HIGH COURT OF SWAZILAND
SMALL ENTERPRISES DEVELOPMENT COMPANY
SIGWANE T/A P & J TIMBERS
Case No. 1718/99
MAPHALALA - J
the Applicant MR. SIMELANE
the Respondent MR. A. LUKHELE
matter served before this court on the 8th November 2002, when the
Applicant filed under a certificate of urgency an application on
motion for an order for the ejectment of the Respondent from premises
at SEDCO Estates, workshop no. 8, 9 and 13. The basis of the said
order for ejectment is that the Respondent is in breach of the lease
agreement with his rental having fallen into arrears with the last
payment having been made on or about 24th November 1997.
order being sought is couched in the following language:
with the usual forms and procedures relating to the institution of
proceedings and allowing this matter to be heard as a matter of
the Respondent and those holding through or under him from workshop
no. 8, 9 and 13 SEDCO Estate, Hlatikulu.
order declaring that the Respondent has refused to sign a lease
agreement and has no right to further occupation of the premises
described in paragraph 2 above;
to prayer 2 and 3.
order that the Respondent pays the sum of E50, 000-00 to the Trust
Account of the attorneys that he will instruct to serve as security
for mitigation of damages suffered by Applicant;
order that the Respondent pays into the Trust Account of his
attorney, the current monthly rental of El, 317-42 o the last day of
each month and proof of payment to be sent to Applicant's attorneys;
and alternative relief as the above Honourable Court seem met".
founding affidavit of the Managing Director of the Applicant Mr. Paul
M. Thabede is filed in support thereto. Various annexures pertinent
to the Applicant's case are also filed of
Respondent has joined issue and has filed an opposing affidavit in
answer to the Applicant's founding affidavit. He has also filed
annexures to support his opposition thereto.
heard submissions in this matter on the 2nd April 2003, where I
reserved my judgment. Following is my judgment. The history of the
Applicant is the Small Enterprise Development Company Limited, a
company duly incorporated and registered in accordance with company
laws in force in the Kingdom of Swaziland, with its principal place
of business at SEDCO Estates, Industrial Sites, Mbabane.
Respondent is Isaiah Sigwane t/a P & J Timbers, an adult Swazi
male Hlatikulu, currently carrying on business at Hlatikulu, SEDCO
Estates, workshops no. 8, 9 and 13.
or about 23rd September 1993, the Applicant let to the Respondent who
hired the premises described as workshops no. 13. The lease was for a
period of 6 months. When the aforesaid lease expired, the Applicant
did not require the Respondent to vacate hence the Respondent stayed
on. Basically on the same terms of the expired lease agreement as the
Applicant was still involved in a restructuring exercise.
to the Applicant the parties signed another lease agreement on the
15th February 1995. The Applicant was represented by its Managing
Director, Paul Thabede. The lease was for two months, expiring on
31st March 1995. A copy of same is annexed to the Applicant's papers.
The Respondent denies this and in particular that he signed annexure
"PT2" nor does he know the witness before whom he is
purported to have signed.
such for the period when the lease aforesaid expired, the Applicant
did not evict the Respondent. Hence the parties continued with their
respective obligations in terms of the lease agreement. In a nutshell
there was an implied lease.
to the Applicant when the aforesaid lease agreement came to an end on
the 31st March 1995, the Respondent was in arrears with his rental in
the sum of E429-46 as he made no payment whatsoever for that period
of the lease. This is exclusive of the arrears which the Respondent
had accumulated in terms of the lease which expired on 31st march
1994. The Respondent, however, denies these allegations, in
particular it is disputed that he was in arrears with the rentals in
the sum of E429-46 or any sums at all.
from 1st April 1995, the Respondent's occupation of the premises
according to the Applicant was illegal with the Respondent having
refused to sign another lease agreement and failure to submit a
business plan which was in line with the Applicant's corporate plan,
notwithstanding Applicant's advise by copy of a letter dated 14th
September 1994, annexure "PT3". The Respondent denies these
allegations and in particular that he was ever advised by copy of
"PT3" that he should submit in a business plan because that
requirement applies to new tenants.
or about 1st August 1995, the Applicant confirmed that no lease
agreements have been signed at their Hlatikulu Estate, due to the
restructuring exercise, and did undertake to furnish the Respondent
with a lease once the exercise was completed. Whilst all this is
happening, avers the Applicant, the lessee/Respondent was still in
occupation of the premises on the same terms as those contained in
the expired lease, through the principle of tacit relocation. A copy
of the letter is annexed marked "PT4".
Applicant avers that in that letter nowhere does the Applicant state
that the Respondent can occupy the premises without a lease. All that
is said in the letter is that no lease agreements have been signed
and not that none exists at all. The Applicant contends that surely
it would not have made sense for the Applicant to have charged the
Respondent rent from 1993 and to then cease doing so simply because
it was involved in a restructuring exercise.
paragraphs 12, 13 and 14 the Applicant alleges that from 31st March
1996, the Respondent was in arrears with his rental in the sum of E2,
468-52 and Respondent was neither paying his rentals nor was he
prepared to sign a lease agreement.
the 27th October 1997, the Applicant received the Respondent's reply
wherein he outlined the reasons for his refusal to sign the lease
agreement. It is worthy of note that the reasons are now different
from those which the Respondent advanced on 16th October 1996. The
Respondents new reasons inter alia, that before he can sign the
Applicant must first construct a trench.
