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2021
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[2021] ZAGPJHC 850
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Ming Li and Another v Pan Africa Logistics (Pty) Ltd (43894/2019) [2021] ZAGPJHC 850 (30 July 2021)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, JOHANNESBURG
Case
No.: 43894/2019
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
REVISED
In
the matter between:
Tong
Ming Li
1
st
Applicant
Peak
Industrial Enterprises (Pty)
Ltd
2
nd
Applicant
and
Pan
Africa Logistics (Pty) Ltd
Respondent
JUDGMENT
Malindi J:
[1]
The Applicants see an order in the following terms:
“
1.
An order ejecting the Respondent and all persons who hold under or
through it from Portion 48 (Remaining
Extent) of the Farm Mooiplaats
no. 353, JR and Portion 6 of the farm Skurweplaas No.353, JR;
2.
Optionally confirmation of the cancellation of the written third
lease agreement;
3.
Costs; and
4.
Further and/or alternative relief.”
[2]
The parties first entered into a lease agreement on 13 July 2016 in
respect of Portion
48 of the farm Mooiplaats (“Mooiplaats”)
and Portion 6 of the Farm Skurweplaas (Skurweplaas”) although
the lease
agreement only refers to Mooiplaats.
[3]
The Applicants allege that the Respondent fell in arrears with
payment rental payments
of some R405 000.00, a breach which it failed
to remedy after notice thereof was given and a letter of demand
dispatched to it
on 8 February 2019.
[4]
On 13 February 2019 the Applicants dispatched a letter to the
Respondent in which
it was afforded until 20 February 2019 to make
full payment of the arrears failing which cancellation of the lease
would be effected.
This step was taken on 11 March 2019 when the
lease was cancelled with immediate effect.
[5]
After a round of negotiations the parties entered into a new lease
agreement (“the
Second Agreement”) on 20 March 2019. The
terms of the Second Agreement were,
inter
alia
that the
arrear amount and rental for 1 April 2019 to 30 June 2019 would be
paid in accordance with clause 4.2 thereof which set
out monthly
payments from 25 March 2019 to 3 June 2019. The Second Agreement
further states that any default on payment will result
in the
agreement terminating with immediate effect and that the Respondent
would be obliged to vacate the premises and property
accordingly.
[6]
When the Respondent failed to effect payment on 25 March 2019 an
addendum to the Second
Agreement was entered into on 26 March 2019,
the effect of which was to extend such payment to 3 April 2019 and
provide for the
automatic termination of the agreement should the
Respondent default in such payment.
[7]
When the Respondent failed to make payment on 3 April 2019 a further
indulgence was
given to it and a third lease agreement was entered
into on 15 April 2019 (“the Third Agreement”) setting the
new lease
period as 1 April 2019 to 30 April 2019. The terms and
conditions of the Second Agreement were essentially retained.
[8]
On 24 June 2019 the Applicants dispatched yet another letter to the
Respondent alerting
it to a breach of the Third Agreement and to the
fact that the Respondent remained indebted to the Applicants in the
amount of
R360 000.00. It was demanded that the Respondent vacates
the premises by 25 June 2019 failing which eviction proceedings would
commence.
[9]
The Respondent admits paragraphs 36-38 of the founding affidavit
which deal with the
Third Agreement, especially the terms pertaining
to the Respondent’s indebtedness and automatic termination of
the agreement
should the Respondent be in default of payment.
Furthermore, save to aver that certain payments were made which the
Applicants
allege were not, the allegations of the breaches as set
out in the various agreements are not denied. The Respondent merely
says
it was not in unlawful occupation without elaboration. The Third
Agreement was terminated on 19 April 2019 in terms of an admitted
clause of the agreement (clauses 4.2.1and 7) and upon receipt of a
letter confirming the Applicant’s refusal to grant any
further
indulgences on 24 June 2019.
[10]
The main and probably the only defence proffered is that the parties
had always engaged in
bona fide
negotiations about the
Respondent’s indebtedness and that the Applicants are to blame
for the non-fruition of an agreement
that the Respondent and a third
party were about to enter into when the lease agreement was
terminated.
[11]
The Respondent’s reliance on the cases of
Garlick
Ltd vs Phillips
and
[1]
, do not assist it. The
Appellate Court in
Garlick
spoke of a lessor giving “a revocable permission to respondent
to pay his rent late”.
[2]
In this case the Applicants did not act in a laissez-faire manner.
They revoked any perception that any engagement in negotiations
or
grant of indulgencies was to be accepted as permission to pay rent
late. Each of the agreements made it clear that any indulgencies
granted do not constitute a waiver of the Applicants’ right to
terminate upon breach of payment.
Conclusion
[12]
The evidence is overwhelming that despite bending over backwards
numerous times in order to accommodate
the Respondent, it remained in
breach of the three agreements to substantial degrees. The Applicants
consistently urged the Respondent
to fulfill its undertakings to make
arrear and future payments. Instead, each undertaking and new
agreement would be breached in
less than a month after entering into
it.
[13]
The Respondent has admitted the Applicant’s main allegations
and has not provided any plausible
answer thereto.
[14]
I therefore make an order in terms of the draft order as follows:
(a)
An order ejecting the Respondent and all persons who hold under or
through it from Portion 48 (Remaining
extent) of the Farm Mooiplaats
No.355, JR and Portion 6 of the Farm Skurweplaas No.353, JR, within
one week of this order being
served on them;
(b)
In the event of the Respondent and all those occupying through and/or
under the Respondent failing to
vacate the premises, an order that
the Respondent and all other persons who occupy or hold possession
through the Respondent, are
to be ejected/evicted from the premises;
(c)
That the sheriff of the above Honourable Court be authorised to do
everything necessary, including but
not limited to obtaining the help
of the South African Police service, to give effect to paragraph (b)
above and evict / eject
the Respondent, and all other persons who
occupy or hold possession of the premises through the Respondent.
(d)
The Respondent is ordered to pay the costs of the application on the
scale as between party and party.
____________________________
Judge
of the High Court
Malindi
J
Counsel
for the Appllicant
:
Adv C J
C Nel
Instructed
by
:
Assenmacher Brandt Attorneys
Counsel
for the Respondent
:
Adv K
Kollapen
Instructed
by
: SZ
Ngwane Incorporated
Date
of hearing
: 30 November
2020
Date
judgment delivered
:
30 July
2021
[1]
1949
(1) SA 121 (A)
[2]
1948
(1) SA 798
(SR)