De Pinto and Another v Rensea Investments (Pty) Ltd

• Jurisdiction: South Africa
• Judge: Holmes JA, Rabie JA, Corbett JA, De Villiers JA and Joubert AJA
• Judgment Date: 28 March 1977
• Citation: 1977 (2) SA 1000 (A)
• Hearing Date: 14 March 1977
• Court: Appellate Division

De Villiers, J.A.:

This is an appeal from a judgment of the Cape of Good Hope Provincial Division.

On 30 March 1971 respondent concluded a written agreement of lease (hereinafter referred to as the original lease) with one Duncan Cameron and first appellant in terms whereof respondent F let to Cameron and first appellant certain premises in a building situated on erf No. 350, Sea Point, Cape, to be used as a high-class steakhouse and eatinghouse only, for a period of 9 years and 11 months. The monthly rental as provided in clause 7 was as follows:

"7 (i)

for the period 15 to 30 April 1971, R355,87,

(ii)

during the period commencing 1 May 1971 and G terminating 31 March 1972, R711,75 per month,

(iii)

during the period commencing 1 April 1972 and terminating 31 March 1973, R747,34 per month,

(iv)

during each and every subsequent twelve month period (or part thereof), the rental payable during the last month of the immediately preceding twelve month period, increased by 5 per cent."

It was a term of the original lease that in the event of the H tenants failing to pay rental on due date, respondent would have the right to give written notice requiring them to pay within a period of seven days and that, in the event of their failure to do so within such period, respondent would have the right to terminate the lease and to take possession of the premises without prejudice to any claim it might have for rent and/or damages.

First appellant and Cameron took occupation of the premises in question on 1 April 1971 and commenced business as the Barracuda Restaurant

De Villiers JA

but soon ran into difficulties. This was a new business and they found it difficult to pay the rental agreed upon during the off-season which was then in progress. As a result the original lease was amended and the amendment was confirmed in writing in a letter dated 18 July 1971 addressed by respondent's attorneys to first appellant and Cameron, as A follows:

"1.

The rental for May 1971 has been reduced to R350.

2.

The rental for each of the months June, July, August and September 1971, has been reduced to R350.

3.

The rental for each month during the year, 1972 shall be increased by an amount of R120 per month above the B rental specified in clause 7 of the lease.

4.

In the event of the lease being cancelled for any reason whatsoever, then, without prejudice to any other rights which our clients may have as a result thereof, the agreements set out in paras. 2 and 3 above shall be deemed never to have been made and the position will therefore be dealt with on the basis that the rentals for June, July, August and September C 1971 are as presently provided in the lease."

Thereafter a written agreement (hereinafter referred to as the new lease) was entered into between respondent, Cameron, first and second appellants and Mr. Markovic in terms whereof it was agreed:

A.

that Cameron would be released from his obligations under the original lease;

B.

that first and second appellants and Marcovic would D assume the rights and obligations under the original lease, and

C.

that the monthly rental would be amended as follows:

(i)

for the period 1 October 1971 to 31 March 1972, R350

(ii)

for the period 1 April 1972 to 30 September 1972, R400

(iii)

for the period 1 October 1972 to 30 E September 1973, R576

(iv)

during each and every subsequent twelve month period, the rental payable during the last month of the immediately preceding twelve month period, increased by 5 per cent thereof

(v)

during the period 1 October 1980 to 15 March 1981, the rental payable during the last month of the immediately preceding twelve month period, increased by 5 per cent F thereof.

Clause 4 (b) of the new lease read as follows:

"in the event of the lease terminating at any time after the effective date, then the rental for the premises during the first rental period shall be deemed to have been R576 per month, and the lessor shall, in addition to any other amounts which the lessor shall be entitled to set off against the deposit, be entitled to claim an amount equal to the difference G ...