Clemans v Russon Brothers (Pty) Ltd

• Jurisdiction: South Africa
• Judge: Munnik J and Addleson J
• Judgment Date: 25 June 1970
• Citation: 1970 (3) SA 686 (E)
• Court: Eastern Cape Division

Addleson, J.:

The issue in this case involves an exception taken by the plaintiff to the defendant's plea and it will be convenient to refer to the excipient as the plaintiff and to the respondent as the defendant.

Addleson J

The plaintiff claimed an order ejecting the defendant from certain premises in Uitenhage. It is common cause that the parties are respectively the present lessor and lessee of the premises under a written agreement of lease originally entered into by a certain Estate Schultz (as lessor) and one Russon (as lessee). The lease is not one A which is required by law to be in writing but it contains the following clauses which are relevant to the issue now before us:

'6.

The lessee shall have the right during the continuance of this lease to make any alterations in or additions to the hereby leased premises at their own expense subject to the written approval of the lessor, but upon the clear understanding that B any such alterations or additions so made shall become the property of the lessor upon the termination of the lease, and that the lessee shall not be entitled to any compensation therefor from the lessor.

7.

The lessee shall not sub-let the premises or any portion thereof without the consent of the lessor first had and obtained, which consent however shall not be unreasonably withheld.'

C In para. 10 of his particulars of claim the plaintiff alleges that the defendant committed certain breaches of the lease during 1969, namely:

'(a)

The defendant, without requesting or obtaining the plaintiff's consent thereto, sub-let the said premises or a portion thereof to one Stravitt for use as a curio shop and a portion thereof to Alphon Motors for use as a motor showroom. The plaintiff avers that had the defendant requested permission to sub-let as aforesaid, he would have withheld his consent thereto and such withholding of consent would have been reasonable.

(b)

D The defendant made or permitted to be made alterations in or additions to the said premises without any approval whatsoever from the plaintiff, who, had such approval been requested, would reasonably have refused to grant it.'

Alleging that he has given the defendant seven days' notice to remedy these breaches (as he is required to do under clause 10 of the lease) and that the defendant has failed to remedy the breaches, the plaintiff E contends that he has lawfully cancelled the lease and claims the ejectment of the defendant from the premises.

In the plea the defendant admits the material terms of the lease but denies that it has breached such terms and makes the following allegations in para. 2 of the plea:

'(b)

Defendant admits that it sub-let the said premises and that it F made certain alterations and additions thereto.

(c)

Defendant states that during the year 1965 the then lessor, viz., the estate late C. G. Schutz, duly represented by the Uitenhage Board of Executors:

(i)

granted to the lessee the right to sub-let the premises for the duration of the said lease on various conditions not material hereto;

(ii)

granted permission to the lessee to make alterations or G additions to the said leased premises at his own expense on the understanding that such alterations and additions would become the property of the owner and that the lessee would not be entitled to any compensation in respect thereof.

(e) (i)

Defendant pleads further that in any event during the year 1968 and after the plaintiff became the owner of the said premises, he and the defendant (duly represented by one Anstey) verbally agreed that defendant could sub-let the said premises, it being an implied H term of the said agreement that defendant could effect any alterations or additions to the said premises necessary for obtaining a trading licence by the sub-lessee.

(ii)

The said alterations and additions were, in fact, necessary for the said purpose and were the only alterations or additions made by the defendant.'

The defendant thus denies that the plaintiff is entitled to cancel the lease or to eject him from the premises.

In answer to a...