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[2021] ZAWCHC 171
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Brothers Property Holdings (Pty) Ltd v Dansalot Trading (Pty) Ltdt/a Chinese Fair (6149/2021) [2021] ZAWCHC 171 (1 September 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case No:
6149/2021
Before
the Honourable Mr Acting Justice S Hockey
Hearing:
9 June 2021
Judgment
delivered: 01 September 2021
In
the matter between:
BROTHERS
PROPERTY HOLDINGS (PTY) LTD
Applicant
and
DANSALOT
TRADING (PTY) LTD
Respondent
(Registration
No: 2001/020897/07)
t/a
SA CHINESE FAIR
JUDGMENT
HOCKEY
AJ.
[1]
This is an application
wherein the applicant seeks to evict the respondent from
commercially leased premises (“the premises”),
on the
basis that the respondent breached the terms of the lease agreement
by failing to make payments of the monthly rental on
its due dates.
[2]
This application was
initially brought on an urgent basis, but was postponed to the
semi-urgent roll of this division of the High
Court by agreement
between the parties.
[3]
The application is
opposed by the respondent on various grounds, which I shall deal with
hereunder.
Common
cause facts
[4]
The following facts are
not in dispute:
4.1.
It is common
cause that the respondent has occupied the premises for some 17
years, having concluded a lease agreement and addenda
thereto with
the previous owner. The latest lease agreement in respect of the
property was entered into between the erstwhile owner
of the
property, Chateau Investments (Pty) Ltd (“Chateau”) and
the respondent, on or about 16 July 2015.
4.2.
The lease agreement was
for an initial period of two years, but was extended for a period of
three years by way of an addendum thereto
(“the first
addendum”), and became terminable on 28 February 2020.
4.3.
During March 2020
Chateau and the respondent entered into a further addendum (“the
second addendum”), in terms whereof
the lease was extended for
a further three years, with a rental escalation at the rate of 8
percent per annum in March of each
year. At the time that the second
addendum was entered into, the applicant and Chateau had already
concluded a deed of sale in
respect of the commercial complex.
4.4.
The applicant acquired
the commercial complex, wherein the premises is situated, from
Chateau. Transfer of the property was passed
on 18 August 2020. As a
result, the applicant became the successor in title to all rights and
obligations in terms of the lease
agreement.
4.5.
During December 2020
the applicant elected to terminate the lease agreement when it became
aware that the respondent had sub-divided
and sub-leased the
premises. It later became apparent to the applicant that the
respondent had the oral permission of Chateau to
dub-divide and
sub-let the property, and it therefore no longer pursued the
cancellation of the lease on this basis.
4.6.
Subsequent to the
purported cancellation of the lease, the applicant attempted to
persuade the respondent to enter into a new lease
agreement and
caused a draft lease agreement to be prepared and sent by the
applicant’s agent to the respondent on 26 January
2021. The
offer to enter into a new lease agreement was stated as being open
for acceptance until noon on Friday 29 January 2021,
i.e. for a
period of three days.
4.7.
Besides the draft lease
agreement, there was also a letter attached to the applicant’s
agent’s email of 26 January 2021,
wherein a Mr Mohamed Ali
Mohamud, acting on behalf of the applicant, stated that he authorised
‘the attached lease agreement’
and in the event of the
‘Chinese Tenant’ failing to accept the lease, he
authorised PPM Attorneys to cancel the respondent’s
tenancy and
evict them from the premises.
4.8.
The terms proposed in
the draft lease agreement were more onerous on the respondent than
those terms contained in the then current
lease agreement. The new
terms proposed included that the floor space occupied by the
respondent be halved, for a fixed rental
amount about the same as
that which the respondent was paying at the time, but with an
additional turnover-based rental amount.
It should be noted that the
applicant did not deny these allegations, but denied that they had
any bearing on the determination
of this matter.
4.9.
On 4 February 2021
attorneys acting for the respondent advised the applicant, as new
owner of the property, that the respondent
was aware of the “
huur
gaat voor koop
”
principle. They also advised that their client, although keen on
forging a solid business relationship with the applicant
(as the new
owners), was not prepared to be forced to make sacrifices in order to
retain tenancy.
