Spies v Lombard
Jurisdiction | South Africa |
Judge | Centlivres JA, Schreiner JA, and Van Den Heever JA |
Judgment Date | 19 June 1950 |
Citation | 1950 (3) SA 469 (A) |
Court | Appellate Division |
Centlivres, J.A.:
I have had the privilege of reading the judgment prepared by my Brother VAN DEN HEEVER and agree that the appeal should be dismissed with costs.
Centlivres JA
As far back as 1867 the Cape Supreme Court in the case of Friedlander v Croxford and Rhodes (5 S. 395) applied Art. 9 of the Placaat in holding that a sub-lease of part of a praedium rusticum was a nullity as regards the landlord who had not given his written consent to the sub-lease. In 1880 DE VILLIERS, C.J., in de Vries v Alexander (Foord 43) again A applied Art. 9 and held that a sub-lease entered into without the consent of the landlord was void. It is interesting to note that Friedlander's case was not quoted in de Vries v Alexander, the reason probably being that the report of Friedlander's case was first published in 1902. Art. 9 was also applied in Visser v London and Jagersfontein B Diamond Mining Co. (1884, 1 Greg. 8) in so far as the Court interdicted a lessee from sub-letting. In Bester v Taylor (1912 OPD 60) the Court construed Art. 9 as not applying to a sub-lease of portion of a leased property, and although Friedlander's case was referred to in the judgment it does not seem to have been appreciated C that it was held in the Cape case that Art. 9 rendered a sub-lease of portion of the leased property invalid. In Vorster v Leo (1913, W.L.D. 77) the effect of Friedlander's case was again not appreciated.
Other articles of the Placaat were applied in de Beers Consolidated D Mines v London and South African Exploration Co. (10 S.C. 359) and van Wezel v van Wezel's Trustee (1924 AD 409).
Even assuming that Art. 9 of the Placaat had the same force and effect in South Africa as if it had been enacted at the Cape of Good Hope prior to the British occupation, it is important to note that there is no case on record in which the Courts have declared a lease forfeited on the E ground that the lessee sub-let without the written consent of the landlord. In Seaville v Colley (9 S.C. 39) DE VILLIERS, C.J., said at pp. 44, 45:
'The conclusion at which I have arrived as to the obligatory nature of the body of laws in force in this Colony, at the date of the British occupation in 1806, may be briefly stated. The presumption is that F every one of these laws, if not repealed by the local legislature, is still in force. This presumption, however, will not prevail in regard to any rule of law which is inconsistent with South African usages. The best proof of such usage is furnished by unoverruled judicial decisions. In the absence of such decisions the Court may take judicial notice of any general custom which is not only well-established but reasonable in itself. Any Dutch law which is G inconsistent with such well-established and reasonable custom, and has not, although relating to matters of frequent occurrence, been distinctly recognised and acted upon by the Supreme Court, may fairly be held to have been abrogated by disuse.'
In Green v Fitzgerald and Others (1914 AD 88 at p. 111) INNES, J.A., (as he then was) said:
'In Seaville v Colley (9 J. 39) it was held that a right of retraction, founded upon the lex Anastasiana, and recognised by the H law of Holland, had been abrogated by contrary usage and was no longer in force in the Cape Colony. I do not think, however, that the doctrine of the Roman-Dutch law can be confined to cases where contrary usage has been established; both in principle and on authority mere desuetude must in certain circumstances be sufficient. The authorities, however, do not discuss in any detail what those circumstances should be, and it would be unwise to attempt to lay down a comprehensive rule.'
Applying the principle in relation to desuetude laid down in the
Van den Heever JA
last-mentioned case, it seems to me that it can fairly be said that by desuetude the penal provisions in Art. 9 in relation to the forfeiture of the lease and the penalty provided for in the concluding words of that article have ceased to be law in South Africa. In Visser's case A (supra) the Court declined to declare the lease between the landlord and the tenant forfeited and the attempt made in Bester's case (supra) to have the original lease cancellel failed. In the former case the Court held that 'billijkheid niet de vernietiging van het kontrakt vorderde', and in the latter case it was held that the article did not B apply to a sub-lease of portion of the leased property. In neither case was it necessary, in view of the ratio decidendi adopted, to consider whether the whole of Art. 9 was still in force in South Africa. This being the position, I think that it is reasonable to hold that those provisions of Art. 9 referred to above have fallen into desuetude in South Africa.
