Ntshiqa v Andreas Supermarket (Pty) Ltd

• Jurisdiction: South Africa
• Judge: Madlanga AJ
• Judgment Date: 15 May 1996
• Citation: 1997 (1) SA 184 (TkS)
• Docket Number: 565/96
• Hearing Date: 29 March 1996
• Counsel: C N Jafta for the applicant G J J Beukes for the respondent
• Court: Transkei Supreme Court

Madlanga AJ:

The applicant approached this Court by way of urgency on 25 March 1996, seeking, in the main, the eviction of the respondent from the premises hired from him, the attachment of movables by the deputy F sheriff, Nqamakwe, to perfect the landlord's hypothec in respect of arrear rental and costs of the application. On the very first day the application was opposed and neither a rule nisi nor interim relief which were prayed for in the notice of motion were asked for and the matter was simply postponed to 29 March 1996 for argument. On that day I heard argument on the final relief sought.

G At the outset I must indicate that Mr Jafta, who appeared for the applicant, indicated that he was not seeking a referral of the matter to oral evidence despite the fact that on some issues there was a genuine dispute of fact. He elected to argue the matter on the basis that the applicant was entitled to the relief he was seeking even if the facts H alleged by the respondent were correct. For purposes of this decision, therefore, the facts alleged by the respondent will be accepted. I now proceed to set out the facts of this matter (ie those that are common cause and those which, in accordance with the aforesaid approach, also have to be taken into account).

I On 1 July 1992 the applicant and the respondent entered into a written lease agreement in terms whereof the applicant let and the respondent hired the applicant's business premises situate at erf 23 within the municipality of Nqamakwe, at which premises the respondent was to operate a supermarket business. The lease agreement was to run for a period of five years, the monthly rental being R8 500, escalating at the rate of 10% per annum. Clause 16 of the agreement read as follows: J

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A 'In the event of non-payment of rent or any portion thereof on its due date or of the breach of any condition of this lease, the lessor shall have the right forthwith to cancel this lease and retake possession of the premises without prejudice to any claim which the lessor may have against the lessee for rent already due or for any damage which the (?) may suffer by reason of the termination of the lease.'

B As at December 1995 the monthly rental payable by the respondent to the applicant was R11 410 and the respondent did not pay rental for that month. Thereupon the applicant invoked the provisions of clause 16 of the lease agreement and, through his attorneys, wrote a letter addressed to the respondent cancelling the lease agreement.

C On 10 January 1996 the applicant issued summons in the Nqamakwe magistrate's court against the respondent for, inter alia, the eviction of the respondent, payment of the unpaid rental in the sum of R11 410 'less R6 410 in order to bring the matter within the (magistrate's) court's jurisdiction' and costs of suit. The summons was served on 12 January 1996 and an appearance to defend was entered. The applicant brought an D application for summary judgment on 30 January 1996 and it was subsequently granted in the absence of the respondent. On 6 February 1996, after an attachment by the messenger of the court and on threat of eviction, the respondent brought an application before this Court seeking the suspension of the magistrate's judgment and E the setting aside of the attachment. Whilst this application was still pending the respondent filed a notice of appeal against the judgment of the magistrate. The application was dismissed by this Court on 20 March 1996. Although the applicant was of the view that the notice of appeal against the magistrate's judgment was defective, he decided to abandon that judgment as he felt that a dispute could arise as to whether or not the notice of appeal F could have the effect of suspending the execution of the magistrate's judgment and that this could cause unnecessary delays as he urgently needed to have the respondent evicted from the premises.

The actual abandonment of the judgment is contained in the affidavit of applicant's attorney, Mr Mpumlwana, G who states that he was instructed to abandon the judgment and refers to a 'notice of abandonment' dated 22 March 1996, which reads as follows:'Be pleased to take notice that the plaintiff hereby abandons the entire judgment entered in his favour on 30 January 1996 in this matter.'

Subsequent to the abandonment of the action, and on 26 March 1996 (a day after the instant application had H been brought), the applicant filed with the magistrate's court, Nqamakwe, a notice which stated that 'the plaintiff hereby withdraws the entire action instituted by him in this matter'.

Throughout this period, starting from December 1995 up to and including the date this matter was argued before I me, the respondent had not paid any rental. The respondent contends that it is entitled to a remission of rental for two reasons, namely:

(a)

From the inception of the lease agreement the applicant, according to Phidias Hourrides who apparently represented the respondent at the time of the discussions relied upon by the respondent, undertook to provide toilet facilities as there were none on the J

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A business premises. This is not contained in the lease agreement and the suggestion is that it was an ancillary agreement. The lease agreement does not contain the now frequent 'no variation except in writing' clause. Despite the applicant's denial of the existence of such an undertaking and despite its B contention that Hourrides could not possibly have represented the respondent at that time as he only became a shareholder in the company much later, I shall accept, on the basis of the aforementioned approach to factual issues, that there was such an undertaking.

(b)

The applicant built business premises adjacent to those occupied by the respondent and diverted electricity from the distribution board in the latter premises to the newly built adjacent business C premises. This, according to Hourrides, caused frequent 'power cuts' as the supply of electricity was not enough for both premises and this, in turn, caused frequent damage to the respondent's perishable goods.

D The respondent's contention, in the light of the aforegoing, was that its use and enjoyment of the business premises was limited and this gave rise to its claim to a reduction of the amount of rental. The respondent stated further that up to the time its answering affidavit was deposed to it had not been able to properly establish the amount to which the rental should be reduced and requested a stay of these proceedings for it to be able to E quantify such reduction. The respondent claimed that up to the time the instant application was brought it had been delayed in quantifying the reduction by the proceedings brought before the Nqamakwe magistrate.

The above facts and the argument of counsel present...