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[2011] ZAGPJHC 63
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Marble Gold 156 (Pty) Ltd v Seven Days Trading 13 (Pty) Ltd (48640/2010) [2011] ZAGPJHC 63 (22 February 2011)
IN
THE SOUTH GAUTENG HIGH COURT OF SOUTH AFRICA
JOHANNESBURG
CASE
NO
: 48640/2010
DATE
:
2011-02-22
NOT
REPORTABLE
In
the matter between:
MARBLE GOLD 156
(PTY) LTD
Applicant
and
SEVEN DAYS
TRADING 13 (PTY) LTD
..
Respondent
JUDGMENT
C.
J. CLAASSEN J
:
[1]
This
is an application for the eviction of the respondent's company from
the property mentioned in the notice of motion. It
is common
cause between the parties that a lease agreement was concluded
wherein the applicant as lessor leased the aforesaid property
to the
respondent as lessee for a period of 24 months.
[2]
The commencement date of the
lease was 1 December 2006 which meant that the 24 months would have
lapsed by 30 November 2008. In
Clause 47 of the lease an option to
renew the lease is recorded in the following terms:
“
47.1
Provided that the tenant shall
have
fulfilled all the terms and conditions of this agreement he shall be
entitled to renew same for a further period of 5 (five)
years at
rentals as negotiated and agreed to by the parties.
47.2
The tenant shall be
obliged to give the landlord 6 (six) months written notice prior to
the termination of this agreement of his
intention to renew same
under the provision of this clause. In the event of a renewal the
tenant shall pay all costs in connection
therewith including the
stamp duty."
[3]
It is common cause that
the respondent exercised the option to renew timeously. The question
to be answered in this case is whether
the parties negotiated and/or
agreed rentals for the renewal period. Since the expiry of the
original lease on 30 November 2008,
the respondent remained in
occupation of the property up to the present time.
[4]
Much correspondence passed
between the parties. The respondent raised a dispute as to whether or
not it had overpaid the applicant
in respect of the municipal rates
etc. Be that as it may, the applicant, driven as a last resort to
settle the matter, wrote a
letter dated 25 July 2010.
[5]
In paragraph 8 and 9
thereof it is stated that the applicant attached all copies of
accounts presented to and paid by the applicant
for various rates and
charges to the municipality. It further stated that the applicant was
willing to waive any or all municipal
charges claimed previously. It
attached a schedule headed SUMMARY FROM JUNE 2010 TO JUNE 2011,
indicating what amounts are due
and what amounts have been waived.
[6]
The letter further
states that as of June 2010 an amount of R638 215.77 was due and
owing. As a gesture of goodwill, the applicant
offered as a
settlement that the respondent should pay an amount of R550 000 in
full and final settlement of all arrear payments.
In conclusion in
paragraph 16 the following was stated:
“
Failing which it is our
instruction to then immediately withdraw the action in the
Magistrate’s Court and tender your wasted
costs to your clients
for eviction from the premises and recovery for the full outstanding
amount in the High Court.”
[7]
No response or reply to
this letter was forthcoming from the respondent. It must therefore be
accepted as a fact that the parties’
alleged negotiation of
rentals did not result in an agreed rental for any further period
beyond the original term of the lease.
[8]
Counsel for the
respondent submitted that the applicant has no right to evict the
respondent, because the respondent made certain
payments which were
accepted by the applicant, thus denying the applicant the right to
evict the respondent. In my view there might
have been some basis for
such an argument in the absence of the expressed notification
contained in the letter of 25 July 2010.
That letter clearly evinces
an attitude on behalf of the applicant that it no longer wanted the
respondent to be in occupation
of the premises and that it would seek
the respondent’s eviction unless the respondent accepted the
terms contained in such
letter.
[9]
Because the respondent
did not accept such terms, I am of the view that the applicant is
therefore entitled to move for an eviction
against the respondent.
The applicant is not seeking payment of any arrear amounts. It is
seeking an eviction order in order. Once
evicted from the property,
applicant wishes to rent out the property to somebody with whom they
can agree on rentals.
[10]
It would be a travesty
of justice if the respondent is permitted to retain possession of the
property while continually arguing
about the rental. Any rights of
occupation which the respondent may have had emanated from the
provisions of Clause 47 of the original
agreement. Clause 47 does not
contemplate a right entitling the respondent to remain in occupation
of the property indeterminently
while it endlessly negotiates for
some or other increased rental for the future.
[11]
The clause must as of
necessity mean that If the parties cannot conclude within a
reasonable period an agreed rental, the lease
became inchoate and
unenforceable. In such circumstances the applicant would be entitled
to evict the respondent as the latter
has no legally enforceable
title to insist on occupation of the premises. There is no basis upon
which the respondent can contend
that the parties agreed to allow the
respondent to remain in occupation of the premises for an
undetermined period of time.
[12]
The respondent’s
continued occupation of the premises occurred as a result of it
exercising the option in terms of clause
47. That clause, on a proper
construction, can only mean that continued occupation would be lawful
while the parties are
bona
fide
engaged in negotiating
an agreed rental for a new lease period of 5 years subsequent to the
termination of the orinal lease. If
after the lapse of a reasonable
period no rental was agreed to, the respondent’s rights of
occupation terminated.
[13]
In such instance, there
was a duty upon the respondent to vacate the premises. All rental
accepted by the applicant for the continued
occupation was based upon
the understanding that the subsequent occupation was permitted only
in terms of Clause 47 and in terms
of no other contractual right.
[14]
It was also not
occupying the premises after the lapse of the original lease in terms
of the common law principle that a monthly
tenancy occurs where the
tenant remains in occupation while paying rentals which are accepted
by the lessor without demure. That
principle does not apply in the
present. The respondent does not allege or rely upon a monthly
tenancy in its answering affidavits.
[15]
The letter of 25 July
2010 in my view is a clear notice to respondent to vacate the
property in the absebce of the partiesagreeing
to a new rental. The
tenor of this letter expressly excludes any possibility of a monthly
tenancy coming into operation upon a
failure to agree such new
rental. Respondent’s failure to reply or reject the terms of
this letter is, in my opinion fatal
to the respondent’s case.
[16]
The respondent may feel
that it has a claim for the return of money which it may have
overpaid. The respondent is in no way prevented
from instituting
action to reclaim such money which it allegedly overpaid. However,
that does not entitle respondent to continued
occupation of the
premises.
[17]
For the aforesaid
reasons I am of the view that the application should succeed. I make
an order in terms of paragraphs 1, 2 (as
amended) and 3 of the draft
order marked "X" which I dated and initialled. Paragraph 2
of the draft order is amended
to read: “That the eviction order
in terms of this notice of motion can be carried out immediately if
the respondent/defendant
does not vacate the aforesaid premises by 15
April 2011.”
THUS
DONE AND SIGNED AT JOHANNESBURG THIS DAY OF JUNE 2011.
C.J.CLAASSEN
JUDGE
OF THE HIGH COURT