Wessels N.O. and Others v Kleo Investment (Proprietary) Ltd; In re: Kleo Investment (Proprietary) Ltd v Wessels N.O. and Others (2479/2016) [2017] ZAFSHC 238 (21 December 2017)

Wessels N.O. and Others v Kleo Investment (Proprietary) Ltd; In re: Kleo Investment (Proprietary) Ltd v Wessels N.O. and Others (2479/2016) [2017] ZAFSHC 238 (21 December 2017)

The court found that the Wessels Trust was not a party to the Spar agreement, as the agreement described the tenant as 'name: to be advised' and did not include the Trust's particulars. The Spar agreement was subject to a suspensive condition that was never fulfilled, as the required lease for TOPS@SPAR was not concluded. The non-variation clause in the original lease required any variation to be in writing and signed by the parties, which did not occur. Therefore, the Spar agreement did not substitute the original lease, and the original lease remained valid and enforceable. The respondent was entitled to rely on the original lease to evict the appellants. The appeal was dismissed with...

Citation
[2017] ZAFSHC 238
Parties
Appellant: Marius Wessels N.O.; Appellant: Helen Wessels N.O.; Appellant: Marnia Wessels N.O.; Respondent: Kleo Investment (Proprietary) Ltd
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
21 December 2017
Case Number
2479/2016
Procedural Posture
Civil Appeal / Appeal Against Judgment and Costs Order
Outcome
Appeal dismissed with costs.
Judges
Naidoo, Mbhele, Mhlambi
Legal Topics
Lease Agreement, Contractual Substitution, Eviction, Suspensive Condition, Non Variation Clause
Land and Property Civil Procedure Lease Agreement Contractual Substitution Eviction Suspensive Condition Non Variation Clause

Case Brief

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Parties

Marius Wessels N.O.

Appellant

Helen Wessels N.O.

Appellant

Marnia Wessels N.O.

Appellant

Kleo Investment (Proprietary) Ltd

Respondent

Procedural Posture

Civil Appeal / Appeal Against Judgment and Costs Order

Legal Issues

  1. 1 Whether the Wessels Trust was a party to the Spar agreement.
  2. 2 Whether the Spar agreement substituted the original lease agreement.
  3. 3 Whether the suspensive condition in the Spar agreement was fulfilled.

Ratio Decidendi

The court found that the Wessels Trust was not a party to the Spar agreement, as the agreement described the tenant as 'name: to be advised' and did not include the Trust's particulars. The Spar agreement was subject to a suspensive condition that was never fulfilled, as the required lease for TOPS@SPAR was not concluded. The non-variation clause in the original lease required any variation to be in writing and signed by the parties, which did not occur. Therefore, the Spar agreement did not substitute the original lease, and the original lease remained valid and enforceable. The respondent was entitled to rely on the original lease to evict the appellants. The appeal was dismissed with...

Court Disposition

Appeal dismissed with costs.

Orders

  • The appeal is dismissed with costs.