Mthatha Mall (Pty) Ltd v Motion Fitness (Pty) Ltd t/a Motion Fitness and Another (2305/2019) [2019] ZAECGHC 106 (12 November 2019)
The court found that the respondents failed to establish any contractual or legal basis for their continued occupation and refusal to pay rental. The alleged disputes of fact were peripheral and did not affect the applicant's right to cancel the lease and claim eviction and damages. The lease agreement was clear in...
Source-derived case information.
- Citation
- [2019] ZAECGHC 106
- Parties
- Applicant: Mthatha Mall (Pty) Ltd; Respondent: Motion Fitness (Pty) Ltd t/a Motion Fitness; Respondent: Nicolaas Ferdinand van Gass
- Court
- Eastern Cape High Court, Grahamstown
- Jurisdiction
- South Africa
- Case Number
- 2305/2019
- Procedural Posture
- Leave to Appeal / Application for Leave to Appeal Following Judgment on Eviction and Damages
- Outcome
- Application for leave to appeal dismissed with costs.
- Judges
- J.E Smith
- Legal Topics
- Eviction, Lease Agreement, Arrear Rental, Disputes of Fact, Oral Evidence, Contractual Election
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mthatha Mall (Pty) Ltd
Applicant
Motion Fitness (Pty) Ltd t/a Motion Fitness
Respondent
Nicolaas Ferdinand van Gass
Respondent
Procedural Posture
Leave to Appeal / Application for Leave to Appeal Following Judgment on Eviction and Damages
Legal Issues
- 1 Whether bona fide disputes of fact existed requiring referral to oral evidence.
- 2 Whether the applicant was entitled to cancel the lease and claim eviction and damages.
- 3 Whether the respondents had any contractual or legal basis for continued occupation and non-payment of rental.
Ratio Decidendi
The court found that the respondents failed to establish any contractual or legal basis for their continued occupation and refusal to pay rental. The alleged disputes of fact were peripheral and did not affect the applicant's right to cancel the lease and claim eviction and damages. The lease agreement was clear in excluding any right to defer or withhold payments, and the applicant was entitled to elect cancellation. There were no reasonable prospects that another court would reach a different conclusion, and thus leave to appeal was refused.
Court Disposition
Application for leave to appeal dismissed with costs.
Orders
- The application for leave to appeal is dismissed.
- The respondents are ordered to pay the costs of the application.
Full Case Text
Judgment text and source record
36 paragraphs
IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, GRAHAMSTOWN)
CASE NO.: 2305/2019
In the matter between:
MTHATHA MALL (PTY) LTD APPLICANT
And
MOTION FITNES (PTY) LTD T/A MOTION FITNES FIRST RESPONDENT
NICOLAAS FERDINAND VAN GASS SECOND RESPONDENT
JUDGMENT: APPLICATION FOR LEAVE TO APPEAL
1. The respondents apply for leave to appeal against my judgment delivered on 17 September 2019. For the sake of convenience I shall refer to the parties as they were cited in the main applicant.
2. The application is based on various grounds, all of which relate to my contended failure to recognize that there were bona fide disputes of fact which should have been referred for the hearing of oral evidence. These disputes, according to the respondents, relate, inter alia, to the respondents' assertion that the leases in respect of their operations at the BT Ngebs, Mdantsane, and Hemmingways Malls are interrelated (and may impact on the interpretation of the lease agreement in this matter); the amount of arrear rental owed by the respondents; and whether the applicant is bound by its earlier election to enforce the agreement and claim
damages, and is thus precluded from suing for eviction.
3. My findings were based on the following facts stablished by the applicant:
a) the respondents are in breach of the lease agreement by failing to pay rental in terms thereof:
b) despite their claims that the premises are not suitable, they continue to use it for the purposes of the lease, namely as a gymnasium;
c) the lease agreement explicitly provides that the respondents do not have a right to defer , or withhold any payments due to the applicant, and cannot apply set-off; and
d) the applicant was accordingly entitled to make an election to cancel the lease and claim eviction and other damages, without prejudice to its rights.
4. The respondents have not been able to establish any contractual or legal basis for their continued occupation of the premises and refusal to pay the arrear and current rental. The so call d disputes of fact relate to peripheral issues which I was not required to decide.
5. In the circumstances I do not believe that there are any reasonable prospects that another court will come to any other conclusion regarding the applicant's right to cancel the and evict the respondents.
6. I am accordingly of the view that there are no reasonable prospects of success on appeal.
7. The application for leave to appeal is accordingly dismissed, with costs.
J.E SMITH
JUDGE OF THE HIGH COURT
Appearances
Counsel for the Applicant :Adv Wijnbeek
Attorneys for the Applicant:Wheeldon Rushmere & Cole
Connaught Chambers
119 High Street
Grahamstown
Counsel for the Respondents :Adv Brown
Attorneys for the Respondents :Nettelton Attorneys
118A High Street
Date Heard 28
October 2019
Date Delivered 12
November 2019