Ramakulukusha v Kruger and Another

• Jurisdiction: South Africa
• Judge: van Rhyn CJ
• Judgment Date: 05 November 1982
• Citation: 1984 (1) SA 218 (V)
• Hearing Date: 19 October 1982
• Court: Venda Supreme Court

Van Rhyn CJ:

This judgment deals with successive interrelated B urgent applications in which two rules were issued respectively calling upon the respondents to show cause (on 19 October) why they should not be ejected from the buildings in issue and be held in contempt of Court.

For the sake of clarity I shall refer to the first application C and the second application respectively.

The applicant is the owner of the buildings and the licence holder of a butchery business conducted on the premises.

On 2 July 1982 the applicant and the respondents entered into a written contract of letting and hiring of the butchery business. In the contract the respondents are referred to as D "the manager" and the applicant as the "managing director".

It being common cause that the contract was one of locatio conductio, whether operarum or operis being immaterial.

In the written agreement (clause 11 annexure A to the founding E affidavit) the following provision is stipulated:

"... the manager has no right to alter the property without the managing director's consent in writing."

In the first application the applicant sought the ejectment of the respondents, alleging that, in breach of the above-quoted stipulation, the respondents constructed alterations to the buildings and further alleging that the matter was urgent F basically by reason of a condition of the butchery licence which prohibits alterations to the premises without the consent of the licensing authorities.

In their opposing affidavit the respondents conceded the alteration of the premises but relied on alleged consent given G in an antecedent oral agreement.

In order to render the evidence of the antecedent oral agreement - varying the written agreement - admissible, the respondents applied (in their opposing affidavit) for a rectification of the written contract.

The respondents alleged that the stipulation prohibiting alteration of the premises without consent was by common mistake written into the contract and that the true intention H of the parties was reflected by adding at the end of the stipulation the following phrase:

"except as orally agreed between the parties before this contract and as may be necessary to comply with requirements of the authorities".

Mr Friedman, on behalf of the applicant, forcefully argued that the rule should be confirmed and the respondents ejected.

The onus was on the respondents to establish their application for a rectification of the contract.

Van Rhyn CJ

In the first instance the application for the rectification was technically not in order and, had it been pleaded in a pleading in the way it was set out in the opposing affidavit, an exception against the pleading would have succeeded.

A In any event, submitted Mr Friedman, the contracting of the alleged antecedent oral agreement was so highly improbable that the rule could be safely confirmed.

Mr Coetzee on behalf of the respondents urged that the application should fail. The applicant should never - in anticipation of a dispute of fact - have approached the B Court by way of notice of motion. Action should have been instituted.

In the alternative Mr Coetzee sought leave to place oral evidence before the Court (in terms of Rule 6 (4) (g) of the Venda Rules of Court, which has its counterpart in the same Rule in the Republic of South Africa).

The leading of evidence was obviously necessary for the C establishing of the antecedent agreement and the consequent application for rectification; and because of the factual dispute, argued counsel, the respondents were at least entitled to place their defence before the Court by virtue of the provisions of Rule 6 (4) (g).

The first question to be decided is whether the applicant was D entitled to approach the Court by way of application instead of issuing summons.

In Frank v Ohlsson's Cape Breweries Ltd 1924 AD 289 at 294 - 295 INNES CJ concluded as follows:

"The first question which arises is whether the...