated to the second respondent that a settlement proposal would be sent to the respondents in writing following the meeting, and a settlement proposal in the form of the 30 January letter was thereafter dispatched.

[25]       Properly construed, the respondents’ defence based on the second agreement amounts to an alleged waiver by the applicant of its accrued right to demand that the first respondent vacate the premises pursuant to the undisputed cancellation of the lease. 

[26]       A similar defence was raised in Desai v Mohamed  1976 (2) SA 709 (N), where the defendant contended that the plaintiff, subsequent to the plaintiff’s purported cancellation of a lease on 14 January 1975, accepted as rental a payment made by the defendant in February 1975, and by so acting condoned defendant's breach or waived any right which he might have had by reason of such breach.

[27]       In Desai, Miller J said the following at 712H to 713A:

“Waiver by a lessor of a right to cancel is a defence most commonly raised with reference to the lessor's conduct between the date of breach and the date of his purported cancellation of the lease. Conduct during that period which clearly manifests an election not to cancel, may appropriately be said to constitute a waiver of the right to do so. That situation differs from the case with which we are now concerned, where the conduct relied on occurred subsequent to valid cancellation of the lease by reason of the breach. In such a case, if the conduct is said to constitute a waiver, the word is used not with its ordinary connotation but in the sense that the cancellation has been undone, for there is something incongruous in the notion that one may waive a right to do that which one has already done.  As INNES, C.J., pointed out in United Bioscope Cafes Ltd. v. Moseley Buildings Ltd., 1924 AD 60 at pp. 67 - 8, it may be possible for one who has lawfully cancelled an agreement to 'go back upon his election', provided he does so with the concurrence of the party affected thereby. (See also per STEYN, C.J., in Neethling v. Klopper en Andere,  1967 (4) SA 459 (AD) at pp. 466 - 7). Although in both these cases reference was made to the revival ('herlewing') of the previously cancelled agreement by reason of conduct subsequent to cancellation, it is implicit in both judgments that a fresh meeting and concurrence of the minds of the parties would be necessary to the restoration of the status quo ante. Thus, INNES, C.J., referred to conduct amounting to 'a clear intimation' by one of the parties, which the other could accept…”

[28]       At 713F-H Miller J found as follows:

“Counsel for defendant stressed the fact that the receipt issued on 5 February acknowledged the payment as 'rental' and contended, in effect, that this circumstance was of such dominant importance that it overshadowed the 'without prejudice' reservation appearing on the receipt and such other contra-indications as there might be. That argument greatly over-estimates the significance of the word 'rental' on the receipt in the particular circumstances of this case. The onus in a case of this kind is certainly no less burdensome than the onus of proving waiver of rights in any other case, whether it relates to lease or any other subject-matter, and it has been said over and over again that waiver must be 'clearly proved'.  (Collen v. Rietfontein Engineering Works,  1948 (1) SA 413 (AD) at p. 436, and the United Bioscope case, supra at p. 68). Not only one element of the conduct of the plaintiff must be looked at, but the whole of his conduct. What is required for discharge of the onus is proof of conduct which is plainly inconsistent with an intention by the plaintiff to persevere with the exercise of the right which he elected to enforce (cf. Laws v. Rutherford, 1924 AD 261 at p. 263).

[29]       The passage in Laws v Rutherford, 1924 AD 261 at p. 263, referred to in Desai, reads as follows:

"The onus is strictly on the appellant. He must show that the respondent, with full knowledge of her right, decided to abandon it, whether expressly or by conduct plainly inconsistent with an intention to enforce it. Waiver is a question of fact, depending on the circumstances. It is always difficult, and in this case specially difficult to establish."

[30]       Trengove J emphasised in Alfred McAlpine & Son (Pty) Ltd v TPA  1977 (4) SA 310 (T) at 324D-E, that persons do not as a rule lightly abandon their rights:

“But, in considering whether the onus of establishing waiver by conduct has been discharged on a preponderance of probability, a court may nevertheless take cognizance of the fact that persons do not as a rule lightly abandon their rights. In Cassim v Kadir,  1962 (2) SA 473 (N), MILLER, J., said at p. 478:

‘... but the onus of proving waiver is on the party alleging it, and the plaintiff cannot discharge that onus short of proving conduct which gives rise to a clear inference that there was an intention to abandon or renounce it. It may be that the onus is discharged by proof on a balance of probabilities (see Kannemeyer v Gloriosa,  1953 (1) SA 580 (W) at p. 585) as in any other civil matter. But the reason for the time honoured dictum that 'waiver must be clearly proved' is that persons are not lightly held to have abandoned their rights or to have made donations.’ ”

