Bresgi v Lazersohn

• Jurisdiction: South Africa
• Judge: Stratford CJ, De Wet JA, Watermeyer JA, Tindall JA and Centlivres JA
• Judgment Date: 29 April 1939
• Citation: 1939 AD 445
• Hearing Date: 19 April 1939
• Court: Appellate Division

De Wet, J.A.:

The appellant made application to the Transvaal Provincial Division for (a) an order declaring that in terms of a certain lease between the parties the respondent was bound to continue to conduct a native eating house-keeper's business on the premises let to him by the appellant; (b) an order declaring that the respondent was bound under the lease forthwith to renew the native eating house licence and to keep it in being until the expiry of the term of the lease; (c) an order upon respondent to make immediate application for a renewal of the licence; (d) an order upon respondent forthwith to resume conduct of the business of native eating house keeper on the premises and (e) an order restraining respondent from using the premises for storage purposes.

The Court dismissed the application with costs and from that decision appeal is now brought but the appeal is specially limited to the dismissal of prayers (a) and (b) above set out.

From the affidavits filed it appears that the parties reside in the township of Laversburg which forms part of the Nigel Municipality. The appellant is the owner in that township of a certain portion of land on which certain shops have been erected. In 1937 a native location was established by the Town Council of Nigel in the Vicinity of that property. In that year a native eating-house licence was granted to appellant's husband, to whom she was married out of community of property. At the same time a native eating-house licence was also granted to one. Isaac Bonner, these two being the only licences of that nature in that township.

The appellant's husband carried on the business of a native eating house keeper in a shop on the appellant's property. On the 6th

De Wet, J.A.

October, 1937, by written lease this shop was leased to the respondent by the appellant. The lease was for a term of two years commencing on the 22nd September, 1937, and terminating on the 30th September, 1939, with the right of renewal for a further two years. For the purposes of this case the material clauses of the lease are: -

"5. The said premises are let to the lessee for the purpose of conducting therein the businesses of native eating house, general dealer and retail butcher, and the said premises may not be used for any other purpose without the consent of the lessor.

"6. The lessee shall in the conduct of his business on the said premises at all times comply with all municipal and other laws, by-laws and regulations pertaining to his business and shall further conduct his business in such a manner as not to endanger the native eating house licence attached to the said premises and so as not to cause any annoyance or nuisance to the lessor or to any other person or persons.

"11. Should the lessee fail to pay any rent on due date thereof or to carry out and perform any of the conditions of this agreement, the lessor shall have the right to cancel this agreement forthwith in which event the lessee shall remain liable to the lessor for arrear rentals and for damages for breach of contract."

On the same date the parties signed an addendum to the agreement of lease which was in the following terms: -

"Notwithstanding anything contained in the agreement of lease hereto annexed, it is specially agreed and understood between the parties that should the Municipal Council of Nigel refuse to grant the lessee a permit for the business of native eating house in the premises hereby leased, the lessor shall have the right forthwith to cancel this agreement of lease and resume possession of the said premises provided that in the event of her doing so, she shall repurchase from the lessee...