Commercial Eviction Case: Airpark Property Development v. Altitude Adjustment Aviation
A high-stakes commercial dispute unfolds in the Gauteng Division of South Africa's High Court, where Airpark Property Development seeks to evict Altitude Adjustment Aviation CC from premises at Eagles Creek Aviation Estate and recover R18,936,561.15 in unpaid amounts.
The Property and Lease Agreement
Property Details
The dispute centers on Hanger M40, a 150 m² facility located at Plot 113 Knopjeslaagte 385, Tshwane, within the Eagles Creek Aviation Estate.
Applicant's ownership is established through Title Deed 160197/07, forming the foundation for the eviction claim.
Lease Agreement
A signed Notarial Deed of Lease was concluded on August 27, 2014, between the parties. The document was prepared by Applicant but contains manuscript amendments inserted by Respondent's member Richard Stubbs and initialed by both Stubbs and Applicant's director Greyvensteyn.
Despite being designated for a 99-year term, the lease was never registered at the Deeds Office as registration costs were never paid.
Key Amendments to the Lease
1
Lessee Identification
Clause 1.5: Lessee inserted as "AAA CC T/A Sable Aircraft" with Richard Stubbs' name added. AAA confirmed as Altitude Adjustment Aviation per Windeed search.
2
Contact Information
Clauses 1.7, 1.8, 1.9, and 3.1: Addresses and contact numbers inserted, with initials at page bottom rather than alongside insertions.
3
Initial Payment
Clause 5.1.1: Amount of R0.00 inserted, with Clause 5.2-5.2.1.2 deleted entirely from the agreement.
4
Levy Rate Dispute
Clause 8: Original amount of R6.30 deleted and replaced with R530.00, properly initialed by both parties—now central to the dispute.
Applicant's Position: Breach and Non-Payment
Despite the non-registration of the lease, Respondent has enjoyed beneficial occupation since 2014. Applicant contends that Respondent breached the agreement by failing to pay substantial amounts owed.
Breach Duration
Respondent has been in breach for a period exceeding two months, with multiple demands for payment going unmet.
Formal Notices
Applicant issued notices on January 10, 2025, April 30, 2025, and September 9, 2025, requesting payment and proof of levy payments.
Cancellation
Based on continued non-payment and breach, Applicant cancelled the agreement and now seeks eviction of Respondent from the premises.
Respondent's Defense: Registration Failure
Primary Argument
Respondent contends that Applicant breached the agreement by failing to register it at the Deeds Office. They argue a landlord cannot demand performance, including levy payments, under these circumstances.
Despite awareness of non-registration since 2014, Respondent remained in occupation while claiming all benefits of the agreement.
Respondent denies failure to pay levies but refuses to provide proof of payment when specifically requested on September 11, 2025.
Legal Framework: Unregistered Notarial Leases
01
Contractual Validity
A notarial lease, even if not registered, remains a valid contract imposing obligations on both parties.
02
Personal Rights
Failure to register creates valid personal rights between parties but lacks real right status and enhanced protection of registration.
03
Breach Consequences
Non-payment of rent/levies constitutes breach permitting cancellation for material breach "going to the root of the contract."
04
Successor Protection
Unregistered leases do not bind successive owners, limiting long-term security for the lessee.
Clause 14 of the lease agreement specifically addresses breach by Respondent and grants Applicant the right to take whatever steps it is entitled to pursue.
The Levy Rate Controversy: R5.30 vs. R530.00
Respondent's Rectification Claim
Stubbs admits making manuscript insertions but contends he made an error regarding decimal point placement, claiming the intended rate was R5.30 per m² rather than R530.00 per m². He references a rectification counterclaim that was never formally launched.
Legal Requirements
Rectification requires proving five factors: concluded written agreement, document not reflecting true intention, common continuing intention, intention to reduce to writing, and drafting mistake.
Burden of Proof
Respondent bears the onus to prove factors for rectification, including demonstrating common intention of both parties at time of drafting.
Applicant's Denial
Applicant specifically denies Respondent's contentions for rectification, noting such allegations were not properly pleaded in the proceedings.
Evidence and Burden of Proof
Fundamental Principle
South African law establishes that he who alleges must prove. In payment contexts, the onus rests squarely on the debtor/Respondent.
Stubbs was specifically asked for proof of levy payments on September 11, 2025, but elected not to respond.
Adverse Inferences
In Wightman t/a JW Construction v Headfour, courts held that genuine disputes require serious, unambiguous addressing of disputed facts. When a party possesses knowledge but rests on bare denial, courts have difficulty finding the test satisfied.
In McWilliams v First Consolidated Holdings, silence and inaction after receipt of correspondence, where firm repudiation would be expected, justified adverse inference supporting the opposing party's position.
"Payment to the NPC/Investors Committee and Tshwane clearly fall within Respondent's knowledge. Failure to respond constitutes evidence and may be treated as acquiescence as to non-payment."
Additional Defenses and Procedural Issues
Prescription Defense
Respondent claims amounts exceeding three years have prescribed under the Prescription Act, while simultaneously denying money is owed—contradictory positions.
Good Standing Certificate
Respondent relies on certificate dated October 30, 2025, from Eagles Creek Flying Club NPC (where Stubbs is director and chairman) without submitting proof of actual payment.
Lis Pendens
Stubbs claims matter is lis pendens, but current Respondent is not party to those proceedings despite certain overlaps in relief sought.
Affidavit Validity Challenge
The answering affidavit was commissioned before two commissioners (Clifford Muyambi and Wynand du Plessis). Applicant contends the affidavit could not have been commissioned by both parties, rendering it void for non-compliance with the Justice of the Peace and Commissioners of Oath Act 16 of 1963.
Conclusion and Relief Sought
Applicant seeks an order for commercial eviction and recovery of R18,936,561.15 based on Respondent's material breach of the lease agreement through non-payment of substantial amounts owed.
Eviction Order
Removal of Respondent from Hanger M40 at Eagles Creek Aviation Estate based on ownership rights and cancelled lease agreement.
Monetary Judgment
Recovery of R18,936,561.15 in unpaid levies and amounts owed under the lease agreement terms.
Ancillary Relief
Additional orders as deemed appropriate by the court, including costs of the application on attorney-client scale.
The matter demonstrates fundamental principles: unregistered notarial leases remain binding contracts, payment obligations persist despite registration failures, and parties cannot claim benefits while denying corresponding obligations. Respondent's failure to provide proof of payment when specifically requested, combined with contradictory defenses, supports Applicant's position.