Naicker v Pensil

• Jurisdiction: South Africa
• Judge: Caney J and Friedman J
• Judgment Date: 28 April 1966
• Citation: 1967 (1) SA 198 (N)
• Hearing Date: 21 April 1966
• Court: Natal Provincial Division

Caney, J.:

The appellant was the defendant in an action in which the plaintiff, the present respondent, claimed against him an order of G ejectment from certain premises. The ground of this claim was that a lease by virtue of which the appellant had occupied the premises had terminated. This lease, made by the parties on 29th March, 1955, was for the period from 1st June, 1955, until 31st May, 1964. Clause 1 contained, however, the provision

'the lessee, however, paying the rent and observing the other terms and H conditions of this lease shall have the right to renew this lease for a further period of six (6) years from 1st June, 1964, provided the lessee shall have notified the lessor in writing of his intention to renew this lease on or before 30th April, 1964'.

The appellant claimed to have exercised this right of renewal, as indeed he purported to do, by an undated letter written on his behalf during March, 1964, to the plaintiff; consequently the appellant resisted the claim for his ejectment. The respondent's answer to this was that the appellant had lost the right of renewal contained in clause 1 of the lease, because during the currency of the lease he had failed to pay the

Caney J

rent punctually, in terms of the lease, clause 2 of which provided that the rent, in amount £15 per month, was to be payable by the appellant to the respondent 'in advance, on the seventh day of each and every month at' a stated address in Durban. Clause 16 gave the lessor the right to A terminate the lease for non-payment of rent or breach of any other terms, conditions or stipulations of the lease, but at no time did he avail himself of this right.

The case went to trial on an agreed statement of facts: no oral evidence was led. Included in the documents was a schedule of payments of rent B made by the appellant for the period commencing 1st January, 1958, until the termination of the lease. Presumably he was not in arrear at any earlier time, but the schedule discloses that the rent for the three months January, February and March, 1958, was paid on 28th March, 1958. Thereafter, until November, 1960, the rent was never paid on or before C the seventh day of the month; in the months April to August, 1958, it was paid during the currency of the month to which it related, or in the following month. September's rent was paid on 19th November and the rent for October and November was paid on 3rd December. During 1959 the rent for the preceding December and for the months of January to May was paid in each instance in the following month, save January rent which was D paid on 30th January. Then the situation deteriorated: June rent was paid on 14th August; July rent on 6th February, 1960; August and September rent on 16th February, 1960; October rent on 1st March; November on 16th July; December on 6th August.

E Up to June, 1959, no rent had ever been in arrears for as long as three months, Then the appellant fell into arrears as much as five, six and even eight months during the remainder of 1959. The agreed statement of facts records that on 22nd January, 1960, the respondent issued summons against the appellant for the rent then owing in respect of the months from July, 1959, to January, 1960, inclusive and the appellant F subsequently paid the amount of this claim and the costs. None of the rent falling due during 1960 was paid until on 29th October, 1960, the appellant paid that for the months of January to October inclusive. From November, 1960, until the end of the lease he paid within the first seven days of each month.

G The case turns upon the meaning and effect, in the circumstances, of the words, which I have quoted from clause 1 of the lease,

'the lessee, however, paying the rent and observing the other terms and conditions of this lease . . .'.

Clearly this is a condition precedent to the existence of a right of renewal on the part of the appellant. The main contentions for the appellant before us, as also I gather before the magistrate, were that H it was immaterial that he had in the past been in breach of his obligation to pay the rent on the seventh day of each month; the crucial time was that of the exercise of his right of renewal. If at that time he had paid all the rent that had fallen due, remedying any breaches there may have been, he could not be denied his right of renewal and was entitled to exercise it. As an alternative to this contention, the appellant contended that the respondent had tacitly permitted him to pay his rent late and consequently the fact that he had paid late did not disentitle him from

Caney J

exercising his right of renewal. Before I come to discuss these main contentions, however, it is convenient to refer to two other propositions advanced by Mr. Gurwitz before us on behalf of the A appellant. Firstly, arising from the fact that at some time, not specified, the parties had expressly agreed upon an increase of the rent to £17 10s. 0d. per month, Mr. Gurwitz contended that clause 2 of the lease has consequently been varied and, his contention went on, it was for the respondent to show what the variation was, in particular to show that there was no variation of the date upon which in each month the B appellant was to pay the rent. He contended that the appellant had to show no more than that he had exercised his right of renewal and that it was for the respondent to show that the appellant was in breach of the lease, and, consequently, to show upon what date or when rent was payable. As to this, I am inclined to agree with Mr. Didcott, who C appeared for the respondent, that the onus was upon the appellant to establish the performance...