Areff NO and Others v Mohamed Kolia t/a Spinners (13661/11) [2012] ZAKZDHC 54 (26 September 2012)

Areff NO and Others v Mohamed Kolia t/a Spinners (13661/11) [2012] ZAKZDHC 54 (26 September 2012)

The court found that the respondent's counterclaim for damages in the Magistrates' Court does not constitute a defence to the ejectment application, as it has no bearing on the applicants' right to recover possession of the property. The alleged term permitting indefinite occupation at the respondent's instance and pleasure was not supported by the evidence and, in any event, did not override the material term requiring payment of rental. The acceptance of rental payments by the applicants was on a 'without prejudice' basis and did not amount to a waiver of their right to eject the respondent. The notice to vacate was valid, and the lease agreement had been properly cancelled....

Citation
[2012] ZAKZDHC 54
Parties
Applicant: Abdool Rahiman Areff NO; Applicant: Abdul Khalek Areff NO; Applicant: Nazeer Ahmed Ballim NO; Respondent: Mohamed Kolia t/a Spinners
Court
Kwazulu-Natal High Court, Durban
Jurisdiction
South Africa
Judgment Date
26 September 2012
Case Number
13661/11
Procedural Posture
Ejectment Application / First Instance
Outcome
Application granted; respondent ordered to vacate premises within 30 days; sheriff authorised to eject respondent if necessary; respondent to pay costs.
Judges
Lopes
Legal Topics
Ejectment, Lease Agreement, Waiver of Rights, Counterclaim, Notice to Vacate
Land and Property Civil Procedure Ejectment Lease Agreement Waiver of Rights Counterclaim Notice to Vacate

Case Brief

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Parties

Abdool Rahiman Areff NO

Applicant

Abdul Khalek Areff NO

Applicant

Nazeer Ahmed Ballim NO

Applicant

Mohamed Kolia t/a Spinners

Respondent

Procedural Posture

Ejectment Application / First Instance

Legal Issues

  1. 1 Whether the respondent is lawfully entitled to remain in occupation of the premises after cancellation of the lease agreement.
  2. 2 Whether the respondent's counterclaim for damages in the Magistrates' Court constitutes a defence to the ejectment application.
  3. 3 Whether acceptance of rental payments by the applicants after notice to vacate amounts to a waiver of their right to eject the respondent.

Ratio Decidendi

The court found that the respondent's counterclaim for damages in the Magistrates' Court does not constitute a defence to the ejectment application, as it has no bearing on the applicants' right to recover possession of the property. The alleged term permitting indefinite occupation at the respondent's instance and pleasure was not supported by the evidence and, in any event, did not override the material term requiring payment of rental. The acceptance of rental payments by the applicants was on a 'without prejudice' basis and did not amount to a waiver of their right to eject the respondent. The notice to vacate was valid, and the lease agreement had been properly cancelled....

Court Disposition

Application granted; respondent ordered to vacate premises within 30 days; sheriff authorised to eject respondent if necessary; respondent to pay costs.

Orders

  • The respondent and any person or persons claiming to occupy through him are directed to vacate Shop 1, Ballim’s Building, 54 Hulett Street, Kwa-Dukuza, KwaZulu-Natal within 30 days of service of this order.
  • If the respondent or any person claiming through him fails to comply, the sheriff is directed to eject them and their belongings from the premises and hand vacant possession to the applicants’ attorney.