Ntshiqa v Andreas Supermarket (Pty) Ltd

• Jurisdiction: South Africa
• Judge: Miller J, Somyalo J, Davies AJ
• Judgment Date: 17 October 1996
• Citation: 1997 (3) SA 60 (TkS)
• Docket Number: 565/95
• Hearing Date: 06 September 1996
• Counsel: C N Jafta for the appellant G J J Beukes for the respondent
• Court: Transkei Supreme Court

Miller J:

The appellant instituted motion proceedings wherein he sought an order declaring the lease agreement between himself and the respondent to have been cancelled and that the respondent be evicted from the leased premises. The proceedings were instituted by way of urgency on 25 March 1996 and, after the prompt filing of answering and replying affidavits, argument on final relief was heard in D the Court a quo on 29 March 1996. There is a genuine dispute of fact on the papers as to whether or not the parties entered into ancillary agreements to the written agreement of lease. Such dispute is not capable of resolution on the papers, but the appellant, no doubt in his haste to have the matter finalised as soon as possible, did not E request that the matter be referred for the hearing of oral evidence and elected to have the matter argued on the basis that the facts alleged by the respondent be accepted as being correct. On this basis, the facts which are relevant to this appeal may be summarised to be as follows:

1.

On 1 July 1992 the appellant and the respondent, represented by one F Andreas Charalambous, entered into a written lease agreement in terms of which the appellant leased business premises situate at erf 23, Hilltop within the municipality of Nqamakwe (hereinafter referred to as 'the premises') to the respondent for a period of five years with an option, subject to certain conditions, to renew the lease for a further period of five years. G

2.

In terms of the lease:

(a)

the rental (R8 500 per month, with an escalation of 10% per annum) is payable on the last day of each month at the place of business or residence of the appellant;

(b)

the appellant shall have the right, in the event of the non-payment of rent H or any portion thereof on its due date or of the breach of any condition of the lease, to forthwith cancel the lease and retake possession of the premises without prejudice to any claim which the appellant may have against the respondent for rent already due or for any damages suffered by reason of the termination of the lease (clause 16 of the agreement). I

3.

The lease agreement does not have a restriction clause or a non-variation clause.

4.

The respondent took occupation of the premises pursuant to the lease agreement and is presently still in occupation thereof and conducts the business of a supermarket from the premises. J

Miller J

5.

During January 1993 the said Charalambous sold his interest in the A respondent company to one Phidias Hourrides.

6.

Shortly thereafter the appellant orally agreed to provide toilet facilities on the premises as soon as possible as there were no such facilities on the premises, without any adjustment to the rental.

7.

B The appellant failed to supply toilet facilities and the respondent, more than a year after the appellant agreed to install toilet facilities, itself installed one toilet on the premises, but this has never been operational as the appellant refused it permission to link it to the drain which is situated on the adjacent property which belongs to appellant. C

8.

The respondent, which receives complaints from its employees because of the lack of toilet facilities, caused two letters, one in June 1995 and the other in December 1995, to be addressed to appellant in which the appellant was requested to install the toilet facilities. D

9.

During December 1995 the appellant diverted electricity from the distribution board on the leased premises in order to supply electricity to adjacent premises which are owned by appellant. This has resulted in an erratic electricity supply to the leased premises which has and is causing a substantial loss in the turnover of respondent's business. E

10.

On 30 December 1995 the respondent caused a letter to be written to appellant in which it was stated that unless the toilet facilities are installed and the electricity problem rectified within ten days of the receipt of the letter, the respondent will approach the Supreme Court for relief. It was also stated in the letter that the respondent had suffered damages in the amount of R9 220 F as a result of the erratic electricity supply and that such amount will be deducted from the January rental.

11.

The respondent did not pay the December rental which was due on 31 December 1995.

12.

The appellant's attorney then, on 8 January 1996, wrote a letter to G respondent, informing respondent that the lease agreement, for reason of respondent's failure to pay the December rental, is cancelled forthwith. Such letter was not delivered to the respondent but was delivered to an incorrect address.

13.

Appellant thereafter instituted an action against respondent in the magistrate's court in which he claimed an order cancelling the lease agreement, eviction of H the respondent from the premises and payment of the sum of R5 000 for arrear rental (the claim for the balance of the arrear rental was abandoned in order to bring the claim within the jurisdiction of the magistrate's court).

14.

Respondent first obtained knowledge of the alleged cancellation of the lease I agreement when the summons in the proceedings in the magistrate's court was served on it.

15.

The proceedings in the magistrate's court were withdrawn by appellant.

16.

The respondent did not pay the December 1995 rental as it disputes that it owes the full amount and it tenders to pay a J

Miller J

reduced rental and requests an opportunity to quantify the amount by which A the rental should be reduced because of its limited use and enjoyment of the premises.

The crucial issue to be decided is whether the appellant is entitled to invoke the provisions of clause 16 of the lease agreement and cancel the agreement by reason of B respondent's failure to pay the December 1995 rental.

Mr Jafta, who appeared for the appellant, has argued, in the first instance, that the...