Myaka v Havemann and Another

• Jurisdiction: South Africa
• Citation: 1948 (3) SA 457 (A)

Myaka v Havemann and Another
1948 (3) SA 457 (A)

1948 (3) SA p457

Citation	1948 (3) SA 457 (A)
Court	Appellate Division
Judge	Tindall ACJ, Centlivres JA, Greenberg JA, Schreiner JA and Davis AJA
Heard	May 13, 1948
Judgment	June 11, 1948

Flynote : Sleutelwoorde

Landlord and Tenant — Ejectment — Action by cessionaries of right of action of owners — Onus — What plaintiff must prove. — Tenant making composite payments — Payment including payment for substantial and valuable rights — Whether provisions of Rents Act apply — Payments not falling within consideration mentioned in definition of 'Rent' — Effect.

Headnote : Kopnota

Where in a claim for ejectment and damages the plaintiffs, who sued as cessionaries of the right of action of the owners of a farm, after alleging their right as cessionaries from the owners, set out an agreement with the defendant, under which he was lawfully in occupation, and its termination by due notice,

Held (per TINDALL, A.C.J., CENTLIVRES, J.A., GREENBERG, J.A., and DAVIS, A.J.A.), that the plaintiffs could have relied solely upon their rights as cessionaries but as they had pleaded additional facts, the onus of proving the additional facts, in so far as they were material, or in so far as they were not admitted by the defendant, was on the plaintiffs.

Where the facts showed that the defendant was making composite payments in respect of certain huts on the farm and in respect of rights which were really substantial and valuable,

Held (per TINDALL, A.C.J., CENTLIVRES, J.A., GREENBERG, J.A., and DAVIS, A.J.A.), that the Rents Act had no application and plaintiffs were entitled to an order of ejectment.

Held, further (per TINDALL, A.C.J., CENTLIVRES, J.A., GREENBERG, J.A., and DAVIS, A.J.A.), that War Measure 59 of 1946 did not assist the defendant as there was nothing in the definition of 'services' which could apply to the agricultural rights for which the defendant had been paying.

Held, per SCHREINER, J.A., that the periodical payments made by the defendant were not 'rent', as he was receiving not only use and occupation by itself but also certain advantages and benefits which did not fall within the consideration mentioned in the definition of rent in the Rents Act; consequently he could not invoke the provisions of section 14 (2) of the Act.

The decision in the Natal Provincial Division in Havemann and Another v Myaka (1948 (1), S.A.L.R. 216), confirmed.

Case Information

Appeal from a decision in the Natal Provincial Division (BROOME, J., and MILNE, A.J.), leave having been granted, upholding an appeal from a decision in a magistrate's court. The facts appear from the judgment of DAVIS, A.J.A.

A. A. Kennedy, for the appellant: As the respondents put their cases on the basis that their predecessors in title had entered into

1948 (3) SA p458

a contract of letting and hiring, and that the dominant purpose of that contract was of an agricultural and pastoral nature, which contract they duly terminated, the onus was on them clearly to prove the nature, terms and conditions of such lease; see Karim v Baccus (1946 NPD 721 at p. 726). If Karim's case (supra), was wrongly decided in the light of Graham v Ridley (1931 TPD 476), then alternatively the contract between the parties was one of the letting and hiring of a dwelling within the meaning of the definition of 'dwelling' in sec. 1 of Act 33 of 1942. What was let was either huts for human habitation with free grazing for stock and fields for cultivation or a site or piece of land let for the especial purpose of the construction thereon of huts to be used as human habitations. If it be said that all that was let was land upon which the appellant had the right to erect his huts, and that therefore the tenancy was of a vacant site of land, then nevertheless such a vacant site is a 'place' within the definition of 'dwelling' in sec. 1 of the Act. Such site was let for the purpose of use as a human habitation. The intention of the Legislature as evidenced in the Rents Act was to protect tenants in their tenancy; cf. SA Breweries case (1943 NPD at pp. 67 - 8); Levy v Lamberg (1943 TPD 418 at p. 420). Therefore the Act should be interpreted according to the intention of the Legislature and all cases falling within the mischief aimed at, even if a wide meaning is to be given to the language, should be held to fall within its immediate influence; cf. Rex v Westenraad (1941 OPD at p. 105), Maxwell, Interpretation of Statutes (7th ed., p. 19). The ordinary natural meaning of the words used should not be departed from in the absence of any obscurity or repugnance; cf. Shenker v The Master (1936 AD 136 at p. 142); Rex v Bennett & Co. (1941 TPD 194 at p. 200); Ziman Bros v Rent Board of Johannesburg (1924 TPD 392 at p. 397). A benevolent interpretation of the definition of 'dwelling' should be given in the interests of protecting tenants in their rights; see definition of 'value' in sec. 1 and cf. Levy v Lamberg (supra, at pp. 410, 415). The word 'place' used in the definition of 'dwelling' is wide, and there is nothing in it to suggest that it must be a building and a building only; on an interpretation of the word 'place' it could properly mean a site only on which to erect a temporary or a movable structure, such as an ordinary native hut or a tent or a caravan or even a site, defined no doubt, occupied as a human habitation. Although the word 'place' is generally