4.10.
The applicant charged
the respondent, over a period of time prior to February 2021, an
amount in excess of the monthly rental due
in terms of the lease
agreement. The respondent alleges that this was done in error.
4.11.
In a letter dated 12
February 2021, PPM Attorneys, acting on behalf of the applicant,
notified the respondent of the applicant’s
cancellation of the
lease agreement on the basis of the respondent’s failure to
make payment of its rental and related charges
as and when it fell
due. In the letter, it was communicated that the applicant disputed
that a valid lease agreement was in existence,
but that the
respondent on its own version was liable to make payment of its
rentals and related charges on the first day of each
month, which it
failed to do, which gave the applicant a right of termination. The
respondent was given seven days to vacate the
premises and was
required to leave it in the same good state of repair as upon the
commencement of the lease agreement, fair wear
and tear excepted.
The
lease agreement and interpretation.
[5]
As already mentioned,
the lease agreement in respect of the premises was concluded between
the respondent and the erstwhile owner
of the commercial
centre
in which the premises is situated.
The respondent relies on its interpretation of certain clauses in its
denial that the lease was
properly cancelled. The applicant, on the
other hand, despite denying the validity of the lease agreement,
relies on the fact that
on the respondent’s own version, rent
was payable in advance on the first day of each month, and that by
not complying with
this requirement, the respondent was in breach.
[6]
In
my view, the applicant’s denial of the validity of the lease
agreement is amiss. The lease agreement was entered into with
the
erstwhile owner of the property. The principle of “
huur
gaat voor koop
”
is well entrenched in our law. In terms of this principle, the
applicant stepped into the shoes of Chateau when it took
transfer of
the property. After discussing the history and authorities pertaining
to this principle, Corbett CJ in
Genna-Wae
Properties (Pty) Ltd v MedioTronics (Natal) (Pty) Ltd
[1]
,
neatly summed up the position in our the law thus:
‘
Accordingly,
I hold that in terms of our law the alienation of leased property
consisting of land or buildings in pursuance of a
contract of sale
does not bring the lease to an end. The purchaser (new owner) is
substituted
ex
lege
for the original lessor and the latter falls out of the picture. On
being so substituted, the new owner acquires by operation of
law all
the rights of the original lessor under the lease. At the same time
the new owner is obliged to recognise the lessee and
to permit him to
continue to occupy the leased premises in terms of the lease,
provided that he (the lessee) continues to pay the
rent and otherwise
to observe his obligations under the lease. The lessee, in turn, is
also bound by the lease and, provided that
the new owner recognises
his rights, does not have any option, or right of election, to resile
from the contract. This is the impact
of huur gaat voor koop in our
modem law.’
[2]
[7]
The
parties disagree on the interpretation of clause 11 of the lease
agreement. The approach to statutory interpretation has been
set out
in
Natal
Joint Municipal Pension Fund v Endumeni Municipality
[3]
,
where Wallis JA held:
‘
The
present state of the law can be expressed as follows: Interpretation
is the process of attributing meaning to the words used
in a
document, be it legislation, some other statutory instrument, or
contract, having regard to the context provided by reading
the
particular provision or provisions in the light of the document as a
whole and the circumstances attendant upon its coming
into existence.
Whatever the nature of the document, consideration must be given to
the language used in the light of the ordinary
rules of grammar and
syntax; the context in which the provision appears; the apparent
purpose to which it is directed and the material
known to those
responsible for its production. Where more than one meaning is
possible each possibility must be weighed in the
light of all these
factors. The process is objective, not subjective. A sensible meaning
is to be preferred to one that leads to
insensible or unbusinesslike
results or undermines the apparent purpose of the document. Judges
must be alert to, and guard against,
the temptation to substitute
what they regard as reasonable, sensible or businesslike for the
words actually used. To do so in
regard to a statute or statutory
instrument is to cross the divide between interpretation and
legislation; in a contractual context
it is to make a contract for
the parties other than the one they in fact made. The “inevitable
point of departure is the
language of the provision itself”,
read in context and having regard to the purpose of the provision and
the background to
the preparation and production of the document.’
