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[2022] ZAGPJHC 145
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Full Sail 3 (Pty) Ltd v Tsehay Import and Export CC (4448/2021) [2022] ZAGPJHC 145 (14 March 2022)
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
CASE NO: 4448/2021
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
REVISED.
14/3/2022
In the matter between:
FULL
SAIL 3(PTY)
LTD
Applicant
And
TSEHAY
IMPORT AND EXPORT CC
Respondent
JUDGMENT
MAKUME,
J
:
[1]
This is an application in terms of which the Applicant seeks an order
evicting the
Respondent from certain business premises situated at
Shop No 5 Aston Mansion, 178 Jeppe Street, Corner Van Brandi Street,
Johannesburg.
[2]
The parties concluded a written lease agreement on the 5
th
August 2013. The duration of the lease was for a period of one year
expiring on the 31
st
July 2014.
[3]
The Respondent as it was entitled to exercised its option to renew
the lease for a
further three terms of 12 months each eventually
expiring on the 31
st
July 2017 where after it was never
renewed. The Respondent however, remained in occupation of the
premises.
[4]
On the 25
th
November 2020 the Applicant informed the
Respondent about the termination of the lease and requested the
Respondent to vacate by
the 31
st
December 2020.
[5]
The terms of the lease agreement concluded by the parties stated
amongst others the
following:
5.1 The Rental
payable by the Respondent was the sum of R15 000.00 (Fifteen
Thousand Rand) per month excluding
VAT plus 50% share of any levies
or other charges levied on the premises.
5.2 The Respondent
would be responsible for payment of electricity, water, special
sewerage and affluent charges
and any other municipal services
charged in respect of the premises.
5.3 The Respondent
was prohibited from sub-letting the premises or any portion thereof
nor to make any alterations
or additions to the premises, structural
or otherwise without the prior written consent of the Applicant
5.4 The Applicant
would be entitled to cancel the agreement on the happening of any of
the following events:
5.4.1 Failure to pay rental or any
other amounts and remain in default for a period of 10 days after
receipt of a notice calling
for such payment.
5.4.2 Breach any other term of the
agreement and remain in default for a period of 10 days after receipt
of a notice calling for
such breach to be remedied.
[6]
The notice informing the Respondent to vacate the premises due to
termination of the
agreement is dated 25
th
November 2020.
In it the Applicant’s attorneys wrote as follows:
“
The Lease
Agreement has been extended on several occasions, the latest of which
expired during 2017.
You have occupied the premises on a
monthly basis since that time you are in breach of the lease
agreement in that you are in arrear
with your rental and other
obligations in the sum of R150 608.67 as at date hereof which
amount despite demand you refuse
to pay.
In addition, you are in breach of the
agreement in that you are sub-letting the premises and or making
structural alterations to
the premise in breach of the agreement.”
[7]
The letter concluded with a paragraph informing the Respondent that
the lease is terminated
as on the 31
st
December 2020 on
which day the Respondent is expected to vacate the premises.
[8]
The Respondent failed to vacate the premises as a result on the 2
nd
February2021 the Applicant launched this application. The Respondent
entered appearance to defend on the 17
th
February 2021.
[9]
It is common cause that the only members of the Respondent CC are
Tsehay Sinishaw
Degaga and Yosef Habbie Degaga. Mr Yosef Habbie
Degaga signed the lease agreement on behalf of the Respondent. It is
accordingly
not correct that the deponent to the Respondent answering
affidavit is a member of the Respondent he Mr Dutore Africitio
Wonchaso
has not attached any resolution authorising him to depose to
the affidavit. His attempt to rectify this in a further affidavit
does not help cure the defect. He still has not furnished any power
of attorney authorising him to depose to such affidavit. Under
normal
circumstances this should be the end of the matter. However, seeing
that a substantial opposing affidavit has been filed
same cannot be
ignored.
[10] In
the answering affidavit the Mr Dutore says that he never received the
letter informing him
about the termination of the lease as it was
sent to a wrong address and accordingly that the letter of
termination is null and
void.
[11] He
continues to say and admits that for the period March 2020 to May
2020 the Respondent did
not make any payment of rent due to Covid-19.
They did make payment for June, July and August 2020. He then adds
that on the 20
th
September 2020 the premises were
destroyed by fire as a result they had to do repairs to the value of
R350 000.00
[12] In
the final analyses the Respondent says that it will be fair and
equitable if they are exonerated
from payment of rental due to the
fact that they spent money doing repairs. They lastly say that since
the written lease expired
in 2017 its terms can no longer be
applicable to the oral lease that took effect thereafter. He also
denies that there is any sub-letting
of the premises.
[13] It
is trite law that under commercial law Principle of lease a tenancy
in respect of which rental
is payable monthly becomes terminable on
one-month notice. This therefore means that the Respondent is in
unlawful occupation since
the 1
st
January 2021
[14] The
statement that the notice of termination was sent to a wrong address
cannot be sustained.
It is the email that was used by Mr Degaga. Mr
Dutore does not tell this Court whether the email to which the notice
was sent does
belong to the Respondent or not.
[15] The
termination was valid as the notice was sent to the most recent email
that Mr Degaga had
used. The defence of non-receipt falls to be
dismissed. Alternatively, the service of this application is also
sufficient notice
of termination and calls upon the Respondent to
vacate (See the matter of
Middleburg Town Council vs Trans Natal
Steenkamp Korporatie Bpk
1987 (2) ALL SA 244.)
[16]
There is no valid defence to the eviction application and in the
result I hereby grant an order
in the terms as per attached craft
order marked “X”.
Dated
at Johannesburg on this 14 day of March 2022.
M
A MAKUME
JUDGE
OF THE HIGH COURT
GAUTENG
LOCAL DIVISION, JOHANNESBURG
Appearances:
DATE
OF HEARING
:
15 FEBRUARY 2022
DATE
OF JUDGMENT :
MARCH 2022
FOR
APPLICANT
:
ADV K NAIDOO
INSTRUCTED
BY
:
MESSRS VALLY CHAGAN & ASSOCIATES
FOR
RESPONDENT
:
ADV ROBERTS
INSTRUCTED
BY
:
ESTATES INCORPORATED