Bus Stop Hardware (Pty) Ltd v MJM Proprietary Limited and Another (CIV/APN 154 of 98) [1998] LSCA 58 (16 June 1998)

C I V / A P N / 1 5 4 / 98 IN T HE H I GH C O U RT OF L E S O T HO In the matter between: B US S T OP H A R D W A R E ( P T Y) L TD A P P L I C A NT A ND M. J. M. P R O P R I E T A RY L I M I T ED M E S S E N G ER OF T HE M A G I S T R A TE C O U RT 1st R E S P O N D E NT 2nd R E S P O N D E NT J U D G M E NT Delivered by the H o n o u r a b le C h i ef Justice M r. Justice J. L. K h e o la on the l6th d ay of July, 1 9 9 8. T h is is an application for an order in the following terms: 1. T H AT condonation be granted to the applicant for the n o n - c o m p l i a n ce with the Rules of C o u rt pertaining to service a nd process a nd the matter be heard on an urgent basis. 2. T H AT a rule nisi with i m m e d i a te effect be issued: 2.1 interdicting the 1st a nd 2nd respondent f r om taking a ny steps to eject the applicant f r om the premises w h i ch it occupies at or on Plot N o . 1 3 2 83 - 2 3 2, C a t h e d r al A r e a, opposite M a n o n y a ne C e n t r e; 2.2 T h at the 1st a nd 2nd respondent be interdicted f r om disturbing in any m a n n er the applicant's occupation of the aforesaid property. 3. T H AT an order be issued calling u p on the respondents to s h ow cause, if any, on 25 M AY 1 9 9 8, at 10.00a.m., or as soon thereafter as the matter m ay be called, w h y: 3.1 3.2 the orders contained in a nd set out in paragraph 2 a b o v e, should not be m a de final; the 1st respondent should not p ay the costs of this application on the scale as b e t w e en attorney a nd o wn client. 4. T H AT the respondents be ordered to file a nd deliver their notice of intention to oppose, if any, a nd their opposing affidavits, if any, on or before 15 M A Y, 1 9 9 8. 5. T H AT such further and/or alternative relief as m ay be appropriate be granted to the applicant. T he facts w h i ch are c o m m on cause are as follows: T he first respondent instituted an action in the Magistrate's Court against a certain M a i r o on A d a ms in w h i ch it claimed, inter alia, ejectment of the said M a i r o on A d a ms from certain premises in M a s e r u. T he first respondent, in its particulars of claim in the said action, alleged that they h ad entered into an agreement with the o w n er of the premises in terms w h e r e of they rented the said premises from the said o w n er thereof, that M a i r o on A d a ms w as in unlawful occupation of the premises a nd that they w e re therefore entitled to the relief claimed. M a i r o on A d a ms entered an appearance to defend the said action, w h e r e u p on the first respondent, as plaintiff applied for s u m m a ry j u d g m e n t, w h i ch w as granted. M a i r o on A d a ms then took the matter on appeal, but her appeal w as dismissed. T he first respondent thereupon obtained a warrant of ejectment in terms w h e r e of the second respondent (the M e s s e n g er of the Magistrate's Court) w as instructed to eject the said M a i r o on A d a ms f r om the premises. T he second respondent w as urged by the first respondent to give effect to the warrant of ejectment. T he applicant, a duly registered c o m p a n y, thereupon approached this Court for urgent relief on the basis that it w as in occupation of the relevant portion of the premises and not M a i r o on A d a m s, that the warrant of ejectment consequently did not justify or provide for its ejectment, w o u ld therefore be unlawful a nd that it w as entitled to an interdict restraining the second respondent f r om giving effect to the warrant of ejectment by ejecting it from the said premises. An interdict with i m m e d i a te effect w as duly issued by the Court ex parte. T he first respondent thereupon gave notice of anticipation of the return d ay and filed an opposing affidavit in w h i ch it apparently denies that the applicant is in occupation of the property a nd prays for the discharge of the interdict. T he matter has n ow b e en argued before me a nd w h at clearly e m e r g es from the submissions of both Mr W e s s e l s, S. C., counsel