Kistnasamy and Others v Pillay and Another (D5841/2023) [2024] ZAKZDHC 31 (24 May 2024)

Kistnasamy and Others v Pillay and Another (D5841/2023) [2024] ZAKZDHC 31 (24 May 2024)

The court found that the first respondent's right of occupation under the original lease agreement expired on 29 February 2024, and that he actively participated in and consented to the conclusion of a new lease agreement with the first applicant, thereby relinquishing any rights under the prior lease. The evidence, including WhatsApp messages and emails, demonstrated that the first respondent was aware of and agreed to the new arrangement. The oral sub-lease agreement was validly concluded and subsequently cancelled due to the first respondent's breach in failing to pay rent. The first respondent's version was rejected as unreliable and unsupported by documentary evidence. Accordingly,...

Citation
[2024] ZAKZDHC 31
Parties
Applicant: Indra Logan Kistnasamy; Applicant: Leane Venturella and Carol Coetsee Partnership - Instrument Projects CC; Respondent: Dayalan Pillay; Respondent: Ethekwini Municipality
Court
Kwazulu-Natal High Court, Durban
Jurisdiction
South Africa
Judgment Date
24 May 2024
Case Number
D5841/2023
Procedural Posture
Urgent Application / Ex Tempore Judgment on Application for Ejectment
Outcome
Application granted; the oral sub-lease agreement is declared cancelled and the first respondent is ordered to vacate the premises.
Judges
Mossop
Legal Topics
Oral Sublease Agreement, Ejectment, Cancellation of Lease, Breach of Contract
Land and Property Civil Procedure Oral Sublease Agreement Ejectment Cancellation of Lease Breach of Contract

Case Brief

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Parties

Indra Logan Kistnasamy

Applicant

Leane Venturella and Carol Coetsee Partnership - Instrument Projects CC

Applicant

Dayalan Pillay

Respondent

Ethekwini Municipality

Respondent

Procedural Posture

Urgent Application / Ex Tempore Judgment on Application for Ejectment

Legal Issues

  1. 1 Whether the oral sub-lease agreement between the first applicant and first respondent was valid and subsequently cancelled.
  2. 2 Whether the first respondent is entitled to remain in occupation of the premises after expiry of the first lease agreement.
  3. 3 Whether the first respondent breached the oral sub-lease agreement by failing to pay rent.

Ratio Decidendi

The court found that the first respondent's right of occupation under the original lease agreement expired on 29 February 2024, and that he actively participated in and consented to the conclusion of a new lease agreement with the first applicant, thereby relinquishing any rights under the prior lease. The evidence, including WhatsApp messages and emails, demonstrated that the first respondent was aware of and agreed to the new arrangement. The oral sub-lease agreement was validly concluded and subsequently cancelled due to the first respondent's breach in failing to pay rent. The first respondent's version was rejected as unreliable and unsupported by documentary evidence. Accordingly,...

Court Disposition

Application granted; the oral sub-lease agreement is declared cancelled and the first respondent is ordered to vacate the premises.

Orders

  • It is declared that the oral sub-lease agreement concluded between the first applicant and the first respondent has been cancelled.
  • The first respondent, and any and all persons occupying by, through or under him, are ordered to vacate the immovable property at Unit 2[...], 1[...] L[...] Road, Athlone Park, Amanzimtoti, within 10 days of service of this order.