Galaxias Properties CC v Georgiou (A5031/2011, 2010/8562) [2013] ZAGPJHC 399 (29 November 2013)

Galaxias Properties CC v Georgiou (A5031/2011, 2010/8562) [2013] ZAGPJHC 399 (29 November 2013)

The appeal was upheld because the lease agreement contained a clear non-variation clause, which precluded any oral waiver or variation. The appellant did not acquiesce in late payments in a manner that would amount to waiver or estoppel, as written notices were given in accordance with the agreement. The respondent's defences of oral variation, waiver, and estoppel were incompatible with the non-variation clause and unsupported by the facts. The enforcement of the non-variation clause and cancellation of the lease did not offend public policy or constitutional values, as no specific constitutional right was infringed and the contractual terms were not unduly onerous. The respondent's...

Citation
[2013] ZAGPJHC 399
Parties
Appellant: Galaxias Properties CC; Respondent: Savvas Angelo Georgiou
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
29 November 2013
Case Number
A5031/2011, 2010/8562
Procedural Posture
Civil Appeal / Appeal From Court a Quo Judgment
Outcome
Appeal upheld. The order of the court a quo is set aside and replaced with an eviction order against the respondent.
Judges
Vermeulen AJ, Moshidi J, Kgomo J
Legal Topics
Eviction, Lease Agreement, Non Variation Clause, Waiver, Public Policy, Lex Commissoria
Land and Property Civil Procedure Eviction Lease Agreement Non Variation Clause Waiver Public Policy Lex Commissoria

Case Brief

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Parties

Galaxias Properties CC

Appellant

Savvas Angelo Georgiou

Respondent

Procedural Posture

Civil Appeal / Appeal From Court a Quo Judgment

Legal Issues

  1. 1 Whether the lessor was entitled to cancel the lease agreement and evict the lessee after repeated late payment of rent.
  2. 2 Whether oral variation or waiver of the non-variation clause in the lease agreement was valid and enforceable.
  3. 3 Whether enforcement of the non-variation clause and cancellation of the lease offended public policy, fairness, justice, or constitutional values.

Ratio Decidendi

The appeal was upheld because the lease agreement contained a clear non-variation clause, which precluded any oral waiver or variation. The appellant did not acquiesce in late payments in a manner that would amount to waiver or estoppel, as written notices were given in accordance with the agreement. The respondent's defences of oral variation, waiver, and estoppel were incompatible with the non-variation clause and unsupported by the facts. The enforcement of the non-variation clause and cancellation of the lease did not offend public policy or constitutional values, as no specific constitutional right was infringed and the contractual terms were not unduly onerous. The respondent's...

Court Disposition

Appeal upheld. The order of the court a quo is set aside and replaced with an eviction order against the respondent.

Orders

  • The appeal succeeds with costs, including costs occasioned by the employment of senior counsel.
  • The order of the court a quo is set aside and substituted with an order that the respondent and all persons occupying through or under him must vacate Shop 1, Ferryvale shopping centre, 25 Beverley Road, Nigel within ten calendar days from service of this order.