UMMI Properties (Pty) Ltd v Cowsta Beleggings (Pty) Ltd and Another (1026/09) [2009] ZAECPEHC 18 (28 April 2009)

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[2009] ZAECPEHC 18
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UMMI Properties (Pty) Ltd v Cowsta Beleggings (Pty) Ltd and Another (1026/09) [2009] ZAECPEHC 18 (28 April 2009)

IN THE HIGH COURT OF
SOUTH AFRICA
(
EASTERN
CAPE - PORT ELIZABETH
)
CASE
No. 1026/09
NOT
REPORTABLE
In
the matter between:-
UMMI
PROPERTIES (PTY) LTD
Applicant
and
COWSTA
BELEGGINGS (PTY) (LTD
First Respondent
ROWAN
TREE 1169 CC t/a TAPAS AL SOL
Second Respondent
JUDGMENT
Van
der Byl, AJ:-
Introduction
[1]
The Applicant, a company with limited liability (formerly known as
Knight Street Proper (Pty) Ltd), occupies the property
known as the
remainder of Erf 446, Humewood (“
the property
”), in terms
of a 50-year Agreement of Lease entered into with Transnet Limited on
1 November 1994 (“
the main lease agreement
”). At the time
the property was vacant land and the Applicant was in terms of that
lease required to use and develop the land
in accordance with its
provisions. The development envisaged therein (which is now known as
the Humerail Centre) seems to have
been effected by way of various
agreements of sub-leases concluded with various persons and entities
some of which are currently
conducting various businesses on the
property, such as, eg., Spar, Virgin Active Gym, Clicks, Café
Brazilia, Dataflo and
two cocktail bars, namely, Memphizz Night Club
and Finezz Cocktail Bar.
[2]
The First Respondent, a close corporation known as Cowsta Beleggings
(Pty) Ltd, occupies a portion of the property, measuring

approximately 995 square metres (the leased property) in terms of an
Agreement of Sub-Lease concluded likewise for a period of
50 years
between the Applicant and the First Respondent on 14 June 1995. The
leased property seems also to have been vacant land
at the time and
the First Respondent was also required to develop it in accordance
with the Sub-Lease and was, subject to the prior
written approval of
the Applicant, not entitled to use the leased property for any
purpose other than for purposes of a “
shopping centre
”. It
would appear to have in any event been developed as a café
which was at all relevant times known as Café Del
Mar
measuring some 87 square metres and seated approximately 20 to 25
people. In front of the development provision was made, apparently
by
the First Respondent in the course of the development of the leased
property, for some eight or ten parking bays.
[3]
The Agreement of Sub-Lease seems to have been authorized by clause
21 of the main lease agreement which reads as follows:
“
SUBLETTING,
HYPOTHECATION AND CESSION
21.1
The Lessee shall have the right to sub-let any portion of the
existing buildings, or the new buildings to be erected on the

Premises, without the consent of the Lessor, provided that the Lessee
shall remain responsible for compliance with all the provisions
of
this Lease.
21.2
Provided the prior written consent of the Lessor is obtained (which
consent shall not be unreasonably withheld), the Lessee
shall have
the right to cede or assign, mortgage or otherwise dispose of or
hypothecate this lease, or any of its rights in terms
of this
Lease.
”.
[4]
Clause 16 of the Agreement of Sub-Lease between the Applicant and
the First Respondent reads as follows:
”
SUBLETTING,
HYPOTHECATION AND CESSION
16.1
COWSTA shall not have the right to sub-let any portion of the
premises, or existing buildings, or the new buildings to be
erected
on the Premises, without the written consent of KNIGHT STREET PROPER
and the Bank first being obtained. In the event of
consent being
granted COWSTA shall remain responsible for compliance with all te
provisions of the sub-lease.
21.2
Provided the prior written consent of KNIGHT STREET PROPER and the
Bank is obtained (which consent shall not be unreasonably
withheld),
COWSTA shall have the right to cede or assign, mortgage or otherwise
dispose of or hypothecate this sub-lease, or any
of its rights in
terms of this sub-lease.
”.
[5]
On 6 March 2009 the Applicant received a letter (
Annexure KD 4
)
from the First Respondent’s attorneys from which it appears that
the First Respondent has “
recently entered
” into an
agreement with Rowan Tree 1169 CC t/a Tapas Al Sol (who has, as I
will indicate below, in the course on these proceedings
been joined
as the Second Respondent in this matter) in terms of which the First
Respondent sub-leased the leased property, known
as, as I have
already indicated, Café Del Mar to the Second Respondent and
that the Second Respondent is in the process
of renovating the leased
property. The purpose of the letter was clearly not to seek the
Applicant’s consent as envisaged in
the aforesaid clause 16.1, but
to obtain the Applicant’s permission to have access to a portion of
the property situate between
the leased property and the portion of
the property leased to the Virgin Active Gym.
[6]
The Applicant, thereupon, on having investigated the position,
established that the Second Respondent indeed commenced with
certain
building operations to the building situate on the leased property,
whereupon, it, not being prepared to give consent to
the occupation
of the leased property or it to be subleased to the Second
Respondent, insisted on all building operations on the
leased
property being ceased forthwith.
[7]
It would appear that the Respondents then undertook to cease such
operations pending a meeting between the parties which was
eventually
held on 23 March 2009.
[8]
At this meeting the First Respondent formally requested the
Applicant’s consent to sub-lease the leased property to the Second

