Brebner v Seaton

• Jurisdiction: South Africa
• Judge: Lewis J
• Judgment Date: 28 June 1947
• Citation: 1947 (3) SA 629 (E)
• Hearing Date: 12 June 1947
• Court: Eastern Districts Local Division

Lewis, J.:

This application raises a question of novelty and of considerable importance. The applicant and his wife have for the past eight years been boarders at the establishment of the respondent, described in the papers as a boarding-house and known as the Cuylerholem Residential Hotel. It is alleged in the petition, and admitted, that the establishment is one regulated by the provisions of War Measure 40 of 1941, as amended from time to time. Applicant and his wife have occupied during their stay at respondent's establishment a double room with balcony,

Lewis J

described as room No. 4, in the main building. I assume on the information before me that they occupy this room on a monthly basis at a monthly charge for the two of them of £21 12s. 0d.

On 26th November, 1946, by letter of that date, respondent informed applicant as follows:

'In view of the acute shortage of accommodation, and after much consideration, and also consulting with the Price Controller, who has confirmed my action, it has been decided to convert room number four, main building, occupied by you at the present time, into a family room as soon as a suitable double room becomes available for your use.'

On the same date applicant replied to this letter, stating,

'as I am quite satisfied with the room I have lived in for the past eight years, and as it is essential owing to my wife's state of health that she should have a large room, also the fact that I know exactly where I stand in the matter, I have no intention of vacating the room I now have for any other.'

On 27th December, 1946, the respondent further addressed the applicant as follows:

'As you have refused to acquiesce in my offer to place another large airy double room at your disposal, and also because I have decided to effect certain building alterations to room four (now occupied by you), I regret that I have no alternative but to give you one month's notice to terminate your residence at Cuylerholme as from 1st January next, i.e., that you vacate your room by 31st January, as building alterations will be commenced in February.'

On 6th January, 1947, in a lengthy letter of that date, the applicant refused to accept this notice, and disputed respondent's right to force him to give up possession of his room or to evict him from the hotel. On 30th January, 1947, respondent's attorneys informed applicant by letter that his room was reasonably required for the purposes of a reconstruction scheme, which respondent had in hand. Applicant was given a further month's notice as from 1st February, 1947, of termination of his contract for board and lodging with the respondent, the letter going on to state,

'we must make it clear that our client has no wish to evict you from the hotel, as you suggest, and he offers to accommodate you in room number one at Cuylerholme as from 1st March if you so wish. In fact it is to give you a final opportunity of availing yourself of this alternative accommodation that our client is giving you a further month's notice.'

Respondent, however, failed to obtain the necessary building permit to proceed with this building scheme, and on 27th February, 1947, the notice given on 30th January was withdrawn.

On 1st March, 1947, respondent's attorneys addressed a further letter to applicant's attorneys which stated inter alia as follows:

'Mr. Brebner is no doubt aware of the fact that the Local Price Controller

Lewis J

has authorised the letting of the room and balcony in question to four persons. This being the case, the Brebners cannot in law or in reason expect to keep this accommodation, and our client considers that he is entitled to discontinue the provision of board and service to them in the circumstances immediately.

However, in order to give Mr. and Mrs. Brebner an opportunity to find room elsewhere, should he not wish to avail himself of the offer hereafter set out, Mr. Seaton has instructed us to give Mr. Brebner one month's notice from to-day of the termination of his contract to supply board and lodging to Mr. and Mrs. Brebner. He is quite prepared to make a new agreement to accommodate them in an ordinary double room from the 1st of April, but if they do not vacate the room which they presently occupy by the 31st March, 1947, he will not supply them with board or service.'

Applicant's attorneys in their reply of 6th March, 1947, stated that applicant had discussed the matter with the Price Controller, who had informed him that

'Mr. Seaton can only use the room occupied by him (applicant) and his wife as a family room when lt becomes vacant, and that Mr. Seaton cannot force our clients to vacate either the room or the building so long as they do not create a nuisance and regularly pay for their board and lodging.'

It was intimated that applicant was not prepared to accept the notice given, that he would defend any action that might be instituted against him by respondent, and that should respondent fail to supply him and his wife with board or service respondent would be held responsible to them in damages. Respondent was, however, notified in the said letter that as soon as applicant and his wife were able to obtain satisfactory accommodation elsewhere they would vacate the room presently occupied by them at Cuylerholme, and that they were prepared without prejudice to their legal position to consider moving into another double room provided such room was equal to or nearly equal to the accommodation which they then possessed. From applicant's affidavit it appears that the only room offered to them by respondent in lieu of room No. 4 was room No. 1. This room applicant declined to accept on the grounds that it was badly ventilated and noisy, that the sun hardly ever entered it, and that in view of the state of health of the applicant's wife the alternative accommodation offered to them by the respondent was unsuitable. These allegations were denied by the respondent in his opposing affidavit. Since the date of this notice of 1st March, 1947, and despite the notice, the applicant and his wife have continued to occupy the said room, No. 4, and they are still in occupation of it. But in pursuance of the terms of the said notice the respondent has refused to supply

Lewis J

them with board or service since 1st April, 1947. At the end of April, according to the affidavit of the applicant, he

'tendered to the respondent the full amount, which your petitioner had hitherto been paying to him for board, lodging and services for your petitioner and his wife for such month, namely, the sum of £21 14s. 6d., specially stating that such payment was made without prejudice to your petitioner's legal position.'

Annexure M to this affidavit is an accout rendered to the applicant and his wife on an accout form, headed 'Cuylerholme Residential Hotel' and dated 30th April, 1947, showing the applicant and his wife as being indebted to the respondent as follows:

	£ s. d.
Accommodation, Month	18 0 0
Plus 20% C. of L.	3 12 0
Electric power	2 6
	£21 14 6

At the foot of the account there is the following statement:

'This amount, viz., £21 14s. 6d., is received without prejudice to notice terminating contract for board and lodging and is for use and occupation of room number four, main building.'

The receipt is stamped, but I am unable to see any date on the stamp. In view, however, of the admonition on the account form that

'all accounts are considered due when rendered'.

there is no reason to doubt applicant's statement that this account was paid at the end of April, 1947. Annexure N to this affidavit shows that the authorised tariff for room No. 4 is at the rate of £10 16s. 0d. per person per month in the case of permanent residents. Respondent does not dispute the correctness of Annexure N. As the present proceedings...