Heerman's Supermarket (Pty) Ltd v Mona Road Investments (Pty) Ltd

• Jurisdiction: South Africa
• Citation: 1975 (4) SA 391 (D)

Heerman's Supermarket (Pty) Ltd v Mona Road Investments (Pty) Ltd
1975 (4) SA 391 (D)

1975 (4) SA p391

Citation	1975 (4) SA 391 (D)
Court	Durban and Coast Local Division
Judge	Van Heerden J
Heard	April 17, 1975
Judgment	August 6, 1975

Flynote : Sleutelwoorde

Landlord and tenant — Defect in premises leased — Lessee suffering damages as a result thereof — Lessor only liable therefor if he knew, or by reason of his trade or A vocation ought to have known, of the defect — Clause in lease that lessor not responsible for "any damage... from whatever cause arising" — Such wide enough to exclude liability for damages for failing to maintain premises.

Headnote : Kopnota

Where damage is occasioned to the lessee because of the lessor's breach of its duty of placing and maintaining leased B premises in a condition reasonably fit for the purpose for which they were let, our law is well settled that the lessee is entitled to claim the amount of his loss from the lessor only if the latter knew, or, by reason of his trade or vocation, ought to have known, of the defect which caused the damage.

Hunter v Cummor Investments, 1952 (1) SA 735 (C), approved and applied.

A clause in an agreement of lease that the lessor "shall not be responsible for any damage to the property of the lessee... C from whatever cause arising,..." is wide enough to exclude the lessor's liability for damages arising out of a failure to maintain the exterior of the leased premises.

Case Information

Exceptions to particulars of claim. The nature of the pleadings appear from the reasons for judgment.

D.H. Bester, for the excipient (defendant). D

A. B. M. Wilson, for the respondent (plaintiff).

Cur adv vult.

Postea (August 6). E

Judgment

Van Heerden, J.:

This matter comes before the Court on exceptions taken to the plaintiff's particulars of claim, as amplified by further particulars.

The plaintiff who carries on business as wholesale butchers in Durban and the defendant who carries on business as an investment company in Johan-nesburg entered into a written F agreement of lease (hereinafter referred to as the agreement) in terms whereof the plaintiff hired from the defendant and took occupation of certain premises in Durban owned by the defendant. The allegation is made that as a result of a short circuit in the electrical system the refrigeration equipment which maintains the cold-rooms on the premises at a low temperature to preserve meat stored therein ceased to function; G that consequently the temperature was no longer maintained at the requisite level causing the meat to become damaged and spoilt; that as a result plaintiff suffered damages in the sums of R8 242,30 representing the value of the meat destroyed and R37,45 being the damage to the electrical equipment.

It is furthermore alleged that the short circuit was caused by water leaking through the roof of the premises on to the electrical equipment; that the leaking was a direct, natural, probable and foreseeable consequence of the clogging up of the drain on the roof as the result of the collection therein of

1975 (4) SA p392

Van Heerden J

dirt, dust and soil and of the growth of weeds in the dirt, dust and soil; that the defendant as owner and landlord of the building was under the obligation to maintain the exterior thereof and to ensure that the drainage system, as part of the exterior, was maintained in such a condition that it could A fulfil the functions for which it had been constructed; that the defendant was negligent in failing to ensure that the drain was clear which is part of the normal maintenance of the exterior of any building. There is an alternative allegation that the defendant was negligent in failing to inspect the building at regular intervals to ensure that no maintenance was required to the exterior thereof; that, had defendant inspected B the exterior, it must have had knowledge of the clogging of the drain and the existence of the weeds therein and that it was negligent in failing to remove them. There is the usual allegation that it was within the contemplation of the defendant that damage would be occasioned to plaintiff's property should there be a leaking of water through the roof C because of defendant's failure to maintain the exterior of the premises.

The defendant requested further particulars of the plaintiff's particulars of claim and, amongst others, the following:

"(a)

Is it intended to allege that the defendant did have knowledge of the defective condition of the said drain? If so, plaintiff is requested to indicate when and how the defendant is alleged to have acquired such knowledge.

(b)

D If the reply to sub-para. (a) is in the negative, the plaintiff is requested to indicate whether it is intended to allege that knowledge of the defective condition of the said drain can be imputed to the defendant and, if so, the material facts on which it relies for such allegation."

The plaintiff replied that the above particulars were not reasonably required for the purpose of pleading and declined to furnish them.

E Exception is taken to the particulars of claim on the following grounds:

"1.

The summons lacks averments which are necessary to sustain an action for the relief claimed in that there is no allegation that the defendant had knowledge, express or implied, of the alleged defect in the drainage system of the said building and, as a matter of law, proof of such knowledge is a prerequisite to the defendant's liability for the damage allegedly suffered by plaintiff in consequence of the defendant's alleged failure to maintain the exterior F of the said building.

2.

The summons discloses no cause of action in that the defendant's common law liability for the damage allegedly suffered by plaintiff in consequence of the defendant's alleged...