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[2016] ZAGPJHC 190
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Ascension Properties Limited v Sebola (2015/05678) [2016] ZAGPJHC 190 (8 July 2016)
REPUBLIC
OF SOUTH AFRICA
IN THE
HIGH COURT OF SOUTH AFRICA,
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 2015/05678
DATE:
8 JULY 2016
In the matter
between:
ASCENSION
PROPERTIES
LIMITED
................................................................................
Applicant
And
SEBOLA
MASHILO
SHADRAK
........................................................................................
Respondent
J U D G M E N T
LAMONT, J
:
[1]
The applicant seeks the ejectment of the first respondent from
certain leased premises and seeks payment of monies due by first
and
second respondents to it.
[2]
During the hearing the applicant abandoned the claim for payment of
monies.
[3]
It is common cause that the applicant is the registered owner of
certain leased premises occupied by the first respondent. The
first
respondent was obliged to pay rental to the applicant for the leased
premises which included certain parking. All amounts
were payable by
the first respondent to the applicant in terms of the lease agreement
monthly in advance on or before the 1
st
business day of each calendar month without deduction, or set-off
failing which the first respondent was to pay interest upon the
outstanding amounts at a rate equal to 2% above the prime rate.
[4]
The applicant’s evidence was that the first respondent had
persistently failed to pay the monthly rentals due to it.
The
respondents initially alleged in a bare denial that monies were not
due. Subsequently in paragraph 28.1 it is apparent
that there
were arrear rentals, that an amount was paid late (on 26
th
January 2015 (R12 000.00)) and that the respondents alleged that
this amount was not taken into account in the calculation
of the
claimed amount.
[5]
On this basis there were arrear rentals at least equal to the
R12 000.00. In addition there were monies due in respect
of
legal costs.
[6] At the hearing the first respondent who represented himself
relied on only one issue. This was the provision of clause 33 of
the
lease which provides:
“
33. DISPUTE RESOLUTION
33.1
Should
any dispute or disagreement arise between the parties relating to:
33.1.1
any matter in respect of which provision is made in terms of this
agreement for such dispute to be determined by a referee;
33.1.2
the
breach or interpretation or cancellation of this agreement; or
33.1.3
any matter or circumstance arising out of or in connection with this
agreement or its termination or cancellation, such dispute
or
disagreement shall be resolved by a referee in accordance with this
clause, it being the intention of the parties that any dispute
or
disagreement shall be resolved as amicably, quickly and in the most
cost-effective manner possible in the circumstances.
”
[7]
The clause does not provide for a removal of the jurisdiction of any
court to hear the matter it merely provides their disputes
which can
be quickly and cost-effectively resolved be referred to a referee. It
also does not remove jurisdiction from the court
where there is no
dispute or disagreement.
[8]
There is no dispute that the first respondent is in arrears.
The applicant sent the first respondent a letter of demand
which was
served in July 2014. The applicant later sent the first
respondent a second demand. Notwithstanding the demands
and the
demand made in the application itself the first respondent remained
in default. There was no dispute by the first respondent
of the
default or the entitlement of the applicant pursuant to the written
notice to cancel the contract. This being so there was
nothing to
refer to a referee. The applicant was entitled to approach the court
for the ejectment order. See also
Standard
Credit Corporation v Bester and Others
1987 (1) SA 812
(W).
[9]
In the premises it was common cause that the lease agreement was
concluded, that it was properly cancelled due to the first
respondent
being in arrears and hence that the first respondent should be
ejected.
[10]
In the circumstances I grant an order in terms of paragraphs 1, 2 and
5 of the notice of motion.
C
G LAMONT
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG