Worcester Court (Pty) Ltd v Benatar

• Jurisdiction: South Africa

Worcester Court (Pty) Ltd v Benatar
1982 (4) SA 714 (C)

1982 (4) SA p714

Citation	1982 (4) SA 714 (C)
Court	Cape Provincial Division
Judge	Comrie AJ
Heard	May 19, 1982
Judgment	August 24, 1982

Flynote : Sleutelwoorde F

Ejectment — Lessor averring that it was owner of the premises, that lessee was in possession of them, that such possession was by virtue of a lease, that the lease had been terminated and that lessee was in G unlawful occupation of the premises — Lessee averring he was a protected tenant in terms of s 52 (1) of Act 80 of 1976 read with Proc 91 of 1980 promulgated in GG 7040 of 23 May 1980 — Such proclamation not void for vagueness — Court unable to decide on the evidence whether lessee, as far as his income was concerned, qualified for protection H under the Act read with the proclamation — Onus of proof on lessee to prove that provisions of Act extended to lessor's premises — Such onus not discharged — Ejectment granted.

Headnote : Kopnota

The applicant, the lessor in terms of a written lease concluded between the lessor and the respondent as lessee, applied on notice of motion for the ejectment of the respondent from the leased premises and claimed damages for holding over. The applicant's case was that it was the owner of the premises, that respondent was in possession of them, that the respondent possessed the premises by virtue of a lease, that the lease had been duly terminated and, consequently, that the respondent was in unlawful

1982 (4) SA p715

possession of the premises. The respondent admitted all the applicant's allegations with the exception of the allegation that he was in unlawful occupation of the premises. The respondent averred that he was a 'protected tenant' by reason of the provisions of s 52 (1) of the Rent A Control Act 80 of 1976 read with Proc 91 of 1980, promulgated in terms of that section in Government Gazette 7040 dated 23 May 1980. The premises in question had first been occupied after 20 October 1949 and before 1 June 1966, were situated in an area for which a rent board had been constituted and the respondent was a lessee as defined in the Act on the date of promulgation of the proclamation. The only issues B remaining for determination in regard to the applicability of s 52 (1) of the Act read with the proclamation were, firstly, whether the proclamation was void for vagueness, as contended by the applicant, it being contended by applicant that it was not clear from the proclamation whether the income categories (referred to in the proclamation) in force on the date of promulgation of the proclamation in May 1980 remained applicable in 1981 when the notice of termination of the lease had been C given or whether the new income categories determined subsequently (in September 1980) applied; and, secondly, whether the respondent's income was such that he qualified for protection under s 52 (1) of the Act read with the proclamation.

Held, that it was clear from the relevant wording of the proclamation that 'the income as defined in the proclamation' was constituted by the income categories applicable on 23 May 1980 (and not some prior or D latter version of them), because the categories applicable on that date represented the only income(s) defined in the proclamation.

Held, accordingly, that Proc 91 of 1980 was not void for vagueness on the ground alleged by the applicant.

Held, further, on the question whether the respondent's income qualified him for protection under the Act read with the proclamation, that the E Court was unable to decide on the evidence, or the lack of it, whether or not the respondent was so qualified and the Court had, accordingly, to resolve the issue by reference to the onus of proof.

Held, further, that the onus of proof on this issue was on the respondent and, as he had failed to discharge it, the applicant was entitled to the ejectment order which it claimed.

F Chetty v Naidoo 1974 (3) SA 13 (A) and Myaka v Havemann and Another 1948 (3) SA 457 (A) applied.

Held, further, in regard to the claim for damages for holding over, that, as, on the facts, there was no real or bona fide dispute of fact concerning the quantum of the damages, there was no need for viva voce evidence and the applicant was entitled to such damages in the amount claimed. G

Case Information

Application for respondent's ejectment and for the payment of damages for holding over. The facts appear from the reason for judgment.

P Meyerowitz for the applicant.

A J Smit for the respondent.

Cur adv vult. H

Postea (August 24).

Judgment

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

1982 (4) SA p716

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;

1982 (4) SA p717

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 ...