Norden and Another, NNO v Bhanki and Others

• Jurisdiction: South Africa
• Judge: van Blerk JA, Rabie JA, Muller JA, Corbett JA and Hofmeyr JA
• Judgment Date: 04 September 1974
• Citation: 1974 (4) SA 647 (A)
• Hearing Date: 22 May 1974
• Court: Appellate Division

Hofmeyr, J.A.:

This is an appeal against an order of JAMES, J.P., sitting in the Durban and Coast Local Division of the Supreme Court, dismissing an exception to a plea. [*] The appellants sued the respondents for an ejectment order from certain business premises situated in Durban. The respondents H raised various defences, inter alia, a subsisting common law lease, but the present proceedings are limited to the defence raised in the alternative and only by the first respondent, viz. that she is a "lessee" of the premises in question by virtue of the provisions of sec. 1 of Act 43 of 1950 and that she is accordingly entitled to the protection of sec. 22 (1) of the said Act. It was agreed between counsel that this defence should, for the purposes of these proceedings, be regarded as having been pleaded as a distince issue.

Hofmeyr JA

The definition of "lessee" in sec. 1 of the Act, in so far as it is pertinent to the present enquiry, reads as follows:

"'Lessee' includes the widow of a lessee who was living with him at the time of his decease."

The provisions of sec. 22 (1) of the Act relevant to the A present dispute are the following:

"No order for the recovery of possession of any business premises or for the ejectment of a lessee therefrom based on the fact of the lease having expired, either by effluxion of time or in consequence of notice duly given by the lessor (...) shall be made by any court so long as the lessee continues to pay... the rent agreed upon with the lessor or the rent prescribed by or determined under this Act... and performs B the other conditions of the tenancy, except on the additional grounds"

enumerated in the sub-section, but which are not applicable to the present enquiry.

In order to elucidate the issues involved in this matter it is necessary at this stage to mention certain facts and C allegations forming the background of the dispute between the parties. They are the following:

The first respondent is the widow of Dhana Nana (referred to herein as the deceased) who died on 15 September 1972. The deceased married the first respondent on 10 August 1961, and was living with her at the time of his death on 15 September 1972. The deceased was the lessee of certain immovable property D situate at 122 Prince Edward Street and 29 Cross Street, Durban, being "business premises" in terms of Act 43 of 1950 and by reason of Government Notice 459 promulgated in the Government Gazette of 28 March 1969. The property is owned by the estate of the late Anthony Joseph Williams and the deceased became the lessee of the premises by virtue of an oral E agreement concluded during 1940.

The claim for ejectment was based simply upon the allegation that the estate of the late Anthony Joseph Williams was the owner, alternatively, that the appellants, in their capacity as administrators of the said estate, were the owners of the F premises in question, and that the respondents (the second, third and fourth respondents being the sons of the deceased) were in occupation of the premises. It was further alleged that the respondents refused, despite demand, to vacate the premises or to restore possession thereof to the appellants.

The grounds of exception were that the above-mentioned defence was based upon the proposition that the first respondent was a G "lessee" as defined in sec. 1 of the Rents Act, 43 of 1950, as amended, by reason of the fact that

(i)

the premises in question were rent-controlled as alleged in the plea;

(ii)

the first respondent is the widow of the deceased and H was living with him at the time of his decease;

(iii)

she was not so living with the deceased at the premises in question.

It was contended on behalf of the excipients that the foregoing averments did not disclose a defence which is sound in law.

The appeal is against the judgment of JAMES, J.P., dismissing this exception.

Hofmeyr JA

The first question that arises is whether, in...