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[2016] ZAGPJHC 158
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Solgas (Pty) Ltd v Tang Delta Properties CC (11388/2015) [2016] ZAGPJHC 158 (20 April 2016)
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA,
GAUTENG LOCAL DIVISION,
JOHANNESBURG
CASE
NO: 11388/2015
20
APRIL 2016
In the matter
between:-
SOLGAS (PTY) LTD
AND
TANG DELTA PROPERTIES CC
JUDGMENT
CORAM:
CRUTCHFIELD AJ
[1]
The applicant, Solgas (Pty) Ltd, is the
former lessee of the respondent, Tang Delta Properties CC, from which
the applicant previously
leased premises.
[2]
Upon termination of the lease, the
respondent asserted a tacit hypothec over certain movables on the
leased premises, which resulted
in the applicant launching these
proceedings. The applicant sought vindicatory relief, in
particular, delivery of the movables
and costs of the application.
[3]
The respondent opposed the application and
brought a counter-application in which it claimed:
3.1
Confirmation of the respondent’s
hypothec over the movables.
3.2
That the order sought immediately above,
operate as an interim interdict preventing the applicant from
removing the movables or
causing them to be removed, pending final
determination of the action proceedings instituted by the respondent
in the Gauteng Division,
Pretoria under case number 19589/2015 (‘the
action’), and the execution of such order as may be granted by
that court;
and
3.3
Costs of the counter-application on an
attorney and client scale.
[4]
The common cause facts relevant to the
issues are the following:
4.1
The applicant leased the premises situated
at stand 1234, corner Max and Tang Streets, Germiston Ext 13,
Germiston (‘the premises’),
from the respondent.
4.2
The lease was renewed between the parties
until 31 October 2014, when it terminated automatically.
4.3
Upon termination of the lease, the
respondent retained certain movables, comprising an Isuzu bakkie,
industrial batteries, hydraulic
jacks, tow chains, and miscellaneous
tools and toolboxes (‘the movables’), on the premises.
4.4
The applicant is the owner of the movables.
4.5
In terms of the lease, the applicant was
obliged to repair any damage and restore the premises to the
satisfaction of the respondent
on or before the termination of the
lease agreement, failing which the respondent reserved the right to
hold the applicant liable
for the payment of the monthly rental up to
the last day of the month in which the restoration work was completed
and the premises
able to be re-let (clause 11.9).
4.6
Further, in the event of the premises not
being handed back to the respondent in the same good order and
condition as at the commencement
of the lease, fair wear and tear
excepted, the lessor would, in addition to any other remedies it
might have, be entitled to utilise
the deposit paid by the lessee to
effect the necessary repairs and / or to pay any other amounts due by
the lessee to the lessor
without prejudice to the lessor’s
rights to hold the lessee liable for any additional amount which
might be required for
the restoration of the premises (clause 17.5).
4.7
Should the respondent be compelled to
utilise the services of an attorney in respect of the collection of
any amounts due and payable
to it in terms of the lease, or in
respect of any other relief to which it might become entitled in
terms of the lease, then the
applicant would be liable for all costs
incurred by the respondent for the purposes of enforcing any of its
rights in terms of
the lease on the attorney and own client scale,
inclusive of any tracing agent’s fees, counsel’s fees and
collection
commission (clause 23.6).
[5]
Counsel for the parties were agreed that
the value of the movables, and that value relative to the quantum of
the damages claimed
by the respondent, were not issues in respect of
which I needed to concern myself.
[6]
The terms of the lease are not in dispute.
Hence, the applicant is contractually liable to repair and restore
the premises
to their original condition, fair wear and tear
excepted.
[7]
I was not referred to any provision in the
lease that is contrary to, or, serves to negate, the hypothec claimed
by the respondent,
which
is residual and not susceptible to
exclusion by contract.
[8]
It is trite that in these circumstances,
the respondent was obliged to allege facts sufficient to justify its
possession and retention
of the movables.
[1]
[9]
This the respondent did by relying upon the
lessor’s common law tacit hypothec over
invecta
et illata
(things carried in and things
brought in),
arising
from the lessee’s obligations in terms of the lease to effect
any necessary repairs, make good any damage and restore
the premises
to the same good order and condition as at the commencement of the
lease, fair wear and tear excepted.
[10]
The respondent alleged that the applicant
had failed to repair and restore the premises as it was contractually
obliged to do, and
was liable to the respondent for damages in the
amount of R137 343.62.
[11]
Given the provisions of the lease, the
respondent contended that it provides for circumstances that
recognise the landlord’s
hypothec for damages suffered by the
lessor, against the lessee’s assets on the premises.
