J&A Holtzhausen Properties (Pty) Ltd v Khan and Others (7249/2023) [2024] ZAWCHC 442 (13 February 2024)

begin wrapper begin container begin header begin slogan-floater end slogan-floater - About SAFLII About SAFLII - Databases Databases - Search Search - Terms of Use Terms of Use - RSS Feeds RSS Feeds end header begin main begin center # South Africa: Western Cape High Court, Cape Town South Africa: Western Cape High Court, Cape Town You are here: SAFLII >> Databases >> South Africa: Western Cape High Court, Cape Town >> 2024 >> [2024] ZAWCHC 442 | Noteup | LawCite sino index ## J&A Holtzhausen Properties (Pty) Ltd v Khan and Others (7249/2023) [2024] ZAWCHC 442 (13 February 2024) J&A Holtzhausen Properties (Pty) Ltd v Khan and Others (7249/2023) [2024] ZAWCHC 442 (13 February 2024) Download original files PDF format RTF format make_database: source=/home/saflii//raw/ZAWCHC/Data/2024_442.html sino date 13 February 2024 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 ( WESTERN CAPE DIVISION, CAPE TOWN) CASE NO: 7249/2023 In the matter between: J&A HOLTZHAUSEN PROPERTIES (PTY) LTD APPLICANT And ASLAM KHAN FIRST RESPONDENT YES, HARDWARE (PTY) LTD SECOND RESPONDENT YE KHAN INVESTMENTS CC THIRD RESPONDENT SHAHIEDA DAVIDS FOURTH RESPONDENT JUDGMENT BARENDSE AJ Judgment delivered electronically on 13 February 2024. [1]     The applicant in this matter commenced motion proceedings against the respondents in which it seeks the eviction of the respondents from commercial premises situated in Bellville, Western Cape. [2]     It is apposite to record that the first respondent obtained a spoliation order against the applicant on 10 February 2023 under case no. 2438/23. The return day of the rule nisi under case no. 2438/23 and this application were both argued in this court on the same day, to wit 6 February 2024. Factual Background [3]   The applicant is the owner of a commercial property described as Erf 2[…], [... R[…] Street, Bellville. Mr. JJ Holtzhausen deposed to the founding affidavit ("FA") in these proceedings in his capacity as the managing director of the applicant. [4]   It is alleged that the applicant and the first respondent previously entered into a written agreement of lease for a 5-year period. A copy of the lease was annexed to the founding affidavit ("FA") as " JJH4 . It emerged during the proceedings under case no. 2438/23 that the second and third respondents were also in occupation of the premises. [5]   The applicant alleged that it also entered into a written agreement of lease with the fourth respondent for premises described as Erf no. 2[…], Top Floor, Corner Robert Sobukwe and Oranje Roads, Bellville. The copy of the written lease annexed to the FA as "FFA5" was not signed by the fourth respondent and the applicant in the alternative submitted that this lease was concluded partly in writing and partly orally. The premises to which this lease relate are referred to as the "storage and sewing premises". [6]   The lease between applicant and fourth respondent commenced on 1 December 2016 and terminated on 30 November 2021. [7]   Turning first to the agreement of lease between the applicant and first respondent, the lease term was for a period of 5 years, commencing on 1 September 2017 and terminating on 30 August 2022. Reference will only be made to those terms of the lease that are most relevant to the dispute. [8]   The agreement expressly recorded that the premises were let for the purpose of storage, the lessee shall not sublet the premises without the written consent of the lessor and the lessee shall not make any alterations to the premises without the written consent of the lessor and any alterations variation and/or cancellation of the agreement would only be valid if reduced to writing and signed by both parties. It further provided that the lessee shall be liable for payment of electricity and the charges levied by the local authority. [9]    It is applicant's case that the first respondent never obtained its consent to sublet the premises or to make alterations thereto. When the agreement terminated, first respondent and those holding under him, (the second and third respondents) continued to occupy the premises. [10]     It is common cause that all the respondents remain in occupation of the premises. At the hearing of this matter all the respondents were legally represented. THE DISPUTE [11]    The applicant's case is that after the leases expired by effluxion of time the first and fourth respondents continued to occupy the premises on a month to month basis. Applicant was desirous of selling the property and engaged with the two respondents to negotiate the vacation of the property by agreement.  This was fruitless and applicant caused written notices to vacate to be sent to 1 st and 4 th respondents. The notices were dated 31 December 2022 and it called upon the respondents and those holding under them to vacate the property by 31 January 2023. Copies of the notices were annexed to the FA. [12]    The respondents did not heed the notices to vacate, in the interim the spoliation proceedings emerged and the applicant instructed its attorneys to send another notice to vacate to the respondents, this time copying the respondents' attorneys of record. This notice was dated 31 March 2023 and it demanded that the respondents vacate the property by 30 April 2023. A copy of this notice was also annexed to the FA. [13]    The applicant procured a purchaser for the property and it is alleged that this sale is in jeopardy because of the refusal of the respondents to vacate notwithstanding a further notice sent by applicant's attorneys to the respondents on 3 May 2023 informing them that their continued occupation of the property was unlawful. [14]   The first respondent deposed to an answering affidavit ("AA") in which it was denied that the respondents' occupation of the premises is unlawful.  