Wellworths Bazaars Ltd v Chandler's Ltd and Another

• Jurisdiction: South Africa
• Court: Appellate Division
• Judge: Watermeyer CJ, Tindall JA, Greenberg JA, Schreiner JA, Davis AJA
• Judgment Date: 31 March 1947
• Citation: 1947 (2) SA 37 (A)
• Hearing Date: 20 March 1947

Davis, A.J.A.:

The appellant is the registered owner of certain business premises, known as Khoury's Buildings, situated in Johannesburg, having taken transfer on 7th September, 1943. On discovering that the previous owner had verbally promised to the first respondent the renewal of an existing lease, it agreed to his executing, on 29th November, 1943, a lease terminating on the 30th June, 1946, in order to implement his promise; on the same day it took cession of the lease. The first respondent sublet the premises to the second respondent, but the first respondent continued to pay the rent to the appellant. On 27th December, 1945, the appellant sent the following letter to the first respondent: 'Re Horseshoe Beer Hall, Khoury's Buildings, Johannesburg. We hereby give you notice to vacate the above premises on the 30th June, 1946. The reason being the fact that we require the premises for our own use. A copy of this letter has been sent to the National Supplies Control Board.' In response to this letter the first respondent, on 8th February, 1946, asked for further particulars; these were furnished on 11th February, 1946. The respondents failed to vacate the premises by the 30th June, 1946, and on 5th July, the appellant applied to the Witwatersrand Local Division for an order of ejectment. This was refused by DE VILLIERS, J., and, on appeal to the Full Bench of the Transvaal Provincial Division, his judgment was upheld. The appellant now appeals to this Court: the second respondent was not represented at the hearing of the appeal.

Davis AJA

It is common cause that the matter is governed by the provisions of War Measure No. 89 of 1942 (as amended), Reg. 4 (1) and (2) and 5 (1) (a) and (b) and (2) of which, so far as is material, are as follows: -

'4 (1) Subject to the succeeding provisions of this regulation, no order for the recovery of possession of any business premises or for the ejectment therefrom of a lessee, based on the fact of the lease having expired either by effluxion of time or in consequence of notice duly given, shall be made by any court so long as the lessee continues to pay the rent agreed upon with the lessor or the rent prescribed by or determined under these regulations in respect of such premises and performs the other conditions of the tenancy, except on the additional ground that -

(c) the premises are reasonably required by the lessor for his own personal use;

(d) the premises are reasonably required for the purpose of a reconstruction or rebuilding scheme: Provided that . . .;

or on some other ground which, regard being had to all the circumstances, the court deems to be sufficient.

(2) No order for the recovery or possession of any business premises or for the ejectment of the lessee therefrom shall be made by any court in terms of any provision of sub-regulation (1) (other than paragraphs (a) and (b) thereof), unless the lessor has given the lessee at least six months' notice in writing to vacate the premises, and the said period of notice has expired.

5 (1) (a) When a lessor gives notice to a lessee to vacate any business premises he shall do so in writing, and a copy of such notice shall be lodged by the lessor with the chairman of the local committee in whose area of jurisdiction such premises are situate, immediately after such notice has been served on the lessee. The notice shall state in full the lessor's reasons for requiring the lessee to vacate the premises.

(b) Any person who fails to comply with the provisions of paragraph (a) shall be guilty of an offence.

(2) If in any notice to a lessee to vacate any business premises the lessor has knowingly given any reason which is false, he shall be guilty of an offence. . . .'

It was held in both the Transvaal Courts that the 'notice' referred to in Reg. 4 (2) was defined by Reg. 5 (1) and that the provisions of the latter sub-section...