Media Cube (Pty) Ltd v Vividend Income Fund Limited (A5004/14) [2014] ZAGPJHC 378 (12 November 2014)

Media Cube (Pty) Ltd v Vividend Income Fund Limited (A5004/14) [2014] ZAGPJHC 378 (12 November 2014)

The court held that for the huur gaat voor koop principle to apply, the lessee must prove either that the purchaser was aware of the lease or that the lessee was in open occupation at the time of sale. The appellant failed to provide sufficient evidence of occupation that would have placed the respondent on notice. The mere presence of advertising structures, without evidence of active advertising or discernible occupation at the time of sale, was insufficient. The respondent was not aware of the lease agreement, and due diligence documents did not reference any such lease. The application for a spoliation order was also unsupported by facts demonstrating possession or occupation....

Citation
[2014] ZAGPJHC 378
Parties
Appellant: The Media Cube (Pty) Ltd; Respondent: Vividend Income Fund Limited
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
12 November 2014
Case Number
A5004/14
Procedural Posture
Civil Appeal / Appeal From Judgment of Willis J; Leave Granted by SCA
Outcome
Appeal dismissed with costs, including costs of two counsel.
Judges
Windell, Wright, Yacoob
Legal Topics
Huur Gaat Voor Koop, Lease Agreement, Cession of Rights, Spoliation, Notice to Purchaser
Land and Property Civil Procedure Huur Gaat Voor Koop Lease Agreement Cession of Rights Spoliation Notice to Purchaser

Case Brief

Summary, issues, holding and outcome

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Parties

The Media Cube (Pty) Ltd

Appellant

Vividend Income Fund Limited

Respondent

Procedural Posture

Civil Appeal / Appeal From Judgment of Willis J; Leave Granted by SCA

Legal Issues

  1. 1 Whether the huur gaat voor koop principle applies to the lease agreement in question.
  2. 2 Whether the appellant proved occupation sufficient to bind the purchaser under huur gaat voor koop.
  3. 3 Whether the lease agreement was validly ceded and binding on the respondent.

Ratio Decidendi

The court held that for the huur gaat voor koop principle to apply, the lessee must prove either that the purchaser was aware of the lease or that the lessee was in open occupation at the time of sale. The appellant failed to provide sufficient evidence of occupation that would have placed the respondent on notice. The mere presence of advertising structures, without evidence of active advertising or discernible occupation at the time of sale, was insufficient. The respondent was not aware of the lease agreement, and due diligence documents did not reference any such lease. The application for a spoliation order was also unsupported by facts demonstrating possession or occupation....

Court Disposition

Appeal dismissed with costs, including costs of two counsel.

Orders

  • The appeal is dismissed with costs, including the costs of two counsel.