Moosa Bros & Sons (Pty) Ltd v Rajah

• Jurisdiction: South Africa
• Judge: Kumleben J
• Judgment Date: 04 July 1975
• Court: Durban and Coast Local Division

Kumleben, J.:

In this opposed application an order is sought ejecting respondent from certain premises on the ground that applicant, as lessor, requires the premises for its personal use in terms of sec. 22 (1) (c) of the Rents Act, 43 of 1950.

The background facts emerge from those allegations in the founding

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affidavit of Noor Mahomed, a director of applicant, which are admitted by the respondent in his opposing affidavit. The premises concerned are the Oriental Bazaar situated at 17 Albert Street, Durban. The building contains a number of shops, A one of which is occupied by respondent. In this shop he conducts his business. It is a retail business selling mainly curios. Applicant acquired the Oriental Bazaar on 20 June 1973. (This is in fact not expressly admitted but can safely be included in this recital of common cause facts). Respondent was the lessee of the shop on that date and applicant by virtue of its acquisition of the Oriental Bazaar became the lessor. B Before and at the time of acquisition of the Oriental Bazaar the applicant owned and conducted a retail business, trading mainly in fabrics, under the name of "Moosa's" in a building situated at 123 Berea Road and referred to in the affidavits as the "Berea Road building". On 24 July 1973 applicant's attorneys wrote a letter to respondent in terms of sec. 22 (1) (c) of the Act giving him 12 months' notice to C vacate Such notice was repeated in a letter sent to respondent dated 29 November 1973. The applicant considered that the first letter may not have set out with sufficient particularity the reasons for requiring the respondent to vacate. In the second letter the reasons are set out in more detail. It said that the trading activities of applicant conducted in the Berea Road D building had grown to such an extent that those premises had become inadequate; that it required both trading places for present and future needs; that the Berea Road property lacked security of tenure (for reasons which need not be recorded at this stage); that the Oriental Bazaar had been bought to supplement the inadequate accommodation provided by the Berea Road building and to provide alternative accommodation when those premises could no longer be lawfully occupied; and that E the object in purchasing the Oriental Bazaar was accordingly:

"to obtain additional and in due course alternative accommodation and was not aimed at specualation in fixed property or with a view to earning rental income".

The respondent admits receipt of these two letters and concedes that, apart from the protection afforded by sec. 22 (1) of the F Act, he has no right to occupy the shop. In terms of legislation affecting the rights of members of certain racial groups to own or occupy premises in certain areas the Oriental Bazaar may be owned and occupied by Indians. Security of tenure in this building for members of this racial group is thus secure and requires no special authorisation or permit. The Oriental Bazaar is situated within the one zone allocated to G Indians near the central area of Durban. As such it is the

"most important, prosperous and developed Indian commercial area in the Republic of South Africa and attracts substantially more retail trade than the area of the Berea Road building".

It

"is therefore, from the viewpoint of an Indian retail merchant, H much more lucrative and attractive than the area of the Berea Road building".

The deponent Noor Mahomed adds that the business of applicant

"has grown and expanded progressively and in recent years rapidly, and the applicant's directors expect it to grow and to expand yet further in the future".

(In reply to the averments in this last-quoted sentence the respondent says that he has no doubt that they are true). When applicant acquired the Oriental Bazaar the shops and other premises in it were occupied by various lessees. In the course of time 22 of these lessees, most of whom occupied shops, vacated their leased premises. Certain of the premises so vacated

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were structurally altered by the applicant. All were then occupied by applicant to conduct its business there. At present 14 of the shops have not yet been vacated. Two of these shops have a common lessee. I stress that the above summary is based upon allegations in the founding affidavit which are admitted by the respondent.

A The respondent occupies shop No. 17. The 12 lessees of the other 13 shops all received notices to vacate identical to those sent to respondent and similar applications for ejectment are with one exception pending. The case against the lessee Fujiyama was disposed of during argument in this application. Counsel representing respondent in this application, Mr. Friedman and Mr. Meskin, were also instructed to act on behalf of all the other lessees concerned. They agreed that the result of this application would determine the fate of all the lessees and that whatever order is granted in this application should be made in the other cases as well.

