IN THE HIGH COURT OF SOUTH AFRICA 
(WESTERN CAPE HIGH COURT, CAPE TOWN)
CASE NO: 5880/2009
In the matter between:

and

JUDGMENT; 21 April 2011

STEYN, J:
1] This is an application for eviction. In March 2009 the Applicant, the registered owner of Cobble Walk shopping centre in Durbanville, Cape, launched this urgent application applying for the eviction of First Respondent from business premises, leased by First Respondent from Applicant, situated at Shop 26. Cobble Walk shopping centre.

2] In September 2008 First Respondent, duly represented, had signed an offer to lease shop 26 on the premises of the centre and a binding agreement of lease was concluded between Applicant and First Respondent on the terms and conditions set out in a document titled: Offer to Lease Premises in Cobble Walk, Durbanville, Cape Town (The Offer).

3] One of the terms of the agreement was that First Respondent would pay a basic monthly rental during the five year period of the lease, escalated annually, in respect of the internal and external areas of the shop and in respect of a parking bay

5] The contents/terms of the General Terms and Conditions of the Lease that Applicant relies on, include that the basic monthly rental due in respect of the lease agreement should be paid by the First Respondent to Applicant on or before the first day of every month free of deduction, set off or exchange and if First Respondent fails to pay any rental or other amount on due date in terms of the agreement, the Applicant shall have the right to cancel the agreement and to resume possession of the leased premises. (Clause 26.6).
6] It is common cause that First Respondent took occupation of the premises on 1 November 2008. The Applicant avers that at all times it has complied with its obligations in terms of the Lease Agreement. This allegation is vehemently denied by Respondents.

7] Applicant submits that First Respondent breached the Agreement by failing to make payment of rental and additional charges for some months. On 25 January 2009 the Applicant received its first payment from First Respondent in an amount of R13 565.60, by which time First Respondent was in arrears in the sum of R69 718.09. First Respondent subsequently also failed to pay the rental and additional charges due on 1 February 2009.

8] On 5 February 2009 Applicant received a letter from the First Respondent in terms of which the First Respondent raised various concerns. Its explanation for only making partial payment of rental included inefficient electricity installation, problems with the air conditioning, floor and plastering of the shop that was not up to standard, continued building activities in the centre and lack of security in the centre. The health and cleaning standards in the centre were not up to standard and parking was not available as promised or could not be utilised. First Respondent complained that during the period December 2008 it experienced difficulties in its turnover caused by the fact that the largest part of the centre was not occupied, contrary to assurances in this regard. It was alleged that the centre had not been marketed properly;
9] The First Respondent, arguing that it was not bound by the Applicant's General Terms and Conditions of Lease, which did not allow First Respondent a deduction of rental, submitted that it was entitled to a reduced rental in view of the problems experienced by it. First Respondent submitted that rental in respect of the period December and January should be reduced to 50% of the quoted rental per month. Electronic payment was made of the proposed reduced rental.

13] In its Particulars of Claim in the Magistrate's Court summons the Applicant claimed that the terms contained in its General Terms and Conditions of Lease applied to the agreement between the parties The Magistrate's Court action was opposed by Respondents. I was informed pleadings were filed and a counterclaim instituted on behalf of Respondents, the quantum of which exceeded the Applicant's claim.

14] Shortly prior to service of the summons in the Magistrate's court action, Applicant's attorneys addressed a letter to First Respondent in terms whereof Applicant purported to cancel the lease agreement. First Respondent was requested to vacate the premises immediately, failing which Applicant would proceed with the necessary action It was submitted by the Applicant in its affidavit before this court, that if it was found that the agreement was not validly cancelled on 9 March 2009, the Applicant cancelled the agreement on the date that this application was served on the Respondent.
15] It is common cause that the First Respondent refuses to vacate the premises and remains in occupation thereof.
16] Second Respondent replied on behalf of First Respondent in the application before this court. He submitted that prior to entering into the lease agreement, he had taken trouble to ascertain the viability of the shopping centre. He found that although the proposed rental was higher than the norm in the area, a business could be conducted successfully in the event that the shopping centre was fully let, which would ensure the presence of many customers. This aspect was discussed with Applicant's representative, who assured him that the centre was indeed fully let and that there was a waiting list of eager tenants. He was allowed three days to sign the lease. The representation appeared to be true, regard being had to the contents of a notice board, put up by Applicant on the premises.

18] It was pointed out by Second Respondent that several shops in the centre had been vacated and were not subsequently let. It is his view that the Applicant fails to market the premises adequately, if at all. He confirmed his complaints as described in the letter of 5 February, that I referred to above and pointed out again that building at the centre was continuing, causing inconvenience and disruption and created a bad impression to visitors. The bathrooms were utilised by builders and were messy, the underground parking area was unusable due to rubble, resulting in the lessees having to park elsewhere at high cost. The security was not up to standard. There were problems with the electricity supply, etc. Despite discussions, many lessees were experiencing such difficulties that they were not able to pay full rentals and to Second Respondent's knowledge, Applicant had instituted claims for rental or eviction against eight lessees at that time. Considering the number of empty premises in the centre, this figure was high.

