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South Africa Judgment

Eastern Cape High Court, Grahamstown

Velloo v Rama (1154/2018) [2019] ZAECGHC 90 (17 September 2019)

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Source document

01

Holding and result

The court found that the written lease agreement contained clear non-variation and non-waiver clauses, requiring any changes to be in writing and signed by both parties. The applicant's reliance on oral negotiations was insufficient to establish a valid extension of the lease, as these discussions were not formalized in writing. The court concluded that the applicant failed to demonstrate any reasonable prospect that another court would reach a different conclusion on the merits. Accordingly, the application for leave to appeal was dismissed.

Court disposition

Application for leave to appeal dismissed with costs.

Orders

  • The application is dismissed with costs.

02

Material facts

Parties

Rojini Velloo

Applicant Counsel: SH Cole

Janesh Rama

Respondent Counsel: S Stretch

03

Procedural history

  1. Posture

    Leave to Appeal / Application for Leave to Appeal After Eviction Judgment

04

Questions and positions

Legal issues

Party arguments

Applicant
The applicant contended that oral negotiations between herself, the respondent, and the respondent's son resulted in a new lease agreement for a further five-year period. She argued that the court erred by relying solely on the written lease agreement and disregarding substantial evidence of a new oral lease.
Respondent
The respondent maintained that the written lease agreement contained peremptory clauses requiring any variation or waiver to be in writing and signed by both parties. He argued that no valid extension occurred as the alleged negotiations were not reduced to writing, and the lease had lapsed by expiry.

05

Court’s reasoning

  1. 01

    Clauses 15 and 17 of the lease agreement

    A non-variation clause in a written contract is peremptory and precludes any variation or waiver unless reduced to writing and signed by both parties.

  2. 02

    Clause 17 of the lease agreement

    Oral negotiations or representations made during the subsistence of a written contract cannot override explicit non-variation provisions.

06

Ratio, limits and disposition

Ratio decidendi

The court found that the written lease agreement contained clear non-variation and non-waiver clauses, requiring any changes to be in writing and signed by both parties. The applicant's reliance on oral negotiations was insufficient to establish a valid extension of the lease, as these discussions were not formalized in writing. The court concluded that the applicant failed to demonstrate any reasonable prospect that another court would reach a different conclusion on the merits. Accordingly, the application for leave to appeal was dismissed.

Obiter and limits

  • The negotiations relied upon by the applicant occurred during the subsistence of the written lease and cannot override its express terms.
  • No other court may reasonably find differently on the merits given the clarity of the contractual provisions.

Court disposition

Application for leave to appeal dismissed with costs.

  • The application is dismissed with costs.

Source and reliance status

Eastern Cape High Court, Grahamstown

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Judgment reading view

Judgment text

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Source document

Eastern Cape High Court, Grahamstown

Judgment

[2019] ZAECGHC 90

IN

THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE DIVISION – GRAHAMSTOWN

Case No: 1154/2018

In the matter between:

ROJINI

VELLOO

Applicant

and

JANESH

RAMA

Respondent

JUDGMENT

MAKAULA J:

[1] This is an application for leave to appeal against my judgment which was handed down on 14 February 2019. In the judgment I upheld an application brought by the respondent evicting the applicant from her premises on the basis that the lease agreement between them had lapsed due to the expiry of the lease period. The applicant brought this application challenging my decision on various grounds. Essentially, the grounds upon which the order is assailed have been pertinently dealt with in my judgment.

[2] The crux of the grounds of appeal are the oral discussions and negotiations between the respondent’s son Avershinn, the respondent and the applicant about the extension of the lease period. According to the applicant the outcome of those negotiations is that a new lease agreement was entered into which was to endue for a further five year period. The applicant argues that I erred in having regard to the written lease agreement in total disregard of the substantial evidence that a new lease agreement had come into effect.

[3] I, in my judgment, considered and dealt with the issues raised in this application. I found that clauses 15 and 17 of the lease were peremptory in that no variation or waiver may take place without it being reduced to writing and signed by both parties. Clause 17 categorically states that “. . . neither the lessor (nor its agent or servants) have given any warranties or made any statements or representations of any nature whatsoever which are not recorded in this lease”. The negotiations relied upon were done during subsistence of the written lease.

[4] I am therefore of the view that the applicant has failed to make out a case for me to grant the application. No other court may find differently on the merits.

[5] Consequently, I make the following order.

The application is dismissed with costs.

_______

M

MAKAULA

Judge of the High Court

Counsel for Applicant: Adv

SH Cole

Grahamstown

Instructed by: Neville

Borman & Botha

Counsel for Respondent:

Adv S Stretch

Instructed by: Netteltons

Attorneys

Date Heard: 14

June 2019

Date Reserved: 14

June 2019

Date Delivered: 17

September 2019

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