Media Cube (Pty) Ltd v Vividend Income Fund Ltd (2132/13) [2013] ZAGPJHC 81 (7 March 2013)

Media Cube (Pty) Ltd v Vividend Income Fund Ltd (2132/13) [2013] ZAGPJHC 81 (7 March 2013)

The applicant failed to establish that the respondent had knowledge of the lease or was put on enquiry regarding the applicant's interest in the advertising structures at the time of purchase. The signage was vacant, and there was no evidence of advertising that would have alerted the respondent to a third-party interest. The oral cession of the lease agreement is invalid due to the non-variation clause requiring written recordal. Consequently, the huur gaat voor koop principle does not apply, and the applicant cannot enforce the lease against the respondent. The application is dismissed with costs, including the costs of two counsel due to the complexity of the legal issues involved.

Citation
[2013] ZAGPJHC 81
Parties
Applicant: The Media Cube (Proprietary) Limited; Defendant: Vividend Income Fund Limited
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
7 March 2013
Case Number
2132/13
Procedural Posture
Urgent Application / First Instance Judgment
Outcome
Application dismissed with costs, including costs of two counsel.
Judges
Willis
Legal Topics
Huur Gaat Voor Koop, Lease Cession, Non Variation Clause, Successor in Title, Advertising Structures
Land and Property Civil Procedure Huur Gaat Voor Koop Lease Cession Non Variation Clause Successor in Title Advertising Structures

Case Brief

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Parties

The Media Cube (Proprietary) Limited

Applicant

Vividend Income Fund Limited

Defendant

Procedural Posture

Urgent Application / First Instance Judgment

Legal Issues

  1. 1 Whether the applicant can enforce a lease agreement against the respondent under the huur gaat voor koop principle.
  2. 2 Whether the oral cession of the lease agreement is valid in light of the non-variation clause requiring written recordal.
  3. 3 Whether the respondent was put on enquiry or had knowledge of the applicant's interest in the advertising structures at the time of purchase.

Ratio Decidendi

The applicant failed to establish that the respondent had knowledge of the lease or was put on enquiry regarding the applicant's interest in the advertising structures at the time of purchase. The signage was vacant, and there was no evidence of advertising that would have alerted the respondent to a third-party interest. The oral cession of the lease agreement is invalid due to the non-variation clause requiring written recordal. Consequently, the huur gaat voor koop principle does not apply, and the applicant cannot enforce the lease against the respondent. The application is dismissed with costs, including the costs of two counsel due to the complexity of the legal issues involved.

Court Disposition

Application dismissed with costs, including costs of two counsel.

Orders

  • The application is dismissed with costs, which costs are to include the costs of two counsel.