Seaborn v Smith

• Jurisdiction: South Africa
• Judge: Selke AJP and Holmes J and Kennedy J
• Judgment Date: 26 August 1955
• Hearing Date: 19 August 1955
• Court: Natal Provincial Division

Holmes, J.:

This is an appeal against the decision of the Durban and D Coast Local Division dismissing an application for an order of ejectment. The appellant is the owner of a dwelling in Durban which she leased to the respondent by a lease dated 18 February, 1952. The lease was expressed to be for three years commencing on 1 March, 1952, and expiring on 28 February, 1955, on which latter date the lessee undertook and agreed that she would vacate the premises. In terms of clause 2 of E the lease the rent was £25 per month. payable monthly in advance on or before the 5th day of each month. Clause 9 of the lease contained a forfeiture clause to the effect that if the lessee were to fail or neglect to make payments of the rent on the due date, or if she were to be in breach or default of any other of the conditions of the lease, and F were to fail to make such payments or remedy such default or breach for a period of 7 days after written notice, the lessor should be entitled forthwith to terminate the lease on written notice.

Clause 11 was in the following terms: -

'The lessee observing all the terms and covenants of this lease shall have the right after the expiration of the term hereof to renew this lease for a further period of three (3) years reckoning from the date of expiration hereof on the same terms and conditions as those contained herein save only that the G rental payable by the lessee during such period of renewal shall be the sum of twenty-seven pounds ten shillings (£27 10s.) per month and save that there shall be no further right of renewal.

In the event of the lessee desiring to renew this lease as is herein provided she shall be obliged to give notice of her intention so to do to the lessor or her agent in writing not less than three (3) months before the date of expiry of the original term of this lease.'

H On 29 November, 1954 the respondent wrote to the applicant as follows:

'In terms of our agreement, I herewith give you three months notice that I intend taking up the option of the three years lease at £27 10s. (twenty-seven pounds ten shillings) per month, as from 1st March, 1955.'

To that letter the appellant's attorneys replied as follows on 30 November, 1954:

Holmes J

'Mrs. Seaborn has consulted us in connection with your letter of the 29th instant in which you purport to give three months' notice of your intention to renew the agreement of lease herein.

The relative agreement provides that your having observed all the terms and covenants of the agreement you shall have the right to renew the lease for a further period of three years, but our client alleges that you have failed to observe all the terms and covenants of the lease in A that you did not pay the rental from time to time on due date as provided for in para. 2 of the agreement, as...