for the applicant and Mr Sello, attorney for the respondents, is that there are serious disputes of fact w h i ch cannot be resolved without hearing oral evidence. T he m a in issue is w h e t h er the first respondent w as ever in occupation of the premises in question. T he second issue is whether the applicant w as ever in occupation of the premises in question. T he third and the m o st important issue concerns the ownership of the property in question. T he first respondent has a sub-lease a g r e e m e nt entered into b e t w e en itself a nd o ne 'Mantebaleng M o k h u t le as o w n er of the property in question. T he sub-lease w as entered into on the 27th September, 1996. In terms of section 36 of the L a nd A ct 1 9 79 the consent of the Minister of H o me Affairs w as obtained on the 20th M a r c h, 1997.(See A n n e x u re " M G V 5" to the answering affidavit) In its answering affidavit deposed to by o ne Marcelino G o n v a l v es Vecente, w ho is its director, it is alleged that the first respondent w as given occupation on the 1st N o v e m b e r, 1 9 96 and physically took over the four r o o m ed building on the plot and has been collecting rent from the tenants occupying the s a me since the said date. He denies that the applicant is in occupation of a ny portion of the premises. It is M a i r o on A d a ms w ho is in occupation of the premises. In her supporting affidavit ' M a m a l ia Joyce T s e p pe alleges that she is the daughter of one 'Mantebaleng Adelina M o k h u t le w ho died in M a r c h, 1997. T he deceased w as the registered allottee of plot n u m b e rs 36 and 37 w h i ch w e re eventually given n ew n u m b e rs 1 3 2 83 - 2 3 2. T he i m p r o v e m e n ts on the plot consisted of a m a in building and a separate flat-roofed structure. In cc 120/1990 the deceased sued M a i r o on A d a ms for d a m a g es for free occupation of portion of the premises w h i ch had been occupied by Mairoon's father o ne T e b o ho D h a m b a. S he refused to pay rent for her occupation of the portion of the premises. S he alleges that that case is still pending in the Magistrate's Court. This litigation w as instituted during the year 1 9 90 a nd that case w as still pending until her m o t h er died in M a r c h, 1 9 9 7. S he alleges that the first respondent took occupation of o ne portion of the plot on the 1st N o v e m b e r, 1 9 96 leaving her m o t h er as a tenant in o ne of the four r o o ms w h i ch she (deponent) subsequently took over u p on the death of her m o t h er in M a r c h, 1997. T he other three r o o ms are also being let to first respondent. S he alleges that since the death of her m o t h er M a i r o on A d a ms has continued to o c c u py the premises without paying any rent. S he is not a w a re of the existence of the applicant a nd that it is in occupation of the premises a nd not M a i r o on A d a m s. S he further alleges that Retselisitsoe M o k h u t le w ho is alleged to h a ve entered into an agreement of lease with the applicant has no title or claim to the property in dispute or any portion thereof. In its founding affidavit deposed to by o ne R a h i ma Tarr w ho is its director, the applicant alleges that it w as incorporated as a c o m p a ny a nd duly registered as such in the offices of the Registrar of C o m p a n i es on the 31st October, 1996. It occupies the premises w h i ch are presently k n o wn as N o. 1 3 2 83 - 2 3 2, Cathedral Area, M a s e r u. It has b e en in occupation of these premises since its incorporation. T he occupation is in terms of an agreement of lease w h i ch it entered into with Retselisitsoe M o k h u t l e. T he p r e m i s es w e re previously o c c u p i ed by M a i r o on A d a m s. S he alleges that neither the first a nd s e c o nd r e s p o n d e nt is entitled to or h as a ny lawful cause to r e m o ve the applicant f r om the said p r e m i s e s, s he h o w e v er truly a nd honestly fears that the applicant will be disturbed in its possession a nd occupation of s u ch p r e m i s es a nd thereby suffer d a m a g es t h r o u gh loss of business a nd customers. I