The two substantive and disputed issues to be proved by B applicant are: Firstly, whether the premises of the Oriental Bazaar are reasonably required by the lessor for its personal occupation in terms of sec. 22 (1) (c) of the Act. And, secondly, whether applicant, being a company, requires the premises for its "use" as defined in sub-sec. (4) of the said section. Although the opposing affidavit deals with the merits of the application, the respondent does not ask that the C application be dismissed. At this stage the opposition is limited to a request that oral evidence be heard. In the opposing affidavit it is asked that the parties be directed to proceed to trial; alternatively, that oral evidence be heard on the issues raised; alternatively, that the deponent Noor Mahomed and others be cross-examined. However, Mr. Friedman at the start of his argument indicated that the following order was sought:

(i)

that the various deponents, apart from Mr. D McIntosh and Mr. Rahim, be ordered to present themselves for cross-examination on the question whether applicant reasonably requires the premises for his personal use;

(ii)

that an appropriate discovery order should be granted; and

(iii)

that the question of costs be reserved.

E The nature of the opposition at this stage led to argument, in the first place, on the interpretation of Rule 6 (5) (g) of the Supreme Court Rules. It reads as follows:

"Where an application cannot properly be decided on affidavit the Court may dismiss the application or make such order as to it seems meet with a view to ensuring a just and expeditious F decision. In particular, but without affecting the generality of the aforegoing, it may direct that oral evidence be heard on specified issues with a view to resolving any dispute of fact and to that end may order any deponent to appear personally or grant leave for him or any other person to be subpoenaed to appear and be examined and cross-examined as a witness or it may refer the matter to trial with appropriate directions as to pleadings or definition of issues, or otherwise."

In the well-known passage in Room Hire Co. (Pty.) Ltd. v Jeppe G Street Mansions (Pty.) Ltd., 1949 (3) SA 1155 (T) at p. 1163, MURRAY, A.J.P., as he then was, gave examples of the "principal ways" in which a dispute of fact n motion proceedings could arise and explained which were to be regarded as "genuine or real" disputes of fact. The learned Judge said:

"It may be desirable to indicate the principal ways in which a dispute of fact arises. The clearest instance is, of course, (a) when the respondent denies all the material allegations made by the various deponents on the applicant's behalf, and produces or will produce, positive evidence by deponents or witnesses to the

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contrary. He may have witnesses who are not presently available or who, though adverse to making an affidavit, would give evidence viva voce if subpoenaed. There are however other cases to consider. The respondent may (b) admit the applicant's affidavit evidence but allege other facts which the applicant disputes. Or (c) he may concede that he has no knowledge of the A main facts stated by the applicant, but may deny them, putting applicant to the proof and himself giving or proposing to give evidence to show that the applicant and his deponents are biased and untruthful or otherwise unreliable, and that certain facts upon which applicant and his deponents rely to prove the main facts are untrue. The absence of any positive evidence possessed by a respondent directly contradicting applicant's main allegations does not render a case such as this free of a B real dispute of fact. Or (d) he may state that he can lead no evidence himself or by others to dispute the truth of applicant's statements, which are peculiarly within applicant's knowledge, but he puts applicant to the proof thereof by oral evidence subject to cross-examination.

The last-mentioned instance, viz. (d) has been held by WATERMEYER, C.J., in Peterson v Cuthbert & Co., Ltd., supra, not to be a genuine or real dispute of fact. Whether the respondent is bona fide or not, his contentions are insufficient to render resort to a trial action compulsory."

C Relying on this passage in the judgment, Mr. Didcott, who argued this aspect on behalf of applicant, submitted, firstly, that Rule 6 (5) (g) did not empower the Court to order oral evidence unless, as he put it.

"a genuine dispute of fact as illustrated in instances (a), (b) or (c) of the Room Hire case was shown to be present."

D One's initial reluctance to regard a passage in a judgment...