[31]       In Sewpersadh v Dookie  2009 (6) SA 611 (SCA), the Supreme Court of Appeal, at paragraph [16], found as follows in a matter where the court a quo had accepted that a cancelled agreement had been revived by the parties:

“The finding of the court below that the cancelled agreement was revived by agreement between the parties may be disposed of shortly. An agreement to revive requires ‘a fresh meeting and concurrence of the minds' of the parties to restore the status quo ante. No basis for a finding that there was consensus between the parties that the agreement be revived is to be found in the affidavits filed by the parties. The respondent did not only not allege such an agreement but could not do so in the light of his denial that he had breached the agreement and that the agreement had validly been cancelled. Moreover, the second appellant was also a party to the agreement of sale and, as the respondent's counsel conceded, there was no evidence whatsoever of her consent to the revival of the agreement.”

[32]       Therefore, in order to establish that the second agreement was indeed concluded between the applicant and the first respondent, with the terms contended for by the respondents (specifically the term to the effect that the first respondent could continue occupying the premises), the respondents have to prove that a fresh meeting and concurrence of the minds of the parties occurred, in terms of which the applicant had waived its accrued right to evict the first respondent. 

[33]       This includes proving that the applicant consented to the terms of the second agreement.

[34]       The contents of the 30 January letter are totally inconsistent with the terms of the second agreement as alleged by the respondents (again, with emphasis on the term to the effect that the first respondent could continue occupying the premises), it is directly destructive of the respondents’ version and the contents of the letter clearly indicate that the applicant had not waived its accrued right to evict the first respondent.  On no construction of the 30 January letter could there have been a “fresh meeting and concurrence of the minds” to the effect that the first respondent could continue occupying the premises:

[34.1]      First of all, the 30 January letter is marked “WITHOUT PREJUDICE”;

[34.2]      In paragraph 2 the applicant’s attorney refers to the without prejudice meeting of 23 January 2019 and in paragraph 3 the following is recorded:

“We hereby write to you, on a without prejudice basis, to inform you of our client’s intentions in this matter and the possible resolution of the dispute between the parties”

[34.3]      In paragraphs 4 and 5 the applicant’s attorneys expressly record that the lease had been lawfully terminated (together with another lease in relation to the western part of the premises), and that the first respondent has no lawful right to occupy the premises;

[34.4]      In paragraph 7 it was recorded that in light of the lease agreements having been terminated, the applicant was entitled to retain the deposits paid to settle the arrear rental/damages due in respect of the premises;

[34.5]      In paragraphs 8 and 9 it is indicated that after subtraction of the deposits, the total amount still due by the first respondent amounted to R113 417.26;

[34.6]      It was recorded in paragraph 10 that copies of statements of account and tax invoices were attached to the letter;

[34.7]      In paragraphs 11 and 12, which were emphasised by underlining, the applicant’s attorneys recorded that the applicant had instructed them to proceed with the issue of a combined summons for the arrear rental and damages, and to proceed with the issue of an eviction application;

[34.8]      In paragraph 13 it was recorded that Mr Strydom had indicated to the second respondent on 23 January 2019 that the applicant would prefer to resolve the matter amicably;

[34.9]      Paragraph 14 recorded the following:

“Accordingly, our client has suggested that although it will proceed with legal action as aforesaid, it will consider not enforcing the judgments it may receive pursuant to the above legal action should you:

14.1    Attend to payment of R20 000.00 before 31 January 2019 towards the arrear rental/damages and additional damages which ensue as a result of your continued unlawful occupation of the premises;

14.2    Attend to payment in the amount of R20 000.00 on or before the first day of each and every month (with the first payment to be made on or before the 1^st day of February 2019) towards the arrear rental/damages and additional damages which ensue as a result of your continued unlawful occupation of the premises; and

14.3    Attend to payment, in full, of our client’s total arrear rental/damages (which amount will be as set out in a statement to be drafted by our client) within, at least, 6 months from date hereof.”

[34.10]   In paragraph 15 it was recorded as follows:

“Furthermore, should you comply with the aforegoing our client will consider entering into a new lease agreement with you for 50% East of Unit 1…, the terms of which the parties may negotiate at a later stage.  A further deposit would then be payable in respect of such lease agreement should it be concluded.”

[34.11]   In paragraph 16 the applicant’s attorneys recorded that they were awaiting the first respondent’s response and confirmed that the applicant’s rights remain reserved.

[35]       As mentioned above, the respondents referred to the contents of the 30 January letter as the applicant’s recording of the agreement.  The respondents did not take issue with the contents of the 30 January letter or otherwise respond thereto in writing.  

[36]       Having unambiguously recorded its intentions in the letter dated 7 January 2019 and in the 30 January letter, the applicant, on 1 March 2019, proceeded to have the present eviction application issued.

