Pears v Club C 99 Bar Lounge (Pty) Ltd and Another (2025/207539) [2025] ZAWCHC 603 (10 December 2025)

begin wrapper begin container begin header begin slogan-floater end slogan-floater - About SAFLII About SAFLII - Databases Databases - Search Search - Terms of Use Terms of Use - RSS Feeds RSS Feeds end header begin main begin center # South Africa: Western Cape High Court, Cape Town South Africa: Western Cape High Court, Cape Town You are here: SAFLII >> Databases >> South Africa: Western Cape High Court, Cape Town >> 2025 >> [2025] ZAWCHC 603 | Noteup | LawCite sino index ## Pears v Club C 99 Bar Lounge (Pty) Ltd and Another (2025/207539) [2025] ZAWCHC 603 (10 December 2025) Pears v Club C 99 Bar Lounge (Pty) Ltd and Another (2025/207539) [2025] ZAWCHC 603 (10 December 2025) Download original files PDF format RTF format make_database: source=/home/saflii//raw/ZAWCHC/Data/2025_603.html sino date 10 December 2025 IN THE HIGH COURT OF SOUTH AFRICA (WESTERN CAPE DIVISION, CAPE TOWN) Case Number: 2025-207539 In the matter between: JAMES CLIVE PEARS First Applicant / and CLUB C 99 BAR LOUNGE (PTY) LTD First Respondent FLATROCK BODY CORPORATE Second Respondent Coram: Greig AJ Heard: 20 November 2025 Delivered: 10 December 2025 JUDGEMENT Greig AJ Introduction [1] In this urgent application the applicant landlord, Mr James Pears, seeks final relief in the form of the eviction of his tenant, Club C99 Bar Lounge (Pty) Ltd. The leased premises is a commercial property situated in a sectional title scheme administered by the second respondent, Flatrock Body Corporate. [2] Flatrock does not oppose the application and filed a notice to abide. Background Previous eviction application [3] The written lease between the parties was concluded on 17 July 2023. In terms of the lease Club 99 would occupy the premises for two years at a monthly rental of R 32,000 excluding VAT, subject to an annual escalation of 6%. The ‘permitted purpose’ for which the leased premises could be used was as a ‘bar lounge’. [4] Club 99 took occupation of the premises on 1 August 2023. However, Club 99 allegedly breached the lease agreement by failing to pay rental and, on 6 September 2024, Mr Pears gave Club 99 notice to rectify the breach. On 8 October 2024 he cancelled the lease. [5] On 30 October 2024 Mr Pears launched an application for the eviction of Club 99 under case number 23527/2024 in this Court. In addition to the non-payment of rental Mr Pears also relied on an allegation that Club 99 was trading unlawfully without an appropriate liquor licence and as a ‘club’ instead of as a ‘bar lounge’. [6] Judgement was handed down on 23 June 2025 by Ndita J. The application was dismissed based on averments by Club 99 that there had been a tacit relocation of the lease agreement. This eviction application [7] Before judgement in the first eviction application was handed down, on 25 March 2025 Flatrock gave notice to Mr Pears that he was in breach of the conduct rules, or rather that Club 99, his tenant, was in breach of the conduct rules as they existed at the time. The alleged breach was that Club 99 was trading as a nightclub, which risked voiding Flatrock’s insurance policies. There are also allegations of unauthorised alterations and signage, as well as excessive noise, and drunk and disorderly conduct by Club 99’s patrons. [8] Mr Pears avers that in terms of the lease agreement Club 99 is required to ensure compliance with any conduct rules published by Mr Pears or the managing agents and that he made the Flatrock conduct rules available to Club 99. Accordinlgy Mr Pears alleges that Club 99 is in breach of Flatrock’s conduct rules by utilising the premises for an impermissible purpose, contravening applicable laws, and creating a nuisance. [9] Amended conduct rules came into force on 5 June 2025. In terms of these rules ‘no clubs, bars, hookah lounges, or similar night establishments, etc. are permitted to operate within the scheme’. Furthermore, the rules preclude operation of any business in the scheme which is primarily ‘in the nature of a nightclub, club, nightlife venue, entertainment venue, hookah lounge, pub, bar, cocktail bar, gentleman’s club, [or] sports café…’ [10] Club 99 is also not entitled to ‘operate a business that involves live music or an excessive noise, such as, without limitation, a disco’. [11] Arising from the above Mr Pears notified Club 99 of various breaches including failure to pay rental as well as contravention of Flatrock’s conduct rules. Club 99 thereafter paid the arrear rental but continued operating the business from the premises. [12] On 28 July 2025, Flatrock gave notice to Mr Pears of breaches of the Flatrock conduct rules, demanding compliance by him within seven days, failing which penalties would be imposed. [13] On 9 September 2025 a further such letter was sent by Flatrock demanding compliance. On the same day, six invoices were issued by Flatrock to Mr Pears for penalties amounting to R 27,759.15 in respect of Club 99’s various contraventions of the