Velloo v Rama (1154/2018) [2019] ZAECGHC 90 (17 September 2019)
- Citation
- [2019] ZAECGHC 90
- Status
- Judgment
- Jurisdiction
- South Africa
- Court
- Eastern Cape High Court, Grahamstown
- Panel
- M Makaula
- Case number
- 1154/2018
More details
- Court
- Eastern Cape High Court, Grahamstown
- Panel
- M Makaula
- Case number
- 1154/2018
On this page
Professional case brief
Research organized from the available case record
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 ColeJanesh Rama
Respondent Counsel: S Stretch03
Procedural history
Posture
Leave to Appeal / Application for Leave to Appeal After Eviction Judgment
04
Questions and positions
Legal issues
- 01
Whether oral negotiations and discussions between the parties resulted in a valid extension of the lease agreement.
- 02
Whether the written lease agreement's non-variation clause precludes reliance on alleged oral agreements.
- 03
Whether another court would reasonably come to a different conclusion on the merits.
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
Legal principles
- 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.
- 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
The complete available source text.
Eastern Cape High Court, Grahamstown
Judgment
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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