Junkoon NO and Others v Spar Group Limited (2022/17936) [2023] ZAGPJHC 693 (13 June 2023)

Junkoon NO and Others v Spar Group Limited (2022/17936) [2023] ZAGPJHC 693 (13 June 2023)

The Court found that the parties had expressly considered and agreed upon the consequences of damage or destruction to the leased premises, as evidenced by the inclusion of the damage or destruction clause in the written lease agreement. This clause placed the sole obligation to reconstruct and restore the premises on the landlord, with no express or implied obligation on the tenant to assist. The Court held that the proposed tacit term was neither necessary for business efficacy nor supported by the parties' common intention, and that importing such a term would conflict with the express terms of the contract. Accordingly, the amendment seeking to introduce the tacit term was refused.

Citation
[2023] ZAGPJHC 693
Parties
Applicant: Jujdeeshin Junkoon NO (in his capacity as trustee of the Dipula Property Investment Trust); Applicant: Ridwaan Asmal NO (in his capacity as trustee of the Dipula Property Investment Trust); Applicant: Isak Smolly Petersen NO (in his capacity as trustee of the Dipula Property Investment Trust); Applicant: Brian Hilton Azizollahoff NO (in his capacity as trustee of the Dipula Property Investment Trust); Respondent: Spar Group Limited
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
13 June 2023
Case Number
2022/17936
Procedural Posture
Civil Application / Application to Amend Particulars of Claim
Outcome
Application to amend particulars of claim refused; costs awarded against the applicant.
Judges
R Shepstone
Legal Topics
Lease Agreement, Tacit Terms, Contract Amendment, Damage or Destruction Clause
Land and Property Civil Procedure Lease Agreement Tacit Terms Contract Amendment Damage or Destruction Clause

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 4 Authorities cited 5 Party arguments 2
Sign in to unlock

Parties

Jujdeeshin Junkoon NO (in his capacity as trustee of the Dipula Property Investment Trust)

Applicant

Ridwaan Asmal NO (in his capacity as trustee of the Dipula Property Investment Trust)

Applicant

Isak Smolly Petersen NO (in his capacity as trustee of the Dipula Property Investment Trust)

Applicant

Brian Hilton Azizollahoff NO (in his capacity as trustee of the Dipula Property Investment Trust)

Applicant

Spar Group Limited

Respondent

Procedural Posture

Civil Application / Application to Amend Particulars of Claim

Legal Issues

  1. 1 Whether a tacit term obliging the tenant to assist the landlord in reconstruction can be imported into the lease agreement.
  2. 2 Whether the proposed amendment introducing a tacit term is excipiable due to conflict with express terms of the lease.
  3. 3 Whether the express damage or destruction clause precludes the implication of further obligations on the tenant.

Ratio Decidendi

The Court found that the parties had expressly considered and agreed upon the consequences of damage or destruction to the leased premises, as evidenced by the inclusion of the damage or destruction clause in the written lease agreement. This clause placed the sole obligation to reconstruct and restore the premises on the landlord, with no express or implied obligation on the tenant to assist. The Court held that the proposed tacit term was neither necessary for business efficacy nor supported by the parties' common intention, and that importing such a term would conflict with the express terms of the contract. Accordingly, the amendment seeking to introduce the tacit term was refused.

Court Disposition

Application to amend particulars of claim refused; costs awarded against the applicant.

Orders

  • The application is dismissed with costs.