Patel and Others v Dayaljee t/a Goodwill Stores

• Jurisdiction: South Africa
• Judgment Date: 12 September 1979
• Citation: 1979 (4) SA 866 (D)

Patel and Others v Dayaljee t/a Goodwill Stores
1979 (4) SA 866 (D)

1979 (4) SA p866

Citation	1979 (4) SA 866 (D)
Court	Durban and Coast Local Division
Judge	Howard J
Heard	August 17, 1979
Judgment	September 12, 1979

Flynote : Sleutelwoorde E

Landlord and tenant — Rents Act 80 of 1976 — Business premises — Co — owners requiring premises for their personal use — Notice given by co — owners — Proof necessary — Sections 28 (e) (i) and 36 (a).

Headnote : Kopnota

Where co-owners, not partners, of business premises have given notice to F the lessee of such premises to vacate on the ground that they reasonably require the premises for their personal use in terms of s 28 (e) (i) as defined in s 36 (a) of Act 80 of 1976, they do not have to go to the length of proving that all of them would personally occupy the premises for the purpose of conducting business therein themselves on a full-time basis. Personal occupation of premises and personal use of premises for business purposes are entirely different concepts. A lessor can properly be held to require business premises for his personal use if it is proved G that he needs the premises for the purpose of his own personal business, regardless of whether he will ever conduct the business personally or be personally present on the premises.

Case Information

Application for an order of ejectment. The facts appear from the reasons for judgment.

D J Shaw QC (with him L C A Winchester) for the applicants. H

P H P Gastrow for the respondent.

[The Court granted the application and filed the following reasons for judgment on September 12.]

Judgment

Howard J:

At the conclusion of the argument in this case I granted the ejectment order which the applicants sought and said that my reasons for doing so would be furnished later. These are the reasons.

1979 (4) SA p867

Howard J

The four applicants are co-owners of a building comprising business premises on the ground floor and residential accommodation above. The building is situate in Durban's so-called Grey Street complex, with A frontage on Bond and Prince Edward Streets. The ground floor premises include a supermarket at 58/60 Bond Street which is occupied by the applicants, and shops and storerooms at 141 A and 141 B Prince Edward Street which were occupied by Prabhat Stores and the respondent respectively. The supermarket faces Bond Street and there is a courtyard B between it and the other premises which face Prince Edward Street. Although they were completely separate when occupied by Prabhat Stores and the respondent, the premises at 141 A and 141 B are adjacent to each other and could be converted into one shop.

The applicants sought to eject the respondent from 141 B Prince Edward Street. It is common cause that these are "controlled premises" within the C meaning of the Rent Control Act 80 of 1976, that the respondent occupied them under a monthly tenancy, that during January 1978 the applicants purported to give him 12 months' written notice to vacate the premises (as required by s 28 (e) (i) of Act 80 of 1976) and that the 12 month period D expired on 31 January 1979. Omitting words which are not relevant for present purposes, s 28 (e) (i) provides:

"Notwithstanding the fact that a lease for any controlled premises has expired by reason of the effluxion of time or in consequence of notice lawfully given by the lessor concerned... a court shall not issue an order for the recovery of possession or the ejectment of a lessee from such premises... unless:

(e)

If such premises are business premises:

(i)

such lessor reasonably requires such premises for his personal E use, and such lessee has been given 12 months' notice in writing to vacate such premises, and the said period of 12 months has expired."

Section 36 of the Act defines "use" in relation to business premises in the following terms:

"For the purposes of ss 28, 31 and 34 'use' in relation to business premises, means:

(a)

F if a lessor is a natural person, use by such lessor personally;

(b)

if a lessor is a partnership, use by one or more than one of the partners for and on behalf of such partnership;

(c)

if a lessor is a private company, use by the major shareholder for and on behalf of such company;

(d)

if a lessor is a company or a co-operative society, use by such G company or society through its officials, or use by a wholly owned subsidiary, as defined in s 1 (5) of the Companies Act 61 of 1973, of such company through its officials."

The relevant portion of the notice which the applicants' attorneys sent to the respondent reads as follows:

H "We act for Jaya Patel, Maheshkumar Patel, Jaiprakash Dayaljee Patel and Ajithkumar Dayaljee Patel, your co-lessors.

We are instructed to give you, as we hereby do, 12 months notice to vacate the above premises occupied by you, by reason of the fact that our clients reasonably require the said premises for their personal use."

A copy of the notice was lodged with the secretary of the Rent Board on 7...