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[2010] ZAGPJHC 86
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Killarney Mall Properties (Pty) Ltd v Mediterranean kitchen CC t/a Anat and Burgers Barâ (33005/2010) [2010] ZAGPJHC 86 (28 September 2010)
NOT REPORTABLE
SOUTH GAUTENG HIGH COURT, JOHANNESBURG
CASE NO: 33005/2010
DATE: 28/09/2010
In the matter between:-
KILLARNEY MALL PROPERTIES (PTY)
LTD
.................................
Applicant
And
MEDITERRANEAN KITCHEN CC t/a
ANAT AND BURGERS
BAR”
.......................................................
Respondent
J U D G M E N T
MATHOPO, J
:
[1]
The applicant the
owner of Killarney Mall, a shopping centre in Johannesburg, seek an
order on urgent basis evicting the respondent
from certain commercial
premises being shops and a storeroom owned by the applicant. The
respondent opposes the application on
the basis that it has a valid
and binding lease with the applicant. On 22
nd
September 2010 after hearing argument I granted the application and
indicated that my reasons would follow later. These are my
reasons:
[2]
It is common cause
that the respondent occupied the premises in terms of a written
lease agreement concluded on or about the 23
rd
September 2005, which lease expired by
effluxion
of time on the 31
st
October 2008.
[3] The applicant contends that the lessee failed
to renew the lease agreement in terms of clause 9 of the lease
agreement. The
relevant provisions of the said clause around which a
major dispute between the parties revolves read as follows:
“
9.1 If the Lessee wishes to renew this
lease for the renewal period, it shall give written notice to the
Lessor not later than 3
(three) months prior to the expiry date.
Should such notice not be given by that date, the Lessee shall be
deemed to have no intention
of renewing this lease.
9.2
The Lessee
shall not be entitled to renew this lease for the renewal period if
the Lessee:-
9.2.1
Has on
more than one occasion breached a provision of his lease, in respect
of which a notice of breach has been given by the Lessor
in terms of
clause 32;or
9.2.2 Is in breach of this lease at the time
the notice referred to in clause 9.1 is given
9.3 The terms and conditions of this lease applicable during the
renewal period shall be such terms and conditions as will have been
agreed upon in writing between the Lessor and Lessee not later than 2
(two) months prior to the expiry date.
9.4 Notwithstanding anything to the contrary herein contained,
unless all the terms and conditions of an agreement of lease
pertaining
to the renewal period are agreed upon in writing between
the Lessor and the Lessee not later than 2 (two) months prior to the
expiry
date:
9.4.1 this lease will not have been renewed at all; and
9.4.2 this lease shall terminate on the expiry date
[
4] The respondent
alleges that not less than three (3) months before the expiry of the
lease notified the applicant in writing
that it intended to renew the
lease for a further period of three (3) years.
[
5] The respondent
contends that as a result of the renewal of the lease it is entitled
to remain in the premises until the 31
st
October 2011. In essence the respondent states that it renewed the
lease by signing a copy thereof and handed it to the applicant
and
further states that despite diligent search it is unable to locate a
copy of this letter or the renewed lease.
[6] The applicant contends that the respondent’s
reliance on written offer dated 28 November 2008, as constituting
evidence
of renewal of the lease is misplaced because this offer was
not accepted by the landlord because the written offer was expressed
to “remain open” for acceptance by the lessor in writing
within 60 (Sixty) days of receipt of the signed letter. As
it is
common cause between the parties that the landlord did not accept it,
the applicant submits that no valid agreement came
into existence and
urged upon me to reject the respondent’s argument as
fallacious.
[
7] It is the
applicant’s case that a written lease agreement was prepared
and submitted to the respondent by various officials
in the employ of
City Property Administration, who are the applicant’s managing
agents and whose responsibilities include
inter
alia
, letting and hiring portions of
the property which are suitable for letting. The respondent did not
sign any agreements with the
result that its continued tenancy of the
leased premises was on a month to month basis.
[8
] It was submitted on
behalf of the applicant that failure or refusal by the respondent to
sign the lease unequivocally meant that
the offer of lease was
declined by the respondent with the result, that absent any renewal
of the lease agreement, the relationship
between the parties was one
of a tacit monthly lease agreement on the same terms as the written
lease agreement. In support of
its argument, the applicant relied on
the decision of
Pareto Ltd & Others
v Mythos Leather Manufacturing (Pty) Ltd 2000(3) SA 999(W).
[9] It was
further
submitted on behalf of the applicant that even if the respondent
allegedly gave a written notice of renewal (which is denied)
no valid
lease agreement came into existence because the respondent was hit by
the provisions of clauses 9.3 and 9.4 of the lease
agreement.
[
10] Mr Hollander for
the applicant submitted that the respondent’s argument that it
misplaced the letter accompanying the
lease agreement is a ruse and
urged upon me not to give the respondent a “new lease of life”
in circumstances where
the odds were heavily stacked against it. He
submitted that on proper reading of the provisions of clauses
(dealing with renewal),
absent any compliance as in the instant case,
no lease agreement came into existence and on this ground alone, he
urged me to dismiss
the respondent’s case.
