Textton Property Fund Limited v Maxine Gunzenhauser and Company Incorporated and Others (2024/098805) [2024] ZAGPJHC 909 (10 September 2024)
The court found that the applicant failed to demonstrate real urgency. The evidence presented, including the email from the proposed new tenant, did not establish that immediate relief was necessary. The applicant's allegations regarding the value of the property and the potential new tenant's interest were...
Source-derived case information.
- Citation
- [2024] ZAGPJHC 909
- Parties
- Applicant: Textton Property Fund Limited; Respondent: Maxine Gunzenhauser and Company Incorporated t/a MG Law; Respondent: Maxine Gunzenhauser; Respondent: The Unlawful Occupier(s) of the Ground Floor, Office GF-01 and GF-02, Block B, Sandton
- Court
- South Gauteng High Court, Johannesburg
- Jurisdiction
- South Africa
- Case Number
- 2024/098805
- Procedural Posture
- Urgent Application / Application to Strike From the Roll for Lack of Urgency
- Outcome
- Application struck off the roll for lack of urgency; costs awarded against the applicant.
- Judges
- Wright
- Legal Topics
- Urgent Eviction, Commercial Lease Termination, Striking Off Roll, Costs Award
Source-derived case record
Summary, issues, holding and outcome
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Parties
Textton Property Fund Limited
Applicant
Maxine Gunzenhauser and Company Incorporated t/a MG Law
Respondent
Maxine Gunzenhauser
Respondent
The Unlawful Occupier(s) of the Ground Floor, Office GF-01 and GF-02, Block B, Sandton
Respondent
Procedural Posture
Urgent Application / Application to Strike From the Roll for Lack of Urgency
Legal Issues
- 1 Whether the application for eviction is urgent and should be heard on an urgent basis.
- 2 Whether the applicant has demonstrated sufficient urgency to justify the matter being heard.
- 3 Whether the respondents are unlawfully occupying the premises after the lease ended.
Ratio Decidendi
The court found that the applicant failed to demonstrate real urgency. The evidence presented, including the email from the proposed new tenant, did not establish that immediate relief was necessary. The applicant's allegations regarding the value of the property and the potential new tenant's interest were speculative and insufficient to justify urgent proceedings. The respondents' denial of urgency and their account of unresolved issues further undermined the applicant's case. Accordingly, the matter was struck off the roll for lack of urgency, and costs were awarded against the applicant.
Court Disposition
Application struck off the roll for lack of urgency; costs awarded against the applicant.
Orders
- The matter is struck off the roll.
- The applicant is ordered to pay the first and second respondents' costs, including those of the application to supplement their papers.
Full Case Text
Judgment text and source record
26 paragraphs
SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
CASE NO: 2024/098805
1. Reportable:
2. Of interest to other judges
3. Revised:
10 September 2024
In the matter between:
TEXTON PROPERTY FUND LIMITED Registration Number: 2005/019302/06 Applicant and MAXINE GUNZENHAUSER AND COMPANY INCORPORATED T/A MG LAW Registration Number: 2019/575014/21 1st Respondent MAXINE GUNZENHAUSER Identity Number: 9[…] 2nd Respondent 1THE UNLAWFUL OCCUPIER(S) OF THE GROUND FLOOR, OFFICE GF-01 AND GF-02, BLOCK B, 1[…] K[…] STREET, SANDTON, 2031 3rd Respondent
JUDGMENT
WRIGHT J
1. The applicant seeks urgently to evict the respondents from commercial premises. The applicant says that the lease has come to an end.
2. There is an allegation, somewhat vague, that the matter is urgent because the commercial property is valuable and an existing tenant could take over the premises now occupied by the first respondent.
3. The answering affidavit shows that the parties have been at loggerheads for some time. There are allegations that despite what was promised by the applicant there is insufficient security at the premises, leading to break-ins at the respondents’ premises. The is an allegation of fraudulent charging for electricity.
4. Urgency is denied. The answering affidavit says that the first respondent attempted to resolve problems amicably six months ago and that the alleged new tenant has no agreement with the applicant to hire the premises now occupied by the first respondent. The allegation here for the first respondent is that, contrary to what the applicant says, the proposed new tenant is not expanding into the first respondent’s premises but intends to move from its present premises to the first respondent’s premises.
5. In paragraph 23.3 of the heads of argument for the applicant it is submitted that the proposed new tenant, already in the building for some time, “ is interested in taking up the property.”
6. A belated attempt to show real urgency by relying on an email dated yesterday, 9 September 2024 by the proposed tenant, indicates nothing more than an interest, subject, at a minimum, to an inspection yet to happen.
7. In my view there is no shown urgency.
ORDER
1. The matter is struck off the roll with the applicant to pay the first and second respondents’ costs, including those of an application by the first and second respondents to supplement their papers.
2. Costs are to be on Scale A. -
GC Wright
Judge of the High Court
Gauteng Division, Johannesburg
HEARD DELIVERED :10 September 2024 :10 September 2024 APPEARANCES: Applicant Instructed by Respondent Instructed by Adv S McTurk adv.shaun@mcturk.co.za 083 256 5561 Uys Matyeka Schwartz Attorneys geehan@umslaw.com 011 678 5280 Adv L Nigrini Maxine Gunzenhauser and Company Incorporated t/a MG Law nardus@ngattorneys.co.za 082 444 9728