Engen Petroleum Limited v Magalieskruin Motors (Pty) Ltd and Another

• Jurisdiction: South Africa
• Court: Transvaal Provincial Division
• Judge: Van Rooyen AJ
• Judgment Date: 17 November 2005
• Citation: 2005 JDR 1327 (T)
• Hearing Date: 17 November 2005
• Docket Number: 19150/2005

Van Rooyen AJ:

[1] This is an application for the eviction of the respondent ("Magalieskruin") from a petrol filling station, which it has sub-leased from Engen Petroleum Ltd ("Engen"). The dispute revolves around the question whether the lease to Magalieskruin has expired.

[2] Engen is the lessee of a petrol filling station in terms of a Head Lease concluded with Annlia Investments (Pty) Ltd ("Annlia"), the owner of the property on which the filling station is situated. In December 1999 Engen and Magalieskruin ("Magalieskruin") concluded an agreement entitled "Agreement of Lease and Operation of Service Station" (the "Operating Lease"). In terms

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Van Rooyen AJ

thereof: (1)the commencement date of the lease was 1 October 1999 and it was to endure for an initial period of 5 years; (2) the parties could, by mutual agreement, extend the term of the operating lease for a further period, provided that such agreement would not be binding on them unless reduced to writing and signed by both parties; (3) the initial lease period (5 years) terminated by effluxion of time on 30 September 2004;(4) in the event of the parties not agreeing on a further period of lease, the operating lease would continue on a month-to-month basis subject to one calendar month's written notice of termination by either party.

[3] The parties have not agreed on a further period of lease and on 21 April 2005 Engen gave Magalieskruin one calendar month's notice of termination of the Operating Lease. Notwithstanding that the month's notice expired on 31 May 2005, Magalieskruin refused to vacate the premises and on 2 June 2005 Engen launched the present application for the ejectment of Magalieskruin. The application was initially brought as a matter of urgency, but has subsequently proceeded as an ordinary application and has been set down for hearing on the ordinary roll.

[4] All the required sets of affidavits have been filed. Magalieskruin has launched a counter-application which is also ripe for hearing.

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Van Rooyen AJ

THE MAIN APPLICATION

The non-joinder of Annlia

[5] Magalieskruin contends that Annlia has a direct and substantial interest in this application and therefore the failure by Engen to have joined it as a party renders the application materially defective. Annlia does not have a legal interest in these proceedings of the kind that would have required it to be joined as a party. [1] Magalieskruin is a sub-lessee, i.e. a tenant of Engen and none of the rights of Annlia, the owner, is at issue in this application. In any event there was an application by Annlia to be joined as a party with the result that non-joinder was no longer an issue.

Authority

[6] In the answering affidavit Magalieskruin challenged the authority of Tootla, the deponent to the founding affidavit, to have represented Engen. In its replying

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Van Rooyen AJ

affidavit Engen annexed a resolution by Engen's board of directors and ancillary documents in proof of Tootla's authority. In Annlia's replying affidavit filed in the counter-application the said resolution is scrutinised and Annlia and Magalieskruin submit that Engen has not properly authorised the proceedings in the main application, nor has it authorised the opposition to the counter-application.

[7] Magalieskruin's approach is not in accordance with the current practice. Where a party in the position of Magalieskruin fears that an application has not been authorised, its real concern is that the other party may deny that it authorised the litigation carried on in its name and, for example, disavow liability for any adverse costs order. The proper procedure, in such circumstances, is to make use Rule 7(1) of the Uniform Rules of Court. If it is established that the attorney concerned is authorised to bring an application on behalf of Engen, the application necessarily is that of Engen. It is sufficient to know whether or not the attorney acts with authority, and there is no need for any other person to be additionally authorised. [2]

[8] Furthermore, Magalieskruin's analysis of the resolution is not valid. Tootla was clothed with the necessary authority to have instructed Engen's attorney to launch the application and thereafter to oppose the counter-application. The

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Van Rooyen AJ

issue becomes clear if one considers whether, in the light of the resolution, Engen could ever successfully avoid liability for an adverse costs order on the basis that the proceedings were not authorised. In any event, Engen has passed a fresh resolution clarifying the authority of Tootla to represent it and confirming the authority of Tootla and Engen's attorney to have represented it in these proceedings. Engen handed the short affidavit up, and I noted the authority. [3]

The Merits

[9] Magalieskruin opposes the relief sought on several bases, and raises several defences. Before dealing with each specific defence it will be convenient to deal first with the main allegations of fact upon which Magalieskruin's defences are based.

[10] Magalieskruin's contention is that the deponent to the Magalieskruin's answering affidavit ("Van Dyk") was only prepared to conclude an agreement with Engen on behalf of Annlia to grant Engen a Head Lease, if his family was granted the right to operate the petrol filling station which was to be erected on the property...