[4]
(Internal
footnotes omitted.)
[8]
Before dealing with the
breach clause of the lease agreement, it is necessary to deal with
clause 3.1, which provides for rental
payable. It is clear that
clause 3.1 draws a distinction between (i) the basic monthly rental,
which is payable on the first day
of every month, and (ii) other
amounts due in terms of the lease, which becomes due within seven
days of receipt of the first notification
sent to the respondent. The
other amounts due in terms of the agreement, which the applicant may
recover from the respondent, includes
amounts paid for municipal
services, water, refuse and electricity, and are listed in clause 6
of the lease agreement.
[9]
Clause 11 of the lease
agreement contains breach provisions. The relevant portion reads as
follows:
‘
11
In the event of the Tenant failing to pay any amount due in terms of
this Agreement on due date; or in the event of the Tenant
committing
a breach of any other terms of this Agreement and failing to remedy
such breach within a period of seven days of receipt
of written
notice from the Landlord, the Landlord shall be entitled to:
11.1
terminate this Lease without further notice to the Tenant and have
the Tenant and all those holding title through the Tenant
and all the
possessions on the Premises evicted from such Premises, without
prejudice to any of its other rights it may have in
law, including
the right to claim damages; . . .’
[10]
Unlike clause 3.1,
clause 11 draws no distinction between the basic monthly rental and
other amounts payable by the tenant. Instead,
it refers to the
failure to pay any amount due in terms of the agreement on the due
date. Reading this provision with that in clause
3.1, it is clear
that the due date is the first day of every month in respect of the
basic rental, and within seven days after
receipt of the first
notification thereof sent to the tenant.
[11]
I agree with counsel
for the applicant that the reason for the distinction between the two
amounts payable is clear – the
first amount is fixed, but the
second is variable, dependent on, amongst others, charges for
services due to the City of Cape Town,
such as for water and
electricity charges.
[12]
Both parties agree that
clause 11 makes provision for two classes of breaches by the tenant,
the first being the failure to pay
any amount on due date, and the
second, referred to as ‘a breach of any of the other terms of
[the] Agreement’.
[13]
Where the parties
differ is the significance of the use of the semi-colon, followed by
the word ‘or’ between the two
classes of breaches.
[14]
Counsel for the
respondent argues that the meaning of the semi-colon between the two
classes of breach is unclear, and it is not
the case that the
semi-colon signifies that the words before it (i.e. describing the
first class of breach) constitutes an independent
clause or the first
part of a list. The significance of this argument, if correct, is
that the seven days’ written notice
requirement would then be
applicable in respect of both classes of breach. It would also mean
that the respondent should have been
afforded an opportunity to
remedy any breach of the lease agreement, including the late payment
of the basic monthly rental or
any amount due in respect of the lease
agreement.
[15]
Counsel for the
applicant, on the other hand, argues that the effect of the
semi-colon is that late payment of any amount due requires
no notice
for cancellation, whereas a breach of any other term of the lease
agreement requires the applicant to provide the respondent
with a
seven-day notice period to remedy such breach.
[16]
I am in agreement with
the applicant’s interpretation of clause 11. The use of the
words ‘and’ and ‘such
breach’ in the phrase
‘and failing to remedy such breach’, which requires the
notice period for remedy, can only
refer to the second class of
breach, i.e. a breach of any of the other terms of the agreement. If
this was not the intention, and
if the notice period was required in
respect of both classes of breach, the plural form, ‘such
breaches’, would have
had to be used. Furthermore, if the
intention was that a notice period was required in respect of both
classes of breach, there
would have been no reason to use a
semi-colon. In my view, the semi-colon was put there for a purpose –
to make it clear
that only the second class of breach, which is
described after the semi-colon, requires a notice period for remedy
of such breach.
