IN THE HIGH COURT OF SOUTH AFRICA

CASE NUMBER:						1387/2009
DATE:							28 JANUARY 2009
In the matter between:

and

JUDGMENT

It is apparent from correspondence exchanged between the parties in September and October 2008 that the terms of that agreement, certainly in so far as they affected the applicant's ability to give notice of its termination, are in dispute between the parties.

It is clear that at the end of September 2008, the applicant gave notice to the respondent requiring the latter, in terms of what it contended to be a monthly lease agreement, to vacate the property by the end of October. It is equally clear from the correspondence that within the month of October, the respondent made it clear that it placed the issue of termination of the lease in dispute.

The purpose or object behind the termination of the lease, was the redevelopment of the premises, and to that end the applicant subsequently obtained a demolition permit permitting it to demolish the building, part of which is occupied by the respondent. Such demolition has commenced and appears to be fairly advanced.

In my view it was not open for the applicant to commence the demolition of the property, knowing that it faced a problem in regard to the occupation of part of that property by the respondent, and then rely on the demolition it had decided to begin in those circumstances as a basis for urgency in subsequently instituted eviction proceedings. In regard to the public safety issues, if these are indeed pressing, there is a duty in terms of the National Building Regulations & Building Standards Act on the relevant local authority, which would appear from the papers before me, to be cognisant of the situation, to take its own steps in that regard.

Accordingly I am not satisfied that, in upholding the preliminary point of lack of urgency on the basis that any urgency is self-created, that there are any public interest considerations related to safety which cannot properly be addressed, if necessary, by the appropriate public authority.

In the circumstances it is clear to me that the approach adopted by the applicant in this matter was an inappropriate one. If urgent relief is required, it should have been approached on the basis of seeking to have the return day of the interim interdict issued by Mr Justice Fourie, accelerated and on the basis of obtaining a discharge of that order sooner rather than later. I say that because of the reasons mentioned earlier. A discharge of that order will be necessary before, in my view, the applicant is able to obtain effective relief in this matter.

That leaves only the question of what order to make. It seems to me that the issue of the disputed occupation of the premises by the respondent is a continuing live issue and in those circumstances it seems to me inappropriate to dismiss the application before me today, because, on the facts, it may if and when the interim order made by Mr Justice Fourie is discharged, be further prosecuted.

Accordingly the order that is made today is that the matter is struck from the roll and the applicant is ordered to pay the respondent's costs of opposition.