Secprop 30 Investment (Pty) Ltd v South Coast Furnishers CC (13251/08) [2010] ZAKZDHC 17 (1 April 2010)

Secprop 30 Investment (Pty) Ltd v South Coast Furnishers CC (13251/08) [2010] ZAKZDHC 17 (1 April 2010)

The court found that the respondent admitted in its answering affidavit that it occupied the premises under a monthly tenancy as at 21 December 2007. No affidavit was filed to explain or withdraw this admission. The written lease agreement contained a non-variation clause requiring any changes to be in writing and signed by both parties, rendering any alleged oral long-term lease invalid. The applicant gave proper notice of termination and to vacate the premises. The respondent's occupation was therefore in terms of a monthly oral tenancy, which was lawfully terminated by the applicant. The application for ejectment was granted.

Citation
[2010] ZAKZDHC 17
Parties
Applicant: Secprop 30 Investment (Pty) Ltd; Respondent: South Coast Furnishers CC
Court
Kwazulu-Natal High Court, Durban
Jurisdiction
South Africa
Judgment Date
1 April 2010
Case Number
13251/08
Procedural Posture
Ejectment Application / Final Judgment
Outcome
Application granted. Ejectment order issued against respondent. Costs awarded to applicant, including costs for two counsel.
Judges
Mnguni
Legal Topics
Oral Lease Agreement, Termination of Tenancy, Ejectment, Admissions on Affidavit
Land and Property Civil Procedure Oral Lease Agreement Termination of Tenancy Ejectment Admissions on Affidavit

Case Brief

Summary, issues, holding and outcome

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Parties

Secprop 30 Investment (Pty) Ltd

Applicant

South Coast Furnishers CC

Respondent

Procedural Posture

Ejectment Application / Final Judgment

Legal Issues

  1. 1 Whether the respondent occupies the premises under a new oral lease agreement or a monthly tenancy.
  2. 2 Whether the applicant lawfully terminated the lease agreement and gave proper notice to vacate.
  3. 3 Whether the respondent's admission on affidavit is binding and precludes oral evidence.

Ratio Decidendi

The court found that the respondent admitted in its answering affidavit that it occupied the premises under a monthly tenancy as at 21 December 2007. No affidavit was filed to explain or withdraw this admission. The written lease agreement contained a non-variation clause requiring any changes to be in writing and signed by both parties, rendering any alleged oral long-term lease invalid. The applicant gave proper notice of termination and to vacate the premises. The respondent's occupation was therefore in terms of a monthly oral tenancy, which was lawfully terminated by the applicant. The application for ejectment was granted.

Court Disposition

Application granted. Ejectment order issued against respondent. Costs awarded to applicant, including costs for two counsel.

Orders

  • The application is granted in terms of paragraphs 1, 2 and 3 of the Notice of Motion dated 14 October 2008.
  • Paragraph 3 of the notice of motion is amended to read: The respondent is ordered to pay the costs of this application, including the costs occasioned by the employment of two counsel.