[12]
Hence, the damages claimed by the
respondent, for which the applicant is alleged to be liable, give
rise to the hypothec in respect
of which an attachment is the
appropriate form of relief.
[2]
[13]
Further, an attachment order will be
granted even if only slight grounds exist for apprehending that the
invecta et illata
on the premises, will be removed
[3]
by the lessee.
[14]
The applicant argued that the respondent’s
claim to the hypothec in respect of damages arising from the alleged
failure to
repair and restore the premises, was no longer competent,
even if the applicant was contractually obliged to make good the
premises
upon termination of the lease.
[15]
The overwhelming body of authority,
according to the applicant, was to the effect that the lessor’s
tacit hypothec does not
apply to any claim other than arrear rental.
It operates solely to secure fulfilment of the lessee’s
obligation to
pay the rental stipulated in the lease, an easily and
speedily determinable obligation. Thus, the hypothec serves as
security in
respect of the stipulated rental and is accessory to the
lessee’s rental obligation.
[16]
Hence, the applicant submitted that the
hypothec does not operate to secure an illiquid claim, which stands
to be determined at
a later stage. Damages, being illiquid,
require to be quantified and proved, a potentially lengthy process,
and, are not
appropriate to an attachment, effectively a ‘set-off’,
under the hypothec.
[17]
Whilst the
respondent’s alleged damages had been quantified for the
purposes of the counter-application, they remained to
be proved at
trial.
[18]
In the event that the respondent’s
reliance upon the lessor’s tacit hypothec for damages was found
to be sound in law,
then the applicant argued that the respondent had
not sufficiently established the quantum of its damages.
[19]
The respondent relied upon the same
averments in respect of its alleged damages in the
counter-application, as in the pending action.
The applicant
criticised the respondent’s quantification thereof as being
insufficient to ground the interim interdictory
relief claimed by the
respondent. Furthermore, that the respondent’s allegations were
vague to the extent that the applicant
was precluded from properly
answering thereto.
[20]
The applicant referred to
Eight
Kaya Sands v Value Irrigation Equipment
[4]
(‘
Kaya Sands’),
a
full bench decision of the Transvaal Provincial Division, in which
the majority of the court stated:
‘
The only
remaining tacit hypothec from the common law which still exists in
South African law is the tacit hypothec of the landlord
over the
movables of the tenant on the leased property for arrear rental.
In respect of arrear rental, the tenant is the
debtor and the
landlord is the creditor. The lease agreement out of which the
debt arises exists between those two parties.
The tacit
hypothec affords the creditor/landlord a right of attachment to
establish a real right over the movables of the debtor/tenant
as
security for payment of the arrear rental.’
[21]
Kaya Sands,
however,
was concerned only with the hypothec arising from arrear rental. That
court did not consider the question raised by this
matter, being
whether or not the lessor’s tacit hypothec in respect of damage
to the leased premises, applies in our law
today. Nor did that court
find that the lessor’s hypothec does not apply in respect of
obligations other than rental. Hence,
Kaya
Sands
is distinguishable from the
matter before me
.
[22]
Kaya Sands
referred
to and relied upon
Webster v Ellison
[5]
(‘Webster’),
a full bench
decision of the Appellate Division.
Webster
also dealt with an exercise of the landlord’s hypothec in the
context of arrear rental, which Innes JA stated, ‘is
operative
only when and so long as rent is in arrears’.
[6]
[23]
The applicant relied upon Innes JA’s
statement, whilst the respondent contended that it was not authority
for the proposition
that the hypothec does not apply to a lessee’s
obligations other than rental, in terms of a lease.
[24]
Further, the respondent argued that the
phrase ‘
only when … the
rent is in arrear’
, was intended
to refer to the timing and duration of an exercise of the hypothec,
being whenever the rent is in arrear, within
the context of arrear
rental, and not to the nature of the debt secured by the hypothec.
[25]
The court in
Webster
,
however, was tasked specifically with a claim to a tacit hypothec
pursuant to arrear rental, and not with an attempt to invoke
the
hypothec in respect of damages arising from a lessee’s failure
to restore and repair the leased premises. Hence,
Webster
is also distinguishable.
[26]
I am supported in this regard by the author
W E Cooper
Landlord and Tenant,
[7]
to the effect that Innes JA’s statement:
‘
...is wide
enough to support the argument that our courts recognise a lessor’s
hypothec for rent only, but it must be borne
in mind that when making
the statement the learned judge may not have had
the question under discussion in mind.’