[17]
The
applicant referred to the case of
Mohamed’s
Leisure Holdings (Pty) Ltd v Southern Sun Hotel Interests (Pty)
Ltd
[5]
where there are similarities between the facts in that case and the
one currently under consideration. In
Mohamed’s
Leisure Holdings
,
the landlord cancelled a lease agreement due to the tenant’s
failure to make payment of its rent on the first day of the
month, as
provided for in the lease agreement, without affording the tenant an
opportunity to rectify its breach.
[18]
Counsel for the
respondent argues that there is a clear differentiation of the breach
clause relied on in the
Mohamed’s
Leisure Holdings
matter and the current matter. In the former matter, the breach
clause read as follows:
‘
20.1
Should the LESSEE
20.1.1
fail to pay the rent on due date; or
20.1.2
contravene or permit the contravention of any one or more of the
conditions of this agreement and fail to remedy such
breach within 30
(THIRTY) days after receipt by it of notice in writing calling upon
it to remedy such breach; or
20.1.3
allow a judgment against it to remain unsatisfied or unopposed for a
period of seven days:
Then
the LESSOR shall be entitled to terminate this lease and to take
possession of the property.’
[19]
There is no doubt that
the clause in
Mohamed’s
Leisure Holdings
clearly makes the distinction between the different breaches by the
sub-enumeration thereof, and it is clearly only in 20.1.2 that
a
notice is required to remedy a contravention ‘of any one or
more of the conditions’ of the agreement.
The
contra proferentem
rule
[20]
Counsel
for the respondent further submits that the clause before this court
in the current matter is not clear, and therefore the
contra
proferentem
rule
[6]
ought to apply against
the applicant.
[21]
I
do not agree with the contentions made on behalf of the respondent.
In my view, there is no ambiguity in clause 11 of the lease
agreement. The
contra
proferentem
rule is not to be used unless all the ordinary rules of
interpretation have been exhausted
[7]
.
In the present matter, I find that the words, syntax, grammar and
punctuation used in clause 11 of the lease agreement express
the
clear and unambiguous intention of the parties as already stated. As
in
Mohamed’s
Leisure Holdings
,
therefore, it is only in the case of breaches other than a failure to
make payment on the due date that written notices are required
for
remedy of such breaches before a termination can be lawfully
effected. This is the intention clearly expressed in clause 11.
There
is no justification for the use of the
contra
proferentem
rule under these circumstances.
The
no relaxation clause and the
pacta sunt servanda
principle
[22]
In addition to what has
already been dealt with in this judgment, the respondent, in
furtherance of its argument that the applicant
was not entitled to
cancel the lease agreement, argues that the landlord did not on
previous occasions object to late payment of
rental amounts. It was
submitted that the cancellation notice of 12 February 2021 was the
first time that the respondent was made
aware that its payment of
rent after the first day of each month was not acceptable.
[23]
Counsel for the
applicant correctly points out that clause 14.3 of the lease
agreement contains the provision that no act of relaxation
on the
part of the applicant, with regard to the carrying out of any of the
respondent’s obligations in terms of the lease
agreement, shall
prejudice or be deemed to be a waiver of any of the applicant’s
rights in terms of the lease agreement.
[24]
The respondent draws
attention to the fact that in
Mohamed’s
Leisure Holdings
the court found it noteworthy that, prior to cancelling the lease
agreement and following a prior breach of the same nature (i.e.
the
late payment of rental), the landlord had forewarned the tenant of
its intention to terminate in the event of a repeat occurrence.
[25]
What is clear from
Mohamed’s
Leisure Holdings
,
however, is that the court did not find that a forewarning is a
prerequisite before cancelling. In fact, the court found:
‘
Before
the appellant could cancel the lease, there was no obligation on its
part to either issue a demand/ultimatum requiring the
respondent to
make payment. It was also not the appellant’s duty to inform
the respondents of its default. I do not think
that such a duty can
be imposed on the appellant. The terms of the agreement made it clear
that the appellant was entitled to enforce
clause 20 in the event
that the respondent fails to pay the rent on due date. A person who
promised to pay rental on a certain
date and upon failure to do so,
faces the possibility of an eviction, cannot be heard to say he was
not warned; he should remember
his obligation.’
