Arendse v Badroodien

• Jurisdiction: South Africa
• Judge: Van Zijl J and Tebbutt AJ
• Judgment Date: 23 November 1970
• Hearing Date: 23 November 1970
• Court: Cape Provincial Division

Tebbutt, A.J.:

The appellant is the registered owner of a dwelling house situated in Halt Road, Elsies River, which he let to the respondent during 1964 or 1965 on a monthly tenancy. The respondent is no longer in occupation of the house, having D sub-let it with the appellant's tacit consent, but he remains the statutory tenant of the property.

On 29th January, 1970 the appellant gave the respondent written notice terminating the tenancy on 28th February, 1970 and, the respondent having failed to vacate the property by that date, the appellant brought an action in the magistrate's court, E Goodwood, for the ejectment of the respondent, averring that the latter had forfeited the protection afforded him by the Rents Act, 43 of 1950, as amended, on the ground that the respondent had done material damage to the property.

The damage complained of, as set out in the reply to a request for further particulars furnished by the appellant to the F respondent, is as follows:

"(a)

Defendant has blocked up a doorway in the dwelling, so sealing off one section of the dwelling from the other.

(b)

A bedroom has been converted into a kitchen.

(c)

A door and floor frame was removed and another door added leading on to the back stoep.

(d)

The stoep has been converted into a servant's room.

(e)

G Defendant has caused the floors of two rooms to rot by nailing linoleum directly to the floors.

(f)

Defendant has broken the frame of the bathroom window, and has broken all the window-panes in the bathroom.

(g)

Defendant has broken six other window-panes in the dwelling.

(h)

Defendant has removed electrical fittings from the original kitchen and fitted them into another room.

(i)

In the bedroom which defendant converted into a H kitchen, defendant has made holes in the walls and installed a sink therein, and has made other holes to allow water to flow through the walls on to the back stoep; this has resulted in the walls becoming damp.

(j)

Defendant has failed to control the growth of vegetation and weeds in the yard, resulting in damage to the surrounding walls."

The respondent admitted that he had converted a bedroom into a kitchen, that he had removed one door and added another door leading on to the back stoep, and that the stoep had been converted into a servant's room. I shall deal with the other items referred to in due

Tebbutt AJ

course. The respondent averred, however, that what he had done to the property constituted alterations or conversions and denied that they constituted material damage. He said that, on the contrary, they had improved the premises.

Two alternative defences were raised by the respondent. He averred firstly that the alterations or additions or A conversions referred to were made with the prior approval of the appellant, and secondly and in the further alternative stated that the alterations or conversions had been made some six years ago, that the plaintiff had visited the premises on numerous occasions and was at all times aware of the alterations and that, therefore, he was estopped from relying B upon this ground now for the ejectment of the respondent.

The magistrate found that what the respondent had done to the premises was not material damage and dismissed the appellant's claim for the respondent's ejectment, with costs. This appeal C is against that decision.

The two alternative defences were not dealt with by the magistrate, he having come to the conclusion, as I have already stated, that what was done did not constitute material damage to the property, nor were they argued or relied upon before us today. The sole question before us today. The sole question before this Court, therefore, is whether the magistrate was correct in his finding that whatever the respondent had D done to the premises did not constitute material damage.

Sec. 21 (1) of the Rents Act provides that no order for the recovery of possession of a dwelling or for the ejectment of a lessee therefrom, based on the fact of the lease...