SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Case number: 2025-207539
In the matter between: -
JAMES CLIVE PEARS Applicant
and
CLUB C99 BAR LOUNGE (PTY) LTD First Respondent
FLATROCK BODY CORPORATE Second Respondent
Coram: Van Zyl, AJ
Heard on: 6 May 2026
Judgment: : 27 May 2026
Summary: Eviction from commercial premises – similar application previously
brought upon cancellation of written lease agreement – court then finding that tacit
relocation had occurred – further application for eviction subsequently brought upon
cancellation of tacit lease not precluded by doctrine of res iudicata – contractual
arrangement between the parties prevents reliance by the lessee upon enrichment
lien as defence to eviction – lessee bound under the terms of lease agreement to
comply with conduct rules issued by body corporate from time to time – lessee not
immune to future amendments to these rules
___________________________________________________________________
ORDER
1. The first respondent (together with all those occupying under it) is evicted
from the commercial premises situated at Shop [...] F[...] , [...] B[...] Street,
Cape Town.
2. The first respondent (together with those occupying under it) is ordered to
vacate the property and restore possession thereof to the applicant by no
later than 20:00 on Sunday, 31 May 2026.
3. Should the first respondent (and anyone occupying under it) fail to vacate the
property as ordered in paragraph 2, the Sheriff of the Court or his lawfully
appointed deputy may carry out this eviction order forthwith, and hand vacant
occupation of the premises to the applicant.
4. The first respondent shall pay the costs of this application on the scale as
between attorney and client.
JUDGMENT
VAN ZYL, AJ:
Introduction
1. “Please don’t stop the music ”, sings Rihanna. The applicant disagrees. He
seeks the first respondent’s eviction from the commercial premises1 of which
he (the applicant) is the registered owner, namely Shop [...] in the Flatrock
1 The provisions of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act
19 of 1998 do not apply.
Sectional Title Scheme in Buiten Street, Cape Town. The first respondent
operates what it calls a “disco club / bar lounge enterprise” from the
premises. The applicant says it is a nightclub, but in the end not much turns
on the label.
2. The first respondent opposes the application on various grounds.2 The
second respondent (the body corporate) has delivered an affidavit and a
notice of intention to abide. It confirms the averments concerning it made by
the applicant in his founding affidavit.
3. This is not the first face -off between these parties in this court . I set out the
chronology of events culminating in the present application.
Background
The written lease agreement
4. On 17 July 2023 the applicant and the first respondent concluded a written
lease agreement in respect of the premises. The first respondent would
occupy the premises for two years at a monthly rental of R 32 000,00
(excluding VAT), subject to an annual escalation of 6%. I refer to the clauses
relevant for present purposes.
5. Clause 6.1, read with clause 1.14 of the schedule to the written agreement,
describes the “Permitted Purpose” off the premises as “BAR LOUNGE”.
6. Clause 6.2 provides that the first respondent may not use the premises in a
manner that is unlawful, constitutes a nuisance , or which is contrary to the
body corporate’s conduct rules as referred to in clause 7 of the written
agreement. In terms of c lause 6.4 the first respondent must comply with all
applicable laws, rules, regulations and licences in using the premises,
including those which the applicant, as owner, is required to observe.
2 The application was originally brought on an urgent basis, but given the path that the
litigation took, urgency is no longer an issue.
7. Clause 7.1 of the written agreement provides that the landlord of the
premises (that is, the applicant) or his letting or managing agent may from
time to time publish conduct rules in order to regulate the conduct of lessees.
It is common cause between the parties that the body corporate’s conduct
rules (at least the rules as they stood at the time of the conclusion of the
lease agreement), and which are binding on the applicant, are by virtue of
clause 7.1 binding on the first respondent. Clause 7.2 prov ides that the first
respondent, as tenant, shall ensure that its representatives comply with any
such conduct rules as contemplated in clause 7.1.
