Court name
High Court of eSwatini
Case number
703 of 2011

Riveria Investments (Pty) Ltd v Inyatsi Construction Ltd (703 of 2011) [2011] SZHC 32 (10 June 2011);

Law report citations
Media neutral citation
[2011] SZHC 32
Coram
Hlophe, J

 

IN THE HIGH COURT OF SWAZILAND

 

 

Held at Mbabane                             Civil Case No: 703/2011

 

In the matter between:

 

 

 

RivieraInvestments (Pty) Ltd

Applicant

 

and

 

 

Inyatsi Construction Limited

Respondent

 

 

 

Coram                                                      Hlophe J.

For the Applicant                                     Mr. P. Flynn instructed

                                                                By Maphanga, Howe,

                                                                Masuku, Sibandze

 

For the Respondent                                 Mr. D. Smith and Ms M. Van Der Walt instructed by Currie & Sibandze

 

 

 

 

JUDGMENT

 

 

HLOPHE J

[1]    The Applicant instituted the current application proceedings under a certificate of urgency seeking an order of this Court inter alia, directing the Respondent to forthwith restore the free beneficial occupation, use and enjoyment of certain leased premises known as Shop No. 10 on Lot 760, Dr. Hynd Street, Manzini.

 

[2]    The restoration of such beneficial occupation or use or enjoyment of the property was sought to be through the Respondent’s removal of certain chains said to have been placed on the entrance to the forecourt of the Applicant’s filling station as well as through the Respondent’s ceasing and desisting from interfering with or obstructing and diminishing or limiting the Applicant’s right of use and enjoyment of the leased premises.  An order for the costs was also sought.  Otherwise the order for the enjoyment of the property sought, was meant to operate on an interim basis pending finalization of the matter.

 

[3]    The common cause background to the current application is that on or about the 1st day of June 2007, the parties hereto, concluded a written lease agreement in terms of which the Respondent leased to the Applicant certain premises comprising Shop No. 10, a filling station and a forecourt, which are all situate at a building found on Lot 760, Dr. Hynd Street, Manzini.

 

[4]    The lease agreement itself provides at paragraph 1.7 that its duration was to be 9.6 years (115 months).

 

[5]    It will be noted that although at the conclusion of the lease agreement, the lessor was a company called Muraiball Investments (Pty) Ltd, such later changed hands to Motsa Investments and later (currently) to Inyatsi Construction Limited, the Respondent herein.  As I understood it, it was common cause that all the terms applicable to Muraiball Investments in terms of the said lease agreement are today applicable and binding to the Respondent.

 

[6]    It would appear that following some misunderstanding, the Respondent instituted proceedings against the Applicant for the ejectment of the latter from the premises on the grounds that the latter violated the agreement.  Although this application was argued before this Court, the judgment is still outstanding following the opposition of the said application by the current Applicant who was the Respondent then.

 

[7]    It was whilst the outcome of the said application was still awaited, when the Applicant received a letter from the Respondent, annexure R12 to the application, which stated as follows:-

                        “                                                                                  17th February 2011

                        Attention: All occupiers of Inyatsi House and Premises

                                                                        Access Control

Kindly be informed that due to the recent bouts of theft, vandalism and loitering around the premises, as a security measure, a decision has been reached by the Directors of Inyatsi Construction Limited to tighten up the security by installing access control systems at two points of the premises.  The one will serve as the entrance and the other as the exit.

Please be informed accordingly that installation of the system will be implemented immediately and shall be manned by the Inyatsi house security guards.

For any clarity or further information in this regard kindly contact Ludzidzi Zwane who can be reached at 25081000.

 

Yours faithfully,

(Signed)

John Hamilton

Contracts Manager

 

[8]    The Applicant responded to the said letter and contended therein that the proposed “access control” was going to interfere with its business and its rights of use and enjoyment of the property.  It pointed out that its business as a filling station depended on unlimited access.  The Applicant threatened that should such action of controlling access into the business be continued with, appropriate legal action to protect its rights was going to be taken.

