Miller v Spamer

• Jurisdiction: South Africa
• Judge: Fagan J
• Judgment Date: 24 June 1948
• Hearing Date: 10 June 1948
• Court: Cape Provincial Division

Fagan, R.:

Op 27 Mei van hierdie jaar het Louis Miller op Irene Spamer 'n dagvaarding laat dien waarin hy eis:

1. 'n Bevel waarin die geskrewe stuk, gedateer 4 Julie 1946, en geteken deur verweerderes tot 'n huurkontrak tussen die partye verklaar word.

2. 'n Bevel tot spesifieke nakoming deur verweerderes haar gebiedend om besit van sekere vyf winkels te gee, welke winkels die onderwerp is waaroor die huurkontrak gaan, aan eiser wat nakoming van sy kant aanbied van al die terme van die huurkontrak noudat die gesegde winkels voltooi is.

3. Alternatiewe regshulp.

4. Koste van geding.

Op 2 Junie het Miller aansoek gedoen om 'n tussentydse interdik. Dit was 'n ex parte-aansoek, hoewel Miller in die dokumente beskrywe word as 'Applikant' en Irene Spamer as 'Respondent'. Die volgende bevel is toe deur OGILVIE THOMPSON, W.R., uitgereik.

A rule nisi to issue operating as an interim interdict calling upon the respondent to show cause in this Court on the 15th June, 1948, why (a) she should not, pending the decision of this Court in the action already instituted by applicant against respondent by the summons dated 12th

Fagan R

(27th?) May, 1948, be restrained: (1) from granting to any person (other than the applicant) possession of any one of the five shops recently erected by her and situate at Elsies River opposite the Non-European housing scheme there; and (2) from granting leases in respect of any of the said shops; and why (b) the costs of these proceedings should not be costs in in the aforementioned action. Personal service of this rule is to be effected upon the respondent, and the rule is also to be served upon L. J. Spykerman. Leave is reserved to respondent or any other interested party to anticipate the return day of this rule on not less than twenty-four hours' notice to applicant.

Op 10 Junie het die saak voor my gedien in die vorm van 'n aansoek deur Irene Spamer en L. J. Spykerman dat die tydelike interdik ter syde gestel moet word.

Die feite waarop Miller sy bede om 'n tydelike interdik gebaseer het, blyk uit para. 2 en para. 14 van sy petisie, wat as volg lui:

'2. That on 4th July, 1946, respondent and applicant entered into a written agreement of hiring and letting whereby respondent agreed to let to applicant certain five shops to be built and when completed to face the settlement and which were to be built on ground pointed out to applicant right across the street and facing the Non-European settlement at Elsies River and which five shops were to comprise the whole building to be erected, when completed, for a rental of £75 per month for one year with an option to applicant to renew annually for a period of 11 years with a right to applicant to sublet (Annexure A).

3. That respondent stated to applicant that her father had given her the ground on which these shops would be built and that she was going to take transfer of the said ground.

4. That as far as applicant knows respondent has not taken transfer yet, but respondent informed applicant that transfer is about to be taken by respondent from her father and simultaneously transfer is to be registered in the name of respondent and certain Spykerman, in equal undivided shares with which Spykerman, as far as applicant has been informed by respondent, respondent has entered into partnership in this building.

5. That the said building is now completed but now comprises six shops with one shop not facing the settlement and occupation to applicant can be given immediately of the whole building, comprising of the different shops.

6. That on the 22nd March, 1948, applicant demanded specific performance of the contract mentioned in Annexure A (Annexure D).

7. That respondent denied having signed the agreement in Annexure A, but afterwards admitted that she signed it.

8. That respondent and the said Spykerman verbally later on tendered five shops to applicant of which shops one did not front the settlement, for the rental of £95 per month, which tender was confirmed in writing (Annexure B) and which rental applicant refused to pay but demanded specific performance of the contract in Annexure A (Annexure C), by which the original five shops which fronted the settlement were let to applicant at £75 per month.

9. That respondent told applicant that the one shop had already been promised to some third party and later respondent said that the said shop had already been hired and let to the said third party.

Fagan R

10. That applicant has since then disposed of his own general dealer's business in Elsies River and does not want to claim damages from respondent but claims the use of the shops because he needs them.

11. That applicant has since issued summons against respondent who informed applicant...