Ethekweni Municipality v Zedek Trading 82 CC (12482/2008) [2011] ZAKZDHC 37 (28 March 2011)

Ethekweni Municipality v Zedek Trading 82 CC (12482/2008) [2011] ZAKZDHC 37 (28 March 2011)

The court found that the respondent occupied the property under the original tenancy agreement, which permitted termination by one month's written notice. The applicant properly terminated the lease by serving written notice on 29 January 2008, effective 28 February 2008. The respondent's continued occupation thereafter was unlawful, entitling the applicant to ejectment and damages for holding over. The acceptance of payments by the applicant did not constitute a waiver of termination, as the payments were for damages, not rent. The rights of subtenants, while constitutionally recognized, did not require their joinder in these commercial circumstances, and any recourse they may have...

Citation
[2011] ZAKZDHC 37
Parties
Applicant: Ethekweni Municipality; Respondent: Zedek Trading 82 CC
Court
Kwazulu-Natal High Court, Durban
Jurisdiction
South Africa
Judgment Date
28 March 2011
Case Number
12482/2008
Procedural Posture
Urgent Application / Application for Ejectment and Costs
Outcome
Application granted. Respondent and all persons occupying through it are ordered to vacate the property. Costs awarded to applicant on attorney and client scale.
Judges
Murugasen
Legal Topics
Ejectment, Assignment of Lease, Termination of Tenancy, Occupational Damages, Joinder of Parties
Land and Property Civil Procedure Ejectment Assignment of Lease Termination of Tenancy Occupational Damages Joinder of Parties

Case Brief

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Parties

Ethekweni Municipality

Applicant

Zedek Trading 82 CC

Respondent

Procedural Posture

Urgent Application / Application for Ejectment and Costs

Legal Issues

  1. 1 Whether the terms and conditions of the original tenancy agreement apply to the respondent's occupation of the property.
  2. 2 Whether the lease was properly cancelled by the applicant via written notice.
  3. 3 Whether the respondent can resist cancellation based on the applicant's alternative property resources.

Ratio Decidendi

The court found that the respondent occupied the property under the original tenancy agreement, which permitted termination by one month's written notice. The applicant properly terminated the lease by serving written notice on 29 January 2008, effective 28 February 2008. The respondent's continued occupation thereafter was unlawful, entitling the applicant to ejectment and damages for holding over. The acceptance of payments by the applicant did not constitute a waiver of termination, as the payments were for damages, not rent. The rights of subtenants, while constitutionally recognized, did not require their joinder in these commercial circumstances, and any recourse they may have...

Court Disposition

Application granted. Respondent and all persons occupying through it are ordered to vacate the property. Costs awarded to applicant on attorney and client scale.

Orders

  • The respondent, Zedek Trading 82 CC, and all persons in occupation under or through the respondent, are directed to vacate the immovable property described as Sites MA 129, 130 and 133 on Remainder of Erf 301, Springfield, Electron Road.
  • Failing immediate compliance, the Sheriff of the High Court is authorised to evict the respondent and all persons in occupation under or through the respondent from the property.