[27]
Furthermore, A J Kerr
[8]
provides additional support, in that:
‘
.. the
learned judge was considering, as was appropriate to a case in which
rent was in fact in arrear, “the general nature
of the security
for arrear rent
given by the Common Law” ... If therefore the phrase “only
when … the rent is in arrear” were to be read
to mean
“for no obligation other than the payment of rent” it
would be
obiter
.
[28]
Both parties referred me to various
authors, both old and modern, the content of which I deal with
hereunder.
[29]
As a general proposition, the modern
authors
[9]
accept that the landlord’s tacit hypothec as developed in
Roman-Dutch law, (and which applied to the lessee’s obligations
in terms of the lease over and above payment of the rent) was
received, and accepted by our courts as part of South African law.
Indeed,
evidence
of its use is discernible in the early reported case law.
[10]
[30]
Notwithstanding, the majority of the common
law hypothecs are described as having fallen into disuse, been
abolished by subsequent
legislation, included in later statutory
enactments, or reduced to rights of retention.
[11]
[31]
The authors diverge, however, along two
lines on the question of whether or not the landlord’s hypothec
in respect of damage
to the premises, applies today.
[32]
The applicant referred primarily to
Cooper,
[12]
to the effect that:
‘
In
one
Digest
text the lessor’s hypothec is said to cover any claim the
lessor has against the lessee for damaging the property let to
him.
[13]
Voet accepted this to be the position in Roman-Dutch law.
[14]
He is supported by Schorer,
[15]
but no other institutional writer deals with the question. In the
only reported case in which this question has been considered,
the
court held that a lessor has a tacit hypothec for rent only.
[16]
Most modern writers simply state that a lessor has a tacit hypothec
for rent.
[17]
However, two modern writers accept that the lessor’s
hypothec is not limited to rent but applies to the due fulfilment
of
the lessee’s obligations under the lease.
[18]
If
the lessor’s hypothec in Roman-Dutch law applies to the
fulfilment by the lessee of obligations other than the payment
of
rent, it has received no judicial recognition in South Africa.
On the contrary, it was abolished in Natal in 1887,
[19]
and in the Insolvency Act the legislature confined the lessor’s
hypothec to rent. Since 1884 there has been no reported
case in
which a lessor has claimed a tacit hypothec for damage caused by the
lessee to the property hired by him and, assuming
that the court’s
reasoning in
Woodrow and Co v Rothman
was erroneous, it is submitted that in the Cape, Transvaal and the
Orange Free State the lessor’s hypothec for the fulfilment
of
obligations other than the payment of rent has become abrogated by
disuse.
[20]
’
[33]
Cooper’s reference to ‘the only
reported case’, is to
Woodrow and
Co v Rothman
[21]
(‘Woodrow’).
The lessor’s hypothec for
damages, however, was also raised in
Waverley
Trust & Trading Co v Depaux
[22]
(‘
Waverley
Trust’).
[34]
Woodrow is cited by current authors
[23]
as authority for the proposition that our case law does not reflect
the common law recognition of the lessor’s hypothec for
damages.
[35]
Notwithstanding, a perusal of the report of
Woodrow
reflects that it does not serve as such authority, as the court, in
‘deciding that a lessor did not have a tacit hypothec
for
repairs’,
[24]
was referred by counsel to section 8(5) of the Tacit Hypothecation
Act 5 of 1861 (C), which the court appears to have accepted
although
the reported judgment does not refer specifically to that, or any
other, section of the act. Regard to the text of the
act reveals that
section 8(5) thereof, dealt with the tacit hypothec of builders and
repairers, of ships and houses.
[36]
The Tacit Hypothecation Act 5 of
1861 (C),
[25]
although it dealt with the lessor’s hypothec for arrear rental,
did not deal with the lessor’s hypothec for damages.
Nor did
the equivalent statute in the Transvaal, the Administration of
Estates Proc 28 of 1902 (T),
[26]
refer to the lessor’s tacit hypothec for damage to the leased
premises.
[37]
Hence, subsequent reliance upon
Woodrow,
as authority that the lessor’s tacit hypothec for damage to the
leased premises is not recognised by our courts, is erroneous.
Cooper
[27]
appears to accept as much.
[38]
The applicant looked to G Wille,
[28]
for support in respect of the nature of the debt secured by the
hypothec. Wille states that:
‘
The
Digest
[29]
says the
invecta et illata
are bound not only for rent, but also for damage caused to the
premises by the tenant’s fault; Voet,
[30]
in one passage, agrees with this statement, and in another
[31]
extends the liability to all the obligations of the tenant.