[37]       On 18 March 2019 the respondents’ attorneys directed a letter to the applicant’s attorneys, inter alia recording that the applicant had initiated two parallel processes against the respondents, being eviction and summary judgment applications, and noting in paragraph 3 of the letter that:

“…the proceedings are irregular in that on or about the 30 January 2019, the parties subsequently entered into an agreement that the Defendant/ Respondent would attend to payment of the arrear rental/damages.”

[38]       The respondents’ attorneys indicated further that this agreement, which was entered into to remedy the breach in respect of the lease agreement, was still in force and that the defendant/respondent was performing in terms thereof, rendering any action for recovery of arrear rental/damages redundant. 

[39]       The reference by the respondents’ attorneys to the agreement entered into on or about 30 January 2018 can only be a reference to the 30 January letter, which is also relied upon in the body of the answering affidavit.   The 30 January letter is destructive of the second agreement and also of the argument referred to below, to the effect that the acceptance of payments post cancellation constituted proof of a tacit entitlement to occupy the premises.

[40]       The contents of the 30 January letter are clear and unequivocal: even if the respondents had accepted the offer contained in the 30 January letter, it would not have amounted to a waiver of the applicant’s right to obtain and enforce an eviction order against the first respondent.  The applicant would proceed with the eviction application and it would consider not enforcing the judgments it may receive, should the respondents comply with the payment structure suggested in the 30 January letter.

[41]       Had the respondents accepted the offer contained in the 30 January letter, they ought to have made a payment of the sum of R20,000.00 before 31 January 2019.  They did not make any payment by that date.

[42]       The first respondent did make a payment of R20,000.00 on 1 February 2019, two payments (R9,400.00 and R10,600.00) totalling R20,000.00 on 1 March 2019, a payment of R20,000.00 on 31 March 2019 and a payment of R20,000.00 on 1 April 2019.  But these payments do not comply with the payment structure set out in the 30 January letter.

[43]       When counsel for the respondents was requested to indicate on what evidence the respondents rely in order to prove the second agreement, she indicated that the respondents rely on the evidence of the above payments that were made by the first respondent subsequent to cancellation of the lease and that were accepted by the applicant.

[44]       As mentioned above, in the heads of argument delivered on behalf of the respondents a further point was raised: in light of the second agreement, a month-to-month tenancy arose tacitly between the parties whereby the applicant continued invoicing the first respondent for rental and the applicant continued to accept rentals from the first respondent.  The first respondent made a number of payments in the sum of R20,000 each to the applicant, which payments were received and retained by the applicant.

[45]       First, the argument based on a month-to-month tenancy that had arisen tacitly between the parties was not raised in the answering affidavit.  In order for such a defence to be made out, it should have a comprehensive factual foundation which ought to have been articulated and proven by way of admissible evidence set out in the answering affidavit.  It was only raised in the heads of argument.

[46]       Second, the submissions by the respondents based on the payments in any event do not make out a case for a tacit contract:

[46.1]      In order to establish a tacit contract it is necessary to show, by a preponderance of probabilities, unequivocal conduct which is capable of no other reasonable interpretation than that the parties intended to, and did in fact, contract on the terms alleged. It must be proved that there was in fact consensus ad idem.[7]

46.2.          Where a tacit contract is relied upon it is generally insufficient merely to refer to a large quantity of facts and evidence.  In order to comply with the requirement of "unequivocal conduct which is capable of no other reasonable interpretation" a catalogue of actions and specific conduct must be averred.  Every relevant action or specific conduct must then be proved.[8]

[47]       The facts in the present matter (including the payments relied upon) do not contain any evidence of any such unequivocal conduct.

[48]       Third, should the respondents be contending for a tacit term to be incorporated into the 30 January letter (as opposed to a self-standing tacit agreement), it was explained by Corbett AJA in Alfred McAlpine & Son (Pty) Ltd v Transvaal Provincial Administration  1974 (3) SA 506 (A) at 531E – 532F, that a tacit term is an unexpressed provision of a contract, inferred by the court from the express terms of the contract and the surrounding circumstances. Because a tacit term is derived from an inference as to what both parties must have intended, if they had applied their minds, the inference will be drawn only if the court is satisfied that it is a necessary one. Once there is difficulty and doubt as to how the term should be formulated or how far it should go, it can hardly be said that the parties clearly intended the proposed term to be part of their agreement.

