South Africa: Eastern Cape High Court, Grahamstown

IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE DIVISION, GRAHAMSTOWN)

CASE NO.: 2305/2019

In the matter between:

MTHATHA MALL (PTY) LTD                                                                 APPLICANT

And

MOTION FITNES (PTY) LTD  T/A MOTION FITNES            FIRST RESPONDENT

NICOLAAS FERDINAND VAN GASS                             SECOND RESPONDENT

JUDGMENT: APPLICATION FOR LEAVE TO APPEAL

1.    The respondents  apply for leave  to  appeal  against  my  judgment  delivered  on  17 September 2019. For the sake of convenience I shall refer to the parties as they were cited in the main applicant.

2.    The application is based on various grounds, all of which relate to my contended failure to recognize that there were bona fide disputes of fact which should have been referred for the hearing of oral evidence. These disputes, according to the respondents, relate, inter alia, to the respondents' assertion that the leases in respect of their operations at the BT Ngebs, Mdantsane, and Hemmingways Malls are interrelated (and may impact on the interpretation of the lease agreement in this matter); the amount of arrear rental owed by the respondents; and whether the applicant is bound by its earlier election to enforce the agreement and claim damages, and is thus precluded from suing for eviction.

3.    My findings were based on the following facts stablished by the applicant:

a)    the respondents are in breach of the lease agreement by failing to pay rental in terms thereof:

b)     despite their claims that the premises are not suitable, they continue to use it for the purposes of the lease, namely as a gymnasium;

c)    the lease agreement explicitly provides that the respondents do not have a right  to defer , or withhold any payments due to the applicant, and cannot apply  set-off; and

d)    the applicant was accordingly entitled to make an election to cancel the  lease  and claim eviction and other damages, without prejudice to  its  rights.

4.    The respondents have not been able to establish any contractual or legal basis for their continued  occupation of the premises and refusal to pay the arrear and current rental. The so­ call  d disputes of fact relate to peripheral issues which I    was not required to decide.

5.    In the circumstances  I do not believe that there are any reasonable  prospects that another court will come to any other conclusion regarding the applicant's right to cancel the and evict the respondents.

6.    I am  accordingly  of the view that there  are  no reasonable  prospects  of success on appeal.

7.    The application for leave to appeal is accordingly dismissed, with costs.

J.E SMITH

JUDGE OF THE HIGH COURT

Appearances

Counsel for the Applicant   :Adv Wijnbeek

Attorneys for the Applicant:Wheeldon Rushmere & Cole

Connaught Chambers

                                           119 High Street

                                           Grahamstown

Counsel for the Respondents     :Adv Brown

Attorneys for the Respondents   :Nettelton Attorneys

118A High Street

Grahamstown

Date Heard                                   28 October 2019

Date Delivered                             12  November 2019