Actebis 319 CC v Bamboo Rock 1115 CC (12237/2012) [2013] ZAKZDHC 44 (28 August 2013)

Actebis 319 CC v Bamboo Rock 1115 CC (12237/2012) [2013] ZAKZDHC 44 (28 August 2013)

The court found that the applicant had consistently accepted late rental payments from the respondent without objection, thereby modifying the contract or creating an estoppel against strict enforcement of punctual payment. In the absence of a lex commissoria or any express notice to the respondent that future late payments would be treated as breaches, the applicant was not entitled to cancel the lease for the late payment of the September rental. Regarding the partial non-payment of the August rental, the court held that the withholding of R4000 was intentional and related to a claim for compensation, but this did not constitute a material breach or repudiation justifying cancellation...

Citation
[2013] ZAKZDHC 44
Parties
Applicant: Actebis 319 CC; Respondent: Bamboo Rock 1115 CC
Court
Kwazulu-Natal High Court, Durban
Jurisdiction
South Africa
Judgment Date
28 August 2013
Case Number
12237/2012
Procedural Posture
Urgent Application / First Instance
Outcome
Application dismissed with costs.
Judges
Ploos van Amstel
Legal Topics
Lease Cancellation, Ejectment, Late Payment, Material Breach, Repudiation
Land and Property Civil Procedure Lease Cancellation Ejectment Late Payment Material Breach Repudiation

Case Brief

Summary, issues, holding and outcome

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Parties

Actebis 319 CC

Applicant

Bamboo Rock 1115 CC

Respondent

Procedural Posture

Urgent Application / First Instance

Legal Issues

  1. 1 Whether the applicant was entitled to cancel the lease agreement due to late payment and partial non-payment of rent.
  2. 2 Whether the applicant was required to give notice before cancellation in the absence of a lex commissoria.
  3. 3 Whether the respondent's withholding of part of the rent constituted a material breach or repudiation justifying cancellation.

Ratio Decidendi

The court found that the applicant had consistently accepted late rental payments from the respondent without objection, thereby modifying the contract or creating an estoppel against strict enforcement of punctual payment. In the absence of a lex commissoria or any express notice to the respondent that future late payments would be treated as breaches, the applicant was not entitled to cancel the lease for the late payment of the September rental. Regarding the partial non-payment of the August rental, the court held that the withholding of R4000 was intentional and related to a claim for compensation, but this did not constitute a material breach or repudiation justifying cancellation...

Court Disposition

Application dismissed with costs.

Orders

  • The application is dismissed with costs.