Room Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd

• Jurisdiction: South Africa
• Judge: Murray AJP, Ramsbottom J and Blackwell J
• Judgment Date: 15 July 1949
• Court: Transvaal Provincial Division

Murray, A.J.P.:

The present matter is an appeal from a judgment of NESER, J., in the Witwatersrand Local Division declaring the tenancy by appellant of certain premises belonging to the present respondent at No. 236 Jeppe Street, Johannesburg, to be null and void, under the provisions of sec. 8 of Ord. 46 of 1903, on the ground that the said premises had been and were being used as a brothel, and ordering the ejectment of the appellant therefrom.

On 18th February, 1948, and in pursuance of a contract of purchase thereof in November, 1947, the respondent in this appeal (applicant in the Court below) received transfer of stand 1032 on

Murray AJP

which are situate the said premises. The appellant was at the time in occupation thereof under a verbal tenancy from month to month from the respondent's predecessor in title, and this tenancy continued after the change of ownership. On these premises there is erected a building known as Princess Court, consisting of 14 single rooms, a two roomed flat (occupied by the caretaker) and a bachelor flat. The appellant who has been the tenant of these premises for over nine years, carried on inter alia the business of letting out these rooms; according to the deponent Coetzee the bachelor flat and six single rooms were at the time of the commencement of these proceedings occupied by semi-permanent tenants, while the remaining eight rooms were closed during the day time and let out only at night. On 22nd June, 1948, the respondent, having obtained information that the premises in question had been and were being used for purposes of prostitution, gave notice to the appellant terminating the latter's tenancy and requiring immediate vacation of the premises.

In the Court a quo the order claimed was resisted on three grounds, all of which were persisted in on appeal, (a) that the matter could not be decided on affidavit in motion proceedings but that the application should be dismissed with costs and the respondent left to proceed by trial action if so minded; (b) that even if motion proceedings were permissible, the evidence adduced by the respondent by affidavit was insufficient to establish upon any balance of probability the alleged improper use of the premises, and (c) that by unqualified acceptance on or about 29th June, 1948, of rental payable in advance in respect of the month of July, 1948, the respondent had either waived any breach of tenancy (as put in the Court below) or (as put in the argument on appeal) had entered into a tacit relocation of the premises upon the terms previously operative.

In my opinion the third contention can be very shortly disposed of. As stated by Grunhut, a director of the respondent, the practice in the past has been for the appellant to pay its rentals each month by means of an order on its bank to credit the amount thereof to the respondent's account with the Simmonds Street branch of Barclay's Bank. No direct payment was made to the respondent nor were its representatives notified by appellant of each payment. The respondent became aware of the July payment only after it had been credited to its account, and its accountant, who

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was unaware of these proceedings, did not draw Grunhut's attention thereto. The rents for August and September were returned and the return of the July rental was tendered. These facts are not denied. If the premises were in fact being used as a brothel, the tenancy was automatically avoided in terms of sec. 8 of Ord. 46 of 1903, without any action on the part of the landlord. In these circumstances there is no opening for the waiver by the landlord of any breach by acceptance of rental. Nor is it possible to hold, as suggested in argument on appeal, that a fresh contract of lease on the pre-existing terms was entered into, as from 1st July, 1948, by reason of the acceptance of the July rental. There was obviously no intention on the part of the representatives of the respondent to enter into such fresh contract: they themselves were unaware of the receipt of the rental in question, and it could hardly be seriously suggested that its bank, in crediting the rental to its account, either intended to or possessed authority to conclude a new contract.

Before considering the other grounds advanced by the appellant and reviewing the evidence in detail it is desirable to set out briefly the respective cases made out by the respondent on the affidavits filed and by appellant in his answer thereto.

(1)

The first affidavit attached to the petition is one by Mrs. Coetzee who from May, 1945 until September, 1948, was the resident superintendent of Princess Court, having been engaged as such by Papert, the director of the appellant company. As from January, 1947, she acted in addition as superintendent of certain other properties 219 and 246 Jeppe Street, also rented by the appellant company from landlords other than the respondent. The effect of her affidavit is that at night time, from 10 p.m. the keys of all the premises were handed to a native night watchman Zacharias, who let the rooms available for non-permanent occupation, collected the rentals and handed the same to her the next morning. According to her the rooms were used for the purposes of prostitution and she made statements as to the exorbitant charges levied on the instructions of Papert for these rooms. Similar evidence of the unlawful use of the rooms was given in affidavits by Bruyns (who with his wife has resided since February, 1947, in room 11, Princess Court), and Smit (who with his wife has resided since January, 1947, in room 4, Princess Court), and also in affidavits filed at a later stage by Poser and Mrs. Poser, who occupied one room in Princess Court from March to September, 1947.

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(2)

The respondent, in supplementary affidavits, also established that on 9th May, 1945, one Magrieta Liebenberg, the then caretaker of Princess Court and the immediate predecessor of Mrs. Coetzee in such position, was convicted of there keeping a brothel.

(3)

There was also the evidence of Poser, his wife and a Mrs. Kock that the other premises, viz., Nos. 219 and 246 Jeppe Street, were also used for prostitution.

(4)

There was also the evidence of certain private detectives Plumley, Conradie and Hannon of observations on Princess Court on 24th and 25th September, 1948, directed to show that persistent soliciting by women was occurring immediately outside these premises.

The appellant's answer to these allegations as made by Papert is in essence:

(a)

that he admitted Liebenberg's conviction but denied that thereafter a brothel had been conducted on the premises in question,

(b)

that, to repeat the quotation from his affidavit made by the learned Judge a quo

'that until the 6th day of September, 1948, I was not aware as to who occupied any of the rooms, or whether the tenants were permanent, semi-permanent or casual. The only information I obtained was that contained in the daily returns furnished by the said Coetzee to the office of the respondent (i.e. the appellant herein), which contained returns of the rental which she alleged she had received from each room, and 'I furthermore say that I have relied entirely and at all times for my information as to what occurs in the building on what the said Coetzee has told me'.'

(c)

that he attacked the impartiality of Mrs. Coetzee as also her credibility, alleging that her evidence was in conflict with her testimony at a Rent Board Enquiry in 1947. He also attacked the credibility of Poser in stating that he (Poser) had complained to him of the immoral use of the premises. And finally,

(d)

that he denied that the actual details testified to by the various witnesses were sufficient to justify a finding by the Court a quo that the improper use of the premises, involving the commission of a criminal offence had been established.

Two other matters require mention. Firstly, the petition alleged knowledge on the part of Papert of the improper purposes to which the premises were put, and a certain amount of affidavit evidence was directed to establishing or refuting such knowledge. This question of knowledge is in fact immaterial in applying the section of the Ordinance now in issue.

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Secondly, at the hearing of the application the respondent's counsel (a) requested that Papert should be called to give viva voce evidence under Rule 9 in regard to his denials, and (b) tendered (so this Court was...