[49]       I do not view the fact of the payments subsequent to cancellation of the lease as evidence of the second agreement or of the conclusion of a month-to-month tenancy that had arisen tacitly between the parties.  On the contrary:

[49.1]      Clause 18 of the lease provides that if the lessor cancels the lease and the tenant disputes the right to cancel and remains in occupation of the premises, the tenant shall, pending settlement of any dispute, continue to pay an amount equivalent to the sum of the monthly rental and costs payable in terms of the lease;

[49.2]      Clause 26 contains “whole agreement” and “non-variation” clauses, and it also provides that an acceptance of payment of rental and costs or any other payment shall not prejudice the lessor’s rights or operate as a waiver or abandonment thereof;

[49.3]      The payment structure set out in the 30 January letter is not materially different to the payment structure set out in paragraphs 7 and 20 of the answering affidavit.  The respondents, in any event, seem to be relying on the 30 January letter as a recordal of the second agreement;

[49.4]      As was the case in Desai, given the facts and circumstances of the present case, the payments made by the first respondent and the acceptance thereof by the applicant, are in no way inconsistent with an intention by the applicant to persevere with the exercise of the right to eviction which it elected to enforce;

[49.5]      There is simply no basis for the contention of a month-to-month tenancy, especially given the unambiguous terms of the 30 January letter.

[50]       The facts are overwhelmingly against any inference that there was an intention on the part of the applicant to abandon or renounce its rights and to consent to a term allowing the first respondent to remain in occupation. 

[51]       No such intention has been established.  No new consensus (meeting of the minds) has been established.

[52]       On the contrary, the very document relied upon by the respondents (the 30 January letter), is destructive of the respondents’ entire defence.

[53]       I therefore find that the respondents’ reliance on the second agreement in general, and specifically the alleged term allowing the first respondent to remain in occupation, is without any substance and that it does not give rise to a bona fide dispute of fact.[9]

Costs

[54]       The applicant seeks costs on the attorney and client scale.  The lease, in clause 17.3 thereof, provides for costs on that scale.

[55]       The applicant also relies on clause 9 of the suretyship, which provides that:

“The Sureties shall pay … all legal costs, including party and party costs, attorney and client costs, collection charges and tracing fees, incurred by the Creditor in enforcing its rights herein against them.”

[56]       When I raised the question with Ms Halgryn as to whether the applicant is, in the eviction application, enforcing its rights in terms of the suretyship against the second respondent, and if that is the case, what the obligations secured by the suretyship are with specific reference to clause 2 thereof, she submitted (correctly, in my view) that the respondents did not challenge the applicant’s averment in its founding affidavit that the second respondent bound himself as surety and co-principal debtor in favour of the applicant for the obligations of the first respondent in terms of the lease,[10] and that it is therefore not required of this court to determine what the obligations secured by the suretyship are.

[57]       The obligations of the first respondent in terms of the lease include the obligation to pay costs on the attorney and client scale in terms of clause 17.3 of the lease.

[58]       On that basis, the second respondent falls to be held liable, jointly and severally with the first respondent, for the obligation to pay legal costs on the attorney and client scale.

[59]       An order for costs on the attorney and client scale against the first and second respondents is in my view also justified in light of the conduct of the first and second respondents in remaining in occupation whilst persisting with their baseless opposition to the eviction application, despite the first respondent’s undisputed breach and the undisputed cancellation of the lease, despite the applicant’s attempts to find an amicable solution, despite the contents of the letter dated 7 January 2019 and in the clear absence of any bona fide defence.

Order:

[60]       The following order is made:

[60.1]      It is declared that the written lease agreement concluded by the applicant and the first respondent on 22 July 2016 (annexure PS3 to the founding affidavit), was validly cancelled by the applicant in terms of the letter by PEV Smith Inc Attorneys dated 7 January 2019;

[60.2]      The first respondent and any person occupying through the first respondent is/are hereby evicted from the premises situated at 50% East of Unit 1, Sectional Title Scheme Eldo 4246 (Stand 4246), Kilwa House, 6 Bondev Office Park, Wierda Road, Eldoraigne Extension 48, Centurion 0157 (“the premises”);

[60.3]      The first respondent and any person occupying through the first respondent shall vacate the premises and give back occupation thereof to the applicant by no later than 08:00 on Monday 1 September 2019;

[60.4]      Should the first respondent and any person occupying through the first respondent fail to vacate the premises and give back occupation thereof to the applicant by 08:00 on Monday 1 September 2019, this order may be carried out forthwith;

[60.5]      The first and second respondents shall pay the costs of this application on the attorney and client scale, jointly and severally, the one paying the other to be absolved.

 

 

                                                                                   

                                                            E KROMHOUT

ACTING JUDGE OF THE HIGH COURT, PRETORIA

 

 

 

 

Appearances

For Applicant:                     Adv T Halgryn

Instructed by:                     PEV Smith Inc

For first respondent:         Adv F Ngqele

Instructed by:                     Buba Attorneys Inc

 

 

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