Reportable

Republic of South Africa
IN THE HIGH COURT OF SOUTH AFRICA 
(WESTERN CAPE HIGH COURT, CAPE TOWN)

V

:	

INSTRUCTED BY:	Ben Groot Attorneys - 021 914 0513

INSTRUCTED BY:	Gerhard Gous Attorneys - 021 887 6625
DATE OF HEARING:	27 July 2012 
DATE OF JUDGMENT:	27 November 2012

Reportable

THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE HIGH COURT)
A150/2012
In the matter between:

and

[5] In the present matter, it may well be that the appellant made a misrepresentation about the occupancy levels of the business premises at the Cobble Walk mall thereby inducing First Respondent to enter into the contract, but that is not necessarily relevant for the eviction proceedings. This is particularly so because First Respondent remains in occupation based on a contract of lease it also acknowledges. The issue is whether or not at the time of the cancellation it was in breach of the terms thereof.

	 Upon acceptance hereof by the Landlord, this offer shall become a binding agreement,
mutatis mutandis with the terms and conditions of the Landlord’s Agreement of Lease assigned to this project, (a copy of the Lease can be viewed at the following address: Suite OG, Nautica, The Waterclub, Beach Road, Granger Bay, 8005
9.2. The parties agree that after acceptance hereof they will sign the Lease for the premises whereupon this agreement will fall away. Any failure to sign shall not, however, affect the validity of the Agreement, but the duty to sign shall be enforceable at the instance of either party and pending such signature the provisions of 9.2 shall apply. Should there be any conflict between this Agreement and the Lease, the terms of the Agreement shall apply.”

The above letter unequivocally put to the Respondents to terms. I do not believe that there is merit in this defence.

The principles applicable to a plea of lis pendens are trite and are that there must be:
1.	pending litigation;
2.	between the same parties or their privies;
3.	based on the same cause of action; and
4.	in respect of the same subject-matter.

No parking payment.

No parking payment.

Rent reduced by 50% plus direct cost.
No parking payment.
PAYMENT
Electronic payment has been made and copy of proof attached.
If you do not accept our settlement in respect or advice in writing within 7 days of this payment with your offer and conditions, (sic) We accept that you agree with the situation”.

[14] Be that as it may, Appellant in its replying affidavit concedes that because the original contractor responsible for the building works at the Cobble Mall was liquidated, it employed various subcontractors to complete the building works. Furthermore, Appellant contended that whatever maintenance problems there had been did not have any influence on trading by the tenants.

The Court further emphasised that a lessee who has not received beneficial occupation need not quit before he was entitled to refuse to pay rental or claim a remission and further held that:

common cause that the First Respondent occupied the premises and was trading during the aforesaid months. Clause 6.2 of the lease agreement provides that:

[19] As to the costs, the Second Respondent bound himself as Surety and Coprincipal debtor for First Respondent. In terms of clause 12 of the Deed of Suretyship, he undertook to pay all costs of any action instituted against him and First Respondent by the Landlord on attorney and client scale. There is no reason why he should not be bound by that undertaking.

The Appeal is upheld with costs such costs to be paid jointly and severally by the Respondents, and the order of the court a quo is substituted with the following:

2. The Sheriff of the Court, and/or his deputy and or South African Police Services are authorised and directed to do alt things necessary to give effect to the aforesaid order.

3. The First and Second Respondents shall pay the costs of the application on the attorney and client scale, jointly and severally, the one paying the other to be absolved.

NDITA J

I agree 

BOZALEK J

I agree and it is so ordered
Veldhuizen J