8. In relation to alterations to the premises, clause 15.1 of the lease provides
that the first respondent may not make any alternations to the premises,
whether interior or exterior, without the applicant’s written consent. Under
clause 15.5, the applicant may on termination of the lease elect to retain any
improvements made to the premises, or he may request the first respondent
to remove them and reinstate the premises to their prior condition. Clause
15.7 provides that the applicant shall not be obliged t o pay compensation to
the first respondent for any alternations made (including fittings and fixtures)
by the first respondent to the premises in fitting them out for their desired use,
whether or not such alterations were made with the applicant’s consent.
9. Clause 29 covers breach by the first respondent . The applicant may cancel
the lease in the event of the first respondent failing to pay the rent, or if it
breaches any of the other terms of the lease (“ all of which are deemed to be
material”).
10. Should either party have to take legal action against the other because of a
breach of the agreement, the unsuccessful party is liable (under clause 30)
for legal costs on the scale as between attorney and client.
The litigation before the Honourable Justice Ndita
The litigation before the Honourable Justice Ndita
11. The first respondent took occupation of the premises on 1 August 2023.
Problems quickly arose between the parties. On 8 October 2024 the
applicant cancelled the lease because of the non-payment of rental , and for
trading contrary to the terms of the lease. O n 30 October 2024 he made
application for the first respondent’s eviction.
12. The application came before Ndita J.3 She declined to evict the first
respondent because she found, on the first respondent’s version , that in
December 2024 (after cancellation of the written lease ) the parties had
concluded a tacit lease 4 upon the same terms as the written lease . In her
words: “… the inference to be drawn from all the facts is that the provisions of
the cancelled agreement were incorporated into the new agreement mutatis
mutandis. (Fiat SA v Kolbe Motors 1975 (2) SA 129).”
13. The parties both accepted that this was the position, and the judgment
stands.
The amended conduct rules
14. On 2 4 March 2025 (after argument of the application before Ndita J, but
before delivery of judgment) the body corporate adopted amended conduct
rules under section 10(2)(b) 5 of the Sectional Titles Schemes Management
Act 8 of 2011 (the STSMA) . These rules were approved by the Community
Schemes Ombud Service (CSOS) on 5 June 2025 , as required by section
10(5) of the STSMA, which provides as follows:
“(5)(a) If the management or conduct rules contemplated in subsection (2) are
substituted, added to, amended or repealed, the developer or the body corporate
3 See James Clive Pears v Club C99 Lounge (Pty) Ltd , unreported judgment under case
number 23527/2024 delivered on 25 June 2025 (coram Ndita J) para 34.
4 There was thus a tacit relocation of the lease.
5 “(2) The rules must provide for the regulation, management, administration, use and
enjoyment of sections and common property, and comprise - … (b) conduct rules, as
prescribed, which rules may, subject to the approval of the chief ombud, be substituted,
added to, amended or repealed by the developer when submitting an application for the
added to, amended or repealed by the developer when submitting an application for the
opening of a sectional title register, and which rules may be substituted, added to, amended
or repealed by special resolution of the body corporate, as prescribed: Provided that such
conduct rules may not be irreconcilable with any prescribed management rule contemplated
in paragraph (a).”
must lodge with the chief ombud a notification in the prescribed form of such
substitution, addition, amendment or repeal.
(b) The chief ombud must examine any proposed substitution, addition, amendment
or repeal referred to in paragraph (a) and must not approve it for filing unless he or
she is satisfied that such substitution, addition, amendment or repeal is reasonable
and appropriate to the scheme.
(c) If the chief ombud approves the substitution, addition, amendment or repeal of
rules for filing, he or she must issue a certificate to that effect.
(d) A substitution, addition, amendment or repeal of rules contemplated in
paragraph (a) comes into operation on the date of the issuing of a certificate
contemplated in paragraph (c) or the opening of the sectional title register for the
scheme, whichever is the latest.”6
15. The amended conduct rules therefore came into operation on 5 June 2025.
16. On 25 March 2025 the body corporate's attorneys gave the applicant notice
of his breach of the conduct rules ( at that stage in unamended form) due to
the first respondent ’s trading as a nightclub instead of a bar lounge as
permitted under the lease agreement . The body corporate also objected to
unauthorised renovations and alterations to the premises, including signage
installed, without the body corporate’s consent. It complained, in addition,
about noise emanating from the premises outside of its permitted trading
hours, and the risks posed by loitering, and disorderly conduct at the
entrance adjacent to the residential sections of the scheme.
