Cape Town - The owner of a well-known Mouille Point restaurant, The Butcher Shop & Grill, has instructed his lawyers to apply for leave to appeal to the Supreme Court of Appeal or a full bench of the Western Cape High Court to reverse a recent order to pay over R2 million in back rent.
The owner of The Butcher Shop & Grill, businessman Alan Pick, had withheld the money from the landlord, citing the effects of Covid-19 pandemic restrictions between August 2020 and June this year.
Pick’s restaurant, The Butcher Shop & Grill is the tenant, while his company Apoldo Trade (Pty) Ltd, is the the sub-tenant of the premises situated at 125 Beach Road, Mouille Point, owned by the Bymyam Trust which is the landlord.
In her judgment, Judge Mas-Udah Pangarker said in part that the restaurant had failed to make out a case to disregard the separate juristic personalities of the restaurant and ApoIdo.
Acting on behalf of the restaurant, which is the tenant, as well as for the sub-lessee ApoIdo Trade, attorney Rael Gootkin said both entities are 100% owned by the same person, Alan Pick.
“Pick is the founder of the Butcher Shop and Grill business, and is a director of Apoldo.
“Our clients regard themselves as one economic entity and that a distinction shouldn’t be drawn between the tenant/sub-tenant relationship, which in these circumstances are artificial.
“The nature of the business is such that it has two branches, one being in Sandton and one in Mouille Point, the leased premises in the case. The branches share the same managing director Pick's son, Dani,” Gootkin said.
In the application, Gootkin argues that the branches share suppliers, intellectual property, branding, marketing and IT infrastructure, including an integrated point of sale and accounting system.
The original case centred on the question whether a commercial tenant is entitled to withhold payment of rental to the landlord payable in terms of a lease agreement during the period of national lockdown.
It also looked at whether such a tenant is entitled to claim a rental remission as a result of the legislative restrictions caused by the imposition of the regulations.