Basinghall Investments (Pty) Ltd v Figure Beauty Clinics (SA) (Pty) Ltd

• Jurisdiction: South Africa
• Court: Witwatersrand Local Division
• Judge: McEwan J
• Judgment Date: 12 April 1976
• Citation: 1976 (3) SA 112 (W)

McEwan, J.:

This is an action for provisional sentence on a written lease.

It is opposed. The first claim is expressed as a claim for A payment of:

'1.

An amount of R2 570,72 being rental due and owing by the defendant to the plaintiff in respect of the defendant's tenancy of shop 23 and basement shops 8 and 9 of the Markade, for the month of July 1975 in terms of a written agreement of lease dated 8 October 1974, the defendant having at all material times B been in occupation of the said premises.'

The second and third claims are for the rent for the months of August and September 1975. The amounts are the same and, save for the difference in date, the claims are framed in the same words as the first claim. A copy of the lease is annexed. The original lease was handed in at the hearing.

In its affidavit filed in opposition the defendant traverses a C number of complaints about the state of the premises. In effect it alleges that it is not obliged to pay the rent claimed in the summons for the reason that it is entitled and has for a period been entitled to a reduction or remission of the rent as a result of defects in the premises and, after making allowance for such remission, the amounts that it has D already paid to the plaintiff by way of rent are sufficient to cover the true amount due.

The first and most important issue debated in argument is whether or not the document upon which the plaintiff sues is a liquid document capable of supporting a claim for provisional sentence. If I should find that it is, I shall then have to decide whether or not on the affidavits the defendant has E placed before the Court facts establishing a defence to the plaintiff's claim and that the defendant would probably succeed in that defence in the principal case (Rich and Others v Lagerwey, 1974 (4) SA 748 (AD) at p. 759H).

Counsel for the plaintiff pointed to a practice which appears to have existed for more than one hundred years of granting provisional sentence for rent due under written leases. I shall F refer to the authorities cited by him. Nevertheless it would be misleading to state that the issue is simply whether or not provisional sentence will be granted for rent due in terms of a written lease.

'It is not the type of transaction which determines whether the related document signed by the debtor is one upon which provisional sentence may properly be granted. If the document G in question, upon a proper construction thereof, evidences by its terms, and without resort to evidence extrinsic thereto, (is) an unconditional acknowledgment of indebtedness in an ascertained amount of money, the payment of which is due to the creditor, it is one upon which provisional sentence may properly be granted.'

(Per WESSELS, J.A., in Rich v Lagerwey, supra at p. 754G; see also p. 761D. I assume that the word 'is' which I have put in H brackets should be omitted from the passage quoted). It is clear, therefore, that if in practice provisional sentence has been granted on written leases, that practice can be justified only if, upon a proper construction of the document relied upon in each case, that document fulfilled the basic requirements stated by the learned Judge of Appeal.

WESSELS, J. A., goes on to point out in the judgment that the portion of the rule which excludes resort to extrinsic evidence has been modified in accepted practice to the extent that where the plaintiff's fight to payment

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depends upon the fulfilment of a 'simple' condition, it is sufficient for the plaintiff in his summons to allege that the condition has been fulfilled. If that fact is challenged, the onus rests on the plaintiff to prove it (pp. 759H - 760A).

In the present instance the plaintiff's case is that upon a A proper construction of the lease the plaintiff's right to payment of the rent stipulated in the lease is subject to a simple condition, namely that the defendant was in occupation of the leased premises during the period for which rent is claimed. That has been alleged in the summons and has not been denied.

B For the defendant it was contended on the other hand that a lease is a bilateral contract. The lessor's right to performance by the lessee is reciprocal to his obligation to give the lessee beneficial occupation of the premises. It was said that the term 'beneficial' embraces so many possible factors that can potentially be the subject of dispute that it C can never be a matter 'inherently capable of speedy proof by affidavit evidence' (see Rich v Lagerwey, supra at p. 755G) that the lessor has given the lessee beneficial occupation of the premises. There is thus no simple condition, the fulfilment of which can be alleged by a lessor in such a way as to enable him to claim provisional sentence for the rent. It was contended, therefore, that if there has been a practice whereby D provisional sentence has been granted in respect of written leases that practice was wrong in law and has been shown authoritatively to be wrong in the case of Rich v Lagerwey.