Respondent. The Applicant refused to consent to such a sub-lease for
reasons summarized in a letter dated 30 March 2009,
Annexure KD 6
,
addressed to the Applicant by the First Respondent’s attorneys
confirming the discussions at the meeting.
I
will in due course deal with the Applicant’s objections in this
regard, being the subject matter of this application.
As
is also apparent from this letter the First Respondent expressed the
view that the Applicant’s refusal was unreasonable and
that it
intends to proceed “
with the Agreement of Lease, which it has
entered ... with Tapas
”.
[9]
On 3 April 2009 the Applicant then, through its attorneys, demanded
by way of a letter,
Annexure KD 9
, that all building
operations be ceased on the leased property and, furthermore,
indicated that the First Respondent’s conduct
constitutes a breach
or repudiation of the Agreement of Sub-Lease concluded between them
on 14 June 1995 and that it elected, purportedly
in terms of clause
18 of the Agreement of Sub-Lease, to cancel the Agreement.
[10]
The First Respondent, thereupon, through its attorneys, addressed a
letter dated 9 April 2009,
Annexure KD 10
, to the Applicant in
which it confirmed -
(a)
that the Agreement of Sub-Lease between the First and Second
Respondents of the leased property has now been cancelled with

immediate effect;
(b)
that all building operations on the leased property has been
stopped;
(c)
that, if necessary, the property will be restored to its prior
condition.
In
this letter, however, a call was made upon the Applicant to consent
by not later than 15 April 2009 in writing to the conclusion
of a
sub-lease of the leased property between the First and Second
Respondents, a copy of which is annexed to the papers as
Annexure
KD 11
.
The
Applicant then, through its attorneys, undertook to respond by 16
April 2009.
[11]
The Applicant thereafter, on its own version, on 16 April 2000
established that despite this undertaking and the concessions
made in
the letter of 9 April 2009,
Annexure KD 10
, that the building
operations on the leased property had however continued unabated.
According to the Applicant it appeared that
a substantial deck was
being erected on the leased property with an apparent intention to be
enclosed on the front of the building
overlooking Marine Drive and
which will, when completed, extend the area to a business area far in
excess of 100 square metres.
The First Respondent denies in its
answering affidavit that the building operations continued unabated,
but conceded that a wooden
deck was being erected in front of the
building, but denied that it would be enclosed.
[12]
In the meantime the Applicant received objections against the leased
property being sub-leased to the Second Respondent from
at least two
other tenants of other portions of the property.
In
this regard I can refer to the following:-
Firstly
,
there is a letter dated 31 March 2009 received from Café
Brazilia being a business situate right next door to the leased

property.
Apart
from being concerned about loss of business, this tenant raised its
concerns -
(a)
on the danger and safety to its guests from the Paxton Hotel from
heavy traffic and loitering, drinking and substance abuse
activities
it expects will be going on in and around the parking area;
(b)
the lack of sufficient parking in the area, particularly, when the
other popular venues, such as Memphiz or Finezz, have functions

