Mpange and Others v Sithole

• Jurisdiction: South Africa
• Citation: 2007 (6) SA 578 (W)

Mpange and Others v Sithole
2007 (6) SA 578 (W)

2007 (6) SA p578

Citation	2007 (6) SA 578 (W)
Case No	07/7063
Court	Witwatersrand Local Division
Judge	Satchwell J
Heard	March 11, 2007
Judgment	April 9, 2007
Counsel	S Budlender (with K Hofmeyr) for the applicants as amici curiae; Name of counsel for the respondent not supplied

Flynote : Sleutelwoorde B

Landlord and tenant — Rights and obligations of landlord — Obligation to deliver and maintain premises in condition fit for purposes for which let — Breach of — Remedies — Specific performance — Courts' reluctance to grant specific performance orders criticised — Common law developed by allowing specific performance order where landlord's failure to maintain premises affecting lessees' rights to adequate housing, C dignity and privacy.

Landlord and tenant — Rights and obligations of landlord — Obligation to deliver and maintain premises in condition fit for purposes for which let — Breach of — Remedies — Reduction of rental — View that lessees liable for full rental despite being deprived of full use open to criticism — Landlord's D failure to maintain premises impacting on lessees' rights to adequate housing, dignity and privacy — Reduction of rental ordered.

Headnote : Kopnota

The applicants were tenants of an inner city building which their landlord, the respondent, had failed to maintain in a safe and proper condition. They were living in slum conditions, which included lack of privacy, absence of sufficient lavatories, one water tap for E some 500 occupants, and illegal and dangerous provision of electricity. Rental was R420 per room per month. The applicants sought orders (1) interdicting the respondent from collecting rentals from them; (2) directing it to refund rentals received; and (3) interdicting it from contacting the applicants or other occupiers entering the premises. The owner of the building was not joined to the proceedings. F

Held, that it was trite that a tenant was entitled to full use and enjoyment of the property during the full term of the lease. The respondent therefore had the duty to deliver and maintain the property in a condition reasonably fit for the purpose for which it had been let, which duty included the obligation not to expose tenants to any unnecessary risk to life or property. (Paragraph [28] at 587C - D.) G

Held, further, that the landlord had failed to hand over the premises in a proper and habitable condition and had failed to maintain the premises in a proper condition of repair while so occupied. (Paragraph [32] at 588F.)

Held, further, that where the landlord failed to deliver or maintain the property in a condition fit for the purpose for which it had been let, the remedies available to the tenant included cancellation of the contract, a claim for specific performance, damages H and a reduction of rental. (Paragraph [35] at 589C - D.)

Held, further, that the granting of an order for specific performance was in the discretion of the Court. Traditionally the courts had, in cases involving lease agreements where the landlord had failed to deliver or maintain the thing let in a proper condition, tended to refuse to order the landlord to effect the necessary repairs. I (Paragraph [36] at 589E - F.)

Held, further, that the courts had in lieu of granting specific performance rather required the tenant to effect the repairs himself and then to claim the cost from the landlord. This was, however, not an option where (as in the present case) the tenants were poor and lacked the skills required to effect the necessary repairs. (Paragraph [37] at 589F - H.) J

2007 (6) SA p579

Held, further, that although the precedents established a general tendency not to order specific performance in the context of a A landlord's failure to maintain the leased property, that tendency could not be elevated to an absolute rule. (Paragraph [40] at 590E - F.)

Held, further, that both the South African and English courts and academic writers had provided well-founded criticism of this tendency. (Paragraph [44] at 591D - E.) B

Held, further, that it was unlikely that the applicants would be able to make the necessary repairs themselves, so that in the absence of an order for specific performance they would continue to occupy premises that were a danger to their health and safety, limited their privacy and impaired their dignity as safeguarded by ss 10, 14 and 26(1) of the Constitution. It was also unrealistic to suggest that C they look for accommodation elsewhere since homelessness seemed to be the only alternative to their current accommodation. (Paragraphs [46] - [47] at 592A - D.)

Held, further, that the Court was, in the light of the violation of constitutional rights, obliged under s 39(2) of the Constitution to develop the common law in a way that permitted it to grant orders of specific performance in cases such as the present. (Paragraph [48] at 592F - G.) D

Held, further, that in addition to specific performance, a reduction of rental would be sensitive to the effect of the respondent's failure to effect the necessary repairs on the applicants' rights of access to adequate housing, dignity and privacy. Where a tenant abided by a lease despite a defect in the thing let, he or she was entitled to a reduction of the rent proportional to the E diminished use and enjoyment of the thing. (Paragraphs [64] - [65] at 596G - I.)

