THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA
| Yarram Trading CC t/a Tijuana Spur v ABSA Bank | |
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| Supreme Court of Appeal -625/05 | Hearing date: 20 November 2006 |
| Judgment date: 30 November 2006 | |
Collective Investment Schemes Control Act 45 of 2002 – immovable property registered in name of trustee for collective scheme – locus standi of trustee to seek ejectment of lessee from the property – authority of trustee or manager of scheme to demand rental and cancel lease – whether factual disputes regarding alleged breach of lease determinable on the papers – application of Shifren clause. |
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Media Summary of Judgment |
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(1) On November 2006 the SCA gave judgment in this appeal. The main issue turned on an interpretation of the Collective Investment Schemes Control Act 45 of 2002 ('the Act'). The Bryanston Shopping Centre is registered in the name of Absa Bank in its capacity as trustee for a collective investment scheme under the Act. The appellant, the CC, is a lessee of premises in the building from which it conducts the Tijuana Spur. (2) Absa Bank attempted to cancel the lease on the basis that the Yarram Trading was in breach of its terms. When the latter refused to vacate, Absa Bank sought and obtained an eviction order in the Johannesburg High Court. In an appeal against that order, Yarram's main contention was that, on a proper interpretation of the Act, the authority to seek eviction vested in the manager of the scheme, Allan Gray Trust, and that consequently, Absa Bank as trustee had no locus standi to bring the application. It also denied that it was in breach of the terms of the lease. The High Court decided both these issues against Yarram. This decision by the High Court was confirmed on appeal. |
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