there; and
(c)
the noise level that will be coming from the leased property that
will be a disturbing factor for itself and the entire Centre.
Secondly
,
there is an email from the Virgin Active Gym that expressed some
health and safety concerns if the Second Respondent is allowed
to
operate on the leased property on issues such as an emergency exit
and its aircondition extraction units which are situate right
next to
the leased property.
[13]
This state of affairs had given rise to this application being
launched on 17 April 2009 as a matter of urgency in which an
order
was, in addition to a punitive order of costs, sought in terms of
which the First Respondent is directed to forthwith -
(a)
cease all building works and alterations on the leased property; and
(b)
restore the leased property to its condition prior to the
commencement of such building works and alterations.
[14]
The matter was, however, postponed to 21 April 2009 and then again
to 24 April 2009, being the day on which I heard argument
in this
matter.
[15]
Subsequent to the launching of this application the Applicant’s
attorneys were advised that the Agreement of Sub-Lease,
Annexure
KD 11
, had been executed with the Second Respondent and that it
intends to commence trading with effect from 20 April 2009.
In
an email dated 17 April 2009 addressed by the First Respondent’s
attorneys to the Applicant’s attorneys the Applicant is,

notwithstanding its alleged unreasonable refusal to consent to the
leased property being sub-leased, requested in the alternative
to
consent, obviously in terms of clause 16.2 of the Agreement of
Sub-Lease, to the cession of the First Respondent’s rights
under
the Sub-Lease to the Second Respondent.
It
is common cause that the Applicant was also not prepared to consent
to such a cession.
[16]
In the circumstances the Applicant filed an amended Notice of Motion
(
record pp. 89 to 91
), supported by a supplementary affidavit,
in which, in addition to the usual order of costs, certain orders
were sought of which
only the following were persisted with, namely -
(a)
that the Second Respondent be joined as a party in these proceedings
(
prayer 2
);
(b)
that the Agreement of Sub-Lease between the Applicant and the First
Respondent dated 14 June 1995 be declared to have been
cancelled with
effect from 3 April 2009 (
prayer 3
);
(c)
that the Agreement of Sub-Lease between the First and Second
Respondents be declared to be null and void (
prayer 4.1
);
(d)
that the purported or intended cession or transfer of the First
Respondent’s rights to the Second Respondent in terms of
clause
16.2 of the Agreement of Sub-Lease be declared to be null and void
(
prayer 4.2
);
(e)
that the leased property be forthwith restored to its condition
prior to the commencement of the building works and alterations

