Solgas (Pty) Ltd v Tang Delta Properties CC (11388/2015) [2016] ZAGPJHC 158 (20 April 2016)

Solgas (Pty) Ltd v Tang Delta Properties CC (11388/2015) [2016] ZAGPJHC 158 (20 April 2016)

The court found that the lessor's tacit hypothec for damages was received from the common law and had not been abrogated by statute or disuse in South African law. The absence of reported cases on the hypothec for damages was attributed to historical error and misapprehension, not silent consent or legislative...

Source-derived case information.

Citation
[2016] ZAGPJHC 158
Parties
Applicant: Solgas (Pty) Ltd; Respondent: Tang Delta Properties CC
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
20 April 2016
Case Number
11388/2015
Procedural Posture
Civil Application / Judgment on Opposed Application and Counter Application
Outcome
Application dismissed; counter-application granted in part.
Judges
A A Crutchfield
Legal Topics
Lessor Tacit Hypothec, Damages for Failure to Restore Premises, Interim Interdict, Abrogation by Disuse
Land and Property Civil Procedure Lessor Tacit Hypothec Damages for Failure to Restore Premises Interim Interdict Abrogation by Disuse

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Parties

Solgas (Pty) Ltd

Applicant

Tang Delta Properties CC

Respondent

Procedural Posture

Civil Application / Judgment on Opposed Application and Counter Application

Legal Issues

  1. 1 Does the lessor's tacit hypothec extend to damages for failure to restore leased premises, or is it limited to arrear rental?
  2. 2 Has the lessor's hypothec for damages been abrogated by disuse in South African law?
  3. 3 Is the respondent entitled to interim relief preventing removal of movables pending finalisation of the damages claim?

Ratio Decidendi

The court found that the lessor's tacit hypothec for damages was received from the common law and had not been abrogated by statute or disuse in South African law. The absence of reported cases on the hypothec for damages was attributed to historical error and misapprehension, not silent consent or legislative repeal. The court held that the respondent was entitled to rely on the hypothec for damages arising from the applicant's failure to restore the premises. The respondent established a prima facie case for damages, and the applicant's denials were undermined by contradiction. Accordingly, the respondent's hypothec was confirmed, and interim relief was granted to prevent removal of the...

Court Disposition

Application dismissed; counter-application granted in part.

Orders

  • The application is dismissed with costs.
  • The respondent's hypothec in respect of the movables particularised on annexure Z to the applicant's founding affidavit, situated at stand 1234, corner Max and Tang Streets, Germiston Ext 13, Germiston, is confirmed.