Abaany Property Investments Ltd v Fatima Ayob & Sons Ltd

• Judge: Preiss J
• Judgment Date: 29 September 1993
• Docket Number: A490/92
• Hearing Date: 29 September 1993
• Court: Transvaal Provincial Division

Preiss J:

This is a contested application in which the applicant seeks the ejectment of the respondent company from certain premises in Laudium.

I In the founding affidavit the deponent of the applicant company alleges in a series of brief paragraphs that the applicant is the owner of certain premises, namely portion 1 of erf 2276, extension 2, situated at 206 Bengal Street, Laudium Extension 2, and that the respondent is in unlawful possession of the premises in that it unlawfully occupies a portion thereof.

J The resolution which empowers the deponent of the applicant company

Preiss J

A to proceed with this application is annexed to the papers. The material portion of that resolution reads as follows:

'It is hereby resolved that:

1.

The premises owned by the company continue to be used for garage purposes.

2.

B That the oral lease agreement between the company and the present tenant, namely Masir Investments, not be renewed.

3.

That should Masir Investments not vacate the premises of the company by midnight on 31 May 1993, all the necessary steps be taken to evict Masir Investments and anyone else occupying the premises through or under Masir Investments as at 1 June 1993 and seek such other relief as the company is entitled to. C

4.

That Mohammed Ebrahim in his capacity as the director be granted the necessary authority to act on behalf of the company and to appoint and give instructions to attorneys in his sole discretion and in pursuance thereof to sign such documentation as may be deemed necessary to give effect to the intention of the company.'

D A founding affidavit was sworn to on 3 June 1993 and the notice of motion is dated 4 June 1993.

On behalf of the respondent, Mr Puckrin addressed argument in limine in terms of which he sought the dismissal of the application.

I should indicate that despite the very terse nature of the founding E affidavit a lengthy answering affidavit was served, which led in turn to a lengthy replying affidavit, so that I am now confronted with some 349 pages of conflicting testimony.

Mr Puckrin, on behalf of the respondent, argued in the first place that a proper cause of action had not been disclosed in the founding papers. He submitted that the applicant had made use of a procedure which had been F countenanced in the case of Graham v Ridley 1931 TPD 476 and that this procedure was inappropriate for motion proceedings. He stated that when one looks at the resolution it is clear that it contemplated a completely different situation, namely the existence of a lease with Masir Investments, the termination of such lease and, accordingly, the ejectment of the respondent which presumably held the property from Masir and G presumably as a subtenant.

Developing this argument, namely that the cause of action must be disclosed in the founding papers, Mr Puckrin referred to the case of Ngqumba en 'n Ander v Staatspresident en Andere; Damons NO en Andere v Staatspresident en Andere; Jooste v Staatspresident en Andere 1988 (4) SA 224 (A), especially at 259 and 260. I have read that decision. I do not H find that it assists the argument of the respondent in this respect. It deals primarily with the question of onus, which is not an issue in the present proceedings.

Mr Puckrin went on to cite the case of Winsor v Dove 1951 (4) SA 42 (N) where the following is stated by Broome JP at 49A:

'Moreover, action being the normal method of obtaining ejectment, the I Court should only grant it on motion when the appropriateness of motion proceedings is beyond doubt. It is not beyond doubt here.'

Though action may be the usual form where ejectment is sought, there is, in my view, no indication in that judgment that motion proceedings are J incompetent. It depends on the facts of the particular case. I...