(
prayer 5.2
).
[17]
The parties were in agreement that there was, because of its
interest in the relief claimed, a need for the Second Respondent
to
be joined in the proceedings.
As
is apparent from the papers the Second Respondent elected not to
oppose any of the relief claimed and has apparently elected
to abide
by the this Court’s decision.
[18]
Counsel who appeared on behalf of the Applicant and the First
Respondent were in agreement that the issues I was called upon
to
pronounce upon are -
(a)
firstly
, the interpretation to be assigned to the
provisions of clause 16.1 of the Agreement of Sub-Lease concluded
between the Applicant
and the First Respondent on 14 June 1995,
particularly, whether that clause contains an implied term that the
Applicant may not
withhold its consent to the subletting of the
leased property unreasonably;
(b)
secondly
, and in any event, if regard is had to the
First Respondent’s request for the Applicant’s consent to cede,
as envisaged in
clause 16.2 of the Agreement of Sub-Lease, its rights
under that Sub-Lease to the Second Respondent, the question whether
the Applicant
is unreasonably withholding its consent to either the
sub-letting of the leased property or the cession of any rights
thereunder;
and
(c)
thirdly
, the question whether the Applicant has duly
cancelled the Agreement of Sub-Lease concluded between the First
Respondent and itself
on 14 June 1995.
[19]
I deal
seriatim
with each of these issues.
The
interpretation to be assigned to the provisions of clause 16.1 of the
Agreement
[20]
On this issue Mr. Van der Linde SC who appeared on behalf of the
First Respondent made two submissions, namely -
(a)
firstly
, that clause 16.1 which purports to limit the
First Respondent’s right to sublet is in direct conflict with
clause 21 of the
main lease agreement which contains no prohibition
against subletting, should prevail so that the First Respondent is
indeed entitled
to sublet without the consent of the Applicant;
(b)
secondly
, that the clause is in any event, if regard
is had,
inter alia
, to clause 16.2, subject to an implied term
that the Applicant would not withhold its consent to subletting
unreasonably and that
such an implied term in any event lends
business efficacy to the Sub-lease.
[21]
I find myself, with respect, unable to agree with the first
submission made by Mr. Van der Linde SC.
Clause
21 of the main lease agreement (quoted in paragraph [3] above),
empowers or authorizes the Applicant to sublet any portion
of the
property, but subject to the qualification that the Applicant would
remain responsible for compliance with all the provisions
of the main
lease agreement.
Clause
16.1 of the Agreement of Sub-Lease (quoted in paragraph [4] above),
limits the right of the First Respondent (who was not
a party to the
main lease agreement) to sublet the leased property, being a portion
of the property, without the prior written
approval of the Applicant.
The
right conferred upon the Applicant to sublet any portion of the
property can in my view by no stretch of the imagination be
seen to
be in conflict with the restriction placed in clause 16.1 on the
First Respondent to first obtain the Applicant’s consent
to sublet
the portion of the leased property. As a matter of fact clause 16.1
does not affect the relationship between, and the
rights and
obligations of, either the Applicant or Transnet
vis-a-vis
themselves. Clause 21 in fact places an obligation on the Applicant
to ensure that all the provisions of the main agreement are
being
complied with. This obligation would be seriously restricted or
hampered if the Applicant is seen to be prohibited by clause
21 to
reserve itself a right in an agreement of sub-lease to determine
whether such a sub-lease may affect its obligations to ensure
that
the provisions of the main lease agreement are being complied with.
[22]
In relation to the second of these submissions I also find myself
unable to agree that the inclusion of the term in clause
16.2 which
deals with cession, assignment, mortgage or hypothecation or disposal
of rights, should be utilized in interpreting
clause 16.1 on the
question whether such a term should be read into that clause.
As
contended by Mr. Van Rooyen SC who appeared on behalf of the
Applicant, the two subclauses are aimed at different transactions.
A
sub-lease envisaged in clause 16.1 does not affect the contractual
relationship between the lessee and the lessor in the sense
that the
lessee remains the latter’s creditor and debtor (see:
Cooper,
Landlord and Tenant, 2
nd
Edition, p. 251
). In other words when a lessee sub-lets he or
she enters into a contract of lease with the sub-lessee who becomes
his or her tenant
while the lessee remains bound in all respects to
the lessor (
Floral Displays (Pty) Ltd v Bassa Land and Estate
Co. (Pty) Ltd 1965(4) SA 99 (D) at 100G
). On the other hand,
a cession as envisaged in clause 16.2 is, as explained by
Cooper,
supra, 251
, an act of alienation whereby a lessee divests
himself or herself of his or her rights against a lessor substituting
a third party
as the lessor’s creditor.
It
may, if regard is had to the nature of these two transactions,
perhaps be correct, as contended by Mr. Van der Linde SC, that
the
transaction envisaged in clause 16.1 is less onerous than the one
envisaged in clause 16.2. I, however, find myself unable
to infer
from that that the parties have erroneously omitted that term from
clause 16.1 and in fact intended the term to have been
included in
the clause. As held in
Alfred McAlpine & Son (Pty) Ltd v
Transvaal Provincial Administration 1974(3) SA (A) at 532A
an
implied term is one which the parties intended or must be deemed to
have been intended on the so-called “
bystander test
”.
The
question is whether I can, in the absence of any agreement between
the parties to what was intended in the clause, infer from
the
express terms of the agreement and the surrounding circumstances
whether the term in question is one which the parties actually
had in
mind but did not trouble to express or would otherwise have expressed
had their attention been directed to the term.
If
regard is had to the whole of the main lease agreement, it would
appear that, as I have already indicated, the Applicant is held
to be
responsible to Transnet for compliance with all its provisions. In
the case of a sublease a third party is brought into the
contractual
relationship who is only responsible to the sub-lessee, in this case
the First Respondent, whilst in the case of a
cession a new party is
introduced in the relationship with the Applicant in circumstances
where such new party is directly responsible
to the Applicant. The
purpose of prohibition in a lease against subletting is, as held in
Bryer and Others NNO v Teabosa CC t/a Simon Chuter Properties
and Another 1993(1) SA 128 (C) at 137F
, to protect the lessor
from having his premises used or occupied by an undesirable subtenant
or in an undesirable manner.
The
fact that the term was explicitly included in clause 16.2, does not
in my view justify an inference that they did not have a
similar
clause in mind at the time they concluded clause 16.1.
In
the circumstances I accordingly find myself unable to assign any
interpretation to clause 16.1 other than the one apparent from
the
ordinary and plain reading of the clause and to read any implied term
into the clause.
[23]
This brings me to the second issue I am called upon to pronounce
upon.
The
reasonableness or otherwise of the Applicant’s refusal either to
the subletting of the leased property or the cession of First

