Cape Town - A Western Cape High Court judge has granted Mouille Point restaurant, the Butcher Shop and Grill’s application for leave to appeal her judgment against it on the issue of rental remission, to a full bench of the Supreme Court of Appeal (SCA).
The original case centred around the question whether a commercial tenant is entitled to withhold payment of rental to the landlord payable in terms of a lease agreement during the period of national lockdown.
It also looked at whether such a tenant is entitled to claim a rental remission as a result of the legislative restrictions caused by the imposition of the regulations.
In the judgment she delivered on November 19, Acting Judge Mas-Udah Pangarker dismissed the restaurant’s counter application for rental remission with costs and ordered it to make payment to the Bymyam Trust which is the landlord, of over R2.7 million.
The money represented all amounts due by the restaurant and its sub tenant, Apoldo Trade, to the landlord in terms of the provisions of the lease concluded between the parties in February 2014.
Additionally, the restaurant was ordered to pay interest on the amount as well as costs on the scale as between attorney and client plus VAT. The landlord’s applications to strike out were dismissed with costs, including costs of two counsel.
The restaurant’s application to appeal the judgment said the judge erred in saying the Butcher Shop and Grill had failed to make out a case to disregard the separate juristic personalities of itself and Apoldo.
The restaurant and Apoldo are 100% owned by the same person, who is a director of both companies
They argued the judge was wrong to find the restaurant had failed to prove, on a balance of probabilities, a lack of beneficial occupation of the leased premises.
They said as a result of this error on the part of the judge, she had incorrectly found the restaurant was not entitled to claim rental remission.
Granting the application for leave to appeal, Acting Judge Pangarker said: “I am satisfied that reasonable prospects of success exist on appeal. I must add I am of the view that the outcome of this matter on appeal would hold great significance not only to these parties but also to other commercial tenants and landlords in South Africa.”
She said this was more so in the face of Covid-19 regulations which impacted on commercial tenants and landlords.
“Having regard to the submissions by counsel and my judgment considered objectively and dispassionately, I am of the view that another court could or may come to a different conclusion. For all of these reasons, I believe there are compelling reasons to grant leave to appeal to the SCA.”