This is according to the market’s operator B&B Markets, which says a new lease proposed by mall-owner Hyprop Investments is a "nonstarter", after Hyprop terminated the original lease when it faced resistance in moving the market to another part of the mall.

The dispute could see the end of what was a unique market — given its size and location in a high-end and competitive mall. However, B&B Markets’ lease on the adjacent African craft market, which is popular with tourists, still stands.

Established 20 years ago, the Rooftop Market at Rosebank Mall has been a popular weekend attraction until it was closed two months ago due to the lease dispute between Hyprop Investments and B&B Markets.

Hyprop is redeveloping Rosebank Mall, and the company intended to relocate the Rooftop Market to the top level of the mall’s parkade.

B&B Markets director Brad Fisher says Hyprop’s commitment to only cover "half of the market on the roof" meant B&B Markets was not able to commit to moving in April.

Compounding the situation was a lack of information from Hyprop about the new site’s access to ATMs, toilets, restaurants and other important facilities required for the market to function, Mr Fisher says.

The parties had a lease agreement "until 2018, and we didn’t accept the alternative as reasonable", Mr Fisher says.

Hyprop said in an official statement in April that "despite numerous, ongoing, proactive attempts by the company to reach agreement with the Rooftop Market on the terms of the relocation, no agreement was reached".

According to Hyprop, the Rooftop Market in effect breached the lease by refusing to relocate, "forcing Hyprop to terminate the agreement of lease".

Hyprop and the market agreed to have the matter heard by way of arbitration, and on March 8, a judge dismissed B&B Markets’ application and upheld the termination of the lease, saying the market had to close at the end of March.

Mr Fisher says as a result, almost 400 traders "have lost their livelihood". About 300 of these made a living off the market, and numerous suppliers are also affected, he says.

Mr Fisher says B&B Markets’ legal advice obtained after the hearing, was that the judge’s ruling was incorrect as there was no relocation clause in the lease. The landlord was not entitled to rely on an encroachment clause — which allowed the extension of shop boundaries or parking into the market’s space — to move the entire market, he says. "Ethically and logically what they have done is untenable."

An appeal date has been set for later this month, and if successful, the traders could return to their original market site, Mr Fisher says.

B&B Markets "will not" sign a new lease proposed by Hyprop, as it is "totally impractical for the traders". The new lease for the roof of the parkade included a two-week-notice clause, where Hyprop could inform the market that it had to close for a month when it required access to certain areas as part of the redevelopment, Mr Fisher says.

In terms of this lease, Hyprop also has the ability to close any store in the market.

"Unless they give us a fair shot at trading on the roof, with proper facilities and uninterrupted access, then we’d rather have our previous space where we had been for 20 years. We don’t think that’s unreasonable because we have rights in our lease," Mr Fisher said.

The market had identified another possible site in Rosebank should its appeal fail, but moving the market to an untested site was "not ideal".

Hyprop says B&B Markets had failed to notify the traders of the judge’s award, "particularly the requirement to vacate the premises by March 31".

Hyprop says it has "followed due legal process and shall continue to do so", and that it "remains open to receiving proposals from the Rooftop Market regarding the re-establishment of a speciality market in a new location at Rosebank Mall".

Gary Robertson, a trader at the market, says he was first notified of the market’s closure the Thursday before it was closed, which came as "an absolute shock".

The effect on his business had been "drastic", he says, adding that he had "normal commitments like normal people, such as bonds". Some traders, though, relied on their income from the market to buy their cancer drugs and other medication, he said.

Mr Robertson says it was likely that about two-thirds of the traders had no alternative source of income. The market was also a breeding ground for many successful businesses which had since grown significantly.

The traders would move to the roof, as "something is better than nothing when you’re in this position. The whole way along we were led to believe that we were moving to the roof."

With the market making way for national retailers, Mr Robertson says "differentiation is being destroyed — it’s all about making generic shopping centres".

Source: BD