It will be seen later that the lease presently under consideration was aptly described in argument as a 'harsh' lease. It deals with matters which at common law might provide E the tenant with a right to claim a remission of rent and provides that, notwithstanding the existence of the relevant circumstances, the rental is to be paid without deduction. Consequently counsel for the defendant found it necessary in his address to place considerable emphasis upon a submission that it is necessary for a lessor, before he can claim the F payment of rent, to prove (at any rate if the fact is challenged) that he 'delivered' the premises to the lessee in a state such as to enable the lessee to take beneficial occupation of them. As such proof does not amount to proof merely of the fulfilment of a simple condition, the case, it was submitted, is not one in which provisional sentence can be granted. Taken to its logical conclusion this submission would mean that even where a lease has been in existence for many G years, the plaintiff would have to prove that when occupation of the premises was first given to the defendant, the premises were in tenantable repair.

It may be noted that in July 1975 the plaintiff applied for summary judgment in respect of rent claimed for June 1975. Summary judgment was refused and the defendant was given leave H to defend. I was informed that at that trial many of the issues raised in the affidavits in the present case will have to be determined. The grounds upon which summary judgment will be refused differ considerably from those upon which provisional sentence may be refused. No judgment embodying the reasons for the refusal of the summary judgment in that case is available. In my view, therefore, it would not be safe for me to place reliance upon what counsel suggested were the reasons for the refusal of the summary judgment.

I turn now to consider the cases cited in support of the proposition that there is a long-standing practice sanctioning the grant of provisional

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sentence for rent due under written leases. The criticism of the cases by counsel for defendant, as I understood it, was that in none of the cases was the issue crisply decided in the sense that the reports are of cases in which the claim was unopposed or that the relevant judicial statements were obiter dicta. Consequently, it was argued, in the A light of the analysis in Rich v Lagerwey, of the position in the case of bilateral contracts, those decisions or dicta can no longer be accepted as being correct.

The first two cases in the series are briefly reported in the first volume of Menzies' reports. In Neethling v Taylor, (1834) 1 Menz. 30, there was no appearance for the defendant. The majority of the Court (MENZIES, J., and KEKEWICH, J.) are B reported as having been of opinion that

'the production of a contract of lease, signed by a defendant, by which he stipulates to pay rent to the plaintiff is of itself sufficient to entitle the plaintiff to provisional sentence for any rent alleged by him to be due for any part of period of the term during which, by the contract, the lease is to subsist'.

The CHIEF JUSTICE is reported as having held that the contract of lease was not sufficient to have entitled the landlord to C provisional sentence for rent alleged by him to be due. It is not clear from the report whether or not he intended that statement to relate to the contract then before the Court or to be a general statement.

The relevant passage in Truter v Everest, (1842) 1 Menz. 32, reads:

'Cloete, for plaintiff, put in this contract and claimed D provisional sentence maintaining that it was not necessary for him to prove that the defendant had had possession of the premises, and that the rent for the past period must, in law, be presumed to be due, in the same way that interest for a past period is presumed to be due, unless the defendant shall prove it to have been paid, or show cause why he should not be liable for such rent'.

Provisional sentence was granted.

In Turner v Smith, (1894) 9 E.D.C. 7, the only problem seems E to have been that at the first hearing a certified copy only of the lease was produced. Later, when the original lease was produced, provisional sentence was granted.

In Consolidated Finance and Investments Ltd. v Hendler, 1938 W.L.D. 268, the following statement by MILLIN, J., which is F clearly obiter, appears at p. 271:

'... provisional sentence on deeds of sale and leases is quite common and all that is necessary, if you have a deed of sale in which the purchaser acknowledges liability for the price but delivery or transfer of the thing sold is not admitted by him, is to allege delivery or transfer in the summons and provisional sentence is granted if this allegation is not denied by the defendant. In the case of leases also, G all that is necessary is...