Applicant must also fence the shed occupied by the Respondent.
Applicant must partition and make an administration office for the
paragraphs 16 to 30 the Applicant avers inter alia that the
Respondent has avoided signing the lease yet continue to occupy the
premises and derive income; as at 31st March 2000, the arrear rentals
due from the Respondent amounted to E53, 312-12. However, these
averments are denied by the Respondent in particular that he is in
arrears in the said amount. He denies that he refused to sign a lease
agreement that the true position is that he was advised by the
Applicant that he would not be in a position to sign the lease
agreement because of the restructuring exercise. He contended that he
has continued paying rent even after receipt of Applicant's letter
above are the facts of this matter. The matter came for argument
where both counsel representing the parties filed Heads of arguments.
gravamen of the Applicant's case is that on the basis that the
Respondent is in breach of the lease agreement with his rental having
fallen into arrears with the last payment having been made on or
about 24th November 1997, the Applicant duly cancelled the lease and
gave the Respondent notice to vacate. The Respondent refused to
vacate and to date is still in occupation. Consequently the Applicant
is entitled to an order for ejectment of the Respondent (see Goldberg
vs Buytendag Boerdery Beleggings (EDM) BPK 1980 (4) S.A. 775 (A)). In
this case the following dicta was propounded; and I quote:
lessor has a right even in the absence of a cancellation clause (lex
commissoria) to cancel a lease and to apply for the lessee's
ejectment when the lessee is in arrears with his rent, provided
sufficient and reasonable notice has been given to him".
casu, so the argument goes, the lessee is in breach, no payment
having been made since 1997.
it is contended on behalf of the Applicant that the time for the
lessee to remain in occupation has expired. Reasonable notice was
given but the lessee refused to vacate. To this end Mr. Simelane
referred to the case of Tshabalala vs Van Der Merve 1926 NPD 75.
final salvo by Mr. Simelane was that the lessee in his defence has
stated that there is no rental owing and has not produced any
evidence to contradict that of the Applicant by, for example annexing
receipts as proof of rental payment.
thrust of the Respondent's case is that application proceedings are
not appropriate for the relief sought by the Applicant, as there were
numerous disputes of facts which cannot be resolved on affidavits.
Lukhele for the Respondent traced the history of the matter, which I
must say is indeed a chequered one. Initially the Applicant issued
out summons against the Respondent for among other things,
cancellation of a lease between the parties, eviction, payment of
certain monies being for arrear rentals and other relief. The summons
appears at page 80 of the Book of Pleadings.
Respondent defended those proceedings and was given leave to defend
after an application for summary judgment had been moved. It appears
those proceedings were not concluded and they are still pending
before this court.
Lukhele further contended that Applicant claims that there is
presently no written lease agreement between the former and the
Respondent as the previous leases have expired. The absence of a
lease agreement does not mean that a lessee is in unlawful occupation
of premises as he might be occupying the premises on a month to month
the Respondent counters the Applicant's claim that thee are arrears
in rentals. Mr. Lukhele submitted that there is a dispute on the
papers as to whether any rental is owed which dispute cannot be
determined in application proceedings. Further that orders 3, 4 and 5
are not competent orders that can be granted by this court.
court's analysis and conclusions thereon.
would appear to me that the first issue to be determined in this case
is whether there are disputes of facts in this matter. If the court
finds that there are disputes of fact it will make an appropriate
order as to the future of this matter. However, if a contra
conclusion is reached the court then has to consider the other issues
to the learned authors Herbstein et al The Civil Practice of the
Supreme Court of South Africa (4th ED) at page 238 a real dispute of
fact arises most obviously when the Respondent denies material
allegations made by deponents on the Applicant's behalf and produces
positive evidence to the contrary. The learned author in support of
this proposition cited a plethora of decided cases including the
celebrated case, of a Full Bench of the Transvaal Provincial Division
in the case of Room Hire Co. (Pty) Ltd vs Jeppe Street Mansions (Pty)
Ltd 1949 (3) S.A. 1155 (T) at 1165.
above is trite law. What one has to establish in casu is whether
there is a dispute of fact as described by the learned authors cited
above. After reading the affidavits filed for and against the
application in this matter it appears to me that there are a number
of disputes of fact which cannot be reconciled on the papers. The
first one being that Respondent denies that he signed annexure "PT2"
nor does he know the witness before whom he is purported to have
signed. The Applicant has not filed a replying affidavit to address
this aspect of the matter. The second point of dispute is whether or
not the Respondent refused to sign the lease as alleged by the
Applicant in its founding affidavit. The third point revolves around
the alleged arrears with the rentals. There is a dispute on
papers as to whether any rentals are owing which dispute cannot be
determined in application proceedings.
sum, it is my considered view that this matter can only be determined
in action proceedings and the present application on the facts is
application is therefore dismissed and the costs to follow the event.