Richard Pollack (N.O) and Others v Peacock Inn (Pty) Ltd (15173/2022) [2023] ZAGPJHC 210 (9 February 2023)

Richard Pollack (N.O) and Others v Peacock Inn (Pty) Ltd (15173/2022) [2023] ZAGPJHC 210 (9 February 2023)

The respondent breached the sale agreement by failing to pay the required amounts and occupational rent within the stipulated timeframes. The applicants provided written notice and opportunity to remedy, which the respondent failed to do. The law is clear that upon breach and failure to remedy within the lex commissoria period, the creditor is entitled to cancel the contract. The respondent's explanation for non-payment does not override the applicants' rights or the principle that parties must be held to their contractual obligations. The cancellation effected by the applicants is valid, and the applicants are entitled to eviction and associated relief.

Citation
[2023] ZAGPJHC 210
Parties
Applicant: Richard Pollack (N.O); Applicant: Nurjehan Abdool Gafaar Omar (N.O); Applicant: Elrich Ruwayne Smith (N.O); Respondent: Peacock Inn (Pty) Ltd
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
9 February 2023
Case Number
15173/2022
Procedural Posture
Urgent Application / Opposed Motion for Cancellation of Sale Agreement and Eviction
Outcome
Application granted: cancellation of sale agreement confirmed and eviction ordered.
Judges
ML Senyatsi
Legal Topics
Cancellation of Sale Agreement, Eviction, Lex Commissoria, Occupational Rental, Breach of Contract
Land and Property Civil Procedure Cancellation of Sale Agreement Eviction Lex Commissoria Occupational Rental Breach of Contract

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Parties

Richard Pollack (N.O)

Applicant

Nurjehan Abdool Gafaar Omar (N.O)

Applicant

Elrich Ruwayne Smith (N.O)

Applicant

Peacock Inn (Pty) Ltd

Respondent

Procedural Posture

Urgent Application / Opposed Motion for Cancellation of Sale Agreement and Eviction

Legal Issues

  1. 1 Whether the applicants validly cancelled the sale agreement due to breach by the respondent.
  2. 2 Whether the applicants are entitled to eviction of the respondent from the commercial property.
  3. 3 Whether the respondent's belated request for extension or explanation for non-payment affects the applicants' rights.

Ratio Decidendi

The respondent breached the sale agreement by failing to pay the required amounts and occupational rent within the stipulated timeframes. The applicants provided written notice and opportunity to remedy, which the respondent failed to do. The law is clear that upon breach and failure to remedy within the lex commissoria period, the creditor is entitled to cancel the contract. The respondent's explanation for non-payment does not override the applicants' rights or the principle that parties must be held to their contractual obligations. The cancellation effected by the applicants is valid, and the applicants are entitled to eviction and associated relief.

Court Disposition

Application granted: cancellation of sale agreement confirmed and eviction ordered.

Orders

  • Cancellation of the offer to purchase agreement, marked as Annexure FA4, is confirmed.
  • The respondent and all persons holding occupation through the respondent are ordered to vacate the premises at erven 47 and 49 of Erf 30, Halfway House, Midrand, known as the Boulders Lodge, 128 and 130 Tonnetti Street, Halfway House, Midrand, Johannesburg (T82708/2013), and to return the vacant premises to the...