agree with Mr W e s s e ls that w h e re a lessee h as not yet obtained occupation or possession of the leased property, he c a n n ot obtain an ejectment order against a person w ho is already in possession of the relevant property. He m u st look for relief against the o w n er (lessor) of the property. In other w o r ds the lessee m u st be g i v en possession of the property by the lessor. Thereafter he c an protect his possession against the w h o le world. In B o d a s i n g h 's Estate v. S u l e m an 1 9 60 ( 1) S. A. 2 88 ( N) at 2 90 F -H the learned J u d ge said: " N ow it is a primary duty of a lessor to deliver to the lessee the use and occupation of the property, and in order to fulfil this duty he must give h im 'free and undisturbed possession not in contest w h en delivered.' He does not fulfil that duty if, w h en he hands over the property, it is occupied by s o me other person, whether that person is a trespasser or it there under colour of right W h e re that person is a trespasser, the lessor must surely therefore have the right to eject h im in order to fulfil his contractual furthermore, a contract of lease (without delivery of obligation possession), as clearly appears from this last case, J A D W AT & M O O LA v S E E D AT 1956 (4) S. A. 373 (N), does no m o re than entitle the lessee to claim possession from the lessor (and those of his successors w ho had prior notice of the lease), and from no one else (except under a cession of action). It is only after he has been given possession that he can protect that possession against the whole world and in particular against all the lessor's successors." ( My underlining). If the applicant c an p r o ve that at the relevant t i me it w as already in possession of the relevant portion of the p r e m i s es a nd that the first r e s p o n d e nt w as not in o c c u p a t i on of the relevant portion of the p r e m i s e s, t h en it (applicant) m u st obtain j u d g m e nt in its favour. In a situation like that the first r e s p o n d e nt m u st sue the lessor a nd claim that it s h o u ld be g i v en free a nd undisturbed possession not in contest w h en delivered. T he applicant is relying on the e v i d e n ce of its Directors w h at after its incorporation on the 3 1* O c t o b e r, 1 9 9 6, it t o ok o c c u p a t i on of the p r e m i s es in question. T he Directors are R a h i ma Tarr a nd M a i r o on A d a m s. T h is allegation is denied by the first r e s p o n d e nt on the g r o u nd that the p e r s on w ho w as in u n l a w f ul possession/occupation of the p r e m i s es w as M a i r o on A d a m s. First r e s p o n d e nt s u ed her a nd obtained an order of ejectment. S he a p p e a l ed to the H i gh C o u rt but her appeal w as dismissed. In those proceedings M a i r o on A d a ms never m e n t i o n ed that she w as not in occupation of the premises a nd that it w as the applicant w ho w as in occupation. W hy should a Director of a c o m p a ny w ho is w r o n g ly sued in her o wn n a me not disclosed to the Court that it is her c o m p a ny that is in occupation? Mr Sello has submitted that evidence withheld f r om the Court a nd w h i ch m u st be readily available to the applicant is its trading licence in respect of the premises. D u r i ng arguments in Court Mr W e s s e ls attempted to h a nd in a trading licence from the bar. M r. Sello objected on the g r o u nd that the trading licence could not be h a n d ed in at that stage of the proceedings because it w o u ld prejudice his client's case. T h ey w o u ld h a ve no opportunity to challenge the correctness of its issue. I sustained the objection. Mr Sello submitted that the applicant's case should not succeed on the ground that M a i r o o n, close to s o me six m o n t hs after applicant allegedly took possession, did not, in a n s w er to ejectment proceedings instituted against her on 22nd M a y, 1 9 9 7, simply d e ny that she is in occupation and, in so far as it m ay h a ve b e en required of her to state w ho w a s, to h a ve m e n t i o n ed the applicant and, possibly apply for its joinder at