Judgment
C Schreiner, J.A.:
I agree that the appeal should be dismissed for the reasons stated in the judgments of my Brothers CENTLIVRES and VAN DEN HEEVER. In regard to the forfeiture and penal portion of Art. 9 it is satisfactory to know, as the result of the researches of my Brother VAN D DEN HEEVER, that, apart from the principle of desuetude, the principle of non-reception can be used to protect our law by the rejection, not only of whole enactments or sections of enactments in the Groot Placaat Boek which were never imported into South Africa, but also of distinct portions of sections, other portions of which have been treated as being E part of our law.
Judgment
Van den Heever, J.A.:
The appellant is the owner of two farms 'Uitvlucht' and 'Oshoek', situated in the District of Dundee, Natal, F which he let in writing to respondent on the 6th January, 1947. In the contract the currency of the lease was expressed as running for five years from the 1st January, 1947 to the 31st December, 1952; but nothing turns on this ambiguity. The clauses of the contract which are important for the purposes of this case are the following: -
G 4.
'Die huurder onderneem om alle verbeterings op die plase in goeie orde te hou om hulle by die bëindiging van hierdie huurkontrak in dieselfde orde van reparasie soos hy hulle ontvang het aan verhuurder oor te lewer, redelike toelating vir sluitasie (sic, obviously meant to be 'slytasie') sal in ag geneem word.
6.
H Die huurder sal die reg hê om soveel lande soos hy wil te ploeg, maar hy onderneem om die lande so te maak sodat gronderosie voorkom word en om sover moontlik die lande op so 'n manier te maak sodat daar geen skade aan die weivelde kom nie.
9
Die huurder het nie die reg om enige dele van die plase of die plase te herverhuur nie, maar as hy dit wil doen moet hy eers die verhuurder se toestemming daartoe kry, sulk toestemming sal nie moedswillig teruggehou word nie.'
Van den Heever JA
Then there is a forfeiture clause which was conceived as becoming operative only in the event of the lessee being in arrear with the payment of rent for more than fourteen days after demand.
Averring that respondent had breached the contract in various respects appellant instituted an action against respondent in the Natal A Provincial Division in which he claimed cancellation of the lease, an order for ejectment, damages in the amount of £1,350 and costs, £1,000 being the damages claimed in respect of misuse and £350 in respect of respondent's holding over.
Appellant complained that in November, 1947, and without his consent B respondent entered into a partiarian agreement in respect of lands on the said farms with a certain Fourie and allowed the latter to plough on such lands pursuant to the partiarian agreement in breach of clause 9 of the agreement between the parties. Consequently appellant terminated the lease by notice in writing on the 24th December, 1947, and required C respondent to vacate the property, which the latter refused to do. Appellant moreover complained of the following acts and omissions on the part of respondent:
the windows of the dwelling have been broken and remain unrepaired, with the result that the building has deteriorated in condition;
the door of a rondawel has been removed with the result that D exposure to the elements has caused damage;
portion of the door of a native outhouse and the window thereof have been removed with the same result as is set out in (b);
boundary and other fences have been broken down and remained unrepaired; in various places fencing material has actually been removed and not replaced;
E the iron gate at the entrance to the farm has been damaged and broken;
the farm is becoming severely eroded as the result of respondent's general failure to take adequate or any steps to arrest erosion in its early visible stages.'
These issues were tried before DE WET, J., who granted absolution from F the instance with costs; hence this appeal. The learned Judge held that the partiarian arrangement with Fourie was in breach of clause 9 of the agreement, but that it was not such a breach as to justify the conclusion that by such action respondent must be held to have G repudiated the lease. On the complaints relating to abuse or neglect of the property let he found either that they were not proved, or, where proved, did not evince on respondent's part a wilful disregard of his obligations under the lease so that it could be said that his action amounted to a repudiation of the contract. He was not satisfied that the damage done to the homestead, although serious, was such as could not be H repaired so as to restore the house to the same condition as it was in before. Under the circumstances appellant's claim for damages under this head was premature. Accordingly, as I have said, he absolved respondent from the instance.
I have dealt rather summarily with the pleadings since either during the trial or on appeal certain issues were jettisoned and on appeal it was common cause that the issues raised before the
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