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[2011] ZAGPJHC 169
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Lebone Mpilo Take Aways CC and Another v Maqelepo and Another (14867/2011) [2011] ZAGPJHC 169 (18 August 2011)
IN THE SOUTH GAUTENG HIGH COURT OF SOUTH AFRICA
JOHANNESBURG
CASE NO
: 14867/2011
DATE
: 2011-08-18
In the matter between
LEBONE MPILO TAKE AWAYS CC
…...............................
First
Applicant
NKHI NOMBUYISELO SIGNORA
…..............................
Second
Applicant
and
ISAAC
MAQELEPO
.......................................................
First
Respondent
OLD FASHIONED FISH & CHIPS
….........................
Second
Respondent
J U D G M E N T
WILLIS; J
:
[1] This is an application which is balanced by a counter
application. There is an application to stay eviction proceedings,
pending the institution of an action by the applicants namely Lebone
Mpilo Take Aways CC and there is a counter application for
their
eviction. The case relates to certain commercial premises, in the
Motsewa Lijane Shopping at the corner of Hospital and
Moseu Street
,Katlehong.
[2] It is common cause that Lebone Mpilo Take Aways are lessees of
premises owned by the first respondent. All that is really
in
dispute is the period for which the relevant lease agreement is to
run. The version of the landlord is that the agreement commenced
in
December 2007 and expired on 30 November 2010.
[3] In this regard the landlord relies upon a written agreement
which, it is common cause was unsigned. The lessee, however, says
that there was another agreement entered into in terms of which the
lease was extended to 30 September 2012. There is no written
documentation recording this variation. There is as I say an
unsigned document which records the lease as having expired in
November
2010.
[4] The lessee is applying for rectification of the agreement and
wishes to remain in the premises pending a trial action which
will
resolve the question of the rectification. This simply cannot hold.
There is a formidable onus to discharge. It does not
seem to me,
prima facie
, that there was such an agreement. At common law
the agreement would run on a month to month basis, because that is
the basis
upon which the lessee has, in the past, been paying rental.
In fairness to the lessee must be recorded is paying rental at the
moment in the sum of R9 000- a month.
[5] It is common cause that the landlord has given more than one
month's notice to the lessee, requiring the lessee to vacate the
premises. Accordingly, it seems to me that the landlord has to
succeed in obtaining the eviction order.
[6]I am not entirely without sympathy for the lessee. It has, after
all, been paying rental. I do not see why it should be penalised
with a punitive costs order. I consider it only fair, in all the
circumstances, that the lessee should be given until 30 September
2011 to vacate the premises. I have asked counsel for the landlord
to prepare a draft which will be marked “X”, which
will
reflect my intention, namely that the application to stay eviction be
dismissed and that the lessee be evicted, but that the
date of
eviction is to be 30 September 2011 and that the first applicant only
(that is Lebone Mpilo Take Aways CC) which is to
pay costs on an
ordinary scale.
[7] Later during the course of the afternoon I came to receive a
draft marked “X”. It has been intialedd by me. That
is
the order of the court.
Counsel for the applicants: Adv K Mnyandu
Attorneys for the applicants: Bongani Khoza.
Counsel for the first respondent: Adv.J G Dobie
Attorneys for the first respondent: Riaan Swanepoel.
No appearance for second respondent.
Date of hearing: 18 August 2011.
Date of judgment: 18 August 2011.