Commercial Eviction Case: Airpark Property Development v Altitude Adjustment Aviation
A commercial eviction dispute in the High Court of South Africa, Gauteng Division, Johannesburg (Case No. 2025-171301) between Airpark Property Development (Pty) Ltd and Altitude Adjustment Aviation CC regarding premises at Eagles Creek Aviation Estate.
The Applicant's Claims
Eviction Sought
Applicant seeks commercial eviction from Plot 113 Knopjeslaagte 385, Tshwane, within Eagles Creek Aviation Estate. The claim is predicated upon ownership as reflected in Title Deed 160197/07.
Monetary Claim
Applicant claims R18,936,561.15 in outstanding payments, plus ancillary relief. The claim stems from alleged breach of lease obligations and non-payment of substantial monies owed.
The Lease Agreement at the Heart of the Dispute
A signed lease agreement dated 27 August 2014 was concluded between the parties, reflected as a Notarial Deed of Lease for Hangar M40 measuring 150 m². The document contains manuscript changes and alterations inserted by Respondent's member Richard Stubbs and signed/initialed by both Stubbs and Applicant's director Greyvensteyn.
01
Original Agreement
Notarial Deed of Lease prepared by Applicant for 99-year term
02
Manuscript Amendments
Changes inserted by Stubbs and initialed by both parties
03
Non-Registration
Despite being a Notarial Deed, lease was never registered in Deeds Office
04
Occupation Granted
Respondent given beneficial occupation from 2014 despite non-registration
Key Amendments to the Lease Agreement
The lease agreement contains several critical manuscript insertions and amendments that form the basis of the current dispute. These changes were made by Respondent and initialed by both parties.
Clause 1.5 - Lessee Identity
Lessee inserted as "AAA CC T/A Sable Aircraft" with Richard Stubbs' name added. AAA is Altitude Adjustment Aviation per Windeed search.
Clauses 1.7-1.9 & 3.1 - Contact Details
Addresses and contact numbers inserted, initialed at bottom of page rather than alongside insertions.
Clause 5.1.1 - Initial Amount
Amount of R0.00 was inserted into this clause.
Clause 5.2-5.2.1.2 - Deletion
Entire clause section was deleted from the agreement.
Clause 8 - Levy Rate Dispute
Amount of R6.30 deleted and substituted with R530.00, initialed by both parties. This forms the central dispute.
The Registration Issue and Its Legal Implications
Non-Registration Facts
Despite being reflected as a Notarial Deed of Lease valid for 99 years from date of registration, the lease was never registered in any Deeds Office. Registration was to occur after payment of registration costs, which were never paid.
However, despite non-registration, Respondent was afforded occupation and possession, enjoying beneficial occupation from conclusion of the agreement in 2014.
Legal Position
A notarial lease, even if not registered, remains a contract with obligations imposed on both parties. Failure to register creates valid personal rights between parties but lacks real right status and enhanced protection of registration.
"Failure to register a long-term lease is valid as personal rights between the parties but does not require real right status and lacks the enhanced protection of registration, which will not bind successive owners."
Applicant's Breach and Cancellation Claims
Applicant contends that Respondent has breached the lease terms by failing to pay substantial monies owed. Despite demand, such monies remain owing, and Respondent has been in breach for a period exceeding 2 months. In these circumstances, Applicant has cancelled the agreement and claimed eviction of Respondent.
1
10 January 2025
First demand notice sent to Respondent
2
30 April 2025
Second demand notice issued
3
9 September 2025
Third demand notice sent
4
11 September 2025
Request for proof of payment - no response received
Clause 14 of the lease agreement deals with breach by Respondent and affords Applicant the right to take whatever steps it is entitled to take. Notice was afforded to Respondent through multiple communications, and they chose not to effect payment or prove same.
Respondent's Defense: The R5.30 vs R530.00 Dispute
Respondent's Position
In answer, Respondent contended that Applicant breached the agreement by not registering it at the Deeds Office, and that a landlord cannot demand performance under these circumstances, including the obligation to pay levies.
