Tudor Hotel Brasserie & Bar (Pty) Ltd v Hencetrade 15 (Pty) Ltd

The appellant occupied hotel premises in Cape Town under a written lease concluded in June 2012. The lease required rental to be paid monthly in advance and without deduction or set-off. At the commencement of occupation, the landlord retained part of the third floor for storage, resulting in the tenant having only partial beneficial occupation. The tenant withheld rental payments, alleging that its obligation to pay rent was suspended due to the landlord’s failure to provide full beneficial occupation. After notice to remedy the arrears was given and not complied with, the landlord cancelled the lease and obtained an eviction order in the High Court.

The appeal was dismissed with costs, and the eviction order granted by the High Court was confirmed.

The case confirms that, in South African lease law, the principle of reciprocity and the exceptio non adimpleti contractus may be contractually excluded. Where a lease requires rental to be paid in advance and without deduction or set-off, a tenant may not withhold rental due to partial beneficial occupation, but must instead pursue remedies such as abatement or damages.