Arnold v Viljoen

• Jurisdiction: South Africa
• Court: Cape Provincial Division
• Judge: van Winsen J
• Judgment Date: 06 May 1954
• Citation: 1954 (3) SA 322 (C)

E Van Winsen, J.:

Applicant seeks to recover by way of notice of motion certain sums of money which he claims respondent owes to him. In 1952 the parties entered into a contract the relevant clauses of which provide as follows:

1.

F The said Arnold agrees to let and the said Viljoen agrees to hire certain premises known as the 'Sea Breezes Residential Hotel', Gatesville Road, Kalk Bay, for the sole purpose for use as a residential hotel or boarding establishment.

1.

(a) (i). In addition to the hotel let in terms of clause 1 hereof, the said Arnold hereby sells to the said Viljoen who hereby purchases certain movables as set out in an inventory which shall hereunto be annexed marked 'A'. . . .

1.

G (b). The said Viljoen hereby undertakes to pay to the said Arnold the sum of £3,500 being in respect of the goodwill and the movables as set out in terms of clause 1 (a) hereof which shall be payable as follows -

(i)

the sum of £500 in cash on the signature hereof.

(ii)

the sum of £1,500 in cash by the 31st October 1952.

(iii)

the balance of £1,500 plus interest thereon at the rate of 6 per cent from the 31st October, 1952, to date of payment by not later than 1st November, 1955. Interest shall be payable H quarterly, the first payment to be made on the 31st December, 1952 and thereafter on the 31st March, 30th June, 30th September and the 31st December in each and every year.

The said Viljoen shall be entitled to reduce the aforesaid amount of £1,500 by instalments of not less than £100 at any time and the amount of interest shall then be calculated on the balance of capital due from time to time at the commencement of each six monthly period as and from the 31st December, 1952.

Van Winsen J

1.

(c) (ii). If the said Viljoen shall fail to pay his interest on due date or the amount of £1,500 aforesaid by the 1st November, 1955 or commit a breach of any of the terms of this agreement, the said Arnold shall have the right forthwith to retake possession of the aforesaid movables and to claim immediate payment of the sum of £1,500 and any interest that may be due and compensation for any damages that he might suffer by reason of such breach.

The contract goes on to provide that the lease of the premises - the A rental of which was to be £65 payable monthly in advance - shall commence from the 1st of November 1952 and shall continue for a period of five years with an option to renew for a further four years.

In the affidavit filed by applicant in support of his application he states that respondent has failed to pay rent for January and February B 1954 and accordingly £130 is due to him as rent. Furthermore he states that respondent has failed to pay interest on the sum of £1,500 from the 1st of October, 1953, to 31st December, 1953, viz. a sum of £22 10s. By reason of the non-payment of interest the capital amount of £1,500 has become due and payable. Applicant accordingly claims payment of the said C sums of £130, £1,500, and £22, plus interest a tempore more from the 31st of December 1953. A claim for a further small sum was not pursued at the hearing.

Respondent admits entering into the contract, admits that he has failed to pay the rent due and the interest on the £1,500 and admits that his failure to do so renders the said sum due £1,500. He claims however to be excused payment on a number of grounds:

D Firstly he says that the health authorities required alterations to the premises before they would issue a permit for them to be operated as a boarding establishment and despite demand applicant failed to effect these. Secondly he says that the roof was in such a bad state of disrepair that it rendered the premises substantially unfit to be used E as a boarding house. Thirdly he claims that the electrical system is in a highly dangerous condition and that by reason thereof the premises are substantially unfit to be used as a boarding house. Respondent then goes on to say that by reason of the above state of affairs he has vacated the premises and that on the 22nd of February 1954 he tendered F redelivery of the premises to applicant. He also says that he is entitled to cancel the lease. In regard to the claim for the capital and interest relating to the sales of furniture and goodwill he claims that this was ancillary to the lease and that he was entitled to cancel this too and tender redelivery of the movables. He avers that applicant is liable to him in damages and that he will make a claim in due course.

G In his replying affidavit applicant does not traverse the allegations of respondent beyond denying them but he says that even if true they afford no defence to any of his claims.

Mr. Charles, for respondent, took an objection in limine which had been H foreshadowed in respondent's opposing affidavit, to the effect that it was not competent for this Court to grant a money judgment on motion. While he conceded that the judgment of the Full Bench of the Transvaal Provincial Division in Room Hire Co. (Pty.) Ltd v Jeppe Street Mansions (Pty.) Ltd., 1949 (3) SA 1155, must be taken to have ruled that, subject to the limitations therein stated, it was competent for the Supreme Court in the Transvaal to grant a money judgment on motion,

Van Winsen J

he claimed that this procedure had never been recognised in the Cape as a competent one for that purpose. The Transvaal rule has been adopted by the full Bench in Natal in the case of Lutchman v Perumal, 1950 (2) SA 178.

A Mr. Charles was unable to refer me to any authority in the Cape Courts to the effect that it was incompetent for this Court to grant such a judgment on motion. He quoted the case of Estate Behr v Matcham, 1924 CPD 6, where a claim was made upon a contract of sale for payment of the purchase price against transfer. There was an alternative prayer for cancellation of the sale, forfeiture of all benefits from the sale and damages. The Court held that it could not deal with the matter as it B stood on motion. Had the plaintiff sued for cancellation only, he might have been able to do so on motion but plaintiff, by seeking specific performance and in the alternative damages, was, according to WATERMEYER, J. seeking 'to eat and have his cake as well' and the Court ruled that the matter could not come by way of motion.

C This case is clearly no authority for the proposition that money judgments cannot in any circumstances be sought on motion.

Mr. Charles referred the Court to other cases in the Transvaal where the Court had refused to grant certain types of relief on motion, e.g. judgment for a money claim, Mining Material Corporation v Mitchell 1919 D W.L.D. 37, for a partition of property, Forward v Exall, 1946 T.P.D. 39, and for rectification of a contract, Hadiaris v Freeman and Freeman, 1948 (3) SA 720 (W). In so far as these cases may be in conflict with the principles enunciated in the Room Hire Case, supra, they would of course not be binding on the Transvaal Courts. But in any event as far as this Court is concerned they only go to show that in E regard to certain types of relief, the Transvaal Courts were, at one stage, averse to granting relief on motion. They can be matched by other decisions in the Cape where the Court has been prepared to grant relief on motion in claims which do not logically appear to require a different F form of...