[8]
[26]
Clause
11 of the lease agreement entitles the applicant to terminate the
agreement, without further notice, in the event of the
respondent’s
failure to pay its rental on due date. This clause may be harsh
against the respondent, but the respondent is
bound by it. This is in
line with the common law rule that agreements are binding and must be
enforced – i.e. the
pacta
sunt servanda
principle.
[9]
This principle,
however, it has often been said, is no holy cow. Under the common
law, our courts have always been prepared to
declare contracts
invalid on the basis that it is contrary to public policy. It was
recently held by the Constitutional Court,
in the judgment of Ngcobo
J writing for the majority, in upholding the decision of the Supreme
Court of Appeal in
Barkhuizen
v Napier
[10]
:
‘
I
do
not understand the Supreme Court of Appeal as suggesting that the
principle of contract
pacta
sunt servanda
is
a sacred cow that should trump all other considerations. That it did
not is apparent from the judgment. The Supreme Court
of Appeal
accepted that the constitutional values of equality and dignity may,
however, prove to be decisive when the issue of
the parties’
relative bargaining positions is an issue. All law, including the
common law of contract, is now subject to
constitutional control. The
validity of all law depends on their consistency with the provisions
of the Constitution and the values
that underlie our Constitution.
The application of the principle
pacta
sunt servanda
is,
therefore, subject to constitutional control.’
[11]
[27]
At paragraph 57 of his
judgment, Ngcobo J said that the
pacta
sunt servanda
maxim,
as the Supreme Court of Appeal has repeatedly noted:
‘
.
. .
gives
effect to the central constitutional values of freedom and
dignity. Self-autonomy, or the ability to regulate one’s
own affairs, even to one’s own detriment, is the very essence
of freedom and a vital part of dignity. The extent to which
the
contract was freely and voluntarily concluded is clearly a vital
factor as it will determine the weight that should be afforded
to the
values of freedom and dignity.’
[28]
There is however
nothing immoral or unconstitutional in the term that payment of
rental must be made on a certain date, failing
which the contract may
be terminated. There is nothing unusual in a term of such nature. In
this case, the sanctity of contract
must prevail.
The
suspension of the respondent’s obligation under the lease
agreement
[29]
Since the applicant
denied the validity of the lease agreement, counsel for the
respondent argues that such repudiation, although
rejected by the
respondent, is not without consequences. The argument goes that the
applicant’s conduct (by denying the existence
of the contract)
constituted a repudiation, which gave rise to the suspension of the
respondent’s reciprocal obligation to
make payment of the rent
and other amounts due in terms of the lease agreement.
[30]
In
support of his argument, the respondent’s counsel cites a
number of cases, in particular
Moodley
and Another v Moodley and Another
[12]
,
where reference was made to an earlier decision of
Erasmus
v Pienaar
[13]
.
In the latter case, the court accepted the proposition that one
party’s repudiation may suspend the aggrieved party’s
performance until the guilty party has reaffirmed its willingness and
ability to fulfil its obligations under the contract.
[31]
These
cases cited by counsel for the respondent are, however,
distinguishable from the present matter. They deal with contracts
of
sale of immovable property. In
Moodley
,
the court paraphrased the rationale for the rule (of suspension) as
set out in
Erasmus
v Pienaar
to be that ‘a party to a contract ought not be allowed, by his
own wrongful conduct, to advantage himself or to disadvantage
his
counterpart. To permit the repudiating party to take advantage of the
other side’s failure to do something, when that
failure is
attributable to his own repudiation, is to reward him for his
repudiation . . .’
[14]
[32]
The current matter, as
already mentioned, is distinguishable from the cases cited by counsel
for the respondent, in that the respondent,
in
casu
, is enjoying
the beneficial use of the premises. It would be unconscionable to
hold that the respondent should be relieved from
paying rent and
other amounts payable (albeit for a limited period) under these
circumstances.
