Worcester Court (Pty) Ltd v Benatar

• Jurisdiction: South Africa
• Judge: Comrie AJ
• Judgment Date: 24 August 1982
• Citation: 1982 (4) SA 714 (C)
• Hearing Date: 19 May 1982
• Court: Cape Provincial Division

Comrie AJ:

The applicant sues on notice of motion for the ejectment of respondent, and all those holding under him, from the premises known as flat 16, maid's room A and double garage 12/13, situate at the building Worcester Court, corner of Worcester and Beach

Comrie AJ

Roads, Sea Point. The applicant also claims damages for unlawful holding over, and costs of suit.

A Applicant company is the owner of a block of flats in Sea Point known as Worcester Court. Respondent is an elderly man, retired and apparently sick. Since about 1974 respondent has occupied flat 16 and had the use of maid's room A and double garage 12/13 (collectively referred to herein as the premises or leased premises) in terms of successive B leases. The most recent lease was signed by the parties in December 1979 and January 1980. It was an indefinite lease terminable on two calendar months notice in writing by either party (clause 2). During February 1981 the applicant purported to give respondent such a notice requiring him to vacate the leased premises by the end of April 1981.

C Notwithstanding the notice, respondent continues to occupy the premises. He contends that he is a 'protected tenant' by reason of the provisions of the Rent Control Act 80 of 1976 and the proclamation made thereunder, and respondent accordingly contends that the notice of termination was ineffective to bring his right of occupation to an end. D Applicant disputes this contention on three main grounds. It alleges that the proclamation is void for vagueness and invalid. Alternatively, applicant says that respondent does not qualify, or has failed to prove that he qualifies, for protection in terms of the proclamation. In the further alternative, applicant avers that respondent was in breach of E certain terms of the lease, thus forfeiting any statutory protection to which he might have been entitled. All three of the grounds are in issue.

The Rent Control Act 80 of 1976 is largely a consolidating measure. Much of the language of the statute, and many of the concepts, are taken from prior rents legislation with which practitioners are familiar. The general scope of the statute is twofold:

(i)

F to limit the rent which a lessor may charge for premises to which the Act applies, or is extended; and

(ii)

subject to exceptions, to save a tenant of such premises from ejectment during the currency of the lease and after its expiry, provided he pays the limited rental timeously and otherwise complies with the terms of the lease.

G Ordinarily the statute does not apply to dwellings or business premises or garages which were first occupied or used after 20 October 1949 - s 51 (f). Worcester Court was first occupied after that date. But, in terms of s 52 (1), the provisions of the Act may be extended to premises more recently used or occupied for the first time. Section 52 H (1) reads as follows:

'52.

Extension by proclamation of provisions of Act to certain premises -

(1)

Notwithstanding the provisions of s 51 (f) the State President may from time to time, on the recommendation of the Minister, by proclamation in the Gazette and subject to such exceptions as he may determine in such proclamation, declare the provisions of this Act as from a fixed date mutatis mutandis applicable to -

(a)

any specific dwelling, garage, parking space or business premises;

(b)

the dwellings, garages, parking spaces or business premises in any specific building;

Comrie AJ

(c)

all dwellings, garages, parking spaces or business premises;

(d)

all dwellings, garages, parking spaces or business premises of any class; or

(e)

all dwellings, garages, parking spaces or business premises A other than dwellings, garages, parking spaces or business premises of any class,

situated in any area, specified in such proclamation and occupied or used, as the case may be, for the first time after 20 October 1949 but before a specified date.'

B Three proclamations have been promulgated under this section. They are No 83 of 1978, which was replaced by No 87 of 1979, which was replaced by No 91 of 1980. The last-mentioned proclamation by the State President, promulgated in Government Gazette 7040 dated 23 May 1980, was in force at the times material to this application. It reads:

'No 91, 1980

C Declaration that the provisions of the Rent Control Act 1976 will apply under certain circumstances to certain dwellings, garages and parking spaces, occupied or used for the first time after the 20th day of October 1949 and before the first day of June 1966.

In terms of the powers vested in me by s 52 (1) of the Rent Control Act 80 of 1976, I hereby declare that the provisions of the said Act shall apply mutatis mutandis in respect of -

(a)

D dwellings; and

(b)

garages and parking spaces situate on land forming part of land occupied by or being used in connection with a building wholly or predominantly occupied for residential purposes or on any such space within any such building;

E which were occupied or used for the first time after the 20th day of October 1949 and before the 1st day of June 1966 and situated anywhere in any area for which a rent board has been constituted and which are occupied on the date of issue hereof by a lessee as defined in para (vii) of s 1 of the Rent Control Act 80 of 1976, who falls within the income categories as determined in terms of s 19 (1) (a) of the Housing F Act 4 of 1966: Provided that the provisions of the said Rent Control Act shall only be applicable to a dwelling occupied for the first time after the 20th of October 1949 and before the 1st day of June 1966 so long as the lessee remains in occupation of such dwelling which he occupied on the date of this proclamation, and for as long as his income does not exceed the income as defined in the proclamation.'

G Worcester Court was first occupied after 20 October 1949 and before 1 June 1966. The building is situated in an area for which as at May 1980 a rent board was constituted. Respondent was a lessee, as defined, occupying the leased premises on 23 May 1980. Those premises comprised a dwelling and a garage. Subject to the question of income categories, the leased premises satisfied all the elements of the classes described in H the proclamation. As to the income categories, s 19 (1) (a) of the Housing Act 4 of 1966 empowers the National Housing Commission, in consulation with the Ministers of Community Development and Finance, to

'determine the categories of persons to whom housing loans may be granted and the income limits within which persons shall fall in order to qualify for such loans, and different income limits may be determined in respect of different categories of persons or in respect of persons residing in different areas'.

The Minister of Community Development is also the Minister upon

Comrie AJ

whose recommendation the State President acts when issuing a proclamation under s 52 (1) of the Rent Control Act.

One of the difficulties in this matter is that I am told relatively A little about the income categories or limits laid down by the National Housing Commission. It appears that these are not promulgated or otherwise officially published. That is not required, it seems to me, by s 19 (1) of the Housing Act. On the other hand they are not secret. One gathers that the Commission from time to time fixes or amends the income B limits or categories and that its resolutions are made known to the officials responsible for giving effect to them. There was handed into Court by consent a copy of the minutes of a meeting of the Commission held on 10 September 1980. The following resolution is recorded (item IX (1)):

C 'Goedkeuring verleen word dat die ekonomiese inkomsteperke soos volg verhoog word:

(a)

Gesinsbehuising - van R540 pm tot R650 pm.

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