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Friday Dec 13, 2013

Rosebank rooftop traders appeal to court

A new Sunday market in the Mall of Rosebank, replacing the old one, has raised the ire of many former traders.

The traders, many of whom had been in Rosebank for years, were forced to move to the Norwood Mall after they were evicted from Rosebank when their lease was terminated following legal action between Hyprop and B&B Rooftop Markets, which runs the market. They were informed they had to move out on March 29, a move which left them stranded.

Now, every Sunday morning, former Rosebank traders walk up and down the Rosebank area with signs advising people to visit the old traders in Norwood.

The new market was started on November 1.

B&B Rooftop Markets chief executive Brad Fisher said it was a pity that the traders had lost their space and that a new market was now operating in the same shopping centre.

'We were offered alternative space by Hyprop, but half the current traders would not have been accommodated. There is legal action happening following an arbitration appeal tribunal hearing which found that we were evicted illegally, so we have been vindicated. Furthermore, they have to pay our legal costs. Further legal and damages action is to follow,' he said.

Fisher said the traders had settled in Norwood and appreciated the move by that mall to accommodate them.

Hyprop, owners of the The Mall in Rosebank, claim it was never the intention to close the former market.

Hyprop chief executive Pieter Prinsloo said consultation had been taking place since 2009 and all traders given an opportunity to relocate to the new premises.

'However, B&B did not accept the relocation option. We have been and, remain, involved in litigation with B&B Rooftop Markets,' he said.

The company proposed a new, site with an area of about 8 500m² for the Sunday rooftop market. It is entirely covered with an insulated sheet metal roof, thereby providing wind and weather protection.

'We began engaging with numerous tenants, including B&B, in 2009... and traders were informed of the proposed move to the rooftop. Despite this progress, B&B was not forthcoming in providing us with relevant information to facilitate the seamless relocation of the Sunday market to the proposed new premises,' he said.

With the redevelopment at risk, Hyprop was forced to invoke its rights in terms of the lease and to formally give notice to B&B of the proposed relocation. B&B rejected this notice and refused to co-operate.

'Hyprop implored B&B to resume discussions and offered to assist with the proposed relocation, but they retaliated with a list of unreasonable demands which we regarded as a repudiation of the agreement of lease and, as a last resort, cancelled the lease.'

B&B then launched an urgent application to interdict and restrain Hyprop from continuing with its construction. The action was referred to arbitration before retired Judge Meyer Joffe, who, on March 8, 2013, dismissed B&B's application, confirming that the market must cease trading by March 31.

Prinsloo said that notwithstanding the arbitrator's award being in Hyprop's favour, the company pursued options to keep the market operational, attempts which were 'regretfully rejected by B&B'.

On June 27, however, the arbitration appeal was heard and Hyprop lost the case, with costs.

'The award does not grant B&B permission to return to the original premises. Due to the lack of clarity of the award, Hyprop is taking the award on review,' he said.

The Star


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