Amalgamated Footwear & Leather Industries v Jordan & Co Ltd

• Jurisdiction: South Africa
• Judge: Herbstein J and Searle AJ
• Judgment Date: 13 April 1948
• Hearing Date: 05 April 1948
• Court: Cape Provincial Division

Herbstein, J.:

The respondent - Jordan & Co - sued the appellant - Amalgamated Footwear and Leather Industries (Pty.) Ltd - in the magistrate's court, Wellington, for an order of ejectment. The particulars of claim were as follows:

'Plaintiffs claim as against defendants an order of ejectment of defendants from certain storeroom and premises the property of plaintiffs situate in Main Street, Wellington, and presently occupied by defendants from plaintiffs at a monthly rental of £7 10s. per month and thereupon plaintiffs complain and say:

1. That the aforesaid monthly rental of £7 10s. per month in respect of

Herbstein J

the said premises is payable monthly in advance on the 4th day of each and every month.

2. That the said rental for the month of August, 1947, which was due and payable on the 4th August, 1947, has not been paid to plaintiffs.

3. That in consequence of defendant's failure and neglect to pay the said rental for the month of August, 1947, plaintiffs have become entitled to an order of ejectment of defendants from the said storeroom and premises.'

The appellants excepted to the summons on the ground that it did not disclose a cause of action. The magistrate overruled the exception with costs and the present appeal is against that judgment.

Mr. Snitcher for the appellant contended that the summons must be read as alleging that there was a monthly lease in existence and that if it were so read it was clear that a failure to pay rent on due date could not per se found a claim for ejectment. (Johns v Colonial Government (15 S.C. 245).)

He contended further that in the absence of specific allegations to that effect, or at least reference to the relevant legislation, the summons could not be read as containing the allegation that the appellant was a statutory tenant and as such liable to be ejected.

Before examining the contentions it would appear desirable to set out the legal principles which should govern the matter.

In S.A.R. & H v Pepeta (1926 CPD 45), it was said:

'The exception raised a legal issue on the summons itself. It complained of a defect inherent in the summons. It in effect stated that the facts set out in the summons did not disclose a cause of action. That was entirely a question of law which had to be decided upon the summons and the summons alone. No facts outside those stated in the summons could be brought into issue because it was solely the legal effect of the facts therein set out which...