Held, further, that there were precedents holding that where the tenants remained in occupation, they would still be liable for the full rental even though they did not have full use and enjoyment of the premises, but this approach had been criticised in academic and judicial quarters. (Paragraphs [66] - [67] at 596I - 597B.) F

Held, further, that the applicants had certainly not had the benefit of full use and enjoyment of adequate housing. (Paragraph [71] at 597H - I.)

Held, further, that if the equities weighed against an order for specific performance by reason only of the non-joinder of the owner of the premises, an order for the reduction of rental for the period until the respondent effected G the necessary repairs would be an appropriate response to the implications for the applicants' rights under ss 10, 14 and 26(1) of the Constitution. (Paragraph [72] at 598B.) H

Held, further, that absent details of renovation and regeneration of the building, it was not possible to grant either an order for specific performance or a declarator that there would be a reduction of rental until necessary and specified repairs were effected to the building. (Paragraph [77] at 599B.)

Held, further, that it would be appropriate to reduce the rental to R170 per room per month. (Paragraph [87] at 600G - I.)

Held, accordingly, that the respondent had to be interdicted from demanding or receiving rental in excess of R170 per unit per month from any tenant or occupant of the premises. (Paragraph [89] at 601A - C.) I

Cases Considered

Annotations

Reported cases

Southern African cases

Amalgamated Engineering Union v Minister of Labour 1949 (3) SA 637 (A): applied J

2007 (6) SA p580

Amin v Ebrahim 1926 NPD 1: dictum at 7 applied A

Appliance Hire (Natal) (Pty) Ltd v Natal Fruit Juices (Pty) Ltd 1974 (2) SA 287 (D): not followed

Arnold v Viljoen 1954 (3) SA 322 (C): not followed

August and Another v Electoral Commission and Others 1999 (3) SA 1 (CC) (1999 (4) BCLR 363): referred to

Barker v Beckett & Co Ltd 1911 TPD 151: referred to B

Basinghall Investments (Pty) Ltd v Figure Beauty Clinics (SA) (Pty) Ltd 1976 (3) SA 112 (W): not followed

Bernstein and Others v Bester and Others NNO 1996 (2) SA 751 (CC) (1996 (4) BCLR 449): dicta in paras [67] and [75] applied

Boompret Investments (Pty) Ltd and Another v Paardekraal Concession Store (Pty) Ltd 1990 (1) SA 347 (A): dictum at 351H applied C

Bourbon-Leftley v Turner 1963 (2) SA 104 (C): not followed

Cape Town Municipality v Paine 1923 AD 207: dictum at 218 applied

Carmichele v Minister of Safety and Security and Another (Centre for Applied Legal Studies Intervening) 2001 (4) SA 938 (CC) (2002 (1) SACR 79; 2001 (10) BCLR 995): dictum in para [39] applied

Collen v Rietfontein Engineering Works 1948 (1) SA 413 (A): referred to D

Dawood and Another v Minister of Home Affairs and Others; Shalabi and Another v Minister of Home Affairs and Others; Thomas and Another v Minister of Home Affairs and Others 2000 (3) SA 936 (CC) (2000 (8) BCLR 837): referred to

Giddey NO v J C Barnard and Partners 2007 (5) SA 525 (CC) (2007 (2) BCLR 125): dicta in paras [16], [18] and E [30] applied

Government of the Republic of South Africa and Others v Grootboom and Others 2001 (1) SA 46 (CC) (2000 (11) BCLR 1169): dictum in para [34] applied

Greenberg v Meds Veterinary Laboratories (Pty) Ltd 1977 (2) SA 277 (T): not followed F

Harlin Properties (Pty) Ltd and Another v Los Angeles Hotel (Pty) Ltd 1962 (3) SA 143 (A): dictum at 150H applied

Haynes v Kingwilliamstown Municipality 1951 (2) SA 371 (A): referred to

Hillcock and Another v Hilsage Investments (Pty) Ltd 1975 (1) SA 508 (A): dictum at 516D - F applied

Hunter v Cumnor Investments 1952 (1) SA 735 (C): dicta at 740A and 740D applied G

Investigating Directorate: Serious Economic Offences and Others v Hyundai Motor Distributors (Pty) Ltd and Others: In re Hyundai Motor Distributors (Pty) Ltd and Others v Smit NO and Others 2001 (1) SA 545 (CC) (2002 (2) SACR 349; 2000 (10) BCLR 1079): dictum in para [18] applied

Isep Structural Engineering and Plating (Pty) Ltd v Inland Exploration Co (Pty) Ltd 1981 (4) SA 1 (A): dictum at H 5G applied

Jaftha v Schoeman and Others; Van Rooyen v Stoltz and Others 2005 (2) SA 140 (CC) (2005 (1) BCLR 78): dictum in para [23] applied

K v Minister of Safety and Security 2005 (6) SA 419 (CC) (2005 (9) BCLR 835)...