According to him, an agreement was reached between one Rene Oberholzer of the applicant and his father for an option to renew the lease for another 5 years. This option first respondent says, was exercised by an email sent by a representative of the 1 st respondent to a representative of the applicant. [15]   The email in which first respondent purported to exercise an option was dated 14 August 2021 and was annexed to the AA. The body of the email consists of one sentence that reads: " We hereby wish to exercise our option on renewal on both Premises iro Lease agreements for Davids and Khan". [16]   First respondent alleged that a meeting was held on the premises between the said Rene Oberholzer, her assistant and his father. During this meeting first respondent's father agreed to spend money on improving the premises on condition that an option is granted to renew the lease for another five years after the initial period which terminated on 30 August 2022. First respondent's father signed a confirmatory affidavit to this effect. [17]   First respondent further stated that on the day of the February 2018 meeting the said Oberholzer noticed that people were sleeping on the premises, enquired about this and his father informed Oberholzer that he intended accommodating tenants on the premises and open a hardware retail store. According to first respondent Oberholzer agreed thereto. [18]   It is thus the version of the first respondent that a verbal agreement was reached between his father and a representative of the applicant for an option to renew for a further 5 years, for the premises to be used for multi purposes and for alterations to be effected. [19]    First respondent claims that pursuant to the February 2018 arrangement substantial amounts were spent on alterations, maintenance and improvements to the premises. He also claims that the applicant is indebted to him for excessive electricity charges. [20]   According to first respondent Oberholzer undertook to prepare a new written lease agreement that included an option to renew upon her return to Johannesburg and send this to him for signature. This never materialised and Oberholzer passed away at some stage later. [21]   First respondent stated that the lease agreement between the parties falls to be rectified and that an application for rectification would be filed before the date of the hearing of this matter. This did not happen. [22  First respondent also took issue with the applicant's intention to sell the property, the terms relating to such a sale and the status thereof. This court does not deem it necessary to record the details of his allegations in that regard. [23]  The fourth respondent merely signed a confirmatory affidavit to the AA and made no substantive allegations on her own about the status of her lease. At paragraph 39 of the AA the first respondent alleged that the option to renew for five years also pertained to the fourth respondent. ANALYSIS [24]   At paragraph [2] above it was recorded that the first respondent brought an ex parte spoliation application against the applicant on 10 February 2023 under case no. 2438/23. In the FA to that application the first application expressly stated that the lease expired on 30 August 2022 and that since this date the lease continued on a month to month basis. This fact was also confirmed in correspondence sent by first respondent's attorneys to applicant's attorneys in the spoliation matter. [25]   The good faith obligation of a deponent in motion proceedings, more so in ex parte proceedings cannot be over emphasised. [26]   When faced with the eviction proceedings the first respondent completely changed his tune and then introduced the version about a meeting having occurred between his father and a representative of the applicant, one Oberholzer, at which he and fourth respondent were granted an option to renew their leases for another 5 years. The versions given by first respondent are mutually destructive and this smacks of bad faith. [27]     It appears that the respondents did not reply to the notices to vacate. It is highly improbable that they would have failed to do so if the alleged option to renew was granted and exercised. [28]    It is also rather strange that the first and fourth respondents made no effort to have the agreement of lease amended to include the option to renew. This is more so given that they were aware that Oberholzer passed away and they had no written proof or record that an option was granted. Further, the email referred to at paragraph 15 above contained no reference to the source and origin of the alleged option and the wording thereof was more consistent with a request for an option to be granted rather than the exercise of an existing option. [29]   The first respondent raised issues such as having been overcharged for electricity and the improvements to the premises allegedly effected and paid for by him. He burdened the papers in this matter with vouchers that purportedly proved the monies spent by him while some such vouchers bear no reference to the respondents and one even relates to a gearbox. [30]    It is any event open to either party to institute claims or counter claims for damages but the causes of action for such claims are not relevant to this application. The court also found first respondent's allegations around the agreement of sale in respect of the property, such as the allegations contained in paragraph 15.1 entirely irrelevant and unnecessary. [31]     What is said in paragraphs 24,25 and 26 above is sufficient basis for the rejection of the first respondent's version. On the probabilities the February 2018 meeting never took place and the alleged verbal agreements were never concluded. [32]     No genuine or bona fide dispute of fact was introduced by the denials on the part of the respondents. This court is satisfied as to the inherent credibility of the applicant's averments. [32]   The court finds that the leases that applicant concluded with first respondent and fourth respondent terminated by the effluxion of time. Thereafter the first and fourth respondents' tenancy continued on a month to month basis. [33]     It is common cause that the applicant served notices to vacate on the respondents on more than one occasion. Their occupation of the premises is unlawful. ORDER [34]   The application is granted and an order is made in the following terms: 1. Cancellation of the agreements of lease between applicant and first respondent on the one part and applicant and fourth respondent on the other part is confirmed; 2. Evicting the first respondent and all those occupying by or through or under first respondent from the premises at […] R[…] Street, Bellville (Erf no, 2[…]); 3. Evicting the fourth respondent and all those who occupy by, through or under fourth respondent from the premises at Top Floor, Corner of Robert Sobukwe and Oranje Roads, Bellville (Erf no. 2[…]); 4. Ordering the Sheriff to give effect to this order and to employ the assistance of the South African Police Services in so far as it is necessary; 5. The respondents are ordered to pay the applicant's costs, jointly and severally, the one paying the other to be absolved on the scale as between attorney and client. R BARENDSE Acting Judge of the High Court Appearances: For Applicant: Adv. DH Wijnbeek (Instructed by Mr. Andreas Peens) The Respondent : Adv. L Van Zyl (Instructed by NME Nilssen) sino noindex make_database footer start