1948 (3) SA p459

found in conjunction with other words which give it colour, and is usually controlled by its context, there is no room in sec. 1 of the Act to invoke the ejusdem generis rule because there is no common denominator in the preceding words, there being only one word, viz.: 'room'; cf. Alli v Pretoria Municipal Council (1908, T.S. 1120 at pp. 1123 - 4); Union Government v J. T. Rennie & Son (1924 NPD 233 at p. 241); Rex v Nolte (1928 AD 377 at p. 382). 'Place' includes a vacant site and is wide in its meaning; see Rex v Nolte (supra, at pp. 383 - 4); Goldman and Others v Rex (1908, T.S. 895 at p. 901); Liddell v Lofthouse (1896 (1), Q.B. 295); Powell v Kempton Park Racecourse Co. (1899, A.C. 143 at p. 194); Burrows, Words and Phrases Judicially Interpreted (Vol. 4, p. 276). The cases quoted by Burrows (supra, at p. 276) deal with a particular enactment from which the word 'place' has probably been given an interpretation in accordance with its context; but see further Webster's International Dictionary (s.v. 'place') and cf. Penny's Properties Ltd v SA Cabinet Works, Ltd. (1947 (2), S.A.L.R. at pp. 302, 308, 309).

A. von Gerard (with him W. K. van Rooyen), for the respondents: The onus was on respondents of proving the agreement set out in the particulars of claim, and on appellant to prove that as the farm was in a Rent Board Area, he was by virtue of the contract being one of letting and hiring entitled to the protection of the Rents Act; cf. Graham v Ridley (1931 TPD 476 at p. 478); Loesch v Crowther (1947 (2) S.A.L.R. 956); Boshoff v Union Government (1932 TPD 345); Frenkel v Ohlsson's Breweries, Ltd. (1909, T.S. 957 at p. 961); Magistrates' Courts' Rule 28 (9) (a) which provides for a division of onus. Appellant called no evidence in discharge of the onus resting on him. The occupation of the huts as human habitations was incidental and ancillary to the use of the ground for agricultural and pastoral purposes which was the main use agreed upon; cf. Morris v Louw (1939 CPD 395 at pp. 401 - 4); Waller & Son, Ltd v Thomas (37 T.L.R. 329); Matthews v Kemp (1946 CPD 200 at pp. 205 - 7); Nolla Buildings (Pty.) Ltd. and Another v Rex (50 P - H. K. 153), Rent Control Board v SA Breweries, Ltd. (1943 AD at pp. 456, 464 - 6); Levy v Lamberg (1943 TPD at pp. 414 - 5); Rex v Norvick (1945 TPD at pp. 216 - 9); Hoosaien v Parker (1944 AD 481). The Act interferes drastically with the Common Law rights of lessors and while the definition of 'dwelling' is wide, the word 'place' is really governed by the word 'room', as

1948 (3) SA p460

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