The Principle of Reciprocity in Continuous Contracts Like Lease: What is and should be the Role of the Exceptio Non Adimpleti Contractus (Defence of the Unfulfilled Contract)?

• Jurisdiction: South Africa
• Date: 27 May 2019
• Author: Tjakie Naudé
• Published date: 27 May 2019
• Pages: 323-353

THE PRINCIPLE OF RECIPROCITY IN

CONTINUOUS CONTRACTS LIKE LEASE:

WHAT IS AND SHOULD BE THE ROLE OF THE

EXCEPTIO NON ADIMPLETI CONTRACTUS

(DEFENCE OF THE UNFULFILLED

CONTRACT)?

Tjakie Naudé

BA LLB LLD

Professor, University of Cape Town

Dedication

I have had the pleasure of knowing Gerhard Lubbe, who is honoured by

this issue of the Stellenbosch Law Review, since 1991, when I was a student

in his Law of Contract class at Stellenbosch University. Like probably all

his students, I im mediately admired his brilliant insights and teaching style,

including his consta nt critical and creative engagement with the policy issues.

I still aspire to become a lecturer and researcher just like him one day. I also

owe him an immense g ratitude for his inspirat ion, example, guidance, patience

and friendship du ring his supervision of my doctoral thesis and the reafter.

The link bet ween this article and Gerhard’s research is his chapter A syst em

in search of a lost cause: Reections on the principle of reciprocity in South

African Contract Law*. In this chapter, Gerhard also considered t he role

of the exceptio non adimplet i contractus and t he principle of reciprocity in

continuous contract s as well as more generally. I look forward to collaborating

with him fu rther, including on the Law of Lease.

1 Introduction

The cent ral obligation of the lessor is to give the lessee the benecial use

and enjoyment of the object leased.1 This dut y is conrmed by more specic

naturalia such as t he lessor’s duty to refrain from dist urbing the lessee in his

or her enjoyment, as well as to deliver and mainta in the property in the agr eed

* G Lubbe “A system in search of a lo st cause: Reflec tions on the princip le of reciprocity in S outh African

Contract Law” in E Di rix , S Stij ns, W Pi nten s & P Sena eve (ed s) Liber Amicor um Jacques Her bots (200 2)

205.

1 See the author ities cited by JN Pie k & DG Klein “’n Huurder se a anspraak op ver minderi ng van huurgeld

terwyl hy in besit van di e huursaak is” (1983) 46 THRHR 367 368-369. Kleyn’s surname was misspel t and

the correc t spelling will be u sed henceforth. See a lso G Glover Kerr’s Law of Sale and Le ase 4 ed (2014)

374-414; WE Cooper Landlor d and Tenant 2 ed (1994) 83-131; G Bradfield & K Lehmann Principles of

the Law of Sale an d Lease 3 ed (2013) 143-155 and the author ities cited there.

323

(2016) 27 Stell LR 323

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condition.2 In case of breach of the lessor’s obligation to maintain, it is t rite

that the lessee has the following reme dies in terms of the common law:

• specic performance;3

• the right to effect the necessary repairs him- or herself, to deduct the

reasonable costs thereof from t he rental and claim any balance from the

lessor, after the lessor had been given a reasonable opportu nity to effect

the necessary r epairs;4

• cancellation of the agreement if the leased object is materially defective,

provided t hat, if t he defect(s) arose during the currency of t he lease, the

lessor was given reasonable notice to repai r the defect;5

• damages, provided that the lessor knew or ought to have known of the

defect;6 and

• reduction in rent proportional to the lessee’s reduced use and enjoyment of

the object lea sed.7

The remedy of reduction in rent is also available to a lessee whose use and

enjoyment have been impaired for other rea sons, such as wrongful dist urbance

by the lessor or through vis m aior or casus fortuitus.8

The line of cases begin ning with Arnold v Viljoen (“Arnold”),9 which held

that a tenant who remained in occupation of the premises, is obliged to pay

the f ull rent even if he or she did not receive benecial use, was held to be

wrongly decided in Ntshiqa v Andreas Supermarket (Pty) Ltd (“Ntshiqa”)10

and Mpange v Sithole.11 The Supreme Court of Appeal (“SCA”) also correctly

criticised the judgment i n Arnold and cases relying thereon in obiter dicta in

Thompson v Scholtz (“Thompson”).12

The remedy of reduction in rent ent ails that if the lessee could derive no use

and enjoyment from the leased object, the lessee is entitled to pay no rental

for the relevant period. In other words, re duction to zero is possible. However,

if the lessee derived a limited degree of benecial use and enjoyment, older

authorities take the view that the lessee is merely entitled, and t herefore

obliged, to pay a reduced rent proport ional to his or her reduced use and

2 See th e author ities ci ted by Pie k & Kleyn (198 3) THRHR 367 368-369. See also Glover Kerr’s Law of Sale

and Lease 374-414; Cooper L andlord and Tenant 83-131; Bradfield & Leh mann Princip les of the Law of

Sale and Leas e 143-155 and the author ities cited there.

3 Mpange v Sithole 20 07 6 SA 578 (W).

4 Hunter v Cumno r Investments 1952 1 SA 735 (C).

5 The Treasure Che st v Tambuti Enterpri ses (Pty) Ltd 1975 2 SA 738 (A).

6 Nannucci v Wilso n (1894) 11 SC 240. In Heerman’s Supermarket ( Pty) Ltd v Mona Road In vestments ( Pty)

Ltd 1975 4 SA 391 (D) and Hunter v Cumnor Invest ments 1952 1 SA 735 (C), the courts held that the lesso r

must have either k nown of the defect or should h ave known thereof by re ason of his trade or pr ofession.

7 See generally H unter v Cumnor Inve stments 1952 1 SA 735 (C).

8 For details, see e g Glover Kerr’s Sale and Lease 417-424 and the au thorities cited t here.

9 1954 3 SA 322 (C) 330A-C.

10 1997 3 SA 60 (TkS).

11 2007 6 SA 578 (W). Th e court grant ed a proportional r eduction in rent.

12 1999 1 SA 232 (SCA).

324 STELL LR 2016 2

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