17. Rules addressing these concerns, and in particular the concern relating to the
nature of the first respondent’s operations , were carried forward into the
amended conduct rules. Rule 12(6) of the amended rules prohibits the
operation of “ clubs, bars, hookah lounges or similar night establishments”
within the scheme.
18. Rule 12(10)(a) of the amended rules further prohibits an owner or occupier of
18. Rule 12(10)(a) of the amended rules further prohibits an owner or occupier of
a commercial section in the scheme from using the section to “without
6 My emphasis.
limitation … operate a business in the scheme which is primarily in the nature
of a nightclub, club, nightlife venue, entertainment venue, hookah lounge,
pub, bar, gentleman's club, sports café or of which business such activities
form an essential or substantial part”.
19. Rule 12(10)(b) of the amended rules prohibits an owner or occupier of a
commercial section from selling “…bottled alcoholic beverages or any other
intoxicating liquor by retail or ‘Off-Consumption’”.
20. Rule 12(10)(c), in turn, prohibits an owner and occupier from operating “…a
business that involves loud music or an excessive noise, such as, without
limitation, a disco ”. Whatever one calls the first respondent’s operation, it is
clear from the papers that it falls squarely within these prohibitions.
21. On 23 April 2025 the body corporate's attorneys reiterated its concerns to the
applicant and the first respondent, and indicated that penalties would be
imposed on the applicant if the situation was not remedied.
The cancellation of the tacit lease, and the institution of the present application
22. On 30 June 2025 the applicant gave the first respondent notice of its breach
of the tacit lease.7 The breaches concerned clauses 6.2 and 7 of the lease
because of the first respondent’ s breaches of the amended conduct r ules
12(6) and 12(10)(a) to (c), a s well as a breach of clause 29 of the lease for
failure to pay rental. The first respondent was given 20 business days to
cease trading, failing which the applicant would cancel the lease. The arrear
rental was paid but the other breaches went unremedied.
23. On 28 July 2025 the body corporate's attorneys sent a further notice of a
breach of the conduct rules to the applicant, calling on him to remedy these
within 7 days, or face penalties. A letter in the same terms was sent on 9
September 2025, and on that day the body corporate issued the first penalty
September 2025, and on that day the body corporate issued the first penalty
7 Judgment under the first eviction application had by then been delivered, on 25 June 2025.
invoices to the applicant.
24. In September 2025 the applicant and the representatives for the first
respondent conducted negotiations for the sale of the premises to the first
respondent or to its proprietor, Mr Gold, but no agreement could be reached.
25. On 30 September 2025 the applicant accordingly cancelled the lease by way
of a written notice of cancellation, and called on the first respondent to vacate
the premises within 20 days, failing which an eviction application would
follow. The first respondent replied to the breach notice, stating that the
applicant should have known of the businesses prohibited by the conduct
rules before he rented the premises to the first respondent. The first
respondent reminded the applicant that the body corporate had objected to its
liquor license application, but that the objection had been overruled . It
complained that the applicant was raising the same arguments as had been
raised before Ndita J, and in sisted that the first respondent was using the
premises for the purpose stipulated in the lease agreement . It thus disputed
the cancellation of the lease . These sentiments foreshadowed the defences
that have been raised the proceedings now before me.
26. The applicant instituted the present application for eviction in November
2025, and enrolled it for hearing on an urgent basis . It was , however, struck
from the roll for lack of urgency .8 The merits of the application were not
considered at the time.
