Junkoon N.O. and Others v van den Berg and Others (2020/33237) [2022] ZAGPJHC 351 (24 May 2022)

Junkoon N.O. and Others v van den Berg and Others (2020/33237) [2022] ZAGPJHC 351 (24 May 2022)

The court found that the first defendant's claim to a lien over the premises was contractually excluded by clauses 14.1 and 14.2 of the lease, which prohibit alterations without consent and expressly waive any improvement lien or right of retention. As both parties accepted that the lease was at an end, the first defendant had no legal basis to resist ejectment, and was ordered to vacate the premises within seven days. Regarding arrear rental and charges, the court held that the defendants raised genuine and bona fide defences based on supervening impossibility and remission of rent due to Covid-19 regulations, which could not be conclusively determined in summary judgment proceedings and...

Citation
[2022] ZAGPJHC 351
Parties
Plaintiff: Jujdeeshin Junkoon N.O.; Plaintiff: Ridwaan Asmal N.O.; Plaintiff: Petersen, Isak Smolly N.O.; Plaintiff: Azizollahoff, Brian Hilton N.O.; Defendant: Dawid Stefanus van den Berg CC t/a Ballbreakers; Defendant: Dawid Stefanus van den Berg
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
24 May 2022
Case Number
2020/33237
Procedural Posture
Summary Judgment Application / Application for Summary Judgment After Delivery of Plea
Outcome
Summary judgment granted in part: ejectment and rectification ordered; leave to defend granted on arrear rental and charges; costs apportioned.
Judges
VM Movshovich
Legal Topics
Summary Judgment, Commercial Lease, Improvement Lien, Vis Maior, Remission of Rent, Rectification of Contract
Land and Property Civil Procedure Summary Judgment Commercial Lease Improvement Lien Vis Maior Remission of Rent Rectification of Contract

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Parties

Jujdeeshin Junkoon N.O.

Plaintiff

Ridwaan Asmal N.O.

Plaintiff

Petersen, Isak Smolly N.O.

Plaintiff

Azizollahoff, Brian Hilton N.O.

Plaintiff

Dawid Stefanus van den Berg CC t/a Ballbreakers

Defendant

Dawid Stefanus van den Berg

Defendant

Procedural Posture

Summary Judgment Application / Application for Summary Judgment After Delivery of Plea

Legal Issues

  1. 1 Whether the defendants are entitled to resist ejectment from the leased premises based on an alleged improvement lien.
  2. 2 Whether the defendants are liable for arrear rental and charges during the Covid-19 lockdown period.
  3. 3 Whether the lease should be rectified to reflect the correct registration number of the first defendant.

Ratio Decidendi

The court found that the first defendant's claim to a lien over the premises was contractually excluded by clauses 14.1 and 14.2 of the lease, which prohibit alterations without consent and expressly waive any improvement lien or right of retention. As both parties accepted that the lease was at an end, the first defendant had no legal basis to resist ejectment, and was ordered to vacate the premises within seven days. Regarding arrear rental and charges, the court held that the defendants raised genuine and bona fide defences based on supervening impossibility and remission of rent due to Covid-19 regulations, which could not be conclusively determined in summary judgment proceedings and...

Court Disposition

Summary judgment granted in part: ejectment and rectification ordered; leave to defend granted on arrear rental and charges; costs apportioned.

Orders

  • The first defendant and anyone claiming occupation through the first defendant are ejected from Shop 101, Blackheath Pavilion, Blackheath, Randburg, Gauteng, with effect from 31 May 2022.
  • The lease is rectified to reflect the first defendant's registration number as '2002/062289/23' wherever it appears.