Rex v Meischke's (Pty) Limited and Amoils

• Jurisdiction: South Africa
• Citation: 1947 (4) SA 672 (T)

Rex v Meischke's (Pty) Limited and Amoils
1947 (4) SA 672 (T)

1947 (4) SA p672

Citation	1947 (4) SA 672 (T)
Court	Transvaal Provincial Division
Judge	Maritz J and Millin J
Heard	June 12, 1947
Judgment	August 5, 1947

Flynote : Sleutelwoorde

Landlord and tenant — Offences — Contravention of Regulation 1 of War Measure 89 of 1942 — Charging rent in excess of amount charged April 1, 1940, without permission of Control Board — Meaning of 'any premises' and 'such premises' in the War Measure — Whether building let substantially the same as originally let — Question whether premises substantially identical one of inference from objective facts — Alterations to inside of shop and temporary change of facade — No destruction of original identity of premises — Sentence — Regard to gain made by accused by contravention — Reliance on legal advice no ground for more lenient treatment.

Headnote : Kopnota

The appellant company and the second appellant, a director, were convicted in a magistrate's court of a contravention of Regulation 1 of the Schedule to War Measure 89 of 1942 in that, from July 1 to October 31, 1946, without permission of the Control Board, they had charged as rent for certain premises an amount in excess of that charged on April 1, 1940. On this latter date the premises in question had consisted of a shop and a basement; the shop had an ordinary front with two plate-glass windows and a door. The floor and the stairs to the basement were of wood. At the rear of the shop there was a stirway giving access to a raised wooden structure which was used as an office. On July 11, 1942, the shop was let to certain persons as a restaurant. In accordance with the municipal by-laws, as the premises were licensed for the preparation, sale and consumption of foodstuffs, a floor of concrete was substituted for the plank floor; a double sink was installed, with water laid on, and the treads of the stairs to the basement were cemented. The raised wooden office at the back of the shop was dismantled; the plate-glass front was removed and the tenants undertook to put in the new front, and to take it away at the end of the lease. The cost of the alterations was about two hundred and fifty pounds.

On July 1, 1944, the business was sold to a partnership, which firm the appellants agreed to accept as a tenant at £25 per month, subject to a month's notice. On May 29, 1946, the second appellant gave the partnership the requisite notice terminating the tenancy, but added that the firm might have a new tenancy at £57 10s. per month, which offer, on the new terms, was accepted, and the increased rent paid from July 1 to October 31, 1946. The second appellant's letter stated that the reason for this was 'the continued high increase in rates and taxes and maintenance charges', and added that 'the premises had been reconstructed in 1942'. On appeal it was contended on the appellants' behalf that the alterations to the premises had destroyed the identity of the premises as they had existed on April 1, 1940.

1947 (4) SA p673

Held, that 'premises' in this context unquestionably included a building or part of a building, and the use of the words 'such premises' following 'any premises' clearly contemplated that the building which was let at the higher rent must be the same or substantially the same as that originally let, and the test was whether, on the evidence, the identity of the shop as it stood on April 1, 1940, had been lost.

Held, further, that the question whether the premises in 1946 were substantially identical with the premises as they existed on April 1, 1940, was one of inference from objective facts, and could not be made to depend on the date on which the appellants decided to raise the rent, or on their reasons for doing it.

Held, further, that as the removal of the plate-glass front was intended to be a temporary measure only, and could have been restored quite easily at inconsiderable expense, and that when restored the premises would be fully fit for use as an ordinary shop, the alteration amounted to no more than a trivial and temporary change of facade. As the sink could be readily removed, and as there was no evidence that the removal of the raised office structure rendered the premises less lettable as a shop, and as the other alterations merely worked marked improvements to the inside of the shop, but in no way tended to make the premises in substance different premises from what they were before; nor, taking the alterations as a whole, was any inference justified other than that there was no destruction of the original identity of the premises, the convictions were accordingly upheld.

Phillips v Barnett (1922 (1) K.B. 222, at p. 227), Sinclair v Powell (1922 (1) K.B. 393), and Sieg v Willow House (Pty.) Ltd. (1945 AD 294), distinguished.

Held, further, that as it is a sound principle of punishment to have regard to the gain made by the accused by his contravention of the law, and that as it is out of place to impose a fine less in amount than the amount of this gain, the penalties imposed of a fine of £50 on the first appellant and £25 on the second appellant were not at all excessive in the circumstances, having regard to the maximum penalty of £500. The fact that legal advice had been taken on which the appellants had acted did not justify more lenient treatment.

Rex v Jasper (1932 Justice Summary, Case 160), referred to.

Case Information

Appeal from a conviction in a magistrate's court. The facts appear from the judgment of MILLIN, J.

O. Rathouse, K.C. (with him L. S. Weinstock), for the appellants: The regulation clearly means that the premises must be the same premises, i.e...