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South Africa Judgment

High Courts - Gauteng

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

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01

Holding and result

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.

02

Material facts

Parties

ABSA Limited N.O

Applicant Counsel: Adv Hoffman SC

Yarram Trading CC t/a Tijuana Spur

Respondent Counsel: Adv Suttner SC

03

Procedural history

  1. Posture

    Urgent Application / Application for Eviction

04

Questions and positions

Legal issues

Party arguments

Applicant
The applicant argued that the respondent is in unlawful occupation of the premises, has failed to pay the agreed rental, and that any alleged oral variation of the lease agreement is invalid due to the written non-variation clause. The applicant sought eviction and costs.
Respondent
The respondent contended that there was a genuine dispute regarding whether the landlord constructed the outside seating area as agreed, and alleged that the lease agreement was orally varied. The respondent resisted eviction on these grounds.

05

Court’s reasoning

  1. 01

    Standard contract law principles

    A written lease agreement containing a non-variation clause cannot be amended orally; any variation must be in writing.

  2. 02

    First principles of eviction law

    Where a tenant resists eviction on the basis of a counterclaim or dispute, the court will ordinarily grant eviction and allow the dispute to be resolved separately.

06

Ratio, limits and disposition

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.

Obiter and limits

  • It is not ordinarily appropriate for a tenant to use a dispute as a reason to remain in occupation of premises without paying rental.
  • The costs of two counsel were justified in this matter due to its complexity.

Court disposition

Application granted; eviction order issued against the respondent.

  • 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.

Source and reliance status

High Courts - Gauteng

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Judgment text

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Source document

High Courts - Gauteng

Judgment

[2005] ZAGPHC 376

NOT REPORTABLE

IN THE HIGH COURT OF

SOUTH AFRICA

(WITWATERSRAND LOCAL DIVISION)

JOHANNESBURG

CASE NO: 7865/05

DATE:2005-08-19

In the matter between

ABSA

LIMITED N.O.................................................................................................... Applicant

and

YARRAM TRADING CC t/a TIJUANA SPUR ….......................................................Respondent

JUDGMENT

WILLIS, J: This is an application for the eviction of the respondent from a shopping centre in Bryanston known as the Bryanston Shopping Centre. It is common cause that the respondent is a tenant in that shopping centre and that it operates a restaurant known as the

Tijuana Spur there.

The point was taken in limine that the applicant did not have locus standi to apply for the eviction of respondent. I have already dealt with that aspect in a separate judgment and found that there was no merit in the point in limine.

It is common cause that the respondent is in occupation of the premises and is not paying the agreed rental in respect of the premises. There is, it would seem, a genuine and real factual dispute concerning the question of whether or not the landlord constructed the outside seating area as was agreed between the parties. There is an allegation that the terms of the agreement were varied orally. Unfortunately this will not assist the respondent by reason of the fact that it is quite clear that the applicable written agreement concluded between the parties contains the standard non-validity-of-any-amendment clause unless such variation or amendment is recorded in writing.

In so far as the apparently real dispute between the parties concerning the outside seating area is concerned, I think it is appropriate to decide this matter by relying on first principles. Where, for example, a tenant against whom eviction is sought, claims to have a valid counterclaim but is nevertheless resisting eviction, the court will ordinarily make an order for the eviction and let the dispute be ventilated in some other forum at a later stage. It is not ordinarily considered appropriate that a tenant should use a dispute as a reason to remain in occupation of premises without paying the rental.

Accordingly, an order is made in terms of prayers 1 and 2 of the Notice of Motion dated 19 May 2005. Counsel agreed that this was an appropriate matter where the costs of two counsel should be allowed and it is so ordered.

ON BEHALF OF APPLICANT:ADV HOFFMAN SC

Instructed by:

ON BEHALF OF RESPONDENT:ADV SUTTNER SC

DATE OF JUDGMENT:19 AUGUST 2005

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