Appropriate
relief
[33]
I am satisfied that the
applicant has made out a case for the eviction of the respondent,
based on the latter’s breach in
terms of clause 11 of the lease
agreement.
[34]
The applicant asks for
the respondent and all those holding title under it to be ordered to
immediately vacate the premises. It
is appropriate to deal with the
timing of the ejectment of the respondent. Not only is the order
prayed for impractical, as it
asks for the eviction to take immediate
effect, but it is, in my view, in the circumstances of this matter,
unreasonable and not
in the interest of justice.
[35]
I say that an order for
the immediate ejectment of the respondent from the premises is
impractical, because such an order would
make it impossible for the
respondent to reinstate the premises to the same good order and
condition as it was at the commencement
of the lease, as is required
by clause 9.3.13 of the lease agreement.
[36]
There
is also a long line of cases where the courts have exercised a
discretion to suspend the execution of an ejectment order,
not only
in respect of residential premises, but also in respect of commercial
premises. This was comprehensively discussed by
Spilg J in
AJP
Properties CC v Sello
[15]
,
which lead the judge to conclude:
‘
There
is accordingly a history of case law spanning close on a century
which has, irrespective of its pedigree, become solidified
and which
has accepted that courts can exercise a discretion which, it appears,
is not derived from its inherent jurisdiction but
from a common-law
power to stay or suspend the execution of an ejectment order.’
[16]
(Internal
footnotes omitted.)
[37]
Rule 45A, which was
introduced during 1991, confirms that the high courts have a
discretion to stay the execution of an order. When
rule 45A was
introduced, it provided thus:
‘
The
court may suspend the execution of any order for such period as it
may deem fit.’
The
rule was amended with effect from 1 December 2020 and the relevant
part now reads:
‘
The
court may, on application, suspend the operation and execution of any
order for such period as it may deem fit . . .’
[38]
The
amended rule 45A now raises the question whether the discretion of
the court to
mero
moto
suspend the execution of its orders, has been removed. I think not.
In
PFE
International and Others v Industrial Development Corporation of
South Africa Ltd
[17]
it was
held:
‘
Since
the rules are made for courts to facilitate the adjudication of
cases, the superior courts enjoy the power to regulate their
processes, taking into account the interests of justice.
[18]
It
is this power that makes every superior court the master of its own
process. It enables a superior court to lay down a
process to be
followed in particular cases, even if that process deviates from what
its rules prescribe. Consistent with that power,
this court may in
the interests of justice depart from its own rules.’
[19]
[39]
In appropriate cases, in my view,
the courts, despite the amendment of rule 45A by the addition of the
words ‘on application’
may still suspend the execution of
its orders. This is so not only because it has always been the
position under the common law,
but also given the inherent power of
the superior courts to regulate its own processes.
[40]
The
superior courts’ exercise of the power to suspend the execution
of its orders, whether it does so under the common law
or in terms of
rule 45A, must of course be rational, and this applies also for the
determination of the period of the suspension.
[20]
[41]
In
AJP
International CC
Spilg J considered the
question whether there ought to be a distinction between the ability
of a court to delay an ejectment order
from a residential property as
opposed to a commercial property. I agree with his answer in this
regard, as follows:
‘
While
different considerations may apply as to whether to exercise the
power in a given case, the case law cited earlier demonstrates
that
no such distinction exists.’
[42]
I now turn to consider
whether there should be a stay of the eviction order which I intend
to grant. I am persuaded in favour of
a suspension for a number of
reasons, which are discussed below.
[43]
The respondent has
occupied the premises for many years and had a healthy relationship
with the former landlord, Chateau. Chateau
had over the years not
objected to the payment of rental by the respondent after the first
day of the month.
[44]
From the time that the
applicant took ownership of the property, it did not recognise the
validity of the lease. It overcharged
the respondent, and also
attempted to get the respondent to enter into a new lease agreement
which was more onerous for the respondent,
with about half the floor
space for the same rental amount than what was provided for in the
agreement which remained in place.
