R.J Motors CC v Jennings and Others

• Jurisdiction: South Africa
• Judge: BM Pakati J
• Judgment Date: 21 April 2022
• Docket Number: 2931/2021
• Hearing Date: 24 February 2022
• Court: Eastern Cape Division
• Citation: 2022 JDR 1103 (ECM)

Pakati J:

[1]

The applicant, R& J Motors t/a VW & Audi Clinic, applies for a mandament van spolie against Messrs Thabo Jennings and Siyasanga Mfingwana, the first and second respondents ("the respondents"), for restoration of possession and occupation of factory Unit 4, Textile Street, Vulindlela Heights Mthatha ("the premises"). It also seeks an interdict restraining the respondents from preventing it and its employees or anyone on its behalf from entering the said premises.

[2]

The points in limine raised by the second respondent in his answering affidavit were not referred to during the hearing of this matter as well as in their heads of argument. I take it that the respondents abandoned same and will not deal with them herein.

2022 JDR 1103 p2

Pakati J

[3]

The respondents are business partners and directors of Wasteman Group (Pty) Ltd ("Wasteman Group") operating as S & K Panel Beaters, in Vulindlela Street, Mthatha. The Station Commissioner Central Police Station, Mthatha, is cited herein in his capacity as the Police Officer in charge of the South African Police Services, Mthatha Central Police Station purportedly responsible for the execution of and enforcement of lawful orders. Only first and second respondents oppose the application.

[4]

The applicant operates a motor mechanic workshop, and stores goods and motor vehicles for repairs at the premises situated at No. 4 Textile Road, Vulindlela Heights, with their offices at 48 Elliot Road, Mthatha. Mr Robert Frank Costell ("Costell") is its managing member. He, on behalf of the applicant, contended that he entered into an oral agreement for the lease of the premises with the late Henry Trower ("Trower"), in November 2020. The said terms of the agreement were that the applicant would occupy the premises for a period of six years and pay a monthly rental of POO 000.00. The applicant paid rent to Trower. It later transpired that Trower, in turn, paid rent to Wasteman Group, Absa Bank account number 4[. . .].

[5]

Before his death, Trower was in control of the premises and as the respondents put it, the was keeping an eye at the workshop'. According to the applicant, after his death it interacted with his wife, Ms Nonzwakazi Trower, as the appointed representative of Trower's estate.

[6]

It is undisputed that the applicant was in peaceful and undisturbed possession of the premises since November 2020 until the morning of 17 May 2021 when Costell was prevented from accessing the premises by a security guard placed at the entrance by the 1st respondent. When he told the security guard that he was the lessee of the premises and demanded entry, the security guard prevented him. Minutes later, while Costell was still standing at the entrance, the 1st respondent arrived and 'forcefully locked the gate against my will,' threatening to shoot Costell if he and the staff entered the premises by force. Costell and the staff left for their offices situated at Elliot Road. Costell's evidence was confirmed by Ms Jennifer Adolf, who added in her confirmatory affidavit that on

2022 JDR 1103 p3

Pakati J

17 May 2021 she attended the premises twice when the first respondent prevented her from entering.

[7]

The same day, (17 May 2021) Costell was served with a letter dated 6 May 2021 (Annexure "E") by the respondents informing him that he should pay outstanding rental for the months of March, April and May 2021. The last paragraph of the letter reads:

"Should the rent not be paid for March and April 2021 by the 7th May 2021, no member or employee of VW and Audi Clinic Mthatha will be allowed to gain access to the premises or vehicles. Furthermore, should the rent not be paid by the end of the week (Friday the 7th May 2021) we will have no choice but to charge a storage fee for every car still on the premises. We had not and do not wish for things to get to this point, however, we have no other choice as we also have to see to it that the security company is paid, so as to safe guard all parties and their assets."

[8]

Costell forwarded the said letter to his attorneys, who in response, forwarded a letter dated 17 May 2021 to the respondents advising them that their conduct was unlawful and wrongful. The latter were further warned that should they continue with their unlawful conduct; legal action would be the course to take. No response was forthcoming from the respondents.

[9]

On 19 May 2021, Costell and Ms Adolf attempted to gain entry into the premises but were again prevented by the first respondent from gaining access. The latter did not only lock the entrance but also used abusive and intimidating language, which inspired fear on Ms Adolf.

[10]

The respondents again addressed the following letter to the applicant's attorney of record on 20 May 2021:

"The position is that client acts as a representative of Wasteman Group Pty Ltd who has a lease with your client. Your client owes Wasteman lease rent in respect of the premises at Textile Street, Vulindlela Heights as follows:

i.	January 2021	RIO 000.00	(paid only POO 000)
ii.	February 2021	RIO 000.00
iii.	March 2021	R20 000.00

2022 JDR 1103 p4

Pakati J

iv.	April 2021	R30 000.00
v	May 2021	R30 000.00
	Total owed	RI 10 000.00

Unless this total owed is paid to our client by 28th May 2021 our instructions are to issue Summons plus costs.

Your letter also threatens to seek an interdict to prevent any blockage to its conduct of removing vehicles either repaired or stored at Wasteman premises. Please be reminded that your clients' vehicles in these premises are held under a lien for outstanding rent and your clients' application interdict will be strenuously resisted in so far as your clients' attempt to remove vehicles without payment of outstanding rental. In addition, our clients will further claim costs."

[11]

The respondents dispute that they dispossessed the...