Hencetrade 15 (Pty) Ltd v Tudor Hotel Brasserie & Bar (Pty) Ltd (15275/2015) [2016] ZAWCHC 54 (16 May 2016)

Hencetrade 15 (Pty) Ltd v Tudor Hotel Brasserie & Bar (Pty) Ltd (15275/2015) [2016] ZAWCHC 54 (16 May 2016)

The court found that there was no reasonable prospect that the Supreme Court of Appeal would overturn the judgment, even if it reconsidered the approach in Pilco Investments and adopted the reasoning in Thompson v Scholtz. The respondent's reliance on the exceptio non adimpleti contractus was irreconcilable with the reasoning in Thompson, which favoured the remission of rental principle. The respondent would still have been in arrears on the reduced rental, and the lease was effectively amended to exclude the third floor. Therefore, the respondent had no valid defence to resist eviction or payment of rental, and leave to appeal was not warranted.

Citation
[2016] ZAWCHC 54
Parties
Applicant: Hencetrade 15 (Pty) Ltd; Respondent: Tudor Hotel Brasserie & Bar (Pty) Ltd
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
16 May 2016
Case Number
15275/2015
Procedural Posture
Leave to Appeal / Application for Leave to Appeal to the Supreme Court of Appeal
Outcome
Application for leave to appeal dismissed with costs.
Judges
A.G. Binns-Ward
Legal Topics
Remission of Rental, Exceptio Non Adimpleti Contractus, Lease Amendment, Eviction, Reciprocal Obligations
Land and Property Civil Procedure Remission of Rental Exceptio Non Adimpleti Contractus Lease Amendment Eviction Reciprocal Obligations

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Parties

Hencetrade 15 (Pty) Ltd

Applicant

Tudor Hotel Brasserie & Bar (Pty) Ltd

Respondent

Procedural Posture

Leave to Appeal / Application for Leave to Appeal to the Supreme Court of Appeal

Legal Issues

  1. 1 Whether there is a reasonable prospect that the Supreme Court of Appeal would overturn the judgment based on the approach to remission of rental and the exceptio non adimpleti contractus.
  2. 2 Whether the lease was effectively amended to exclude the third floor of the Huys Heeren XVII building.
  3. 3 Whether the respondent could rely on the exceptio non adimpleti contractus to resist payment of rental or eviction.

Ratio Decidendi

The court found that there was no reasonable prospect that the Supreme Court of Appeal would overturn the judgment, even if it reconsidered the approach in Pilco Investments and adopted the reasoning in Thompson v Scholtz. The respondent's reliance on the exceptio non adimpleti contractus was irreconcilable with the reasoning in Thompson, which favoured the remission of rental principle. The respondent would still have been in arrears on the reduced rental, and the lease was effectively amended to exclude the third floor. Therefore, the respondent had no valid defence to resist eviction or payment of rental, and leave to appeal was not warranted.

Court Disposition

Application for leave to appeal dismissed with costs.

Orders

  • The application for leave to appeal is dismissed with costs.