27. The first respondent is still in occupation of the premises.
The body corporate
28. In its affidavit, the body corporate indicates that it has received numerous
complaints from residents of the scheme who are affected by the first
respondent’s operations , in particular by the noise emanating from the
8 Pears v Club C 99 Bar Lounge (Pty) Ltd and another [2025] ZAWCHC 603 (10 December
2025).
premises outside the permitted trading hours of its liquor license. It appears
from an annexure to the application that served before Ndita J (and to which
the first respondent’s counsel referred me) that the body corporate o bjected
to the grant of an event liquor licence to the first respondent in August 2023,
and in such objection raised various concerns about the first respondent’s
use of the premises. A subsequent “Inspectorate Report” prepared at the
behest of the Western Cape Liquor Authority in Marc h 2024 emphasizes
these concerns, and concludes that the first respondent’s proprietor is not a
“responsible trader or a fit and proper person to hold a liquor licence ”. A
licence was nevertheless granted.
29. The body corporate says that its insurance cover is at risk of being voided if
the premises is operating as a nightclub , because nightclubs pose a high fire
risk. At present the first respondent is not considered as a nightclub for
purposes of the body corporate’s insurance, but future cover may be declined
should the use of the premises as such continue. Penalties of more than
R900 000,00 have since been levied against the applicant, as owner of the
premises.
30. In the course of argument, the first respondent’s counsel referred me to a
supplementary affidavit deposed to by the first respondent’s proprietor in
anticipation of the hearing in November 2025. The affidavit refers to email
correspondence between the applicant and the first respondent’s proprietor,
Mr Gold, from which it appears that the applicant , in 2024 at least, did not
agree with the body corporate’s concerns . He said, for example: “ These
people are insane! Who complains like this after a fit -out before the business
is even open? Why didn’t they just tell us this from the get go??”.
31. The first respondent accordingly asserts that these proceedings are in reality
instigated by the body corporate, and that there is no basis to evict it from the
instigated by the body corporate, and that there is no basis to evict it from the
premises. This argument suggests too, as I understand it, that the body
corporate tailored its amended conduct rules specifically to drive the first
respondent out of the premises. I shall revert to this issue in due course.
The applicable law in relation to eviction
32. As indicated, this is a commercial lease. The common law therefore applies.9
33. All that an owner such as the applicant claiming eviction under the common
law must aver and prove is his ownership, and that the occupier is in
possession. However, if the owner alleges more than is necessary to
vindicate his property (i.e., that the lease has been properly terminated in
accordance with any applicable notice period), then he must show that the
termination was lawful and that any right of occupation has come to an end.10
34. Once ownership and unlawful occupation are alleged, the lessee bears the
onus of setting up a right of occupation.11
The first respondent’s defences
35. The first respondent admits the applicant’s ownership of the premises. It
remains in occupation of the premises. The requisites for ejectment are
therefore met insofar as these aspects are concerned.
36. The first respondent nevertheless raises various defences to the application.
I discuss these in what follows.
Res judicata
37. The requirements for res iudicata are well-established. The doctrine prevents
the same parties from re -litigating the same issue that has already finally
been decided by a court of competent jurisdiction:12
9 See Bradfield and Lehman Principles of the Law of Sale and Lease (3ed, Juta) at pp165-166.
10 Airports Company South Africa Ltd v Airport Bookshops (Pty) Ltd t/a Exclusive Books 2017
(3) SA 128 (SCA) para 24.
11 John Walker Pools v Consolidated Aone Trade & Invest 6 (Pty) Ltd (In liquidation) and
another 2018 (4) SA 433 (SCA) para 3.
12 Ascendis Animal Health (Pty) Limited v Merck Sharpe Dohme Corporation and others 2020
(1) SA 327 (CC) paras 69-71. My emphasis.
“[69] Res judicata strictly means that a matter has already been decided by a
competent court on the same cause of action and for the same relief between the
same parties. In Evins, Corbett JA stated that:
“Closely allied to the ‘once and for all’ rule is the principle of res judicata
which establishes that, where a final judgment has been given in a matter by
a competent court, then subsequent litigation between same parties, or their
privies, in regard to the same subject -matter and based upon the same
cause of action is not permissible and, if attempted by one of them, can be
met by the exceptio rei judicatae vel litis finitae. The object of this principle is
to prevent the repetition of lawsuits, the harassment of a defendant by a
multiplicity of actions and the possibility of conflicting decisions.”