that stage. That, on the contrary she averred, in her affidavit in response to the first respondent's application for s u m m a ry j u d g m e nt ( A n n e x u re M G V2 to the answering affidavit at pra.3) not only that she occupied the premises but that she did so in terms of a lease. In those proceedings she referred to herself as a female trader trading on the premises as B us Stop H a r d w a re and Furniture. I find it as m o st inconceivable and improbable that M a i r o on A d a ms forgot that she w as not in occupation but that applicant w a s. S he is not an old M o s o t ho lady w ho cannot write her n a m e, w ho does not k n ow anything about c o m p a ny law. S he w as represented by a lawyer w ho drafted her papers in that case. S he alleged that she occupied the premises in terms of an agreement of sublease. It w as only last year in M ay w h en she m a de the allegation of the existence of a sublease b e t w e en herself and one Retselisitsoe K h o mo Mokhutle. In his supporting affidavit Retselisitsoe alleges that the sublease between himself a nd M a i r o on w as entered into in 1991 and w as for a period of three years. It m u st h a ve expired in 1994. It is again inconceivable and improbable that in 1 9 97 M a i r o on A d a ms w as still hiding behind an expired sublease. It is not surprising that the court found that she had no b o na fide defence a nd granted s u m m a ry j u d g m e n t. M r. W e s s e ls submitted that w h en M a i r o on A d a ms d e p o s ed to the affidavit in opposition of the application for s u m m a ry j u d g m e nt against her, she w as not acting on behalf of the applicant and whatever she stated or failed to state in that affidavit cannot be held against the c o m p a n y, bind the c o m p a ny or be attributed to the c o m p a n y. I do not quite agree with the a b o ve submission. M a i r o on A d a ms is not an outsider but a director of the applicant and if she k n ew that she w as not in occupation of the premises but the applicant w a s, she ought to h a ve merely stated that fact. There w as absolutely no reason w hy she did not reveal that it w as the applicant w h i ch w as a nd is still in occupation of the premises. By saying that she w as in occupation in terms of a sub-lease entered into b e t w e en herself and o ne Retselisitsoe M o k h u t l e, M a i r o on A d a ms actually supports the first respondent's case that she w as the person in occupation of the premises. S he cannot n ow be heard in this proceedings to contradict herself a nd say that it w as the applicant w ho w as in occupation of the premises. In her replying affidavit in the present proceedings she is trying to justify her allegation in the ejectment proceedings that she w as in occupation of the premises on the ground that she has no legal training and that w h en her attorney of record enquired from her w h at her defence w a s, she pointed out to h im that the lease in respect of the property could not h a ve b e en held by ' M a n t e b a l e ng M o k h u t le as the lease w as in fact held by the successor of M o e ti M o k h u t le a nd the first r e s p o n d e nt c o u ld therefore not h a ve c o n c l u d ed a s u b- lease in respect of the property. T he allegation s he is n ow m a k i ng c a n n ot c h a n ge her allegation that s he w as in o c c u p a t i on of the relevant portion of the p r e m i s e s. T h at allegation w as apparently a c c e p t ed by the trial court a nd that is the r e a s on w hy an ejectment order w as granted against her. T h at allegation supports the first respondent's case that she w as in o c c u p a t i on of the relevant portion of the p r e m i s e s. M r. W e s s e ls submitted that the applicant c o m p a ny w as n ot f o r m ed in an effort to foil or frustrate the efforts of the first r e s p o n d e nt to obtain possession of the p r e m i s e s, since it w as f o r m ed a nd registered before the first r e s p o n d e nt e v en instituted its action against M a i r o on A d a m s. T he issue here is w h e t h er at the relevant t i me the applicant w as in occupation of the relevant