conduct rules. [14] Mr Pears thereafter began negotiations with Club 99 to sell the premises to it. These negotiations did not bear fruit and Mr Pears instead elected to cancel the lease. His attorneys sent a notice of cancellation to Club 99 on 30 September 2025. The notice required Club 99 to vacate the premises within 20 days, failing which Mr Pears would approach this Court to secure Club 99’s eviction. [15] On 30 September 2025 Club 99’s attorneys responded stating that Mr Pears ‘ should have known the businesses prohibited by the Body Corporate Rules before he rented to the premises to my client. The Body Corporate objected to my client’s application for a liquor licence and the objection was overruled and a liquor licence was issued to my client. Your client unsuccessfully raised in a previous eviction application that was dismissed with costs the same argument about the use of the premises and the Body Corporate Rules’. [16] The letter thus denies any breach of the lease agreement. [17] Mr Pears then approach this Court seeking Club 99’s eviction and citing its cancellation of the lease agreement arising from the breaches of the provisions incorporating Flatrock’s conduct rules. [18] Mr Pears in the founding affidavit calls the reference to the proceedings before Ndita J ‘disingenuous’ because that application was decided ‘solely on the basis of the conclusion of a new lease agreement’, and no findings were made concerning Club 99’s breach of the lease. [19] Mr Pears continues by stating that Flatrock ‘ will continue to impose penalties upon me until the first respondent ceases breaching the Conduct Rules or is evicted. I have since been levied with further penalties. The total amount of the penalties imposed to date is R 714,007.60… I am consequently in an untenable position. I cannot prevent the continued imposition of penalties (as the first respondent’s business activities are a clear violation of the Conduct Rules) and the first respondent has no intention of changing its business or remedying its breaches.’ [20] Mr Pears thus asserts that the lease was validly cancelled on 30 September 2025, and Club 99 was required to vacate the premises within 20 days. [21] Mr Pears further asserts that, should Club 99 remain in occupation, he will continue to suffer financial losses, and states that Club 99 has previously failed to pay its rent ‘and will no doubt continue to do so.’ [22] However, it is to be noted that, despite these previous difficulties with rental payments, the financial losses referred to by the applicant in the founding affidavit are not losses arising from unpaid rental but instead from penalties imposed by Flatrock in relation to breaches of its conduct rules. It is common cause that Club 99 is not in arrears on its rental. Club 99’s opposition [23] Club 99 firstly opposes this application on the basis that it is not urgent. Club 99 also avers that the matter is res judicata in light of the judgement of Ndita J, and that it is entitled to assert an enrichment lien based on improvements it has made to the premises. Club 99 also denies any breach of the lease agreement and points out that it is up-to-date with its rental payments to Mr Pears. [24] In a further affidavit Club 99 also places on record an email from Mr Pears in which he responds to complaints made by Flatrock in relation to Club 99 by evidently adopting a stance similar to that now adopted by Club 99 in relation to Flatrock’s conduct rules, saying ‘these people are insane! Who complains like this after a fit-out before the business is even open? Why didn’t they just tell us this from the get go??’. [25] Based on the above Club 99 asserts that these proceedings are in reality instigated by Flatrock and that there is no basis to evict it from the premises. Urgency Urgency on the papers [26] Mr Pears’ recitation of the reasons for urgency in the founding affidavit is laconic: ‘ I will not be afforded substantial redress if the matter is heard in the ordinary course. I am advised that if the matter is enrolled on the semi-urgent roll or the opposed motion roll, it will only be heard in the second half of 2026. During that time, the penalties that will be imposed on me will become even more intolerable, and I will have slim prospects of recovering them from the first respondent. It is also untenable that the first respondent should be permitted to occupy the premises illegally for almost a year.’ [27] Club 99 for its states that it was provided with insufficient time to properly answer the case made out in the founding affidavit. The application was launched on 4 November 2025 and it was required to file an answering affidavit by 12 November 2025 in anticipation of the hearing on 20 November 2025. [28] Club 99 also takes issue with the case made out for urgency saying that Mr Pears has not provided reasons why he will not be afforded substantial redress at a hearing in due course, nor sufficient detail as to the circumstances which allegedly render the matter urgent. [29] Club 99 also avers in its answering affidavit that: ‘ this is the second eviction application that the Applicant has brought on [the] exact same complaint…the first eviction application was not brought on [and] urgent basis. Nothing justifies the hearing of this second eviction application, which is an abuse of process, on [an] urgent basis. The Applicant complained in the first eviction application and in this eviction application that the First Respondent breached the lease agreement in that it failed to pay rental and operated a business in contravention of the lease agreement and the rules of the Body Corporate. Those issues were debated before the Liquor Board that overruled the objections of the Body Corporate and issued a liquor licence to the First Respondent. The same issues were debated before the Honourable Justice Ndita who dismissed the Applicant’s eviction application with costs…’ [30] In reply Mr Pears states that Club 99 ‘has not engaged with [his] allegation that [he] will have slim prospects of recovering those penalties from the first respondent’, nor with his allegation that Club 99 ‘has routinely failed to pay its rent on time, and will no doubt continue to do so, to [his] further financial prejudice.’ [31] As I have mentioned, Flatrock abides the relief claimed. Nonetheless, shortly after the replying affidavit was delivered on 17 November 2025, an affidavit was delivered by Murray Anderson, a trustee, in which he alleges that Flatrock is suffering harm as a result of Club 99’s conduct and has ‘ been informed by its insurance broker that its insurance cover is at risk of being voided. The insurer considers nightclubs to pose a high fire risk and has indicated that it may decline the risk and cancel the second respondent’s insurance policy should such use continue.’ [32] He also states that the penalties levied against Mr Pears had by that stage risen to R 963,292.72. [33] In a further affidavit responding to the above Club 99 disputes that Flatrock’s insurance will be affected by the operation of its business, quoting from minutes of Flatrock’s AGM where it was stated that Club 99 is not considered a nightclub from an insurance perspective, and that steps were being taken to ensure that it remains classified accordingly. Applicable legal principles on urgency [34] It is trite than an applicant who seeks urgent relief must provide a full explanation for its alleged urgency, and for any delays in bringing the application, in its founding affidavit. Rule 6(12) states in peremptory terms that an applicant ‘… shall set forth explicitly the circumstances which [they aver] render the matter urgent and the reasons why [they claim] that [they] could not be afforded substantial redress at a hearing in due course.’ [1] [35] An applicant may only deviate so far from the rules as is warranted by the urgency thus established. [2] [36] In terms of the rule, therefore, the critical issue which must be canvassed in the founding affidavit is why substantial redress may not be obtained in due course. [3] [37] It was held in Mhonko's Security Services CC v City of Cape Town and Others [4] ‘ As was stated in Gallagher v Norman’s Transport Lines (Pty) Ltd [5] the rules do not tolerate an illogical knee-jerk reaction to urgency. The entitlement to deviate from the rules is dependent on the urgency which is shown to prevail and this must be of some marked degree.’ Discussion [38] I n my view the laconic explanation of urgency given in paragraph [26] above does not meet the above standards required for urgent enrolment. The reference to the likely dates to be allocated on the semi-urgent or normal motion rolls on its own takes the matter no further because Mr Pears was still required to explain why a hearing at that time will not suffice. [39] The only statement made in support of that contention is that the penalties which Flatrock by then will have been imposed will have ‘become even more intolerable’, and he will have ‘slim prospects of recovering them from Club 99’. [40] Notably absent from the above is any explanation as to why Mr Pears will by that stage find the penalties so ‘intolerable’. Whilst I have little doubt that penalties of this nature, racking up quickly as they apparently are, will be decidedly unpleasant, Mr Pears does not explain why his personal circumstances, or his membership of Flatrock, could not abide that outcome until he is awarded damages in due course. It is so that commercial interests may justify the invocation of urgency no less than other interests, [6] but the usual requirements to establish a case for urgency in the founding papers still apply. If commercial urgency is relied upon then it is incumbent upon an applicant to state the reasons that the commercial harm alleged cannot be redressed in due course. [41] As to the related issue of recoverability, a similar position pertains. Mr Pears does state that he will have ‘slim prospects’ of recovering Flatrock’s penalties from Club 99, and perhaps he is correct in this. However, it