O'Hare v Daya, NO and Daya

• Jurisdiction: South Africa
• Citation: 1952 (3) SA 325 (W)

O'Hare v Daya, NO and Daya
1952 (3) SA 325 (W)

1952 (3) SA p325

Citation	1952 (3) SA 325 (W)
Court	Witwatersrand Local Division
Judge	Roper J
Heard	August 14, 1951
Judgment	August 28, 1951

Flynote : Sleutelwoorde F

Landlord and tenant — Ejectment — Lease of a vacant plot of G ground — Lessee entitled to erect structures thereon and to remove them without interference or compensation — Lessee erecting residential and business premises — Lessor not receiving rent for such structures — On lessee's death his executor paying the rent — Lease alleged to have been assigned to widow — Lessor suing for ejectment on failure to vacate — Property leased not business H premises nor a dwelling — As rent paid in name of estate widow not entitled to protection under sec. 1 of Act 43 of 1950.

Headnote : Kopnota

A lease of a vacant plot of ground provided, inter alia, that the lessee was entitled to erect structures thereon, which were to remain his sole and

1952 (3) SA p326

exclusive property, and that such could be removed without interference or compensation. The lessee had erected residential and business premises for which the lessor received no rent. The lessee continued in occupation until after the expiration of the period of the lease and on his death his executor continued to pay the rent until the lessor A refused to accept any further payments from the estate. Notice terminating the lease had been given to the executor, who refused to vacate and who maintained in an application for an order of ejectment that the Rents Act applied to the premises and that the widow, to whom the lease had allegedly been assigned, was entitled to the protection afforded a lessee by the Act. The widow had, since the assigning of the lease, paid for the trading licences taken out in her name.

B Held, that the property leased, i.e. the vacant plot of ground, did not fall within the definition of 'business premises' under the Act.

Held, further, that the definition of the word 'dwelling' did not include vacant land: it meant a building with appurtenant land.

Held, further, as no payment of the rent had ever been made by the widow C nor had the rent been tendered by her or on her behalf, that she was not entitled to the enjoyment of the statutory protection afforded to a widow by section 1 of Act 43 of 1950.

Case Information

Application for an order of ejectment. The facts appear from the reasons for judgment.

R. S. Welsh, for the applicant: The premises, being vacant ground, are not 'business premises' within the meaning of the Rents Act. See Boyers v Stansfield Ratcliffe & Co. Ltd., 1951 (3) SA 299 (T). Nor are they a dwelling. See Havemann v Myaka, 1948 (1) SA 216 (N) affirmed on appeal, 1948 (3) SA 457 (AD). Chetty v Bhajee, 1950 (1) SA 212 (T), E is distinguishable. As to the meaning of 'place', see Oxford English Dictionary; Burrows' Words and Phrases, Vol. IV; Goldman v Rex, 1908 T.S. 895. D

In any event the respondents have not discharged the onus of showing that the predominant purpose of the lease was residential rather than F business, Myaka v Havemann, 1948 (3) SA 457 (AD) at p. 466; Lissos v National Supplies Control Board, 1943 T.P.D. 109 at pp. 115 - 116; Rex v Norvick, 1945 T.P.D. 212.

Even if the Rents Act does apply, the estate of a deceased tenant cannot invoke its protection, Tudor Estates Ltd v Estate Kirchner, 1946 G T.P.D. 522. Nor is the widow of the deceased lessee in a better position, since rent has at no time been tendered on her behalf. See the definition of 'lessee' in sec. 1 (vi) of Act 43 of 1950 and also sec. 21 (1).

A. Mendelow, for the respondents: The property is 'business premises' within the meaning of the Act. It is arguable that the structures in the H present case are immovable. The element of intention is important, R v Mabula, 1927 AD 159 at p. 161. But even if the structures were movable the Court is not bound by the decision in Boyers v Stansfield Ratcliffe & Co., supra, which may be distinguished on the following grounds: (a) the structures in the present case are for all practical purposes permanent, (b) the building of structures was contemplated in the lease, (c) the tenancy is for a considerable period. The intention was that the premises should be permanent. Further as to the meaning of 'premises', see

1952 (3) SA p327

Commissioner for Inland Revenue v Milstein, 1942 T.P.D. 57 at p. 67; Frost v Cashon, 1924 (2) K.B. 138 at p. 147; Andrews v Mears & Andrews, 1908 (2) K.B. 567 at p. 570; Penny's Properties Ltd v SA Cabinet Works, 1947 (2) SA 302 at pp. 308 - 9; Pursglove & Others v Nelspruit Rural Licensing Board, 1948 (3) SA 337 at p. 341.

A Alternatively the property in question is a 'dwelling' within the meaning of the Rents Act. The fact that the structure may be a movable, which, it is submitted, it is not, does not affect the position, see Chetty v Bhajee, 1950 (1) SA 212 at p. 217. As to the meaning of B place, see Burrow's Words and Phrases, Vol. IV, where the English authority is set out. It is...