[
11] I agree with Mr
Hollander, that no evidence was submitted by the respondent that it
signed the lease agreement and handed it
back to the landlord. The
suggestion that it misplaced the lease together with the letter of
renewal is in my view a belated
attempt to obtain a “new lease
of life” (continued tenancy) in circumstances where on the
objective facts, it is untenable
to do so. I find that the
respondent has not established the alleged renewal or written lease
agreement. I am fortified in my
view by the evidence of Ms Norton
and Ms Lowe to the effect that on numerous occasions they both called
at the offices of the respondent
for a signed written agreement to no
avail. Mr Smit for the respondent, alive to this difficulty sought
refuge in another alternative
defence for the respondent’s
resistance to this application by alleging that a lease agreement
came into existence by the
conduct of the landlord as evidenced in
documents styled NC6 (unsigned written lease agreement) and NC8
(Tenant transaction history).
[
12] The respondent
main contention is that it signed the lease agreement and handed it
back to the applicant and argued that failure
to produce a copy of
the signed agreement should not be construed against it. In support
of its argument regarding a signed lease
in NC6, the respondent
states that according to the tenant transaction NC8 which is uplifted
for NC6 a lease agreement came into
existence. In essence so the
argument goes, the tenant transaction is an indication that the
landlord accepted NC6 as a binding
agreement notwithstanding the
provisions of clause 45.
[13]
This submission was
rejected by the applicant on the basis that it is not the
respondent’s case that the landlord agreed or
conveyed any
intention to be bound by that document (NC6). Furthermore the
respondent in the answering affidavit never stated
that it consider
itself bound by NC6 and thus entitled to remain in the premises. Mr
Hollander rightly submitted that this argument
is negated by the
respondent
ipse dixit
in the answering affidavit when he said “I do not know why the
landlord never signed the lease”. Again in support
of its
argument, the applicant relied on the provisions of clause 45 of the
lease agreement which states that
“the
lease agreement is binding only when signed by the lessor”
(my emphasis). The landlord having not signed, no agreement came
into existence.
[14
] Another reason why
I find the respondent’s version untenable is that after the
applicant had terminated by notice the monthly
lease one would have
naturally expected the respondent to raise the hue and cry
immediately assert that it has a valid lease agreement
to continue in
the premises instead of engaging in fruitless negotiations with the
applicant designed to perpetuate its unlawful
occupation. In my
view, the lease having been validly cancelled, there was no basis for
the respondent to remain in the premises.
It is belated attempt in
signing the lease agreement only on the 12
th
July 2010, i.e. after termination of the lease, is an attempt to lock
the stable after the horse has bolted.
[15] I agree with the applicant that the
respondent’s alternative defence has no merit and falls to be
rejected. Another
reason why I am of the view that this defence has
no substance is because it was not the respondent’s pleaded
case and it
only emerged in their counsel’s heads of argument
and address in court. Clearly this was an after- thought.
[16
] Finally it was
submitted that even if the respondent renewed the lease on time
(which is denied) the applicant is entitled to
cancel the lease
agreement on account of several breaches relating to non payment of
the rental and other amounts on time. In
addition, the respondent
signed an acknowledgement of debt on the 21 November 2009 and at
Killarney to repay the outstanding sum
of R122 336.02 in respect of
arrear rentals and other amounts. In my view as a result of this
admission and because of the irregular
payments the applicant was
entitled to cancel the lease agreement. It is common cause that the
rental portion of R122 336.02 owing
as at 31
st
July 2010 was not paid by the 1
st
July 2010 and on the authority of
Win
Twice Properties (Pty) Ltd v Binos & Another 2004(4) SA 436 (W).
The cancellation of the lease was
accordingly proper.
[1
7] I therefore
conclude that the respondent did not renew the lease agreement and
that the applicant on the 28
th
May 2010 by letter gave the respondent notice to vacate the premises
by the 30
th
June 2010. In my view the tacit lease agreement having been validly
cancelled, the respondent is obliged to vacate the premises.
[18] Another corollary issue relates to the
respondent’s counter application of spoliation. This
application was devoid of
any merit Counsel for the respondent also
conceded correctly in my view that if I find for the applicant it is
not necessary for
me to deal with the counter-application.
I
n the result I
therefore make the following order:
The respondent and any person or entity claiming the title or under
the respondent be immediately evicted on 22 September 2010
from the
premises situated at Shops No.7 & 8 Killarney Mall together with
Storeroom No. 28C at 60 Riviera, Killarney, Johannesburg;
The Sheriff for the district of Sandton or his lawful Deputy be
authorised and directed to take such steps as are required in
order
to give effect to the order in terms of 1 above.
The respondent to pay the costs of suit, on the
attorney and own client scale.
____________________________
RS MATHOPO
JUDGE OF THE HIGH COURT
Appearances:
For the Applicant : Adv. Hollander
Instructed by : TWB-TIGENDHAFT WAPNICK
BANCHETTI & PARTNERS
For the Respondent : Adv. Smit
Instructed by : J I AFRIAT ATTORNEYS
Date of hearing : 22 September 2010
Date of Judgment : 28 September 2010