Winkelshoek Wynkelders (Edms) Bpk and Another v Jamadu Restaurant (Edms) Bpk (11871/2011) [2012] ZAWCHC 71 (31 May 2012)

Winkelshoek Wynkelders (Edms) Bpk and Another v Jamadu Restaurant (Edms) Bpk (11871/2011) [2012] ZAWCHC 71 (31 May 2012)

The court found that after the expiration of the original written lease, the respondent continued to occupy the property and pay rental, resulting in a tacit relocation governed by the terms of the original lease, with the duration being month-to-month and terminable on reasonable notice. The respondent breached the lease by failing to pay rental and electricity charges timeously, and the applicants were entitled to cancel the lease without the obligation to give 30 days' notice to remedy the breach, as the original lease did not require such notice. The acceptance of arrear rental by the applicants did not amount to waiver of their right to cancel. The applicants' cancellation notice was...

Citation
[2012] ZAWCHC 71
Parties
Applicant: Winkelshoek Wynkelders (Edms) Bpk; Applicant: Winkelshoek Eiendomme (Edms) Bpk; Respondent: Jamadu Restaurant (Edms) Bpk
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
31 May 2012
Case Number
11871/2011
Procedural Posture
Urgent Application / Judgment
Outcome
Application granted; lease declared cancelled; eviction ordered; costs awarded on attorney and client scale.
Judges
D H Zondi
Legal Topics
Tacit Relocation, Lease Cancellation, Eviction, Breach of Contract, Reasonable Notice
Land and Property Civil Procedure Tacit Relocation Lease Cancellation Eviction Breach of Contract Reasonable Notice

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Parties

Winkelshoek Wynkelders (Edms) Bpk

Applicant

Winkelshoek Eiendomme (Edms) Bpk

Applicant

Jamadu Restaurant (Edms) Bpk

Respondent

Procedural Posture

Urgent Application / Judgment

Legal Issues

  1. 1 Whether the lease between the applicants and respondent was validly cancelled.
  2. 2 Whether the respondent breached the lease agreement by failing to pay rental and charges timeously.
  3. 3 Whether the applicants waived their right to cancel the lease by accepting arrear rental.

Ratio Decidendi

The court found that after the expiration of the original written lease, the respondent continued to occupy the property and pay rental, resulting in a tacit relocation governed by the terms of the original lease, with the duration being month-to-month and terminable on reasonable notice. The respondent breached the lease by failing to pay rental and electricity charges timeously, and the applicants were entitled to cancel the lease without the obligation to give 30 days' notice to remedy the breach, as the original lease did not require such notice. The acceptance of arrear rental by the applicants did not amount to waiver of their right to cancel. The applicants' cancellation notice was...

Court Disposition

Application granted; lease declared cancelled; eviction ordered; costs awarded on attorney and client scale.

Orders

  • The lease between the applicants and the respondent is declared cancelled.
  • The respondent and those who occupy the property under or through the respondent are ordered to vacate the property within 30 days of the date of the order.