About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2014
>>
[2014] ZAGPPHC 387
|
|
Tutani Investments 49 (Pty) Ltd v Easy Street Truck Dealers CC (48118/13) [2014] ZAGPPHC 387 (23 May 2014)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
NORTH AND SOUTH PROVINCIAL DIVISION)
Case
No: 48118/13
Date:
23 May 2014
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
In the matter
between:
TUTANI
INVESTMENTS 49 (PTY)
LTD
........................................................................................
Applicant
and
EASY STREET TRUCK
DEALERS
CC
.
......................................................................................
Respondent
JUDGMENT
HASSIM AJ
The
applic
ation
[1]
The applicant applies for the eviction of the respondent from
business premises: namely shop 3 and 4 both situated in The Willow
Corner Shopping Centre. Delmas. It also claims ancillary relief.
1
The respondent resists the application.
The
fac
ts
giving rise to the application
[2]
The facts are largely, if not entirely, common cause, fhe application
in my opinion ultimately rests on two legal points
2
which I discuss later.
[3] During or about
July 2011 the parties entered into two separate written lease
agreements for the hire by the respondent of shop
no 3 and shop no.4
(collectively referred to as the leased premises), both situated in
The Willow Corner Shopping Centre. Delmas.
The lease commenced on 1
December 2011 to endure for five years (i.e. up until 30 November
2016).
[4] All payments due
in terms of the lease agreements had lo be paid in advance on or
before the 1
st
day of every month. In the event of a
failure to pay any amount due within a period of 7 (seven) days of
receipt by the respondent
of a written notice calling upon it to pay
the outstanding amount, the applicant on the written notice to the
respondent is entitled
to cancel the lease and claim immediate
possession of the premises.
[5]
The
applicant is also entitled to cancel the lease agreements in the case
of the breach of any other term of the lease agreements
regardless of
whether the breach goes to the root of the agreement or not. The
right to cancel in such cases arises if the respondent
has on more
than two occasions within a period of 12 months breached any term of
the lease agreement and remains in breach despite
receipt of a
written notice from the applicant to remedy the breach.
[6] In the event of
legal proceedings being instituted, the respondent will be liable for
costs on the attorney and client scale.
The
first cancellation of the lease
agre
eme
nts
[7] The respondent
had failed to pay rent on due date. The respondent persisted in its
failure despite the delivery by hand of two
written notices
3
calling upon it to make payment. The applicant contends that apart
from failing to make the payments, the respondent breached other
terms of the lease agreements which also entitle it to cancel the
leases. The respondent disputes these breaches.
[8] When the
respondent, despite written demand, failed to pay the arrear rent and
remedy its breach of other terms of the lease
agreements, the
applicant elected to cancel the lease agreements.
[9] The applicant
notified the respondent of the cancellation by the delivery of two
notices
4
.
The respondent disputes having received these notices.
The
first application f
or
evi
ction
[10] On or about 11
February 2013 the applicant launched an application for the
respondent's eviction consequent upon the termination
of the lease
agreements. In April 2013 the respondent filed an opposing affidavit
wherein it disputed having been notified of the
cancellation of the
lease agreements.
[11] On 30 April
2013 the applicant withdrew the application by the delivery of a
notice to this effect. The withdrawal was not
accompanied by a tender
for the pay of the respondent's costs.
[12]
The applicant explains that it withdrew the application because it
feared that dispute of fact relating to whether the notices
were
received or not, created a risk of a court finding that the dispute
in this regard should be referred for the hearing of oral
evidence.
In my view the withdrawal of the application was prudent; it ensured
a speedy resolution of the dispute and averted unnecessary
legal
costs.
The
present
application
[13] To meet the
allegation that the respondent had not received the notices
cancelling the lease agreement, the applicant on 30
April 2013 sent
two notices to the respondent notifying it among others that rental
for both of the shops was overdue and that
the respondent was in
breach of other terms of the lease agreements as well.