portion of the p r e m i s e s. T h e re is no d o u bt a b o ut the date of the c o m p a n y 's formation a nd registration. It m ay be that it w as f o r m ed a nd registered but n e v er t o ok possession or o c c u p a t i on of the p r e m i s es i m m e d i a t e ly after its incorporation. H o w e v e r, the other director M a i r o on A d a ms alleges that at the relevant time she, a nd not the applicant, w as in possession of the premises. This conflict in their evidence is difficult to be understood a nd casts d o u bt on the veracity of their evidence. T he trading licence of the applicant w o u ld probably clear this doubt. M r. W e s s e ls submitted that in the well k n o wn case of R o om H i re C o. ( P T Y) L TD v. J e p pe Street M a n s i o ns ( P T Y) L TD 1 9 49 (3) S. A. 1 1 15 ( T) at 1 1 65 the following principle, w h i ch is still followed, w as laid d o w n: "A bare denial of applicant's material averments cannot be regarded as sufficient to defeat applicant's right to secure relief by motion proceedings in appropriate cases. E n o u gh m u st be stated by respondent to enable the Court to conduct a preliminary examination.... and to ascertain whether the denials are not the respondent's fictitious intended merely to delay the hearing affidavit must at least disclose that there are material issues in which there is a b o na fide dispute of fact capable of being decided only after viva voce evidence has been heard." In Soffiantini v. M o u ld 1 9 56 (4) S. A. 1 50 ( E) at 1 54 the following approach w as suggested: "It is necessary to m a ke a robust, c o m m on sense approach to a dispute on motion as otherwise the effective functioning of the Court can be hamstrung and circumvented by the m o st simple and blatant stratagem. T he Court must not hesitate to decide an issue of fact on affidavit merely because it m ay be difficult to do so. Justice can be defeated or seriously impeded and delayed by an over-fastidious approach to a dispute raised in affidavits." I agree w i th M r. W e s s e ls that principles stated in the t wo cases referred to a b o ve are still o ur l a w. In the present case the issue is that of occupation by either the applicant or the first r e s p o n d e nt at the relevant time. On a b a l a n ce of probabilities a nd on the e v i d e n ce of the first r e s p o n d e nt the applicant w as not in occupation of the relevant p r e m i s es but M a i r o on A d a ms w a s. T he applicant h as failed to discharge the o n us that it w as in o c c u p a t i on of the p r e m i s es in question. On this g r o u nd alone the rule nisi s h o u ld be discharged w i th costs. T he l aw is that e v e ry claimant w ho elects to p r o c e ed on m o t i on runs the risk that a dispute of fact m ay be s h o wn to exist, a nd the w ay in w h i ch the court exercises its discretion as to the future course of the p r o c e e d i n gs in s u ch an event will d e p e nd very m u ch u p on the extent to w h i ch the claimant is f o u nd to h a ve b e en justified in accepting that risk. If, for e x a m p l e, the applicant s h o u ld h a ve realized w h en launching his application that a serious dispute of fact w as b o u nd to d e v e l o p, the court m ay dismiss the application w i th costs. ( S ee T he Civil Practice of the S u p r e me C o u rt of S o u th Africa, 4th edition p a ge 2 4 1 ). In the present case there c an be no d o u bt that the applicant realized w h en it launched this application that a serious dispute of fact h ad already d e v e l o p ed b e c a u se of the litigation b e t w e en its director M a i r o on A d a ms a nd the first respondent. T he applicant took the risk k n o w i ng very well that there w as a serious dispute of fact regarding w ho w as in occupation of the premises in dispute. On this g r o u nd alone the application should be dismissed. T he applicant ought to have proceeded by w ay of an action. In the result the rule nisi is discharged with costs. J . L. K H E O LA C H I EF J U S T I CE 16th J u l y, 1 9 98 F or A p p l i c a nt - M r. W e s s e ls F or 1st R e s p o n d e nt - Mr Sello