19] First Respondent submitted that the only binding terms of the agreement between the parties are contained in the Offer to Lease Premises, which document was signed on behalf of First Respondent. It was argued that the terms contained in the General Terms and Conditions of the Lease, do not bind the First Respondent, since the Applicant failed to sign the copy of this document after it had been altered and signed by Second Respondent.

20] First Respondent submitted that it had not made payment of full rental by March 2009, in view of the many problems experienced by it It was further submitted that First Respondent was legally entitled to remit the rental previously agreed upon, in view of the fact that Applicant had not complied with its obligations in terms of the agreement.

23] First Respondent challenged Applicant's allegation that there was another tenant waiting to let the premises, in circumstances where there were many empty shops in the shopping centre It was speculated that this claim was made falsely to create urgency in the application for eviction in this court. This aspect was not denied by Applicant in replying documentation and was not canvassed at the hearing of the matter, two years later.

24] In March 2009 this court ordered that the urgent eviction application be removed from the roll with costs. The matter was later set down for hearing on 2 February 2011, on which date I was advised that the action that had been instituted in the Magistrate's Court was part heard and was due to continue in March 2011.

25] It was pointed out and argued on behalf of the Respondents that the same Applicant had instituted a claim against the same Respondents in the Magistrate's Court, Bellville, pertaining to the same issue, namely the liability to pay rental allegedly due by First Respondent to Applicant. Applicant had, however, failed to apply for the eviction order in the Magistrate's Court, as it could have. Applicant raised the aspect of lack of jurisdiction in this regard, which allegation is contradictory to the General Terms and Conditions of the Lease that Applicant itself relies on. (Clause 29)

26] It was also argued by Respondents that for a proper adjudication of the matter certain factual disputes had to be resolved, which could only be resolved during the hearing of oral evidence. Such oral evidence has been heard and will continue in the Magistrate's Court. In the circumstances, it was submitted, the Magistrate's Court is in the best position to make an order in this matter.

28] In essence the Respondents argue that the Applicant is in breach of its obligation to deliver the benefits for which First Respondent contracted. The lessor is obliged to fulfil all obligations which he expressly or impliedly undertook to fulfil and as such is obliged to make available the use and enjoyment of the rented premises, fit for the purpose for which it was let. Respondents also allege that the purported cancellation of the agreement was defective and as such invalid.

29] On behalf of Applicant it was submitted that the essence of its case is that it legitimately cancelled the agreement with First Respondent on 9 March 2009 It was conceded that Applicant has to establish a clear nght to succeed with a final eviction order, which in turn depends on whether Applicant's cancellation was good in law.

31] While dealing with the issue of disputed facts. Applicant referred to the test laid down by Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984(3) SA 623 (A) and argued that there were exceptions to the rule laid down in that case. The Court has to establish if disputes are genuine, or whether they are far-fetched Disputed facts need to be unambiguously addressed. Applicant argued that its version should be accepted as First Respondent's version did not comply with legal qualifications.

33] Ultimately, I am faced with various defences to an order of eviction First Respondent alleges that it is entitled to pay a reduced rental to Applicant in view of Applicant's fraudulent misrepresentation, inducing First Respondent to enter into an agreement that it would not have entered into, on the same terms, had it been aware of the true facts. Ascertaining whether and to what extent Applicant has made misrepresentations to First Respondent and whether and to what extent it has not complied with its obligations as lessor, depends on decisions based on disputed facts. Determining whether Applicant legally cancelled the agreement and determining which terms and conditions bind the parties, depends on disputes of fact and law.
34] The Court was advised that the Applicant did not wish to apply for deponents to affidavits to resolve disputed issues by means of oral evidence.

36] In my opinion the Court is not able, on the affidavits filed, to decide whether the lessor is in breach of its obligations in respect of the rented premises, or whether a material misrepresentation was made to First Respondent, inducing it to enter into a disadvantageous agreement. I cannot, on the documentation filed, make a finding as to whether or not Applicant is entitled to the full rental claimed by it, entitling it to the eviction of the First Respondent There is before me a dispute of fact on many material issues that I believe should be scrutinised.

41] Where, at the hearing of motion proceedings, a dispute of fact on affidavit cannot be settled without the hearing of oral evidence, the court may, in its discretion, dismiss the application or order oral evidence to be heard on specified issues, or order the parties to trial. In this matter, the only appropriate order, in the circumstances, is the dismissal of the application.

The application is accordingly dismissed with costs.

E. Steyn, J

21 April  2011