Apexhi Properties Ltd v Suliman (34834/2004) [2007] ZAGPHC 68 (30 May 2007)

Apexhi Properties Ltd v Suliman (34834/2004) [2007] ZAGPHC 68 (30 May 2007)

The court found that the respondent did not provide written notice of renewal as required by the lease agreement, and that the correspondence relied upon by the respondent only referred to cession, not renewal. The court held that the non-variation clause precluded oral renewal, and that any waiver of the requirement for writing must be proved by clear and unequivocal evidence, which was lacking. Furthermore, there was no consensus on the rental for the renewal period, as required by the lease, and thus no binding agreement existed. The acceptance of rental after expiry was explained by administrative oversight and did not constitute acceptance of renewal. The respondent's reliance on...

Citation
[2007] ZAGPHC 68
Parties
Applicant: Apexhi Properties Ltd; Respondent: Asger Ally Harron Suliman
Court
High Courts - Gauteng
Jurisdiction
South Africa
Judgment Date
30 May 2007
Case Number
34834/2004
Procedural Posture
Urgent Application / First Instance
Outcome
Application for eviction granted; respondent ordered to vacate premises and pay costs.
Judges
Botha
Legal Topics
Eviction, Lease Renewal, Non Variation Clause, Waiver of Writing Requirement
Land and Property Civil Procedure Eviction Lease Renewal Non Variation Clause Waiver of Writing Requirement

Case Brief

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Parties

Apexhi Properties Ltd

Applicant

Asger Ally Harron Suliman

Respondent

Procedural Posture

Urgent Application / First Instance

Legal Issues

  1. 1 Whether the respondent validly renewed the lease for shop 3.5 in the Sammy Marks shopping centre.
  2. 2 Whether the requirement of written notice for renewal could be waived by the applicant.
  3. 3 Whether there was consensus on the rental for the alleged renewal period.

Ratio Decidendi

The court found that the respondent did not provide written notice of renewal as required by the lease agreement, and that the correspondence relied upon by the respondent only referred to cession, not renewal. The court held that the non-variation clause precluded oral renewal, and that any waiver of the requirement for writing must be proved by clear and unequivocal evidence, which was lacking. Furthermore, there was no consensus on the rental for the renewal period, as required by the lease, and thus no binding agreement existed. The acceptance of rental after expiry was explained by administrative oversight and did not constitute acceptance of renewal. The respondent's reliance on...

Court Disposition

Application for eviction granted; respondent ordered to vacate premises and pay costs.

Orders

  • An order is granted in terms of prayer 1 of the notice of motion, effective 1 July 2007.
  • The respondent is to pay the applicant's costs, including the costs of senior counsel.