Lobo Properties (Pty) Ltd v Express Lift Co (SA) (Pty) Ltd

• Jurisdiction: South Africa
• Judge: De Villiers AJ
• Judgment Date: 28 December 1960
• Hearing Date: 16 August 1960
• Court: Cape Provincial Division

De Villiers, A.J.:

This matter comes before me on exception. The plaintiff Company in its summons and declaration claims the sum of £600, interest a tempore morae and costs. The amount of £600 is said to be due F as rental which the defendant Company despite demand refuses to pay. In support of this general averment the following is set out in paras. 3 to 9 of the declaration:

'3. Prior to and up to 30th June, 1959, defendant occupied certain business premises in Dock Road, Cape Town (which premises formed portion of certain immovable property which was then owned by Stewart and Lloyds of South Africa Limited), as a sub-tenant of United Fish Canners G Limited, which Company had hired the said premises from the said owners.

4. On 30th June, 1959, the lease of United Fish Canners Limited terminated, and it gave up occupation of the premises. On the same date, defendant's right to remain in occupation as sub-tenant also terminated.

5. On 1st July, 1959, plaintiff duly took transfer and possession of the property of which the said premises form portion, having previously bought the property from Stewart and Lloyds of South Africa Limited.

H 6. Defendant continued in occupation of the aforesaid premises after 1st July, 1959, with knowledge of the aforesaid facts, and with the tacit consent of the plaintiff, but no agreement was entered into between the parties as to the rental which was to be paid by defendant to plaintiff in the respect of the said premises.

7. In the premises, the parties tacitly entered into a contract of letting and hiring of the said premises at a reasonable rental.

8. A reasonable rental for the said premises is the sum of two hundred pounds (£200) per month.

9. Defendant remained in occupation of the said premises until 30th September, 1959.'

De Villiers AJ

Defendant has taken exception to the declaration as disclosing no cause of action, alternatively as being vague and embarrassing

'in that

(a)

Ex facie the declaration no or insufficient facts are averred for plaintiff to allege that the parties tacitly entered into a contract of letting and hiring of the said premises at a reasonable rental.

(b)

The said contract would in any event and on the facts averred in A plaintiff's declaration be void for vagueness and uncertainty.'

Mr. Aaron, in his argument on behalf of the respondent (to whom I shall refer as the plaintiff) informed the Court that the declaration was drawn on the basis of the decision of BURKE, A.J., in Blignaut v. B Rademeyer, 18 E.D.C. 200. In that case the defendant Rademeyer had hired certain land, being a divided share of a farm, and after the expiry of the lease he remained in occupation under what the learned Judge described as 'some sort of permission'. One Pretorius became the new owner of the land by purchase, and there were negotiations between him and Rademeyer as to a new lease, but they could not agree about rent and C no period was mentioned. The negotiations indicated, however, that Rademeyer was prepared to pay rent 'if not too high', and he in fact remained in occupation during Pretorius' absence on military activities. After Pretorius' return Rademeyer left the land without having paid any rent, despite demand. Pretorius sold the land to the plaintiff, Blignaut, together with the right to all arrear rents accruing D therefrom. Blignaut thereupon, after another fruitless demand, sued for £42 15s. 0d., being rent at the rate of £19 per annum for the period in question. At pp. 206 - 7 BURKE, A.J., stated as follows:

'I cannot suppose that the defendant intended to profit at another man's expense by obtaining the grazing of an extra share of the farm for nothing. The law will not allow this. In my opinion the principle which lies at the base of what is known as tacit relocation applies to such a E case as this. Where at the expiration of the term which was originally fixed for the end of a lease the lessee does not deliver up possession of the property, but continues to hold over, and not in opposition to the wishes of the lessor, the lease is said to be tacitly continued or renewed (Voet 19.2.9). In the present case we have the retention of the property by the defendant after his attention had been called by Pretorius to his rights as owner, and it appears to me that neither the fact that no period of time was mentioned for the duration of the F tenure, nor the fact that no amount of rent was actually fixed on, will prevent the existence of what may be called a tacit lease between the parties. As regards the duration of time, the position of the lessee would be analogous to that of a precarious tenant (Voet 19.2.9). As regards the amount of rent, it is laid down that where a contract of letting and hiring has been entered into without any mention or settlement of the sum to be paid for the hire the contract is nevertheless valid, and such sum is understood to be tacitly...