Myaka v Havemann and Another

• Jurisdiction: South Africa
• Judge: Tindall ACJ, Centlivres JA, Greenberg JA, Schreiner JA and Davis AJA
• Judgment Date: 11 June 1948
• Hearing Date: 13 May 1948
• Court: Appellate Division

Schreiner, J.A.:

I agree that this appeal must be dismissed but my reasons for coming to this conclusion differ somewhat from those stated in the judgment of my Brother DAVIS. Although the evidence was not as full, clear and consistent as one would wish I do not find the onus of proof to be of prime importance in the

Schreiner JA

decision of the case. The defendant had to show that he was entitled to the protection of the Rents Act, but the difficult problem in the case appears to me to be how to apply the provisions of the Act to the sufficiently well-established facts.

It should be noticed that, while at first sight it seems surprising that such essentially rural habitations as native huts should fall within the purview of a Statute that is usually associated with urban conditions, it seems nevertheless to be clear that even rude and simple structures of this kind in a rural locality may fall within the Act if the locality is within the area of a Rent Board.

But, rude and simple though the structure may be, it must, I think, be an immovable in order to come inside the Act. If this is so it may be assumed in the defendant's favour that his huts were immovables, an assumption which I do not find difficult in view of the decision in Rex v Mabula (1927 AD 159), despite some dissimilarity in the type of hut in question.

So far as the terms of the tenancy are concerned it seems to me to be established by the evidence that the defendant's annual rental was calculated at so much per hut, and that it made no difference to the amount of rent payable whether a tenant - and the condition of the tenancies were identical - had had many or few or no fields allotted to him, or whether or not he used freely or at all the right or privilege of grazing cattle on the farm. There is, in my view, ample evidence to support the magistrate's finding which he expressed thus:

'He (the defendant) paid rent per hut and there is no evidence that he contracted to hire the farm or portion of the farm for agricultural purposes and, on the preponderance of probabilities, I held that he did not do so.'

On the other hand the benefits of ploughing fields and grazing cattle were substantial and must have enhanced the value of the tenancy and must therefore have been a factor entering into and tending to increase the amount of the rent. This was a most important feature of the case. At the same time the fact that the defendant himself did more ploughing and made more use of the grazing than other tenants, many of whom were urban labourers, does not appear to me to be relevant to the ascertainment of the nature of his tenancy.

It is unnecessary to refer in detail to the basis of the decision in the Natal Provincial Division, which was apparently limited to cases where there is a concurrence of the three conditions that the premises were erected after the lease was entered into, that the

Schreiner JA

lessor was not obliged by the lease to errect them and that the lessee was entitled to demolish them at any time. It is not clear to me that all these factors were present according to the evidence or that if they had been they should have been regarded as decisive of the case. Particular provisions of the Act may be difficult or even impossible to apply in the case of a dwelling in which these three factors are present but that would not necessarily show that a particular habitation was not a dwelling within the meaning of the Act; it might only show that certain provisions of the Act were not applicable to all dwellings under the Act.

I turn now to what I have found a more difficult question, namely, whether the fact that the periodical payments made by the defendant entitled him, not only to the use and occupation of the huts, but also to have a field or fields allotted to him and to graze his cattle on the farm, took those payments out of the notion of money stipulated to be paid to the lessor in respect of the use or occupation of the huts, and, consequently, by reason of the definition of 'rent' in the Act, rendered sec. 14 (2) inapplicable.

I do not think that this case is governed by those which have dealt with an agglomeration of two kinds of premises, business and residential, for which a single 'composite rent' is payable. In Rent Control Board v SA Breweries (1943 AD 456), the principle of which is further illustrated in Hoosaien v Parker (1944 AD 481) and Rex v Norwick (1945 TPD 212), there were two corporeals, two parts of a building, for which, taken together, the rent was paid. But that is not the case here. The rent is paid for the huts, but the right to use and occupy the huts carries with it other substantial rights or privileges. The case is therefore of the type considered in Rent Control Board v Beach Villas (1944 AD 16), where the provisions of facilities or services of various kinds was held to make the definition of 'rent' inapplicable, with the result that the Rent Board had no jurisdiction to fix the rent. (This case was quoted to the Court in...