is not sufficient to simply state this conclusion. To establish a sufficient basis for urgency it was incumbent upon Mr Pears in the founding affidavit at least to state some facts from which this conclusion may reasonably be derived. Whilst he does say that he has experienced difficulties in the past recovering rental from Club 99, it is common cause on the papers that these arrears are now up-to-date. Beyond this, there is no factual foundation upon which one can infer that the prospects of recoverability will be ‘slim’. The financial precarity of nightclub operations is not so notorious that I can simply assume these losses will be irrecoverable in the normal course. [42] In a similar vein, there is no attempt by Mr Pears to deal with other security he may hold. Clause 47 of the lease agreement provides for Club 99 to procure for him deeds of suretyship. It does not appear from the papers that this was done, or why it was not. It is also unclear why the security afforded by a landlord’s hypothec would be insufficient. Whatever the real facts may be, these are issues about which the court cannot make guesses. [43] It is further does not assist Mr Pears to say in reply that Club 99 has failed to ‘engage’ with his allegation that he will have slim prospects of recovering Flatrock’s penalties from Club 99. Club 99 can only reasonably be expected to ‘engage’ with allegations of fact, not conclusions. [44] Likewise, the issues raised by Flatrock after the replying affidavit was filed do not assist Mr Pears’ urgency. Whilst it may be that the operations conducted by Club 99 imperil Flatrock’s insurance, the link between this and Mr Pears’ own prejudice is not made. In any event, these disputed allegations are made after the replying affidavit was filed, under cover of a notice to abide, in an urgent application. They cannot assist compliance with Rule 6(12). [45] Finally, it is also relevant that it is not seriously challenged that the previous application which served before Ndita J, where many similar grounds for eviction were raised, was not brought on the basis of urgency. The decision to proceed with this eviction application shortly after that judgement was received, has the appearance of a knee-jerk reaction. Conclusion [46] In the result, I am not satisfied that Mr Pears has met the requirements of Rule 6(12). The founding affidavit does not provide a sufficiently full explanation of the circumstances said to render the matter urgent, nor does it adequately demonstrate why substantial redress could not be obtained in the ordinary course. The mere prospect of accumulating penalties, without a factual foundation explaining why these cannot be tolerated pending a hearing in due course, is insufficient. Nor does a bare assertion that recoverability from Club 99 will be doubtful. Absent concrete facts, these statements amount to conclusions rather than a substantiated case for intervention on an urgent basis. [47] Moreover, Mr Pears’ reliance on the anticipated delays in obtaining a hearing date adds little to the inquiry. On its own, this does not establish urgency; it must be tied to demonstrable prejudice that cannot later be remedied. Here, Mr Pears has not shown why the alleged financial prejudice cannot be addressed through the mechanisms available to him under the lease or through a damages claim pursued in the ordinary course. [48] The supplementary allegations advanced by Flatrock after the replying affidavit was filed similarly cannot assist. New matter introduced by a party who abides the relief sought cannot cure defects in the founding papers; nor can it retrospectively supply the factual basis required to justify urgency. [49] As to costs, this award must follow the usual course where matters are struck from the roll for want of urgency. However, I note that no costs were sought against Flatrock by Club 99, and accordingly I make no order in that respect. Order [50] I accordingly make the following order: (a) The application is struck from the roll; (b) The applicant is to pay the first respondent’s costs, including the costs of counsel on Scale B. Greig AJ Appearances For Applicant:                Adv R Fitzgerald Instructed by:                  JJ Rebello & R Karsten Attorneys For First Respondent:      Adv D Petersen Instructed by:                  A Fotoh & Associates For Second Respondent: Adv L Liebenberg Instructed by:                 Albertus J Agulhas Inc. [1] See Salt and Another v Smith 1991 (2) SA186 (Nm). [2] Luna Meubel Vervaardigers (Edms) Bpk v Makin and Another (t/a Makin's Furniture Manufacturers) 1977 (4) SA 135 (W) [3] See e.g. East Rock Trading 7 (Pty) Ltd and Another v Eagle Valley Granite (Pty) Ltd and Others (11/33767) [2011] ZAGPJHC 196 (23 September 2011) at para 6. [4] (21132/2018) [2018] ZAWCHC 168 (30 November 2018) at para 17. [5] 1992 (3) SA 500 (W) at 502I – 503A [6] Twentieth Century Fox Film Corporation and another v Anthony Black Films (Pty) Ltd [1982) 3 All SA 679 (W). sino noindex make_database footer start