Respondent’s rights under the Agreement of Sub-Lease
[24]
As is apparent from the papers and as I will indicate in a moment,
there are numerous disputes, be that factual, argumentative
or
speculative in nature, between the parties on the Applicant’s
reasons for its refusal to consent either to the conclusion
of a
sub-lease or to the cession of any rights under the Agreement of
Sub-Lease which action is, either way, aimed at achieving
the same
practical effect, namely, to effect a situation where the Second
Respondent can conduct the envisaged business on the
leased property.
[25]
It seems to be trite that the onus of proving that the Applicant is
withholding its consent unreasonably rests on the Respondents
(
Bryer,
supra, 134B
).
[26]
The reasons for Applicant’s refusal are, as is reflected in the
two founding affidavits filed, the following, namely -
(a)
that the business of the Second Respondent, being that of a night
club, which was previously operated from Brookes Hill Pavilion
was
chaotic because of alcohol and drug abuse, gangs and violence and its
concomitant security related problems and loitering in
the car park;
(b)
that it was always jam packed with live music with between 400 and
500, mostly young, people patronising it and operated at
all hours of
the day and more often than not, had patrons outside in the car park
well after 5 am which is a kind of business for
which there is no
place at the Centre which is a high class shopping centre;
(c)
that, because of the aforegoing, the rights of the other tenants,
the composition of which has been carefully managed to make
sure that
the tenants do not invade each other, will be catastrophically
affected in that their parking problems would be insuperable,
that
the live music would destroy the adjacent businesses and have a
detrimental effect on the ethos of the Gym next door;
(d)
that the First Respondent has no more than eight or ten parking bays
available of its own, but, bearing in mind an expected
patronage of,
according to the Respondents’ own version, approximately 350 people
requiring some 200 parking spaces, will need
at least 200 parking
bays to accommodate the Second Respondent’s business;
(e)
that this situation will in effect utilise and monopolise the
parking provided by the Applicants for its other tenants which
is
provided by the Applicant on land in effect owned by it and carefully
worked out to provide for the Applicant’s tenants;
(f)
that as the Humerail Centre is extremely busy to such an extent that
at lunch time there is often no parking available;
(g)
that on the complex as a whole provision is made for 616 parking
bays which are already 113 short of the requirements laid
down by the
Municipality.
[27]
Notwithstanding the onus resting on it, the First Respondent’s
case is based mainly on responses to the Applicant’s objections.
[28]
In this regard it is contended, as is apparent from the answering
affidavit, by the First Respondent,
inter alia
-
(a)
that, although it is conceded that there were indeed problems at
Brookes Hill Pavilion from where the Second Respondent conducted
its
business, the problems were not caused by its patrons, but were
related to bad management on the part of Brookes Hill Pavilion

Centre;
(b)
that, because of its concern for the safety and security of patrons,
the largest items of business expenditure of the Second
Respondent is
expended on security;
(c)
that the Second Respondent’s business is that of a “
restaurant
/ bar
” which provides live music and which will be operating
from 11h00 to 2h00, ie., some 14 hours of the day;
(d)
that it is generally full on Thursday and Friday nights and that it
is foreseen that the venue would be able to cater for approximately

