Sewmungal and Another, NNO v Regent Cinema

• Jurisdiction: South Africa
• Judge: Fannin J, Hoexter J and Leon J
• Judgment Date: 29 November 1976
• Hearing Date: 25 October 1976
• Citation: 1977 (1) SA 814 (N)
• Court: Natal Provincial Division

Leon, J.:

This is an appeal against the decision of a single E Judge sitting in the Natal Provincial Division. The application was for the ejectment of the respondent from premises known as Regent Cinema and situate at 469 Longmarket Street, Pietermaritzburg. It was brought by Satgar Sewmungal and Sewpaul Motiram in their capacities as the joint honorary secretaries of the Veda Dharma Sabha, a duly constituted association with religious, educational and charitable objects. F That will be hereinafter referred to - as it was in the Court a quo - as the SABHA or the society. The respondent is a partnership firm which carries on business as a cinema at the premises in question.

The application was based on ownership and the fact that the respondent was in occupation and possession of the premises. As was pointed out by the learned Judge, this is a sufficient G ground of action for

"once an owner-lessor's ownership has been established, the onus is on the respondent to prove a right to be in occupation of the property. Myaka v Havermann and Another, 1948 (3) SA 457 (AD); Chetty v Naidoo, 1974 (3) SA 13 (AD)."

In the Court a quo it was contended on behalf of the respondent that:

(1)

the SABHA was not the owner of the premises and that H therefore the joint secretaries had no locus standi in judicio to bring the application.

(2)

alternatively, the matter should be referred to viva voce evidence on disputes of fact in regard to -

(a)

whether or not the applicants were authorised to bring the application, and

(b)

whether or not an oral agreement of lease was entered into between the society and the respondent on 12 July 1975.

Leon J

The Court found that:

1.

The SABHA was the owner and was entitled as owner to bring the application.

2.

It had been properly brought by the applicants as joint A honorary secretaries on behalf of the SABHA in terms of the constitution.

3.

There was no real or bona fide dispute on the papers as to whether the applicants were duly authorised to bring these proceedings and that therefore there was no disputed issue on this question which required to be determined with the aid of oral evidence.

4.

B The dispute concerning the question as to whether there had been an oral agreement of lease entered into on 12 July 1975 could and should be decided on the papers.

The Court accordingly refused to accede to the application for oral evidence to be heard on either of the issues. With regard to the dispute concerning the alleged lease, the learned Judge C summed up his conclusions in the following way:

"There is, in my view, no bona fide dispute of fact here. The society is the owner of the premises in question and the respondent's lease, it is common cause, has expired. The onus is on the respondent to justify its further occupation of the property. The version it has put up in justification of its occupation is, in my view, so unacceptable that there is no reason why the matter should and could not be decided on these D papers. I am satisfied that the respondent has failed to discharge the onus which rests upon it and it follows that the applicants are entitled to the relief sought."

The Court a quo having granted the application for ejectment, the respondent appealed. In its notice of appeal, delivered in terms of Rule 49 (1) and (4), it raised the point that the Court a quo had erred in not dismissing the application on the E ground that the applicants did not have locus standi in judicio. It also raised the point in the alternative that the Court a quo had erred in failing to send the matter to oral evidence on the issue as to whether a final and binding contract of lease had been concluded between the parties. The notice of appeal did not raise the question as to whether the F matter should have been referred to viva voce evidence on the issue of whether the applicants had been duly authorised to bring the application and this matter was not argued before us by Mr. Donnellan who appeared for the respondent.

The learned Judge has given the most detailed reasons for finding that the SABHA is the owner of the property. For present purposes it is unnecessary to repeat them but they are G to be found in the report of the judgment in 1976 (3) SA 91 (N) at pp. 92 - 95.

In the founding affidavit the applicants allege that the SABHA is the owner of the property in question. However, it is also there stated that the property is

"held under deed of transfer No. 2909/1934 by the trustees for the time being and subject to the constitution and rules of the SABHA".

H The applicants also aver that, in so far as may be necessary, the trustees of the SABHA have authorised and directed the applicants to bring the proceedings.

Chinsamy, in his answering affidavit on behalf of the respondent, alleges that by reason of the deed of transfer the trustees are the registered owners of the property and, as such, are the only persons with any locus standi to bring the application. In reply Motiram has annexed to his affidavit a copy of the constitution of the SABHA and the deed of transfer.

Leon J

He has also pointed to the fact that the persons named therein as the transferees are cited "in their capacity as the trustees of the Veda Dharma Sabha".

Motiram also caused to be filed an affidavit by the trustees in which they confirm that they authorised and directed the A applicants to bring the proceedings, support the application, and ask, in so far as need be, to join as applicants in the application.

Mr. Donnellan contended that the applicants had to stand or fall by the case which they had made in the founding affidavit. That case was that the SABHA was the owner of the property B whereas in truth the trustees were the owners. He contended further that, to the extent that the applicants were relying upon the authority of the trustees, this was a new case made by the applicants in reply and that, in any event, only four of the five trustees were before the Court. In this regard the constitution makes provision for the appointment of five trustees and for any vacancies to be filled as soon C as practicable. The property is held in trust by five trustees but the affidavit is by four trustees who describe themselves as the trustees elected in terms of the constitution.

Mr. Donnellan contended that our law, unlike English law, does not recognise that dominium in immovable property may be separated into two parts, i.e. into a legal estate as it is D called in England, and an equitable or beneficial estate. What our law recognises is that the person who is registered in the Deeds Office is the sole dominus of such property (see, e.g., Lucas' Trustees, Ismail and Others, 1905 T.S. 239 at pp. 247 - 248). As the property was registered in the name of the trustees the Court a quo had erred in E holding that the SABHA was the owner of the property.

In the view which I take of this matter, I find it unnecessary to decide the question raised but I shall assume in favour of the respondent (without deciding) that the trustees are...