ABSA Ltd NO v Yarram Trading CC t/a Tijuana Spur [2005] ZAGPHC 376; 65/05/01 (19 September 2005)

ABSA Ltd NO v Yarram Trading CC t/a Tijuana Spur [2005] ZAGPHC 376; 65/05/01 (19 September 2005)

The court found that the respondent was in occupation of the premises and had failed to pay the agreed rental. The alleged oral variation of the lease agreement was invalid due to the written non-variation clause. The existence of a factual dispute regarding the outside seating area did not entitle the respondent to remain in occupation without paying rent. The court held that eviction was appropriate and granted the orders sought by the applicant.

Citation
[2005] ZAGPHC 376
Parties
Applicant: ABSA Limited N.O; Respondent: Yarram Trading CC t/a Tijuana Spur
Court
High Courts - Gauteng
Jurisdiction
South Africa
Judgment Date
19 September 2005
Case Number
7865/05
Procedural Posture
Urgent Application / Application for Eviction
Outcome
Application granted; eviction order issued against the respondent.
Judges
Willis
Legal Topics
Eviction, Lease Agreement, Oral Variation, Non Variation Clause
Land and Property Civil Procedure Eviction Lease Agreement Oral Variation Non Variation Clause

Case Brief

Summary, issues, holding and outcome

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Parties

ABSA Limited N.O

Applicant

Yarram Trading CC t/a Tijuana Spur

Respondent

Procedural Posture

Urgent Application / Application for Eviction

Legal Issues

  1. 1 Whether the applicant has locus standi to seek eviction of the respondent.
  2. 2 Whether the respondent is entitled to remain in occupation due to a dispute regarding the outside seating area.
  3. 3 Whether oral variation of the lease agreement is valid given the written non-variation clause.

Ratio Decidendi

The court found that the respondent was in occupation of the premises and had failed to pay the agreed rental. The alleged oral variation of the lease agreement was invalid due to the written non-variation clause. The existence of a factual dispute regarding the outside seating area did not entitle the respondent to remain in occupation without paying rent. The court held that eviction was appropriate and granted the orders sought by the applicant.

Court Disposition

Application granted; eviction order issued against the respondent.

Orders

  • The respondent is evicted from the premises in terms of prayers 1 and 2 of the Notice of Motion dated 19 May 2005.
  • The respondent is ordered to pay the costs of two counsel.