[70] In essence, the crux of res judicata is that where a cause of action has been
litigated to finality between the same parties on a previous occasion, a subsequent
attempt to litigate the same cause of act ion by one party against the other party
should not be allowed. The underlying rationale for this principle is to ensure
certainty on matters that have already been decided, promote finality and prevent
the abuse of court processes.
[71] The requirements of res judicata, although trite, can be summed up as follows:
(i) there must be a previous judgment by a competent court (ii) between the same
parties (iii) based on the same cause of action, and (iv) concerning the same
subject-matter, or thing… the defenc e of res judicata requires that a party must
establish that the present case and the previous case are based on the same set of
facts that have been finalised by a competent court or tribunal by the same parties
on the merits of the same cause of action.”
38. The doctrine has three key elements. The first is that the previous judgment
must have been a final one. The original case must have concluded with a
must have been a final one. The original case must have concluded with a
final judgment on the merits, not an interim or procedural ruling. The second
element is that the same parties must have been involved. The parties in the
second case must be the same as, or in privity with, the parties in the original
case. Third, the same cause of action must have been involved, in
connection with the same subject-matter.
39. The ambit of the exceptio res iudicata has been extended by the relaxation, in
appropriate cases, of the common law requirement that the relief claimed or
the cause of action be the same. This means that the “same issue” question
is whether an issue of fact or law was an essential element of the previous
judgment.13 The defence remains that of res iudicata .14 The relevant
principles are set out as follows in Democratic Alliance v Brummer:15
“[12] The nature of a plea of issue estoppel has been explained by this court on
numerous occasions. The explanation in Smith v Porritt is worth reiterating.
‘Following the decision in Boshoff v Union Government 1932 TPD 345 the
ambit of the exceptio rei judicata has over the years been extended by the
relaxation in appropriate cases of the common -law requirements that the
relief claimed and the cause of action be the same (eadem res and eadem
petendi causa) in both the case in question and the earlier judgment. Where
the circumstances justify the relaxation of these requirements those that
remain are that the parties must be the same (idem actor) and that the same
issue (eadem quaestio) must arise. Broadly stated, the latter involves an
inquiry whether an issue of fact or law was an essential element of the
judgment on which reliance is placed. Where the plea of res judicata is raised
in the absence of a commonality of cause of action and relief claimed it has
become common place to adopt the terminology of English law and to speak
of issue estoppel. … The recognition of the defence in such cases will
however require careful scrutiny. Each case will depend on its own facts and
any extension of the defence will be on a case -by-case basis. … Relevant
considerations will include questions of equity and fairness not only to the
parties themselves but to others. …
[13] The first question is to determine whether, as a matter of fact, the same issue of
fact or law which was determined by the judgment of the previous court is before
another court for determination. This is so because if the same issue (eadem
quaestio) was not determined by the earlier court, an essential requirement for a
quaestio) was not determined by the earlier court, an essential requirement for a
plea of res judicata in the form of issue estoppel is not met . There is then no scope
for upholding the plea. It does not, however, necessarily follow, that once the inquiry
establishes that the same issue was determined, the plea must be upheld. That is so
because the court considering the plea of issue estoppel is, in every case,
concerned with a relaxation of the requirements of res judicata. It must therefore,
with reference to the facts of the case and considerations of fairness and equity,
13 Ascendis supra para 97 (first judgment).
14 Prinsloo NO and others v Goldex 15 (Pty) Ltd and another 2014 (5) SA 297 (SCA) para 10.
15 [2022] ZASCA 151 (3 November 2022) paras 12-13. My emphasis.
decide whether in that case, the defence should be upheld.”
40. The first respondent contends that the applicant is precluded by virtue of
issue estoppel from obtaining relief in this application, because:
40.1 This is an application brought by the same applicant against the
same respondents as in the previous matter.
40.2 The claim in the previous matter was, as it is now, for the ejectment
of the first respondent.
40.3 The issues raised in the previous application for the ejectment of the
first respondent are the same issues raised in th e application now
before this court.
