EVICTION DATE – INTERESTS OF JUSTICE
MV Andre Builder Joiner CC v Nordien [2021] ZAWCHC 255
Applicant and respondent entered into a commercial lease agreement, but respondent failed to make the monthly rental payments since April 2020. The applicant seeks an order confirming the cancellation of the lease agreements and the ejectment of the respondent from the premises.
Montzinger AJ discusses the defences raised by the defendant; that the defence of supervening impossibility because of the covid lockdown fails in light of the case of Freestone v Remake where it was found that the declaration of the state of disaster and the continued effect of the Covid-19 pandemic may have resulted in a dramatic decline of customers through the shopping centre in which the lease premises were situated but does not afford a defence to the lessee. No sustainable defence was found and the applicant was entitled to an order for ejectment.
When determining the date when the respondent had to vacate, the court considered that the respondent has been in the premises for over three years; the respondent effected renovations to the premises of R3,7 million, when the arrears were R1,4 million; that it would be harmful to the interests of justice to compel the respondent to vacate immediately instead of affording her the opportunity of finding suitable alternative premises that would serve not only her interests but also those of her clientele and employees. The respondent is given six months. See the grounds listed in para [42].
The cancellation of the lease agreements is confirmed and the respondent is ordered to vacate on or before 3 June 2022.
Freestone Property Investment v Remake Consultants [2021] ZAGPJHC 150
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DIVORCE – REMOVAL OF SPOUSE FROM MEDICAL AID
RC v DC [2021] 20-40030 (GJ)
The parties are involved in a high conflict, acrimonious divorce, with the domestic violence court being approached for interim protection orders, the police being called out because of the hostilities, and with multiple criminal charges being laid. The court notes that this displays a complete lack of insight by both parents in relation to the needs, interests and welfare of a child, who is still a toddler. This is completely contrary to the child’s best interests.
Segal AJ discusses the Rule 43 application; that the unjustified contact refusal on the part of a primary caregiver is egregious conduct, particularly in circumstances where a child is of such a tender age [7]-[8]; that the father unilaterally removed the mother from the medical aid scheme; that there appears to be a tendency amongst litigants in divorce matters, who are the main members on a medical aid scheme, to unilaterally and without notice, remove their spouse from the medical aid scheme; that this conduct is egregious and places the removed spouse in the invidious position of being without medical cover and having to rely on the public health sector for medical care [12]-[16].
An order is made for maintenance, contact and the appointment of an expert for a full forensic investigation into the best interests of the child.
The father is ordered to immediately reinstate the mother on the medical aid and to make payment of the premiums.
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VALUER FUNCTUS OFFICIO – CAN’T CHANGE VALUATION
Tahilram v Trustees of Lukamber Trust [2021] ZASCA 173
Mr Tahilram held 30% shares in a company that sold electronic components. A trust held 70% of the shares. On the termination of his employment he was required to offer his shares to the trust. They could not reach agreement on the fair market value, so in terms of the shareholders agreement the auditors were requested to determine the fair market value. A valuer at the auditors determined the fair market value of the business and this was communicated to the co-shareholders. Mr Tahilram demanded payment of 30% of the fair market value of the company’s shares as determined by the valuer and then instituted motion proceedings in the court a quo. Annexed to the trust’s answering affidavit was an amended written valuation report, reduced substantially for motor vehicles allocated to one of the trustees that were included in the original valuation. In dismissing Mr Tahilram’s application, the High Court held that the expert valuer was legally permitted to withdraw his valuation in order to modify and correct it, and that he was not functus officio once he had communicated his valuation to the parties.
Meyer AJA discusses whether the valuer was legally permitted to unilaterally withdraw his valuation in order to correct or modify it, once his valuation had been communicated to the parties concerned; the case law; and that the distinction between the function of an expert valuer, who does not perform a quasi-judicial function, and that of an arbitrator, who fulfils a quasi-judicial function within the parameters of the Arbitration Act 42 of 1965, has in principle or in logic, no bearing on the question whether a valuer has the power or authority to alter or amend his or her valuation once made and communicated to the parties.
The court finds that once the valuer had issued his written valuation report, he was functus officio and could not unilaterally withdraw or cancel his valuation report and issue one that altered and amended his definitive pronouncement of the fair market value of the company’s shares.
The appeal is upheld and the order of the court a quo replaced with one ordering the respondent to pay the purchase consideration for the sale of his shares.
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ABOUT THE EDITOR
Louis Podbielski spent ten years at Juta working on various law reports and has read many thousands of judgments for case selection. He has considerable experience in writing flynotes and headnotes, compiling case annotations, and in refining subject indexes. During his four years at LexisNexis he was involved with legal data, analytics and in developing various legal tech solutions. He now runs his own case law service Louis Case Law
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