350 people;
(e)
that the Fire Department of the Municipality conducted about a month
earlier an inspection and that it was satisfied that all
fire
regulations had been complied with (no report or other evidence in
support of this allegation of the nature of this inspection
has,
however, been annexed to the papers);
(f)
that the Second Respondent denies that its business will destroy the
quality of the Humerail Centre and that parking issues
will arise;
(g)
that the Gym closes at 21h00 whereas the Second Respondent only
provides live music from 22h00 to 23h30;
(h)
that the Applicant is only out to protect his tenants from
competition;
(i)
that, regarding the objection relating to the noise, the speakers
are fitted with a sound limiter which controls the maximum
sound
levels, that the sound levels are set below the legal limit set by
the Municipality and that the venue is designed in such
a way that
any noise that escapes will be conveyed across the busy Marine Drive
towards the harbour;
(j)
that the building plan details have in relation to the alterations
to the premises been submitted to, and approved by, the
Municipality
(no information is, however, furnished on the nature of the plans
submitted and the approval by the Municipality).
[29]
Notwithstanding the many issues raised on the papers which I
attempted to briefly summarize above, counsel concentrated in

argument on the following issues raised as objections against both
the subletting of the leased property and the cession of the
rights
under the Agreement of Sub-Lease, namely -
(a)
the parking is;
(b)
the noise which is expected to be emanated from the leased property;
(c)
the patrons the Second Respondent would attract;
(d)
the contention that an establishment such as that of the Second
Respondent is not for the Humerail Centre and that, particularly,
a
night club falls outside the description of a shopping centre;
(e)
compliance with the Port Elizabeth Municipality’s Town Planning
Scheme.
[30]
Except for responding, sometimes argumentatively or speculatively to
the objections raised by the Applicant, the only factual
averments
made by the First Respondent in discharging its onus to prove
unreasonableness on the side of the Applicant in so far
as he refused
any consent envisaged in clause 16 of the relevant Agreement, are the
following, namely -
(a)
that the Second Respondent has submitted building plans to the
Municipality in respect of the alterations at the leased property

which has been approved and that the Municipality would not have
approved the plans if the result would have impacted adversely
on
parking at the Centre;
(b)
that the Fire Department of the Municipality conducted an inspection
of the property and was satisfied that all fire regulations
have been
complied with.
[31]
The First Respondent, however, failed to submit any documentation or
other evidence on the plans submitted and the inspection
conducted
and I am unable to evaluate the impact of those plans and the
inspection may have on the Applicant’s objections against
the
envisaged subletting or cession.
[32]
The reason for the qualification that consent should not be
unreasonably withheld is, on the one hand, to give the lessee
the
right to sub-let and, on the other hand, to protect the lessor from
having his premises used or occupied in an undesirable
manner or by
an undesirable sub-lessee (
Cooper, supra, 252
). From
this it follows that a reason for a refusal which is unconnected with
the proposed sub-lessee or the proposed use or occupation
of the
premises would generally be regarded to be unreasonable (
Herbert
Porter v Johannesburg Stock Exchange 1974(4) SA 781 (W) at 790G
).
[33]
On a consideration of the Applicant’s objections against the
envisaged sub-lease or cession and the submissions raised in
response
thereto, I unpersuaded that the objections are unrelated to the use
of the property and that they can be held to be unreasonable.
[34]
In my view the Applicant has indeed an obligation to establish
whether the business to be conducted by the Second Respondent
in the
Centre could be duly accommodated in the Centre without prejudicially
affecting the rights of the other tenants and its
obligations towards
those tenants.
[35]
The Applicant is in my view not unreasonably withholding his consent
at least on -
(a)
the available parking in the Centre and the additional burden that
will, bearing in mind the fact that the Second Respondent
will be
open for some 14 hours per day commencing at 11 am and will be in a
position to accommodate some 350 patrons on at least
Thursdays,
Fridays, Saturdays and public holidays, be placed on the rights of
customers of the other tenants to park in the Centre;
(b)
the noise, whether or not it complies with the noise levels set by
the Municipality, due to at least the live music that will
be offered
on the property which will, as opposed to the existing situation in
the Centre, be emanated from the business of the
Second Respondent;
(c)
the risk of unruly behaviour on the side of irresponsible patrons
over which no control can be exercised by the Second Respondent
as
soon as they have left the premises;
(d)
the fact that it would require the management of the Centre to
exercise control over unruly behaviour as was, according to
the
Respondents’ own version, required at Brookes Hill Pavilion.
[36]
The fact that any of these objections and considerations may, as has
been done on behalf of the First Respondent, be criticized,
is in my
view no reason to hold that they are unreasonable.
[37]
This brings me to the last issue I was called upon to pronounce
upon.
Cancellation
of the main lese agreement
[38]
The relief claimed in this regard is based on the fact -
(a)
that at first the First Respondent sub-leased the leased property to
the Second Respondent without any attempt to seek the
Applicant’s
consent as required by clause 16 of their Agreement; and
(b)
that it thereafter on having been informed that it breached the
Agreement in that respect, persisted with its intention to
sublease
the leased property notwithstanding the Applicant’s refusal to
consent to the subletting of the leased property.
[39]
Although the First Respondent’s actions in this regard smacks of
arrogance, I cannot ignore -
(a)
the fact that the First Respondent immediately upon having been
informed of the breach undertook to cancel the disputed Agreement
of
Sub-Lease and to cease all building operations on the property and,
thereupon, formally requested the required consent;
(b)
the fact that it, after consent was refused, persisted, obviously on
legal advice, to proceed with its intentions to sub-let
which it
was, strictly speaking, in law entitled to do (see:
Bryer’s
case, supra, 134A
);
Furthermore,
there is, except for the uncertainty on the alleged repudiation, the
question whether the Applicant complied in all
respects with the
provisions of clause 18 of the Agreement of Sub-Lease.
[40]
It is in any event apparent from the founding affidavit (
paragraph
27
) that the Applicant is aware of the disputes relating to the
Applicant’s right to cancel and has foreshadowed the possibility