41. The first respondent argues further that, should this court find that the issues
raised in the previous application have not been finally decided, then the
previous judgment must be considered against the background of the case as
presented to the court and in the light of the import and effect of the order.
The previous case was brought on an identical basis, and on the same facts.
This new application is thus a re -litigation of the same case previously before
this Court.
42. A consideration of the applicant’s case makes i t plain that res iudicata does
not apply in the present matter , whether in its original format or in its issue
estoppel cloak . The issues in this application were not the same ones as
featured before Ndita J. At a basic level, the applicant relies on the first
respondent’s breach of a different lease agreement, that is, the tacit lease as
opposed to the written lease that served before Ndita J. She did not consider
or determine the validity of the cancellati on of the tacit lease: she could not
have done so, because the cancellation only occurred on 30 September
2025, after her judgment had been handed down in June 2025. She also did
not consider the first respondent’s defence to the effect that it had an
enrichment lien arising from improvements made to the premises.
43. In Ascendis the Constitutional Court remarked: 16
“The Court in Bisonboard held that it is a well -established principle of our law that
there is a distinction between causes of action on the one hand and legal
proceedings on the other. The result of this distinction is that it is not the legal
proceedings that will be terminated by res judicata, but the individual causes of
action that have been decided. The High Court appears to have found that the
proceedings were res judicata on the basis that the legal proceedings have a similar
outcome. This is clearly wrong. The applicant relied on different causes of action
and on the strength of that, the matter could not have been res judicata.”
44. The fact, moreover, that the question of the first respondent’s breach of
certain clauses of the lease agreement was considered previously (by Ndita
J) does not mean that the consideration of an alleged repeat of those
breaches (or an allegation of other breaches) is precluded. The “new”
breaches are not simply a repeat of the “old” ones. They ar e different
complaints, based upon different facts. In the premises, res judicata does not
assist the first respondent.
The amended conduct rules
45. The first respondent argues that the applicant should have known, when
concluding the lease, what the first respondent’s operations entailed. The
applicant therefore has himself to blame for his troubles with the body
corporate.
46. The first respondent contends further that the amended conduct rules may
not be applied retrospectively. Its argument boils down to the contention that,
because the amended rules were not in place when the lease was concluded,
they do not apply to the first respondent at all.
47. Neither of these contentions advances the first respondent’s case.
16 Ascendis supra para 66 (my emphasis).
48. Whether or not the applicant knew the nature of the business when the lease
was concluded is irrelevant. It does not estop the applicant from applying to
eject the first respondent because of the latter’s breach of the conduct rules
applicable at any given time.
49. It is not the applicant’s case that the amended rules apply retrospectively.
They apply prospectively, to ongoing conduct which took place and which
continues to take place after they ha ve come into effect. There is no dispute
between the parties that conduct rules exist to regulate the conduct of owners
and tenants in a scheme in a scheme. The rules may be amended from time
to time (as reflected in clause 7 of the lease agreement) to cater for conduct
not regulated in the past. This does not vitiate or undermine tenants' rights.
The first respondent’s argument to the effect that i ts alleged rights under the
lease (that is, to operate its establishment in circumstances prohibited by the
conduct rules) cannot supplant the conduct rules. The parties’ respective
obligations under the lease, read with the conduct rules, were not frozen in
time the moment when the lease was concluded.
50. There is a suggestion in the answering papers that the amended rules were
not validly adopted by the body corporate. The amended rules were ,
however, approved by CSOS , and t heir approval stands until set aside. The
same applies to the adoption of the amended rules by the body corporate.
The first respondent has made no effort to challenge either of these decisions
in the appropriate forum , or to mount a collateral challenge as part of these
proceedings.17
51. I wish to revert to the first respondent’s submission (referred to earlier in this
judgment) to the effect that these proceedings are in reality driven by the
body corporate , and that this is unlawful . There is , on the facts, no case
made out in support of this contention on the papers, but one should in any
made out in support of this contention on the papers, but one should in any
17 See, for example, Body Corporate of the Paddock Sectional Title Scheme No 249 -1984 v
Nicholl 2020 (2) SA 472 (GJ) where the respondent instituted a counter -application
challenging the validity of the conduct rules.
event not lose sight of the body corporate’s obligations in the greater context
of sectional title scheme regulation.