Respondent admits the lease agreement but contends the levy rate agreed was R5.30 per m² as opposed to R530 per m², referring to a rectification counterclaim which was not launched.
The Decimal Point Error Claim
Despite admitting he made the manuscript insertions, Stubbs contends he made an error regarding the placement of the decimal point. This version contradicts the version contended by Moore regarding the quality of the photocopied version.
Stubbs admits receipt of the 11 September 2025 mail but elected not to respond, contending he was not obliged to furnish Applicant with information or documents requested.
R5.30
Respondent's Claimed Rate
Per square meter levy amount allegedly agreed
R530
Applicant's Claimed Rate
Per square meter levy amount in written agreement
150m²
Hangar Size
Total area of Hangar M40 under lease
Legal Principles: Burden of Proof and Adverse Inferences
The Applicant relies on fundamental legal principles regarding disputes of fact, burden of proof, and adverse inferences from silence. These principles are critical to resolving the case.
Real Dispute of Fact Test
Per Wightman t/a JW Construction v Headfour (2008): "A real, genuine and bona fide dispute of fact can exist only where the court is satisfied that the party who purports to raise the dispute has in his affidavit seriously and unambiguously addressed the fact said to be disputed."
Burden of Proof on Payment
It is a fundamental principle that he who alleges must prove. In the context of payment, the onus rests on the debtor/Respondent (Pillay v Krishna 1946 AD 946).
Adverse Inference from Silence
Per McWilliams v First Consolidated Holdings (1982): Silence and inaction after receipt of a letter, where firm repudiation would be expected, justifies an adverse inference supporting the claim.
Stubbs on behalf of Respondent has attempted to raise various disputes without merit and in circumstances where there was an obligation to prove payment, which was not done. Payment to the NPC/Investors Committee and Tshwane clearly fall within Respondent's knowledge.
The Rectification Defense and Its Requirements
Respondent refers to a rectification counterclaim which was not launched. For rectification to be applicable, there must be a common intention of the parties, and Respondent must prove specific factors.
Agreement Reduced to Writing
An agreement must have been concluded between the parties and reduced to writing
Document Doesn't Reflect True Intention
The written document does not reflect the true common continuing intention of the parties as it existed when reduced to writing
Intention to Reduce to Writing
An intention by both parties to reduce the agreement to writing must be established
Mistake in Drafting
A mistake in drafting the document, which could result from intentional act or bona fide common error
Actual Wording of True Agreement
The actual wording of the true agreement must be proven
Per Propfokus 49 P/L v Wenhandel 4 P/L [2007] SCA 15, these five factors must be proven. Not only have such allegations not been pleaded, but Respondent's contentions for rectification are specifically denied. If there was no meeting of minds, the lease agreement may be void for vagueness, and Respondent would have no entitlement to remain in occupation.
Additional Defenses and Procedural Issues
Prescription Defense
Respondent denies monies are owed and avers that even if owed, claims for monies in excess of 3 years have prescribed under the Prescription Act. However, Respondent relies upon a certificate of "good standing" from Eagles Creek Flying Club NPC (where Stubbs is director and chairman) with no proof of payment submitted.
Lis Pendens Claim
At paragraph 35, Stubbs advises the matter is lis pendens. Although there are certain overlaps between relief sought in that matter and this one, the current Respondent is not party to those proceedings.
Commissioning Defect
The affidavit was commissioned before 2 commissioners: Clifford Muyambi and Wynand du Plessis. It is unclear who signed the affidavit. The affidavit could not have been commissioned by both parties, and they could not both have administered the oath.
Applicant contends the affidavit is void for non-compliance with the Justice of the Peace and Commissioners of Oath Act 16 of 1963 and Regulations promulgated thereunder. In the circumstances, an order is sought in terms of the Notice of Motion.