[14] The respondent
was called upon to remedy the breaches and make payment of the arrear
rent within seven days. The respondent
was also notified that if it
failed to remedy the breaches, the applicant would be entitled to
cancel the lease agreements. The
respondent again disputes that it
breached other terms of the lease agreements. If I find that the
lease agreements were properly
cancelled for the failure to make
timeous payment. In view of my decision on the failure to pay rent
and the cancellation ofthe
leases on this basis. I do not have to
resolve the dispute as to whether the respondent breached other terms
of the lease agreements.
[15] The notices
5
were contained in letters wherein the respondent was called upon to
remedy the breaches of the lease agreements, payment of outstanding
rent as at 29 April 2013 of R18 362.57 in respect of shop 3 and
outstanding rent as at 29 April 2013 of R34 949.12 in respect of
shop
4 was demanded, lhe letters recorded among other things the
following:
(a) The previous
application had been withdrawn;
(b) The previous
application had been opposed by the respondent amongst others on the
basis that the lease agreements had not been
lawfully cancelled
alternatively that the applicant was not entitled to cancel the lease
agreement because the notices cancelling
the lease agreements had not
been received by it:
(c)
The withdrawal of the application should not be seen as an
acknowledgement that the notices were indeed not received;
(d)
The applicant considers the lease agreements
extant.
[16] When the
respondent failed to comply with the two notices, both leases were
cancelled in writing on 21 June 2013
6
by the delivery of two notices of cancellation and the respondent was
called upon to v acate the premises. The respondent failed
to do so.
Thus this application.
[17] The respondent
contends that alter the lease had been unlawfully cancelled on the
first occasion, on 16 October 2012 it tendered
in writing to comply
’“strictly” with terms of the lease agreements
because as far as it was concerned the leases
had not been validly
cancelled and therefore remained in force. The applicant however
refused to accept the payments as "rent"
because the lease
had been cancelled. Because of this tender the respondent claims that
the rent was not outstanding, f'ven if
I accept w hat the respondent
claims, there is no explanation why the respondent did not pay what
it had tendered after receiving
the notices on or about 30 April
2013.
[18]
On 7 July 2013 and after the lease agreements were cancelled, the
applicant sought and obtained
ex
parte
an
order in terms of'section 32 of the Magistrates' Court Act No 32 of
1944. authoring the Sheriff to attach the
res
invecta illaia
to
secure payment of the outstanding rental in the sum of R43 148.03
7
being the amount owing since 1 June 2013.
[19]
On 8 August 2013 the respondent paid an amount of R45 648.03. The
Sheriff received the payment and recorded that the payment
was “for
part payment of order. Balance R2 500.00
8
.
Sheriff's cost [sic] paid in full R8 000.00."
[20]
The respondent opposes this application on three grounds. The defence
of
lis
pendens
is
founded in the application which had been withdrawn. The respondent
complains that the applicant had failed to tender the costs
of the
application and therefore the question of costs of that application
was alive and therefore the application. I do not agree.
Apart from
the present application no legal proceedings for the respondent
eviction are pending. It is of no consequence that the
respondent may
have a right to the costs of that application.
[21] The
respondent's further contentions are firstly that the withdrawal of
the previous application precludes the applicant from
evicting the
respondent as the lease agreement was revived. Secondly it contends
that an application for eviction is not competent
because the lease
agreements are still alive despite the applicant having notified the
respondent on 21 June 2013 that it had elected
to cancel the lease
agreements. The respondent rests this defence on the application in
terms of section 32 which had been brought
on 7 July 2013 (i.e. alter
the leases had been cancelled) in the Magistrates' Court. Del mas and
argues that because such an application
can only be brought to secure
the payment of arrear rental.
