Toekies Butchery (Edms) Bpk en Andere v Stassen

• Jurisdiction: South Africa
• Court: Transvaal Provincial Division
• Judge: Colman J and Nicholas J
• Judgment Date: 05 September 1974
• Citation: 1974 (4) SA 771 (T)
• Hearing Date: 06 August 1974

Colman, J.:

The respondent in this appeal (who will be referred to as the plaintiff) sued the appellants (who will be referred to as the defendants) in the magistrate's court at Barberton for certain moneys which were alleged to be due by the defendants to the plaintiff as rent under a sub-lease of business premises.

D The plaintiff succeeded in the action and the defendants have come to this Court on appeal against the magistrate's decision.

The history which led up to the dispute may be summarised in these terms: In October 1969 a deed of lease was entered into between a Mrs. Van Greunen as lessor and the plaintiff, E together with Toekies Butchery (Pty.) Ltd., as lessees. The lessor let to the lessees certain portions of an immovable property, part of which she owned and part of which was held by her under usufruct. The term of the lease was for five years from 1 October 1969, with an option of renewal for a further four years and 11 months, and the rent was to be R62 per month, payable monthly in advance at a bank in Barberton.

F In clause 8 of the lease it was provided that, if the monthly rental payable thereunder was not paid by the tenants within seven days after it became due, the landlord would be entitled, forthwith and without further notice, to cancel and terminate the lease. Another clause which requires to be mentioned is clause 9 of the lease which reads as follows:

G "Should the municipal assessment rates in respect of the land whereon the premises stand be increased by competent authority, the tenants shall be bound to pay a fair pro rata share of such increase, and the rental payable under clause 4 hereof shall be increased accordingly."

In January of 1970 an addendum to the lease was executed. In terms thereof the company, Toekies Butchery (Pty.) Ltd., ceased H to be a tenant, and consent was given by the lessor to the plaintiff to sub-let the leased premises to three sub-lessees, namely Toekies Butchery (Pty.) Ltd., W. A. S. Olivier and J. L. Olivier. Those three persons were the defendants in the magistrate's court, and are the appellants in the present appeal. Thereafter a deed of sub-lease was entered into between the plaintiff as lessor and the three defendants as lessees. The rental provided for therein was the sum of R100 per month. The plaintiff's claim in the court a quo was for rent under that sub-lease in respect of the months of April, May, June, July and August 1972.

Colman J

At the trial the existence of the sub-lease was not in dispute, nor was the fact that the defendants had taken occupation under the sub-lease and remained in occupation throughout the period in respect of which rent was being claimed. Their defence was that during that period they had not been in occupation as A sub-tenants of the plaintiff's, but as direct tenants under a lease granted to them by Mrs. Van Greunen, to whom they had paid rent.

What had happened was this: In the latter part of 1971 the rates in respect of Mrs. Van Greunen's property had been increased. Her attorneys accordingly wrote to the plaintiff, B invoking clause 9 of the lease which I have quoted, and demanding a consequential increase in the rent payable by him. The amount claimed was something over R93 per year. The plaintiff did not regard that as a fair pro rata share of the increased rates, and he, therefore, did not pay the amounts demanded of him, either immediately or upon the receipt of a C further demand during January 1972. On 6 March 1972, however, having made enquiries at the relevant municipal office, the plaintiff went to the office of Mr. Erasmus, the attorney acting for Mrs. Van Greunen. There the question of increased rental was discussed and it was agreed that the increase should be R3,50 per month.

D All that was common cause. There was a dispute, however, with regard to the time when the additional R3,50 per month in respect of the months January to March 1972 was payable. The defendants' case was that those moneys, amounting to R10,50 in all, were to be paid on...