Soffiantini v Mould

• Jurisdiction: South Africa
• Judge: Price JP, Jennett J, Wynne J
• Judgment Date: 14 August 1956
• Hearing Date: 30 July 1956
• Court: Eastern Districts Local Division

Price, J.P.:

This is an appeal from a judgment of BACK, A.J.

H The matter before the learned Judge a quo was an application by the respondent against the appellant for an interdict restraining the appellant from entering the premises occupied by the respondent at 82, Oxford Street, East London, without the consent of the respondent, from interfering with the lift which serves those premises (which

Price JP

are on the second floor) and 'with any other amenities available to the 'respondent as occupier of the premises.

BACK, A.J., granted the application with costs against the appellant.

Mr. O'Hagan argued on the merits and also raised a technical point. It is advisable to deal first of all with the merits of the case.

A An affidavit dated the 3rd May, 1956, was made by Mr. Green, an attorney of Grahamstown. The allegations contained in this affidavit were admittedly hearsay and Mr. Green stated the source of his information. Later the contents of the affidavit were verified by persons with first-hand knowledge, by the respondent and by his B attorney, Mr. Shapiro.

It is common cause that the respondent is the lessee of certain premises on the second floor on No. 82, Oxford Street, East London, where he carries on a hair dressing business under the style of 'Maison Centrale Hairdressing Saloon', of which premises the appellant is the owner and C lessor. The respondent says that he holds under a lease for a definite period of years. The appellant asserts that there is a monthly tenancy. It is not necessary to determine this issue because the respondent's rights as regards the dispute would be the same in any event. The probability that the premises are held under lease for a period is, however, overwhelming.

D The appellant has to supply and to maintain a lift to serve the respondent's premises. This is also common cause.

It is alleged that the appellant has persisted in entering the respondent's premises without permission on a number of occasions and particularly on the 27th, 28th and 29th February, 1956, and on the 1st E March, 1956, and that he has persisted in refusing to state his business or to leave when asked to do so. It is also alleged that on the 30th April, 1956, at 11 a.m. the appellant entered the premises without giving any explanation, ordered the lift attendant out of the lift, ordered the staff and customers to leave, snatched the telephone out of the hands of an employee of the respondent and generally behaved in an F intolerable way. When Mr. Shapiro, the respondent's attorney and the wife of the respondent went to the premises at 11.45 a.m., it is alleged that the appellant, who was walking about in his shirt sleeves, ordered Mr. Shapiro to leave, and asserted that the establishment was his. When Mr. Shapiro warned the appellant that unless he ceased the disturbance G he was causing, and left, the respondent would have to take legal steps, the appellant replied that this gave him no concern and it would only increase his claim for damages. (I shall refer to this claim later.) The appellant then ordered one of the non-European members of the respondent's staff to stop working and to leave. When Mr. Shapiro told H the appellant he was telephoning the police, the appellant refused to allow him to use the telephone. When Mr. Shapiro wished to descend in the lift, the appellant told him that he had instructed the Municipality to cut off the current, and he warned Mr. Shapiro that any attempt to use the lift would increase his claim for damages.

On the 3rd May Mr. Shapiro was informed that the appellant had instructed an electrician to disconnect the lift but Mr. Shapiro succeeded in preventing the electrician from doing so.

...