Summary of Judgment

1. Introduction

This was an application for eviction brought in the Gauteng Local Division, Johannesburg. The applicant, Trireme CC t/a Appletons Village, was the owner (and lessor) of commercial premises at Appletons Village Shopping Centre in Randburg and sought the eviction of the respondents from Shop 11 in that centre.

The first respondent was Genesis Hair Studio (Pty) Ltd t/a Genesis Hair Studio, and the second respondent was Veneshree Sookmungal, who was involved in the occupation and, on the papers, acted as the deponent for the respondents. The proceedings arose from the respondents’ continued occupation of the premises after the applicant had cancelled the lease agreements due to persistent non-payment of rental and related charges.

From a procedural perspective, the eviction application was issued on 13 March 2019. The second respondent delivered an answering affidavit late on 16 April 2019 and sought condonation for late filing. The dispute concerned the termination of commercial lease arrangements, the consequences of arrear rental, and whether any defence existed to resist eviction after cancellation.

2. Material Facts

It was common cause that there were two lease agreements concluded at different times between the parties. The first lease was concluded on 6 November 2017 between the applicant and the second respondent, and it was due to expire on 30 November 2018. The second lease was concluded on 9 May 2018 between the applicant and the first respondent, with the second respondent signing as security for the first respondent. The second lease took effect on 1 December 2018 and was to terminate on 30 November 2021.

It was also common cause that, under both leases, the premises (Shop 11) were leased for the purpose of operating a hair salon.

The court treated it as undisputed that from about December 2017 the second respondent fell into arrears under the first lease and failed to remedy those arrears despite demands. This culminated in the cancellation of the first lease on 4 October 2018. Despite that cancellation, the second respondent remained in occupation and continued trading from the premises.

When the second lease commenced (from 1 December 2018), the respondents remained in occupation and again failed to pay rental as agreed. The applicant then cancelled the second lease on 22 February 2019 and called upon the respondents to vacate by 28 February 2019. At that time, the respondents’ indebtedness was stated as R60 658.40. By the time of determination, the court recorded that the respondents had not paid rental since February 2019 and that the arrears had increased to R115 108.20.

The second respondent, in her answering affidavit, stated that she was a director of the first respondent and authorised to depose to the affidavit; however, the court noted that she failed to file a resolution authorising her to act on behalf of the first respondent.

In relation to defences, the second respondent did not dispute that arrear rental was owed. Instead, she relied on allegations that the premises were not in good condition and not suitable for the hair salon business, that the applicant had undertaken to advance money for “installation” to facilitate repairs but failed to do so, and that she and her son took loans to fund renovations and fittings. She also alleged that she lost customers due to an unlawful lockout by the applicant. The court assessed these contentions as not establishing a legal basis to resist eviction in the circumstances of cancellation for non-payment.

3. Legal Issues

The central legal questions were whether the applicant had established that it was entitled to cancel the lease agreements due to breach, and whether, following cancellation, the respondents had shown any legal entitlement to remain in occupation of the premises.

A further issue was procedural: whether condonation should be granted for the late filing of the answering affidavit, and whether the granting or refusal of condonation would have practical consequences given the substance of the defences raised.

The dispute primarily concerned the application of legal principles to largely common-cause facts, particularly the consequences of admitted arrears and breach of lease terms, and the sufficiency (in law) of the respondents’ asserted defences to eviction.

4. Court’s Reasoning

On the procedural aspect, the court held that the respondents’ answering affidavit was late and that condonation was sought. However, the court considered that, on the merits as presented, granting or refusing condonation would not prejudice either party, because the answering affidavit did not disclose a defence that could defeat the eviction claim. The court therefore approached the matter on the basis that the substantive issues could be determined without the condonation question being decisive.

On the merits, the court treated the respondents’ arrears and ongoing non-payment as established. The court emphasised that the respondents had remained in arrears, had not paid rental from February 2019 onward, and had accrued substantial indebtedness. The second respondent’s own version was understood to confirm a pattern of late and often incomplete payments, which the court characterised as a concession of breach.

In addressing the respondents’ renovation-related defence, the court relied on the provisions of the lease, specifically clause 13, which required the respondent to complain about defects within 14 days. The court reasoned that this mechanism was not utilised: no timely complaint was made to the applicant or its agent as contemplated by the clause. On that basis, the court rejected the suggestion that alleged defects and renovations justified continued occupation or negated the applicant’s rights flowing from breach and cancellation. The court viewed the renovation point as an attempt to “buy time” rather than a valid defence in law to the eviction claim.

The court further found that the respondents’ reliance on loans taken to fund renovations did not bear on the legal validity of cancellation for non-payment. The question before the court was not whether the respondents had incurred expenses, but whether the applicant had established lawful cancellation due to breach and whether the respondents had any continuing right of occupation. Given the admitted arrears, the court concluded the applicant was entitled to cancel and that the respondents had failed to demonstrate any legal entitlement to remain.

5. Outcome and Relief

The court granted the eviction. It ordered that the first and second respondents, together with all persons occupying through or under them, be evicted from Shop 11, Appletons Village Shopping Centre, corner Hill and Malibongwe Drive, Ferndale, Randburg.

The respondents were ordered to vacate within 30 days of the order, failing which the sheriff (or deputy sheriff) was authorised to take the steps necessary to give effect to the eviction.

The court ordered costs against the first and second respondents on the attorney-and-client scale, jointly and severally, the one paying the other to be absolved.

Cases Cited

No cases were cited in the judgment.

Legislation Cited

No legislation was cited in the judgment.

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The court held that the respondents were in arrears, had breached the lease obligations, and had conceded non-payment on their own version. It held that the applicant was consequently entitled to cancel the lease agreement(s) and that, after cancellation, the respondents had not established any lawful basis to remain in occupation.

The court further held that the respondents’ reliance on alleged defects, renovations, and loans did not constitute a valid defence, particularly where the lease required complaints about defects within a specified period and this was not done. The applicant was therefore entitled to an eviction order, coupled with an enforcement mechanism through the sheriff if the respondents failed to vacate timeously, and to costs on an attorney-and-client scale.

LEGAL PRINCIPLES

A lessor is entitled to cancel a lease where the lessee is in breach through non-payment of rental, and where cancellation is effected, the lessee must vacate unless a lawful entitlement to remain is established on the papers.

Where a lease prescribes a procedure and timeframe for raising complaints about defects, a party seeking to rely on defects as a basis for resisting consequences of breach must comply with the contractual mechanism; failure to do so undermines reliance on defects as a defence.

Expenditure by an occupier on renovations or improvements, and financing arrangements undertaken for those renovations, do not without more displace the lessor’s rights flowing from valid cancellation for non-payment, nor do they in themselves confer a right to continued occupation.

A court may treat an application for condonation for late filing as non-decisive where, on the merits, the late affidavit does not raise a defence capable of affecting the outcome, and where the court considers that no material prejudice will arise from addressing the matter substantively.