Nyere Trading Enterprise CC v Elasly & others (EL 1133/2020) [2021] ZAECELLC 13 (20 April 2021)

Nyere Trading Enterprise CC v Elasly & others (EL 1133/2020) [2021] ZAECELLC 13 (20 April 2021)

The Court found that the interests of justice do not require a stay of the eviction proceedings. The prospects of rectification are extremely poor because the applicant was not a party to the original lease agreement between the first and second respondents, and rectification should not prejudice the rights of an innocent third party. The applicant, having had no knowledge of the alleged true intention of the original parties at the time of purchase, qualifies as an innocent third party. The lease agreement was breached by the first respondent, who continued to operate a tavern contrary to the terms of the lease. The applicant is entitled to cancel the lease and evict the first...

Citation
[2021] ZAECELLC 13
Parties
Applicant: Nyere Trading Enterprise CC; Respondent: Elizabeth Elasly; Respondent: Peter Verdoukas Trust; Respondent: Maria Verdoukas N.O.
Court
Eastern Cape High Court, East London Local Court
Jurisdiction
South Africa
Judgment Date
20 April 2021
Case Number
EL 1133/2020
Procedural Posture
Stay Application / Application for Stay of Eviction Pending Rectification Action; Main Eviction Application
Outcome
Application for stay dismissed; eviction granted; costs awarded on attorney and client scale.
Judges
A. Govindjee
Legal Topics
Rectification of Contract, Eviction, Huur Gaat Voor Koop, Innocent Third Party, Stay of Proceedings
Land and Property Civil Procedure Rectification of Contract Eviction Huur Gaat Voor Koop Innocent Third Party Stay of Proceedings

Case Brief

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Parties

Nyere Trading Enterprise CC

Applicant

Elizabeth Elasly

Respondent

Peter Verdoukas Trust

Respondent

Maria Verdoukas N.O.

Respondent

Procedural Posture

Stay Application / Application for Stay of Eviction Pending Rectification Action; Main Eviction Application

Legal Issues

  1. 1 Whether the interests of justice require a stay of eviction proceedings pending the finalisation of an action for rectification of the lease agreement.
  2. 2 Whether the applicant qualifies as an 'innocent third party' for purposes of resisting rectification.
  3. 3 Whether the lease agreement and addendum are void and whether the applicant is entitled to eviction and costs.

Ratio Decidendi

The Court found that the interests of justice do not require a stay of the eviction proceedings. The prospects of rectification are extremely poor because the applicant was not a party to the original lease agreement between the first and second respondents, and rectification should not prejudice the rights of an innocent third party. The applicant, having had no knowledge of the alleged true intention of the original parties at the time of purchase, qualifies as an innocent third party. The lease agreement was breached by the first respondent, who continued to operate a tavern contrary to the terms of the lease. The applicant is entitled to cancel the lease and evict the first...

Court Disposition

Application for stay dismissed; eviction granted; costs awarded on attorney and client scale.

Orders

  • The first respondent's application for a stay is dismissed with costs on the attorney and client scale, including costs occasioned by the postponement on 9 March 2021.
  • The addendum to the lease agreement dated 14 October 2020 is declared void.