52. The functions and powers of bodies corporate are set out in sections 3 and 4
of the STSMA. The goal of these provisions is to ensure that bodies
corporate control, manage, and administer the common property for the
benefit of all owners, and also ensure the enforcement of management and
conduct rules for the harmonious co-existence of the owners in the scheme.
53. Owners, in turn, must under section 13 of the STSMA “ use and enjoy the
common property in such a manner as not to interfere unreasonably with the
use and enjoyment thereof by other owners or other persons lawfully on the
premises”, and “ not use his or her section or exclusive use area, or permit it
to be used in a manner or for a purpose which may cause a nuisance to any
occupier of a section”.
54. Regulation 30 to the STSMA obliges bodies corporate to ensure compliance
with the act and its regulations, by taking reasonable steps to ensure that a
member or any other occupier of a section does not use either the common
property or a section unreasonably so as to interfere with other persons
lawfully on the premises.
55. It is to this end that a body of owners in a sectional title scheme is allowed to
make its own rules or alter or amend existing rules so long as any
amendments are approved by the C SOS. Owners are bound by these
rules.18 I have already referred to the relevant provisions of section 10 of the
STSMA. Apart from voicing suspicions, the first respondent does not make
out a case that the body corporate in the present instance unreasonably
singled out the first respondent, driving it out of the scheme by amending the
conduct rules. What the body corporate did was to respond to the needs of
its members as set out in its papers. There is, as matters stand, nothing
wrong with its conduct in this regard.
wrong with its conduct in this regard.
18 Mount Edgecombe Country Club Estate Management Association II RF NPC v Singh and
others 2019 (4) SA 471 (SCA) para 19.
56. What the first respondent effectively argues is that its conduct must be
tolerated by the body corporate until the tacit lease has run its course. It must
also be compensated for the loss that it will sustain due to the implementation
of the amended rules. Th ese are untenable submissions which ignore the
express agreement in the lease that conduct rules may be made “from time to
time”, and that the first respondent is expected to adhere to them.
57. The first respondent is, on the papers, in admitted in breach of clause 7 of the
lease due to its failure to comply with the amended rules, which bind all
owners and tenants. On its own version it operates as a n establishment
which does not conform to the requirements posed by the amended conduct
rules. The fact that it has a liquor licence (despite the body corporate’s
objections) does not override the provisions of either the lease or the conduct
rules. The applicant was entitled to cancel the lease on this basis alone.
58. The first respondent is also in breach of the unamended conduct rules, due to
its past unauthorised renovations and alterations of the premises (also done
in breach of clause 15.1 of the lease). These predate the amended rules. The
applicant would have been entitled to cancel based on these breaches, which
existed at the time of cancellation, but which were not expressly relied on. 19
The same goes for the many complaints from residents of the scheme who
are affected by the first respondent’s operation s. This is a nuisance
irrespective of whether the first respondent is a bar lounge or a nightclub , and
constitutes a breach of clause 6.2 of the lease. The first respondent does not
deny the allegations made in this respect . In fact, the denials raised in the
answering affidavit are generally broad and devoid of detail, to such an extent
that Plascon Evans20 cannot come to the first respondent’s rescue.
Does the first respondent have an enrichment lien?
Does the first respondent have an enrichment lien?
19 See Datacolor International (Pty) Ltd v Intamarket (Pty) Ltd 2001 (2) SA 284 SCA at 299F-G.
20 Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A) at 634G-
635C. The applicant seeks final relief on motion.
59. The first respondent argues that it may rely on an enrichment lien in
opposition to the application for its eviction from the premises.
