Interactive Trading 269 (Pty) Limited v Cypress Entertainment CC

• Jurisdiction: South Africa
• Judge: Pillemer AJ
• Judgment Date: 16 November 2012
• Docket Number: 9919/2011, 793/2012
• Court: KwaZulu-Natal High Court, Durban
• Hearing Date: 09 November 2012
• Citation: 2012 JDR 2182 (KZD)

M Pillemer, AJ:

[1]

The late Emmanuel (Lolly) Jackson and Shaun Craig Russouw ("Russouw") operated a nightclub known as Teazer's-Durban in Springfield Park, Durban. The nature of their business relationship is an issue in the litigation.

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[2]

Jackson died on 3 May 2010. At the time of his death he was the sole director of Interactive Trading 269 (Proprietary) Limited ("Interactive Trading"). Jackson's widow, Demi Megan Jackson ("Demi Jackson"), replaced her late husband as sole director of Interactive Trading after his death.

[3]

Interactive Trading owns immovable property situated at 30 Aloefield Crescent, Springfield Park, Durban. It is from these premises that Teazer's-Durban conducts its business. It is common cause that a close corporation of which Russouw is the sole member, Cypress Entertainment CC, is in occupation of the premises and operates the nightclub business.

[4]

Interactive Trading instituted proceedings as the applicant under Case No. 9919/11 for the ejectment of Cypress Entertainment CC from the Aloefield Crescent premises. In this judgment Interactive Trading is referred to by name or as "the applicant" as is more suitable in the context and Cypress Entertainment CC similarly is referred to by name or as "the respondent".

[5]

The cause of action is the rei vindicatio. The founding affidavit deposed to by Demi Jackson alleges that Interactive Trading is the

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owner of the property. She has annexed a copy of the title deed demonstrating ownership. She makes the allegation that Cypress Entertainment CC is in occupation against the applicant's will and on behalf of the applicant seeks ejectment. The affidavit goes on to allege that an oral lease had been concluded for a rental of R20,000 a month in February 2008, that the respondent had taken occupation under that lease and remained in occupation notwithstanding the cancellation thereof. An ejectment order is sought by the owner to recover possession of its property.

[6]

In the answering affidavit deposed by Russouw, he makes the point that Demi Jackson has no personal knowledge of the agreement he had with her late husband; he denies the existence of a lease; he points out that Cypress Entertainment CC only came into existence in 2009 and could not have concluded the alleged lease and then contends that respondent has the right to remain in occupation of the premises by reason of a partnership agreement he on behalf of the respondent had concluded with Jackson representing the applicant in September 2009. The case he makes is that the partnership is one between his close corporation and Jackson's property owning company, Interactive Trading. In reply Demi Jackson does not challenge the evidence that she has no personal knowledge of the agreements between her late husband and Russouw, accepts that there is no lease, but nonetheless

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notwithstanding her lack of direct knowledge of the facts places the existence of the alleged partnership between Interactive Trading and Cypress Entertainment CC in issue, challenging the plausibility of the version of that partnership as set out by Russouw in the answering affidavit, which she contends is fanciful and should be rejected by the court on the papers.

[7]

Not content with disputing the existence of the partnership, Demi Jackson decided to cover her bets and, on behalf of Interactive Trading, gave notice terminating any partnership that may exist between Interactive Trading and Cypress Entertainment CC, or with Russouw. This she did by letter dated 12 January 2012. She followed this up with an urgent application brought by Interactive Trading as a first applicant for an accounting and the appointment of a liquidator to the estate of the partnership. This second application was brought under Case no. 793/2012.

[8]

Both cases were set down for hearing on the same date and argued together by agreement between the parties.

[9]

The line taken on behalf of the applicant in the ejectment application was that the court should find that the version of the respondent should be rejected on the affidavits without reference to oral evidence. Applicant sought as primary relief an ejectment

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order. In the alternative it was contended that should I decide against the applicant on this approach and dismiss the application for ejectment, then Interactive Trading as an applicant in the application for an account and the appointment of a liquidator to the partnership estate seeks relief under the second application on the basis that the partnership has been repudiated and thus come to an end necessitating, in the light of the disputes between the parties, the appointment of a liquidator. Apart from costs this is the only relief now persisted in conditionally in relation to the second application.

[10]

When the matter was argued Mr Lamplough, counsel for Interactive Trading, made an unequivocal election not to have the matter referred for oral evidence for the cross-examination of Russouw with regard to the existence of the partnership and its terms. Mr Lamplough was emphatic that his client did not consider such an approach would provide meaningful relief due to the delay that would be inevitable on that approach and he made it clear that a referral to evidence should not be made mero motu by the court. Mr Findlay SC, who with Mr Ungerer appeared for Cypress Trading CC in both applications, also elected not to seek a reference to oral evidence.

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[11]

The ejectment case thus is to be decided under the rule in Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A) at 634E–F (where it was held that the court must deal with the matter on the basis of the respondent's version coupled with the admitted facts in applicant's papers).

[12]

Mr Findlay submitted that the double barreled approach to the litigation adopted by Interactive Trading was not permissible since it amounted to approbating and reprobating. He contended that Interactive Trading had to make an election either to accept or reject the partnership. It was his contention that it could not do both, even in the alternative or conditionally as it has attempted to do. Once having denied the existence of the partnership and then persisting in that denial in the ejectment application, Mr Findlay submitted that it is not permissible for an applicant to purport to terminate a partnership it denies exists. He submitted that a litigant in law may not base his or her case on the defendant's defence, which the litigant contends is untrue.

[13]

What has to be decided first is whether or not on the papers the respondent has made a case that on the application of the Plascon Evans rule is sufficient to withstand the ejectment application because, if that is answered in the negative, then whether or not the first applicant can change horses after the first

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horse falls and ride off in the opposite direction on the second horse whose very existence she does not accept, does not arise if the first horse does not fall.

[14]

The evidence of Russouw with regard to the partnership and its terms is of course not contradicted by other testimony since the only person who could have done so is the late Emmanuel Jackson. This in itself does not mean that the evidence has to be accepted. In Da Mata v Otto NO 1972 (3) SA 858 (A) at 869D–E, the following was said:

"In regard to the appellant's sworn statements alleging the oral agreement, it does not follow that because these allegations were not contradicted – the witness who could have disputed them had died – they should be taken as proof of the facts involved. Wigmore on Evidence, 3ed., vol. VII, p.260, states that the mere assertion of any witness does not of itself need to be believed, even though he is unimpeached in any manner, because to require such belief would be to give a quantative and impersonal measure to testimony. The learned author in this connection at p. 262 cites the following passage from a decision quoted:

'it is not infrequently supposed that a sworn statement is necessary proof, and that, if uncontradicted, it established the fact involved. Such is by no means the law. Testimony, regardless of the amount of it, which is contrary to all reasonable probabilities or conceded facts-testimony which no sensible man can believe-goes for nothing; while the evidence of a single witness to a fact, there being nothing to throw discredit, cannot be disregarded.'"

Also in Siffman v Kriel 1909 TS 538, Innes CJ at 543 says:

"It does not follow, because evidence is uncontradicted, that therefore it is true . . . The story told by the person on whom the onus rests may be so improbable as not to discharge it."

[15]

The evidence given by Russouw to prove the existence of the partnership between Interactive Trading and Cypress Entertainment

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CC is set out in paragraphs 6 (d) to 6(i) of the answering affidavit. I set this out below:

"6

(d)

The Respondent remains in occupation of the premises in pursuance of an oral partnership agreement entered into between...