 

 

 

[9]    The Applicant contends further that despite its objection to the hitherto proposed action, the Respondent went ahead and installed chains across the entrances which were used to control the entrance and exit of vehicles to and from the filling station which adversely affected its business.  In fact, it is contended by the Applicant that ever since the installation of the said chains, its business was affected adversely and it was making significant stated daily losses.

 

[10]  It was resultant from this that the Applicant instituted these proceedings under a certificate of urgency seeking the above cited reliefs.

 

[11]  Motivating its application, the Applicant contended that the Respondent effected the concerned controls for purposes of taking forward its attempts to push it out of the premises.  This it is said, would be possible owing to the fact that it was going to fail paying rent in the long run which will avail Respondent of the breach it so much needed in order to eject Applicant from the premises.

 

[12]  It was further Applicant’s contention that the control concerned was unlawful, was a breach of the agreement and amounted to self help, as it amounted to depriving Applicant of his undisturbed possession of the premises in question, without either a Court Order or an agreement.

 

[13]  On its side, the Respondent, who did not deny effecting the “access control” referred to, denied that same was effected to give effect to its desired goal of ejecting Applicant from the leased premises.  It also denied that its action in going ahead and effecting the “access control” concerned amounted to self help or even that same was unlawful.  According to the Respondent, its actions were in terms of the agreement particularly Clause 26 and the sub-clauses thereto.

 

[14]  According to paragraph 26.3 of the agreement, which it was submitted was the basis for the Respondent’s actions in “controlling” the access into the premises in the manner it did, the following is provided:-

 

“26.3 The common areas shall at all times be subject to the exclusive control and management of the lessor, and the lessor shall have the right from time to time to establish modify and enforce reasonable rules and regulations with respect thereto.  The lessor shall have the right to construct, maintain and operate lighting facilities whatsoever it decides in the common area and to provide same; from time to time change the area, location and arrangement of parking areas and other facilities; to restrict parking by tenants, their officers, agents and employees to employees parking areas; to enforce parking charges (by operation of the metres or otherwise) with appropriate provision for free parking; to close temporarily all or any portions of the parking areas or facilities; to discourage non-customer parking, and to do or perform such other acts and to the common area s in the use of good business judgment the lessor shall determine to be advisable with a view to the improvement of the convenience and the use thereof by tenants, their officers, agents, employees and customers.  The lessor shall furthermore be entitled to operate, vary and maintain the common areas in such a manner, as it will in its sole discretion.”

 

[15]  The question to answer is, does paragraph 26.3 referred to above, allow the lessor, the Respondent in this matter to effect the control he is said to have effected with the agreed adverse consequences to the Applicant, the lessee in this matter?  My understanding is that the things that Applicant is entitled to do in terms of the said paragraph, ought to be based on reasonable regulations, be for good business judgment and must be for the convenience of tenants.

 

[16]  The position is now settled in the law of Landlord and Tenant  that “the lessor is obliged to deliver those things without which the property cannot be properly used….  He is obliged also to give the lessee such right of way over, and use of, his (the lessor’s) property, as is reasonably necessary to enable the lessee to enjoy the full use of the premises for the purpose for which they were let to him.”  See W.E. Cooper andSmith “The South African Law of Landlord and Tenant,” Juta and Company, 1973 Edition.

 

[17]  Is the “control” effected by the Respondent not in conflict with the obligation of the lessor, to give the lessee the right of way and the use of the property as is reasonably necessary for the latter to enjoy the full use of the premises for the purpose for which they were let?  Whilst the Applicant contends that the control aforesaid conflicts with such obligation, the Respondent contends otherwise.  In fact, whilst it does not deny this conflict, the Respondent contends that it was agreed between the parties in terms of Clause 26.3 that the lessor can control the premises including in the manner done by it.

 

[18]  It is common cause that the premises leased comprised a filling station business which envisages the steady flow of motor vehicles to fill up fuel.  I have not been able to find any clause in the lease agreement entitling the Respondent to “control” the premises in such a way that the full use and enjoyment of the property by a particular tenant for the purpose for which it is let is allowed.  The clause referred to only allows the establishment of reasonable Rules and Regulations.  Whatever acts are done to the common area must be for the use of good business judgment and for the improvement of the convenience of the tenants.  I cannot say the control effected by the Respondent is such.