60. Enrichment liens are regarded as limited real rights which are enforceable
against the owner of the thing. In United Building Society v Smookler’s
Trustees and Golombick’s Trustee,21 the court held that:
“Now a jus retentionis for necessariae or utiles impensae may well be, and we think
is, a real right. No doubt it is not possession in the legal sense, but it is a right to
exclude everyone else from possession during continuance of a certain state of
things. It is therefore a right to exclude the world from the enjoyment of one of the
most important of the privileges which accompany dominium.”
61. In cases where it is argued that necessary expenses were incurred without
the owner’s permission or agreement (which is what the applicant alleges),
the lien arises from enrichment. 22 To rely on a lien, the first respondent 23
needs to prove the following:
61.1 Lawful possession of the property.
61.2 That the expenses incurred were necessary or useful for the
improvement of the property.
61.3 The actual expenses incurred, and the extent of the applicant’s
enrichment.
61.4 That there was no contractual arrangement between the parties in
respect of the expenses.
62. The first respondent contends that all four requirements are met in the
present case.
21 1906 TS 623 at 632.
22 Brooklyn House Furnishers v Knoetze and Sons 1970 3 SA 264 (A) at 270F-271D.
23 The onus rests upon the first respondent to prove that the applicant has been enriched: see
Rhoode v De Kock and another 2013 (3) SA 123 (SCA).
63. The applicant points, however, to the elephant in the room: clause 15.7 of
the lease provides that he is not obliged to compensate the first respondent
for the improvements it contends it effected to the premises , whether those
improvements were effected with or without the applicant’s consent . Clause
15.5, in addition, provides that the applicant may elect whether to retain the
improvements or to require their removal on termination of the lease . It is
common cause between the parties that the se clauses, which w ere part of
the written lease, remained in place upon the tacit relocation of the lease.
There was, thus a contractual arrangement in place between the parties in
respect of the expenses, which means that the first respondent has not
satisfied the fourth requirement for the establishment of an enrichment lien.
64. The first respondent has, in any event, not met the other requirements for the
establishment of an enrichment lien. It says that it has spent “approximately
R5 million” to improve the premises, but its actual expenses and the extent of
the applicant’s enrichment are n either alleged nor proven. The lien would
cover only the lesser of these two amounts.24
65. In the absence of the necessary facts to ascertain what the position is, the
first respondent has not established that it has such a lien. As stated in
Buzzard Electrical (Pty) Ltd v 158 Jan Smuts Avenue Investments (Pty) Ltd
and another,25 a right of retention does not exist in a vacuum, but serves as
reinforcement of an underlying claim. There can thus be no question of either
a direct or indirect enrichment lien of there is no unjust enrichment of the
owner.
Conclusion and costs
66. The applicant has made out a case for the relief that it seeks, and the first
respondent ha s failed to demonstrate that it has any right to remain in the
property.
24 Rhoode v De Kock and another 2013 (3) SA 123 (SCA) paras 13-16.
25 1996 (4) SA 19 (A) at 26J-27A.
67. The applicant is the successful party, and there is no reason to depart from
the general rule that costs should follow the event. As agreed between the
parties under the lease agreement, such costs are to be paid on the attorney
and client scale.
Order
68. In the premises it is ordered as follows:
1. The first respondent (together with all those occupying under it )
is evicted from the commercial premises situated at Shop [...]
F[...], [...] B[...] Street, Cape Town.
2. The first respondent (together with those occupying under it) is
ordered to vacate the property and restore possession thereof to
the applicant by no later than 20:00 on Sunday, 31 May 2026.
3. Should the first respondent (and anyone occupying under it) fail
to vacate the property as ordered in paragraph 2, the Sheriff of
the Court or his lawfully appointed deputy may carry out this
eviction order forthwith, and hand vacant occupation of the
premises to the applicant.
4. The first respondent shall pay the costs of this application on the
scale as between attorney and client.
P. S. VAN ZYL
Acting Judge of the High Court
Appearances:
For the applicant: Mr G. Quixley
Instructed by: Rebello Karsten Inc.
For the first respondent: Mr D. Petersen
Instructed by: A Fotoh & Associates Inc.
For the second respondent: Ms L. Liebenberg
Instructed by: Albertus J Agulhas Inc.