Court Grants CAAB Right to Attach Defaulting Tenants’ Property

The Court of Appeal (CoA) has upheld the Civil Aviation Authority Botswana appeal in its case against Rolling Sure (Pty) Ltd, a company that had leased the Authority’s premises and subsequently defaulted on rental payments. The dispute involves payment exceeding P2 million in which Rolling Sure defaulted on rental for a period of around 4 years. [ihc-hide-content ihc_mb_type="show" ihc_mb_who="1,2,3,4" ihc_mb_template="3" ] The appeal comes after High Court judge, Michael Motlhabi dismissed an application brought by CAAB to confiscate property belonging to Rolling Sure until rental has been settled. CAAB had let out to Rolling Sure car park and car wash service concession at Sir Seretse Khama International Airport (SSKIA) and Francistown International Airport, now called PG Matante International Airport (PMIA). The application before the High Court was filed on a certificate of urgency on 26 October 2021. In the application, CAAB was granted a rule nisi - a legal term allowing a judge to make an order to become final unless someone shows the court why it should be changed - in the following terms: Calling upon Rolling Sure to show cause, if any, on 16 th November 2021, why the following order should not be made; Authorising the Deputy Sheriff to attach and seize the property belonging to Rolling Sure situated at SSKIA and PG Matante Airport and hold onto such goods pending proceedings to recover default rental due to CAAB from Rolling Sure within 14 days. The court also directed the Deputy Sheriff to make an immediate inventory of all the movables on the premises belonging to Rolling Sure. After several extensions, the High Court ultimately discharged the above rule nisi on the reasons that the proceedings contemplated by CAAB in its founding papers did not cover the execution as the latter is an administrative act that follows the judicial process which culminates in the issuance of a judgment, hence the appeal by CAAB. In May 2015, CAAB and Rolling Sure entered into an agreement in which Rolling Sure was to lease CAAB’s car park and car wash service concession at SSKIA and Francistown International Airport for a period of five years starting from 28 September 2016 to 27 September 2021. As per the agreement, Rolling Sure would pay CAAB a fixed rental amount for the premises leased, referred to as a ‘base rental’. Rolling Sure was also to pay a further additional rental, which rental amount was the excess turnover rental over base rental for a particular calendar month calculated and payable as provided for by the agreement. In addition, Rolling Sure was required to make payment of the base rental on or before the first day of every month and make payment of the additional rental no later than the 10 th day of each calendar month. The agreement further required Rolling Sure to pay the rental levy in respect of the use of common areas, facilities infrastructure, and other common expenses, together with VAT on or before the 10 th of each calendar month. The agreement stipulated that should any dispute arise between the parties, that dispute shall be settled by arbitration. However, Rolling Sure is said to have failed to pay the monthly base rental, the additional rental, and the rental levy. According to court papers, Rolling Sure also failed to submit financial statements to CAAB as part of the agreement. The dispute was submitted for arbitration and an arbitral award was issued on 22 nd October 2021 which ordered Rolling Sure to pay CAAB the sum of P2.1 million together with interest from November 2019 to the date of payment at the rate of 15 percent per month compounded monthly. Rolling Sure was also ordered to pay CAAB the sum of P340 525.38 together with interest at the rate of 15 percent per month from November 2019 to the date of payment. As arbitral awards are not enforceable until they become court orders, CAAB filed and moved an application before the High Court for the arbitral award to be made an order of court which was granted. Rolling Sure made an unsuccessful attempt to have the High Court order confirming the arbitral award rescinded, a matter which is also subject to appeal. In determining the CAAB appeal, CoA judge, Mercy Garekwe, noted that no matter which of the issues raised interrogates, they all lead to the same conclusion. “That is, the court a quo erred in its assessment of the issues before it,” she said. “This appeal as such ought to succeed.” Garekwe, along with Chief Justice Terence Rannowane, and CoA judge, Goemekgabo Tebogo-Maruping, who formed the panel, upheld the CAAB appeal and set aside the High Court ruling of 25 February 2022. [/ihc-hide-content]

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Court Grants CAAB Right to Attach Defaulting Tenants’ Property

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