Alphedie Investments (Pty) Ltd v Greentops (Pty) Ltd

• Jurisdiction: South Africa
• Judge: Hiemstra J and Botha J
• Judgment Date: 17 October 1974
• Court: Transvaal Provincial Division
• Hearing Date: 30 August 1974
• Citation: 1975 (1) SA 161 (T)

Hiemstra, J.:

The appellant, to whom I shall refer as plaintiff, claimed arrear rental for the months of January and February 1973 in respect of a vacant lot. Defendant used it as storage space for building materials. The amount claimed was H R160 for the two months. The magistrate granted absolution from the instance at the close of the plaintiff's case and plaintiff appeals against that order.

The case will have to turn mainly on the pleadings, and it vividly illustrates the truth of what the late Prof. Wille used to say:

"Before you can draw a pleading you've got to know the law."

The Court is inclined to look benevolently at pleadings, especially in the magistrate's court, so that substantial justice need not yield to technicalities.

Hiemstra J

Such a view was expressed, inter alia, in Odendaal v Van Oudtshoorn, 1968 (3) SA 433 (T) at p. 436D. Nevertheless, the issues as defined by the pleadings must not be lost sight of and a party cannot rely on causes of action or on defences A which were not put in issue and were consequently not fully investigated.

The plaintiff's claim was

"for rental in respect of stand 201, Greenside, for January and February".

That implies an existing agreement of lease for the relevant period. This was confirmed in further particulars and amplified by the averment that the lease was a written one. The defendant B admitted the lease but pleaded

"that the lease was terminated with effect from the end of October 1972 by the defendant by notice given to the plaintiff".

This is a plea to the effect that no contractual relationship existed in respect of the relevant period. The plaintiff replicated and the replication is all-important to the result. The replication reads:

C "Plaintiff states that notice terminating the lease was given by the defendant as alleged, but states that such notice was by agreement withdrawn."

This replication puts forward a new agreement, by which the lease was revived and continued through the relevant period. As it turned out at the trial the plaintiff had in mind an agreement constitued by conduct. The question arises whether D he was entitled to plead an implied agreement in this form, and whether the defendant was prejudiced in his defence by this form of pleading. The Rules of the magistrates' courts do not require a party suing on a contract to state whether the contract was oral or in writing. But an important corollary attaches to this statement, for which authority can be found in E Roberts Construction Co. Ltd. v Dominion Earthworks (Pty.) Ltd. and Another, 1968 (3) SA 255 (AD). In the judgment of the Court JANSEN, A. J. A., analyses the judgment of GREENBERG, J. P., in MacFarlane and Jennings, N. O. v Ismail; MacFarlane and Jennings, N. O. v Dadamia, 1941 W. L. D. 148. That case dealt with the then existing position when the Supreme Court Rules too did not require a pleader to state F whether a contract was oral or in writing. The learned Judge of Appeal says, in comment upon the MacFarlan...