[45]
The applicant took an
uncompromising stance towards the respondent. In giving instructions
to its agent, the applicant commanded
that the respondent (who was
referred to as ‘the Chinese Tenant’) be evicted if it
failed to accept a draft lease agreement
which had been prepared.
[46]
Despite its insistence
that the “huur gaat voor koop” principle was applicable,
the respondent nevertheless expressed
its willingness to negotiate a
new lease with the applicant.
[47]
On 12 February 2021,
after the respondent did not pay its rental on the first day of the
month, the applicant, without any forewarning,
notified the
respondent of the termination of the lease agreement. I am not saying
that the applicant was required to forewarn
the respondent, but
forewarning or some notice could have been displayed by common
decency.
[48]
Since the cancellation
notice, the respondent has been timeously paying the rental due under
the lease agreement.
[49]
The respondent conducts
a retail business out of the premises. It sells various items
including clothing, bags, shoes, bedding and
general accessories.
[50]
There are also other
businesses operating from the premises, as the respondent received
permission from Chateau to sub-divide and
sub-let a portion of the
premises.
[51]
The respondent will
find it difficult to find alternative accommodation at the same or
similar rental as it was paying under the
lease agreement.
[52]
Under the circumstances
I am of the view that cogent grounds exist in favour of a suspension
of an eviction order. The respondent
should be given sufficient time
to find alternative premises and to restore the leased premises as
required under clause 9.3.13
of the lease agreement. I am of the view
that a period of three months should suffice.
[53]
What remains is the
issue of costs; this should be granted on an attorney and client
scale as provided for in the lease agreement.
The
order
In
the result, the following order is made
1.
The respondent and all
those holding title under it are ordered to vacate the premises known
as Shop 2, 20 Church Street, corner
of Kruskal Avenue and Church
Street, Bellville, Western Cape (“the premises”) in the
property known as erf 10989 Bellville,
Western Cape by no later than
1 December 2021.
2.
In the event of a
failure to vacate the premises as set out in 1 above, the Sheriff of
this court is ordered and directed to evict
the respondent and all
those holding title under it from the premises.
3.
The respondent is
ordered to pay the applicant’s costs on an attorney and client
scale.
S
HOCKEY
Acting Judge of
the
High Court:
Western Cape
Appearance
For
the applicant: J Bence
instructed by PPM Attorneys
For
the respondent: D Pietersen instructed by
David Kesler & Co
[1]
1995
(2) SA 926 (A)
[2]
Ibid
at 939A-C
[3]
2012 (4) SA 593
(SCA)
[4]
Ibid
para 18
[5]
2018
(2) SA 314 (SCA)
[6]
This rule requires that in the event of the wording of a document
not being clear, or where there is a real ambiguity, a written
document is to be construed against the person who drafted it. See
Fedgen Insurance Ltd v
Leyds
1995 (3) SA 33
(A) at 38D-E
[7]
See
Cairns
(Pty) Ltd v Playdon & Co, Ltd
1948 (3) SA 99
(A) at 123
[8]
Mohamed’s
Leisure Holdings
(supra)
para 31
[9]
Agreements,
freely and voluntary concluded, must be
honoured
–
see
Beadica
231 CC and Others v Trustees, Oregon Trust and Others
2020 (5) SA 247
(CC) para 12
[10]
2007
(5) SA 323 (CC)
[11]
Ibid
para 15
[12]
1990 (1) SA 427
(D)
[13]
1984
(4) SA 9 (T)
[14]
Moodley
(supra)
at 431F-I
[15]
2018
(1) SA 535 (GJ)
[16]
Ibid para 21
[17]
2013
(1) SA 1 (CC).
[18]
Section
173 of the Constitution provides: ‘The Constitutional Court,
Supreme Court of Appeal and High Courts have the inherent
power to
protect and regulate their own process, and to develop the common
law, taking into account the interests of justice.’
[19]
PFE
International
(supra)
para 30
[20]
See
AJP
Properties CC
(supra) para 34