MV Andre Builder Joiner CC v Nordien (19002/20) [2021] ZAWCHC 255 (6 December 2021)

MV Andre Builder Joiner CC v Nordien (19002/20) [2021] ZAWCHC 255 (6 December 2021)

The applicant established that the respondent breached the lease agreements by failing to pay rent, and that proper breach and cancellation notices were delivered in compliance with the Consumer Protection Act. The arbitration and magistrate's court clauses did not oust the High Court's jurisdiction, as they merely provided the applicant with an election of forum. The respondent's challenge to the authority of the applicant's deponent and the absence of a resolution was not properly raised and is without merit. The defence of supervening impossibility due to Covid-19 was rejected, following persuasive authority that such circumstances do not excuse non-payment of rent or prevent...

Citation
[2021] ZAWCHC 255
Parties
Applicant: MV Andre Builder Joiner CC; Respondent: Tavia Nordien
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
6 December 2021
Case Number
19002/20
Procedural Posture
Urgent Application / Judgment After Opposed Motion
Outcome
Application granted; lease cancellation confirmed and ejectment ordered, with delayed execution.
Judges
Montzinger
Legal Topics
Commercial Eviction, Lease Cancellation, Arbitration Clause Interpretation, Security for Costs, Supervening Impossibility, Improvement Lien
Land and Property Civil Procedure Commercial and Corporate Commercial Eviction Lease Cancellation Arbitration Clause Interpretation Security for Costs Supervening Impossibility +1 more

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Parties

MV Andre Builder Joiner CC

Applicant

Tavia Nordien

Respondent

Procedural Posture

Urgent Application / Judgment After Opposed Motion

Legal Issues

  1. 1 Whether the lease agreements were validly cancelled by the applicant.
  2. 2 Whether the respondent is entitled to remain in occupation of the premises based on a lien for improvements.
  3. 3 Whether the respondent can compel arbitration or magistrate's court jurisdiction under the lease.

Ratio Decidendi

The applicant established that the respondent breached the lease agreements by failing to pay rent, and that proper breach and cancellation notices were delivered in compliance with the Consumer Protection Act. The arbitration and magistrate's court clauses did not oust the High Court's jurisdiction, as they merely provided the applicant with an election of forum. The respondent's challenge to the authority of the applicant's deponent and the absence of a resolution was not properly raised and is without merit. The defence of supervening impossibility due to Covid-19 was rejected, following persuasive authority that such circumstances do not excuse non-payment of rent or prevent...

Court Disposition

Application granted; lease cancellation confirmed and ejectment ordered, with delayed execution.

Orders

  • The cancellation of the lease agreements is confirmed.
  • The respondent and all persons or entities occupying under the respondent at portions 2, 3, 3A and 4A of the premises at 10 Marine Circle, Milnerton must vacate on or before 3 June 2022.