Pete's Warehousing and Sales CC v Bowsink Investments CC

• Jurisdiction: South Africa
• Judge: Kroon J, Pickering J, Leach J
• Judgment Date: 02 March 2000
• Citation: 2000 (3) SA 833 (E)
• Docket Number: CA 283/99
• Hearing Date: 07 February 2000
• Counsel: A G Dugmore for the appellant. J W Eksteen SC for the respondent.
• Court: Eastern Cape Division

Kroon J:

[1] This appeal concerns the correctness or otherwise of the construction placed on an agreement by Jennett J after argument on an E exception before him.

[2] In terms of the agreement the appellant leased certain premises from the respondent.

[3] The respondent alleged that a purported cancellation of F the agreement by the appellant constituted an unlawful repudiation thereof and that it had accepted the repudiation. The respondent accordingly instituted action against the appellant in which certain relief was claimed on the grounds of the appellant's alleged breach of contract. G

[4] Included in the relief claimed was a prayer for costs on the scale as between attorney and client, the agreement having accorded to the respondent the right to claim such relief.

[5] In its plea the appellant admitted its cancellation of the agreement. It alleged, however, that such cancellation was lawful. The H essential basis on which that allegation was founded appears from the following allegations in the plea:

(1)

the agreement contained a residual implied term that the respondent (as lessor) would be obliged initially to place the leased premises in a condition reasonably fit for the purpose for which I they were let, being that of a storage warehouse, and thereafter to maintain the premises in such condition - para 3.4;

(2)

the respondent breached a material term of the agreement in that it did not initially place and/or thereafter maintain the premises in such condition - para 4.2.1; J

Kroon J

(3)

the premises contained material defects at the commencement of A the lease period and at all material times until the cancellation of the agreement by the appellant (details of the alleged defects being set out) - para 4.3.

[6] In respect of the costs order sought by the respondent the appellant admitted the former's allegation that the agreement made B provision for such costs to be claimed, but pleaded that the issue of costs was nevertheless one within the discretion of the Court and that it would be appropriate, just and equitable that the respondent, if successful in the action, be awarded costs on the party and party basis - para 3.2 of the plea. C

[7] The respondent excepted to the plea as being vague and embarrassing (the appellant having failed to respond to a notice in terms of Rule 23(1) calling upon it to remove the alleged cause of a complaint to that effect) or, alternatively, as not disclosing a defence.

[8] The grounds invoked by the respondent, shortly stated, were D the following:

(1)

the appellant admitted the terms of the agreement;

(2)

para 3.2 of the plea alleged no basis in fact or in law upon which the Court could make a costs order in conflict with a specific agreement between the parties; E

(3)

the residual implied term contended for in para 3.4 of the plea would be in direct conflict with the clear and unequivocal terms of clause 12.1 of the agreement and other provisions of the agreement;

(4)

apropos paras 4.2.1 and 4.3 of the plea the appellant made no F factual allegations which would establish that the respondent failed to maintain the premises subsequent to the appellant taking occupation thereof.

[9] Jennett J upheld the exceptions to paras 3.2 and 3.4 of the plea. In view of his conclusion in respect of the exception to para 3.4 G he found it unnecessary to consider the attack on paras 4.2.1 and 4.3, but expressed, obiter, the view that the complaint was without foundation.

[10] The appellant did not persist in seeking to assail the upholding of the exception to para 3.2 and accordingly nothing need be said concerning the merits of that decision. H

[11] Similarly, the respondent, in resisting the appeal, did not seek to contend that, in the event of the appeal against the upholding of the exception to para 3.4 being successful, the exception against paras 4.2.1 and 4.3 should have been allowed. The latter exception accordingly warrants no further attention. I

[12] The agreement contained, inter alia, the following clauses:

(1) '4. Use of premises

The premises shall solely be used for the purpose of:

Warehousing and Distribution J

Kroon J

And for no other purpose whatsoever without the written consent of A the lessor first being had and obtained.'

(2) '7. Definitions

Wherever appropriate in this lease:

. . .

7.8

The captions appearing in this lease are for reference purposes only and, shall not be taken into account in interpreting any B provisions of this lease.'

(3) '11. Compliance with by-laws by lessee

It is a special condition of this lease that the lessee shall be responsible for complying with the requirements of the local authority or any other authority, in connection with the lessee's business conducted or to be conducted on the premises, and the lessee shall satisfy and bear the costs of all such requirements whether they be in C respect of alterations or in respect of the fittings therein required.'

(4) '12. Licences

12.1

The lessor does not warrant or represent that the premises are fit for the purpose of the business to be conducted in terms of this lease or any other purpose.

12.2

There shall be no obligation or responsibility on the lessor D to perform any work or to make any alterations to the premises so that the premises comply with such conditions as may be imposed by any authority or be a requisite for the issue of a licence, permit or any other authority to the lessee.

12.3

The lessee shall be liable for obtaining all the necessary permits, licences, authorities or other consents for of E (sic) the conduct of the lessee's business in the premises, and any failure howsoever arising to obtain, keep or renew such permits, licences, authorities or consents during the currency of this lease shall not constitute a ground for cancellation of this lease by the lessee.'

(5) '19. Repair and maintenance

19.1

Within ten days of occupation of the premises hereby let, the F lessee shall give to the lessor written notice of the defects therein, if any. In the event of the lessee failing so to do, or in the event of the lessee having done so and such defects having been rectified by the lessor, the lessee shall be deemed to have acknowledged that the said premises and all installations, air-conditioning, fittings and appurtenances therein generally, including keys, locks, glass windows, G sewerage and sanitary installations, including sewerage pans and pipes, water pipes, geyser elements and basins and electrical fittings, are in a good state or (sic) repair, and the lessee hereby promises and undertakes to care for and maintain same during the continuance of this lease, whether by effluxion of time...