 

[19]  The principle is that the property must reasonably be fit for the purpose for which it was let.  Cooper (supra) states as follows:-

 

“In the absence of agreement, the property must be delivered in the condition it was in at the time of the conclusion of the lease, but if it is let for a specific purpose e.g. as a house, hotel, a factory, a butchery or a store (and I add, a filling station) – the lessor is under a duty to deliver the property in a condition reasonably fit for the purpose for which it was let.”

 

See also Jacobson vs Bloch 1906 TS 350 at352, Henning vs Le Roux 1921 CPD 587 at 590, Cape Town Municipality vs Paine 1923 AD 207 at218.

 

[20]  Having come to the conclusion that the Respondent had a duty to deliver (and even maintain – see page 77 of W.E. Cooper (supra) the property in a condition reasonably fit for the purpose for which it was let, and that the Respondent’s “control” was in conflict with such obligation, did the actions of the Respondent in effecting the said control, amount to spoliation?  Put differently, having come to the foregoing conclusion, can the Respondent be ordered to cease or desist from interfering with, obstructing, diminishing or limiting the Applicant’s right of use and enjoyment of the leased premises?

 

[21]  On the first question, that is as concerns whether or not the said control amounts to spoliation, I have no hesitation in coming to the conclusion it does.  I say this because, not only had this Court issued an interim order in this regard, but the parties had themselves agreed to suspend the said control.  Whereas it was submitted this was done as a measure to ensure that this position prevails pending finalization of the matter without any intention of admitting wrong doing, I cannot agree with the Respondent who suggested in his argument that the requirements of a spoliation are not met contending that the lease agreement incorporated the Respondent’s authorization to effect the “control” it did.

 

[22]  I have already stated why this argument cannot be sustained, particularly why the agreement does not authorize the “control” it purported to effect.

 

[23]  As concerns the other question, that is whether the Respondent can be interdicted from continuing with the interference and obstruction of the Respondent directed at Applicant’s use and enjoyment of the property leased, I have no hesitation that Applicant is entitled to such relief.  I do not agree with the Respondent that Applicant does not satisfy the requirements of an interdict because of the alleged absence of a clear right and the alleged availability of an alternative relief.

 

[24]  The correlative of the duty placed on the Respondent (lessor) that he is duty bound to deliver (and even maintain) the property in a condition reasonably fit for the purpose for which it was let – is the right of the Applicant not to be interfered with so as to obstruct or diminish his enjoyment of the property.  I therefore cannot agree with the Respondent’s submission in this regard.

 

[25]  As concerns the availability of an alternative remedy which disentitles the Applicant from the reliefs sought according to the Respondent’s submission, I cannot agree.  The remedy contemplated by the authorities in this regard is a competent and satisfactory remedy.  I do not think it would be fair to allow the Respondent, whose apparent aim is to have the Applicant ejected from the premises at whatever cots in violation of an agreement, to claim there is available an alternative relief.  It was submitted that the reliefs contemplated are damages that may be available to the Applicant if he proves them.  Such damages would not in my view amount to an adequate and competent remedy.

 

[26]  Consequently, I have come to the conclusion that Applicant’s application succeeds and I make the following order:-

 

  • The Respondent and those acting at her/its behest be and are hereby directed to forthwith restore to the Applicant the full beneficial occupation, use and enjoyment of the leased premises described as Shop No. 10, the filling station and forecourt all situate at Lot 760, Dr. Hynd Street, Manzini.

 

  • The Respondent and those acting at its behest be and is hereby ordered to forthwith remove the chains placed at the entrance to the Applicant’s filling station.

 

  • The Respondent and those acting at its behest and are hereby directed to forthwith cease and desist from interfering with or obstructing, diminishing and or limiting the Applicant’s right of use and enjoyment of the leased premises in any way or form during the tenancy of the lease agreement between them.

 

  • The Respondent is ordered to pay costs of this matter including the costs of counsel.

 

 

Delivered in open Court on this 10th day of June 2011.

 

 

 

 

N. J. Hlophe

JUDGE