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South Africa Judgment

North Gauteng High Court, Pretoria

OBG Group (Pty) Ltd v More And More Chickens CC T/A OBC Louis Trichardt (52583/09) [2010] ZAGPPHC 296 (12 January 2010)

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Source document

01

Holding and result

The court found that the applicant failed to act with the required urgency, as the application was brought long after the alleged breaches and cancellation of the lease agreement. The urgency had dissipated by the time the matter was heard, and the applicant unduly delayed in seeking relief. As a result, the application was not properly before the court on an urgent basis and was struck from the roll with costs. The merits of the alleged breach and entitlement to ejectment were not determined due to the procedural defect.

Court disposition

Application struck from the roll with costs.

Orders

  • The application is struck from the roll with costs.

02

Material facts

Parties

OBG Group (Pty) Ltd

Applicant Counsel: F.H. Odendaal SC and G.L. Nel

More And More Chickens CC T/A OBC Louis Trichardt

Respondent Counsel: A.P. den Hartog

Amounts and remedies

  • Respondent's Claim in Separate Action: ZAR 2,260,071.84

03

Procedural history

  1. Posture

    Urgent Application / Application to Strike From the Roll

04

Questions and positions

Legal issues

Party arguments

Applicant
The applicant contended that the respondent breached the written lease agreement by failing to comply with its terms, including issues relating to interest in Chicken and Meat Palace. The applicant alleged that proper notice was given to rectify breaches, and upon failure, the agreement was cancelled. The applicant sought urgent ejectment of the respondent from the premises, arguing that the respondent's continued occupation was unlawful.
Respondent
The respondent disputed the alleged breaches and the amounts claimed by the applicant. The respondent argued that the cancellation was not valid and that the applicant delayed bringing the application, resulting in the loss of urgency. The respondent maintained its right to occupy the premises and opposed the application for ejectment.

05

Court’s reasoning

  1. 01

    Rule 6(12) Uniform Rules of Court

    An application brought on an urgent basis must demonstrate genuine urgency and should not be delayed unduly by the applicant.

  2. 02

    Chetty v Naidoo 1974 (3) SA 13 (A)

    A party seeking ejectment must establish a valid cancellation of the lease agreement and entitlement to possession of the premises.

06

Ratio, limits and disposition

Ratio decidendi

The court found that the applicant failed to act with the required urgency, as the application was brought long after the alleged breaches and cancellation of the lease agreement. The urgency had dissipated by the time the matter was heard, and the applicant unduly delayed in seeking relief. As a result, the application was not properly before the court on an urgent basis and was struck from the roll with costs. The merits of the alleged breach and entitlement to ejectment were not determined due to the procedural defect.

Obiter and limits

  • The court noted that parties should not abuse urgent procedures where the urgency has passed, as this undermines the proper administration of justice.
  • The striking of the matter from the roll does not preclude the applicant from pursuing relief in the ordinary course.

Court disposition

Application struck from the roll with costs.

  • The application is struck from the roll with costs.

Source and reliance status

North Gauteng High Court, Pretoria

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Judgment text

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Source document

North Gauteng High Court, Pretoria

Judgment

[2010] ZAGPPHC 296

IN THE HIGH COURT

OF SOUTH AFRICA

(NORTH GAUTENG DIV ISION)

CASE NO.: 52583/09

DATE: 12 JANUARY 2010

In the matter between

OBG GROUP (PTY) LTD.............................................................................................Applicant

And

MORE AND MORE

CHICKENS CC

T/A OBC LOUIS TRICHARDT...........................................................................Respondent

CORAM: EBERSOHN AJ

DATE HEARD: 22ND SEPTEMBER 2008

JUDGMENT HANDED DOWN 12TH JANUARY 2010

JUDGMENT

EBERSOHN AJ.

[I] In this matter the applicant applied on the- 22nd September 2008 on an urgent basis for die ejectment of the respondent from certain premises in Louis Trichardt.

[2] In the founding papers il is alleged lhat the applicant and the respondent entered into a wrinen lease agreement which entitled the respondent to occupy the premises but as the respondent was in breach of the agreement, the agreement was allegedly cancelled by the applicant during 2008.

[3] The respondent opposed the application.

[41 The applicant alleged that on the 25th September 2008 a letter was addressed to the respondent's attorneys in terms of the agreement, advising the respondent to rectify its alleged breaches of the agreement within 14 days.

[5] On the 30th September 2008 the respondents' attorneys in writing disputed the breaches and the amount of the alleged breach.

[6] The applicant also alleged that the respondent was in breach of the agreement as regarding the interest in a firm called Chicken and Meat Palace.

[7] The applicant alleged that already on 21 October 2008 the applicant by a letter of their attorneys elected to cancel the agreement.

[8] It appears that thereafter the cancellation of the franchise agreement had reached a stalemate. The respondent instituted action against the applicant on 13 November 2008 under case number 53217/2008 in terms whereof the respondent claimed R2 260071.84 from the applicant

[91 The applicant allegedly gave further notice to the respondent to vacate the premises by no later than 28 February 2009 and on 8th July 2009 the respondent's refusal to vacate, was made clear to the applicant in writing by the respondent's attorneys.

[ 10] It is so that when the application was brought urgency had passed and that the applicant unduly delay ed the bringing of the application.

[11] The following order is accordingly made:

1. The application is struck from the roll with costs.

P.Z. EBERSOHN

ACTING JUDGE OF

THE HIGH COURT

Counsel for applicant Adv. F.H. Odendaal SC

and Adv. G«l. Nel

Applicant's attornevs NEIL ESTERHUIZEN INC.

do MACINTOSH CROSS & FARQUHARSON

Tel. 012-323 1406 Ref. J. Jooste

Counsel for the respondents Adv. A.P. den Hartog

Respondents' attorney MORNE COETZEE ATTORNEYS

012-460 2020 Ref. M .Cootzee H-HM-1711

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Authorities

Authorities used by the court

Cases, legislation, regulations, and constitutional provisions identified in the available record.

Chetty v Naidoo 1974 (3) SA 13 (A)

Case cited

Rule 6(12) Uniform Rules of Court

Legislation

Legislation referenced in the available case record.

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