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2020
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[2020] ZAGPJHC 224
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Pareto Limited v Credonamix CC t/a Portobello (2019/27944) [2020] ZAGPJHC 224 (6 August 2020)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
Case
No.: 2019/27944
In
the matter between:
PARETO
LIMITED
(REGISTRATION
NO:
1998/000118/06)
Applicant
and
CREDONAMIX
CC t/a PORTOBELLO
(REGISTRATION
NO:
2009/214709/23)
Respondent
JUDGMENT
Gilbert
AJ
1.
The applicant is a lessor who seeks an order confirming the
cancellation of a lease agreement, alternatively cancelling a lease
agreement concluded with the respondent in respect of commercial
retail premises in Cresta Shopping Centre, together with an ejectment
order.
2.
The case made out by the applicant as lessor is straightforward: a
written lease agreement was concluded during May 2016; the
respondent
took and remains in occupation of the premises; notwithstanding
demand the respondent failed to make payment of rentals
and other
amounts due in terms of the lease agreement; as a result the
applicant cancelled the lease agreement on 22 July
2019.
3.
The respondent does not dispute any of these facts. The respondent
resists the eviction by asserting in paragraph 19
of its
answering affidavit that “
the applicant unilaterally and in
gross breach of the agreement changed the tenant mix to such an
extent that the patronage number
of the respondent drastically
changed for the worse
”.
4.
The respondent further continues that as a result thereof the
applicant “
through its conduct made it totally impossible
for respondent to meet its commitment to the applicant
”
(paragraph 35 of the answering affidavit), and that the lease
agreement was rendered “
null and void”
(paragraph 36 of the answering affidavit). It is therefore
common cause as matters how stand that there is no extant lease.
5.
The respondent asserts that “
the applicant is obliged to
enter into a new lease agreement whereby the terms are such that (i)
it is in line with the present
and existing tenant mix; (ii) takes
cognisance of the dramatic decrease in turnover of the respondent due
to such tenant mix”
(paragraph 37 of the answering
affidavit). The respondent counterclaims for relief against the
applicant in these terms, directed
at obliging the applicant to
negotiate the terms of a lease.
6. The respondent’s
case is predicated upon it establishing that the applicant had acted
in breach of the lease agreement
in changing the tenant mix. During
argument I asked the respondent’s attorney which obligation or
clause in the lease agreement
the applicant had breached. I was
directed to clause 29.1 of the lease agreement, which on the
respondent’s attorney’s
interpretation precluded the
lessor from changing the tenant mix without the consent of the
respondent as the tenant. Clause 29.1
provides for an entitlement on
the part of the applicant as lessor to terminate the lease or any
renewal thereof in certain circumstances,
one of which is if it
wishes to effect a change in the tenant mix. This clause does not
impose any obligation upon the applicant
to obtain the consent of the
respondent before doing so.
7.
Also apposite is clause 13.2 of the lease agreement:
“
The landlord
does not warrant that any other premises in the complex will not be
let for any other purposes as stipulated in clause 1.5
to any
person, or that any other tenant in the complex will not compete with
any of the businesses of the tenant
.”
8.
No right of exclusivity is conferred on the respondent.
9.
The respondent further submitted that the manner in which the
marketing fund provided for in clause 1.23 of the agreement was
utilised, as well as the manner in which the applicant went about
advertising and promoting the shopping centre negatively impacted
upon the respondent’s patronage. But there is no positive
obligation in the lease agreement that precludes the applicant
from
acting in the manner that the respondent alleged that it did.
10.
The respondent also contended that it had attempted “
to
limit its damages”
and that the applicant had refused to
engage constructively with it in relation to its complaints. Again,
there is nothing indicated
in the lease agreement that places any
positive obligation on the applicant in this regard.
11.
In the circumstances, no case has been made out that the applicant as
lessor breached the lease agreement.
12.
Absent a breach of the agreement, the respondent’s opposition
fails.
13.
It is further common cause, albeit for different reasons, that there
is no extant lease and so no basis upon which the respondent
can
remain in occupation of the premises.
14.
It is therefore unnecessary to consider the further issues that may
otherwise have arisen had the breach been established, such
as how
such breach may have excused the respondent from having to pay arrear
rentals and other charges which as at March 2019 were
already
R474,820.00 when demand was made and which had escalated to
R875,642.83 as at date of the launch of the proceedings on
8 July
2019. Or how such a breach, if established, would have resulted in
the agreement being “
null and void
” and would have
obliged the applicant as lessor to renegotiate the terms of the lease
on the basis as sought by the respondent.
15.
In the circumstances, the application by the applicant succeeds and
the respondent’s counter-application is dismissed.
16. The following order
is made:
16.1. It is confirmed
that the lease agreement between the applicant and the respondent was
validly cancelled on 22 July 2019;
16.2. The respondent and
all those occupying the premises by, through or under the respondent
are ejected from the premises situated
at Shop L50, Cresta
Shopping Centre, Cnr Beyers Naude and Weltevreden Road, Cresta
Extension 4, Johannesburg;
16.3. In the event that
the respondent and those occupying the premises by, through or under
the respondent do not vacate the premises
within 5 (five) court days
of the date of this order, the Sheriff is authorised and directed to
eject the respondent and all those
occupying the premises by, through
or under the respondent;
16.4. The Sheriff is
authorised to approach the South African Police Service for any
assistance that may be required and the South African
Police
Service is directed to render such assistance or support that may be
required to effect the ejectment;
16.5. The respondent is
to pay the costs of the application;
16.6. The respondent’s
counter-application dated 23 September 2019 is dismissed with
costs.
______________________
Gilbert AJ
Date
of hearing: 4 August 2020
Date of judgment: 6
August 2020
For
the Applicant: Advocate V Obonah (Ms)
Instructed
by: Pule Inc.
For
the Respondent: Mr N Bouwer (Attorney)
Instructed
by: Bouwer Malherbe Attorneys