Chatrooghoon v Desai and Others

• Jurisdiction: South Africa
• Citation: 1951 (4) SA 122 (N)

Chatrooghoon v Desai and Others
1951 (4) SA 122 (N)

1951 (4) SA p122

Citation	1951 (4) SA 122 (N)
Court	Natal Provincial Division
Judge	Broome JP, and Selke J
Heard	June 21, 1951
Judgment	August 8, 1951

Flynote : Sleutelwoorde

Landlord and tenant — Ejectment — Failure to pay arrear rent F within one month of notice in terms of forfeiture clause in lease — Notice requesting payment of arrears 'per return of post' — Validity of — Notice ambiguous as to whether signed on behalf of all G joint lessors — Declaration alleging signed by all — Declaration not excipiable.

Headnote : Kopnota

Clause 18 of a lease provided that 'in the event of the lessee failing to pay the rent hereby reserved or any part thereof on due date . . . the lessors shall be entitled by notice in writing to the lessee to call upon him to pay such rent . . . and on the failure of the lessee to comply with the terms of such notice within one calendar month of receipt thereof, the lessors shall be entitled to cancel this lease H without further notice . . . '. Defendant having failed to pay the yearly rent on due date a notice purporting to be signed 'for Desai Bros. and v Valjee' by one Desai was received reading 'We have to draw your attention that £200 rent for the land due on 1st April, 1950, has not yet reached us and also the interest of £23 6s. 8d. Please let us have this per return of post'. Defendant having failed to comply with this notice within one calendar month of receipt thereof, the lessors, being five Desai brothers and one Valjee who owned the property jointly, cancelled the lease and claimed ejectment. Defendant excepted to plaintiffs declaration on the ground that it was vague and embarrassing, bad in law and insufficient to support in whole or in part the relief claimed as there had

1951 (4) SA p123

been no notice in terms of clause 18 capable of founding a right in the plaintiffs to cancel the lease, in that the letter, (a) purported to require payment of the rent referred to therein within a lesser period than one calendar month as provided by clause 18; (b) did not purport to be a letter from the plaintiffs nor to be signed by them nor on their behalf. Alternatively the defendant excepted to the declaration as being A vague and embarrassing and contradictory in that the 'notice' referred to therein required compliance with the demands for payment made therein by return of post.

Held, as to exception (a) and the alternative exception, that a lessee receiving such notice would regard it as what it really was, viz. a demand for payment, and he would only have to look at clause 18 to realise what would happen if he ignored the demand for a month.

B Held, further, that the conditions which clause 18 required to be fulfilled were that the lessors must call upon the lessee by written notice to pay the arrearrent; that that was precisely what the notice did; and that it did not matter that it called upon him in terms more peremptory than clause 18 authorised.

Held, as to exception (b), as the declaration averred that the notice had been given by all the plaintiffs and as the Court was not called C upon at this stage to decide the validity of the notice standing by itself, that this exception should also be dismissed.

Case Information

Exception to a declaration. The nature of the pleadings appears from the reasons for judgment.

A. Milne, K.C. (with him A. C. Warner), for the excipient: The notice in requesting payment 'per return of post' fixes a time and not a method of payment. Timm v Hoffmann & Co., 29 L.T. at pp. 271 and 274. See also Willis v Baggs and Salt, 41 T.L.R. 453 at p. 454. The notice must be E clear. As to clarity, see Alpha Properties (Pty.) Ltd v Export and Import Union, 1946 W.L.D. 486 at p. 490; Naidoo v Blackmer Bros., 1946 CPD 922 at p. 924. The notice would have been a good notice but for the words 'per return of post'. Barrett v New Oceana Transvaal Coal F Co., 1903 T.S. 431, is distinguishable. Notice of termination must be strictly construed. Hankey v Claverling, 1942 (2) A.E.R. at pp. 311, 313; Boerne v Harris, 1949 (1) SA 793 at pp. 798 and 804 (A.D.); Challis v Latif, 1932 NPD 229. It must be one that can be safely acted upon. Shaik Abdul's case, 1929 NPD 75. On the second exception, G all the landlords must give notice. See Parker and Parker v Knox, 1947 (2) SA 1190 (C). Here Desai Brothers who are not lessees gave the notice. D

D. G. Fannin, K.C. (with him D. A. C. Haines), for the respondents: Before a right of cancellation accrues all things necessarily precedent must have been done. Rautenbach v Venner, 1928 T.P.D. 26. The purpose H of the notice was simply to fix the date from which the month shall commence to run and to be a reminder to the lessee not to fail in his compliance with the terms of the agreement. The landlord has merely formulated his existing rights in his notice and does not say 'If you do not pay by return of post I shall refuse to take the rent'. The rent was already due when the demand was sent. A request for payment 'per return of post' is no more than a demand for immediate payment. See

1951 (4) SA p124

Barrett's case, supra. On this ground Hankey's case and Boerne's case, supra, are distinguishable.

On the second exception, the matter is one for pleading not exception. A The defendant must say that no reasonable man receiving the notice from 'Desai Bros. and v Valjee' in the circumstances averred in the declaration could read and understand it as emanating from the plaintiffs. The notice contained details of the rent and date of payment as well as other details consistent with the terms of the lease.

Milne, K.C., in reply. B

Cur adv vult.

Postea (August 8th). C

Judgment

Broome, J.P.:

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