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There could be a potential nightmare on the cards for travellers to the Mother City, as the 292-room Garden Court Hotel has been ordered to vacate its premises from March 2018, following a late rental payment.
The decision is steeped in controversy, as the late payment in question was then made 16 days later, back in June 2014. Tsogo Sun are the group that operate the hotel, and their pleas for ubuntu from the Supreme Court of Appeal (SCA) fell on deaf ears.
Why is the Garden Court Hotel facing eviction?
A full bench of five judges said the hotel’s failure to pay its monthly rental of R694‚585 in 2014 triggered an eviction clause in its lease with the property’s owner‚ Mohamed Rafik of Sandton. At the time, Rafik made it abundantly clear that another late payment would see him invoke the ‘eviction clause’ in the contract.
Four months later, and the rent was late again. This, however, is no open and shut case. On both occasions, Nedbank had faltered with their payment transfers. On the first missed deadline, the bank actually wrote to Rafik to accept responsibility for the issue.
Hotel in Cape Town given no ubuntu
Yet the second time their rent defaulted, Nedbank even admitted they transfered the funds to the wrong account. So we have two separate occasions where Nedbank admit to making the error, yet Mohamed Rafik and the SCA are coming down like a ton of bricks on the Garden Court Hotel.
The hotel’s owners took the premises on from 2001. They have only made two late payments in 13 years. But Judge Mathopa, presiding over Tsogo Sun’s legal challenge, explained why the bench would not uphold the values of ubuntu in this case.
“It was impermissible for the high court to develop the common law of contract by infusing the spirit of ubuntu and good faith so as to invalidate [the eviction clause]. It would be untenable to relax the maxim ‘pacta sunt servanda’ [agreements must be kept] in this case because that would be tantamount to the court making the agreement for the parties.”
This perhaps isn’t the end of the matter, though. Tsogo Sun are taking their legal challenge to Constitutional Court. Given the circumstances, this is far from a lost cause.
Also read: Why is this hotel in Bantry Bay handing out free smartphones?
