Court
Mayibongwe Maqhina|Published
The City of Cape Town was granted an eviction order against Dubhe Secure Parking owner, Gadija Vallie, when the Western Cape High Court on Tuesday confirmed the termination of the lease agreement for the provision of parking between the two parties.
Papers before the court stated that Vallie and the City concluded a written lease agreement for the premises at the corner of Hertzog Boulevard and Malan Street for commercial purposes in 2019.
The lease agreement came to an end on May 31, 2022, but Dubhe Secure Parking had remained on the premises on a month-to-month basis and then fell into arrears with the payment of rental.
Vallie had owed the City R4.78 million by November 9, 2023, a move that led to the cancellation of the lease agreement.
Lease cancelled over unpaid rent
The papers said no rental has been paid since April 2024 and the City is recovering the funds through a pending action in the Magistrates’ court.
Judge Phillipa Susan van Zyl, who heard the matter, said Vallie admitted to owing rental but disputed the amount despite opposing the eviction application.
“There is no serious dispute between the parties that the non-payment of the rental is a material breach which entitles the applicant to cancel, and to evict the respondents who remain in unlawful occupation of the property,” Van Zyl said.
The City had told the court that Vallie owed R4.7m by November 2, 2023 and sent a letter of demand to her on November 9, 2023 by a registered post calling upon her to remedy the arrears.
Vallie failed to comply with the demand, and the City instituted the court action April 5, 2024 in the Magistrate's court for the recovery of the outstanding rental after a failed settlement agreement.
The last payment received from Vallie for rental was R150 000 that was paid on April 8, 2024 and no further payment was made despite an undertaking to make payment, including a promised payment of R1.6m by April 30, 2024.
Van Zyl said the lease agreement provided for cancellation for non-payment of rent and failure to do so after receiving 20 business days’ notice the termination notice could be served.
“The applicant accordingly served a notice of breach on the first respondent by email on 15 July 2024, affording her twenty business days to remedy the breach.
Parking operator remained after lease expired
“The period afforded to remedy the breach expired on 12 August 2024 without the first respondent having complied,” said Van Zyl.
She stated that although the cancellation notice required Vallie to vacate the premises by no later than September 30, 2024, she did not comply and continued trading.
The rental arrears had escalated to R6.3m by January 29, 2025 .
Van Zyl said there was no denial of receipt to the notices preceding the institution of the application for eviction or questioning of the validity of the cancellation on the basis of some defect in the notices.
“I find, therefore, that the lease agreement was validly cancelled,” she said.
Van Zyl also said cancellation was permitted for breach, and it was common cause that Vallie was in arrears with rental.
City pursued payment in court
She also shot down the argument by Vallie that the City allegedly failed to accommodate her request for moratorium on rental payments due to Covid-19 pandemic hardship.
“The applicant was, however, under no contractual obligation to give the first respondent a rent moratorium,” she said.
The judge added that Vallie had requested a moratorium after the lockdown period.
“It is common cause that she was already in arrears prior to lockdown.”
Van Zyl found against Vallie when she claimed that she had entered into a “debt arrangement” with the City in August 2022 as grounds against her eviction from the premises.
In her judgment, Van Zyl confirmed the termination of the lease agreement and ordered Vallie and those holding the title under her were evicted from the premises.
She gave Vallie and those occupying the premises until November 20 to vacate the premises.
“Should the first respondent (and anyone occupying under her) fail to vacate the property as ordered in paragraph 5, the Sheriff of the Court or his lawfully appointed deputy may carry out this eviction order forthwith, and hand vacant occupation of the premises to the applicant,” said the judge.