that action proceedings be instituted.
In
my view that is the route to follow should the Applicant still wish
to persist with its intentions to cancel the Agreement of
Sub-Lease.
At
this stage I am unpersuaded that there is sufficient evidence to
grant an order as the one envisaged in prayer 3 of the amended
Notice
of Motion, baring in mind, furthermore, the interests that are at
stake (according to the evidence the Sub-Lease is valued
at between
R8 million and R10 million),
Order
For
the reasons set out in this judgment the following order is made:-
1.
It is ordered that Rowan Tree 1169 CC t/a Tapas Al Sol be joined
in the proceedings as the Second Respondent.
2.
It is declared that the Applicant has lawfully withheld is consent,
envisaged in clause 16 of the Agreement of Sub-Lease concluded

between the Applicant and the First Respondent on 14 June 1995, to
the sub-letting of the property known as Portion of Erf 446,

Humewood, to the Second Respondent or to the cession to the Second
Respondent of the rights of the First Respondent held under
that
Agreement.
3.
The Agreement of Sublease purportedly concluded between the First
and Second Respondents contrary to the Applicant’s consent
referred
to in paragraph 2 above is declared to be null and void.
4.
The First Respondent and the Second Respondent are ordered to
restore, jointly and severally, the one complying the other to be

absolved, the property referred to in paragraph 2 above to its
condition prior to the commencement of any building works and
alterations
effected to the property by either the First Respondent
or the Second Respondent or by both First Respondent and the Second
Respondent
consequent upon the purported Agreement of Sub-Lease
concluded between the First and Second Respondents.
5.
The First Respondent is ordered to pay the Applicant’s costs
incurred in respect of this application.
...............................
P
C VAN DER BYL
ACTING
JUDGE OF THE HIGH COURT
ON
BEHALF OF APPLICANT
ADV R P VAN ROOYEN SC
On
the instructions of:- FRIEDMAN SCHECKTER
75
Second Avenue
Southernwood
Newton
Park
PORT
ELIZABETH
Ref
: Mr Friedman / Mr De Vos / ps
Tel:
(041) 395 8412
ON
BEHALF OF FIRST RESPONDENT ADV H J VAN DER LINDE SC
On
the instructions of: BURMEISTER DE LANGE SONI INC
29
Mount Road
Mount
Croix
PORT
ELIZABETH
Ref:
K Williams/ef/MAT11413/C103
Tel:
(041) 373 9690
DATE
OF HEARING 24 April 2009
JUDGMENT
DELIVERED ON 28 April 2009