[22]
The respondent correctly argues that rent is only payable if a lease
agreement is in existence and also that an application
in terms of
section 32 of the Magistrate's Court Act is competent only if rent is
outstanding, fhe respondent's argues that the
application in terms of
section 32 for the attachment of the
res
invecta illata
indicates
that the lease agreements were
extant
(and
not terminated). The respondent's argument as I understand it is that
if the lease agreements had indeed been terminated the
only claim
that the applicant could pursue would be damages for holding over and
because this does not constitute rent, section
32 cannot apply. There
is no substance in the argument. The application in terms of rule 32
was to secure the payment of arrear
unpaid rental and not for
compensation for the occupation of the leased premises after the
cancellation of the leases on 21 June
2013.
[23] I turn now to w
hether the w ithdraw al of the previous application defeats this
application.
[24]
I am mindful that the applicant basis this application on the
breaches which formed the basis of the earlier application. In
my
opinion nothing turns on this.
[25]
The crux of the respondent's case is that the withdrawal of the
earlier application precludes the applicant from seeking the
respondent's eviction. My understanding of the respondent's case is
that the w ithdrawal has the same effect as the defence
of
res judicata.
I
have difficulty with this proposition.
[26] I cannot accept
that the withdrawal of an application for eviction based on unpaid
rental bars the applicant from later applying
for eviction for the
same outstanding rental
9
.
If rent is unpaid an applicant is entitled lo cancel the lease
agreement, subject only to the cancellation being in accordance
with
the parties' agreement.
[27]
When the applicant withdrew the application, it withdrew its earlier
cancellation. This having occurred the parties' relationship
continued to be regulated by the lease agreements. (Whether the lease
agreement was revived or whether the cancellation was
pro
non scripto
is
of no moment.) Even if 1 am wrong in this regard, on the respondent's
own case there had been no cancellation.
11
The lease agreements therefore remained in force unless and until
the)’ were later cancelled bv either of the parties.
[28] 1 am satisfied
that when the leases were cancelled on 21 June 2013 rental for both
shop 3 and 4 was overdue. The payment of
R45 648.03 on 8 August 2013
does not affect the status ofthe lease agreements; they had come to
an end and the respondent has no
right to remain in possession ofthe
premises.
[29] Having found
that the applicant was entitled to cancel the lease agreements
because rent was outstanding, I do not have to
determine whether the
respondent had breached other provisions of the lease agreements.
[30] I accordingly
make the following order:
(a) The respondent
and any person or persons claiming occupation through the respondent
vacate the premises described as shop 3
and shop 4 of The Willow
Corner Shopping Centre", c/o Second Avenue and Sarel Cilliers
Street. Delmas by no later than 31
May 2014.
(b) Should the
respondent or persons referred to in paragraph (a) above fail to do
so, the Sheriff is authorised and directed to
take all steps
necessary to give effect to paragraph (a) above.
(c) The respondent
is to pay the costs of this application on an attorney client scale.
SK Hassim
Acting Judge of the
High Court
Date of Hearing:10
March 2014
Date of Judgment: 23
May 2014
For applicant: Adv.
Gibbs
For
respondent: Mr Omar
1
In
the event of the respondent or any other person or persons claiming
occupation through it failing to vacate the premises in
question,
the Sheriff is authorised and directed carry out the eviction. The
applicant also seeks vacant possession of the premises
and costs.
2
The
effect if any of the withdrawal of a previous application for
eviction and whether an application in terms of section 32 of
the
Magistrates' Court Act. No of 1944 reinstates revives a cancelled
lease and whether such an application can he made after
the
termination of a lease.
3
One
for shop .1 and the other for shop 4.
4
Ibid.
5
Both
dated 30 April 2013.
6
The arrear rental as at date of cancellation, i.e. 21 June 2013 in
respect of shop 3 was Rl 965.79 and in respect of shop 4.
R 41 182.
24. fhe total outstanding amount was R43 182.24.
7
This was lor both shop 3 and 4. There is a difference of 21 cents
between this amount and the amount in the notices of cancelIation
of
21 June 2013.
8
The costs of the section 32 application.
9
Unless of course the debt was paid before the later application was
made.
11
Because
lhe respondent had not received the notices cancelling the lease
agreements.