In
Woodrow & Co.
v Rothman
it was expressly held that the landlord’s
hypothec covered rent only, and was not a debt due by the tenant for
repairs which
he had failed to make. Further, the Insolvency
Act confers a preference on the landlord in the insolvency of the
tenant in
respect of rent only, and consequently it may safely be
concluded that in South African Law the
invecta et illata
are
not bound for any debts of the tenant other than rent.’
[39]
I have dealt with
Woodrow,
which is not authority for Wille’s
‘conclusion’. Furthermore, the provisions of the
Insolvency Act do not serve
to limit the operation of the hypothec in
matters outside of insolvency.
[40]
Voet’s support of the lessor’s
hypothec for damage to the premises is clear. The applicant submitted
that even if Voet’s
position is accepted, the lessor’s
hypothec has not been applied by our courts in respect of damages
over the years.
[41]
The applicant referred me to Lawsa,
[32]
to the effect that:
‘
The tacit
hypothec of the lessor exists to secure the fulfilment of the
lessee’s obligation to pay the rent stipulated in
the lease.
Whilst there is Roman-Dutch authority suggesting that the hypothec
extends in addition to a claim for compensation for
damage inflicted
on the
merx
by the lessee, this attitude is not reflected in South African case
law.’
[42]
Lawsa refers to Voet and Schorer in respect
of the Roman-Dutch law, and, to Cooper
[33]
(as does Van der Merwe
[34]
),
in respect of the case law, particularly to Cooper’s view that
‘insofar as the hypothec applied in Roman-Dutch Law
in respect
of obligations other than the payment of rent, its sphere of
operation has been restricted by abrogation through disuse
in SA
law.’
[43]
In summary, the applicant contended that
Innes JA’s statement in
Webster
was
ratio,
and even if it was only
obiter,
it was highly persuasive and far more so than the old authorities,
who do not reflect the position in our law today, especially
as
regards the nature and purpose of the hypothec in its current usage.
As to Kerr’s dissenting voice, the applicant contended
that
Kerr did not fully appreciate the ratio in
Webster.
[44]
The applicant submitted that the reference
in
New Life Communal Property
Association v Draigri Boerdery Bpk
[35]
(‘
New Life Communal Property’),
to Kerr’s view supported the
applicant, as the court assumed
[36]
for purposes of the judgment that the hypothec is only available to a
lessor in respect of arrear rental.
[45]
The respondent’s answer to
New
Life Communal Property
was that it does
not progress the matter any further, as the court relied upon an
assumption without considering the issue.
[46]
The purpose of the hypothec, according to
the respondent, was to provide security to the lessor pending
determination of its claim,
and was not limited in its application to
arrear rental. Basing its claim upon the common law, the
respondent conceded that
there
is no reported decision in support
of its position, and submitted that the body of authority relied upon
by the applicant was not
on point.
[47]
The respondent relied upon Kerr,
[37]
sourced in Grotius and Voet, in so far as:
‘
A number
of text-writers consider that of the various obligations of the
lessee the hypothec secures the payment of rent only; but
this does
not appear to be borne out by the authorities. There is no
mention of any such limitation in the discussion of
the hypothec in
Grotius, Van Leeuwen, Van der Keessel, or Van der Linden, whilst the
Digest
Voet, and Shorer expressly include other matters such as the
obligation to repair if that obligation rests on the lessee in the
circumstances of the case.’
[48]
The respondent referred to the
Digest,
[38]
to the effect that ‘Property brought on to an urban tenancy is
hypothecated not only for the rent, but for any deterioration
of the
premises due to the tenant’s fault, such as gives rise to an
action on the lease’.
[49]
In addition, the respondent drew attention
to Voet’s statement that ‘... things brought in or
carried in shall be fast
bound for the whole obligation of the
hiring’,
[39]
and, Voet’s references
[40]
to ‘depreciation’ and ‘dilapidation’.
[50]
Whilst
Reynolds
v Cornforth
[41]
is not directly on point, the respondent argued that it served to
reaffirm the statements of Voet relied upon by the respondent.
[51]
The respondent’s answer to Cooper was
that the author does not furnish authority for his view that the
lessor’s hypothec
operates only in respect of arrear rental.
[52]
The thrust of the respondent’s
submission was that absent any case law, Kerr’s exposition of
the law, based as it is
upon the common law, prevails.
[53]
The applicant, in reply, pointed to Kerr’s
most recent work,
[42]
in which the author states
[43]
that Innes JA’s statement in
Webster
suggests that the hypothec is limited
to the recovery of arrear rental only.
[54]
Although the author reneges somewhat upon
the view previously expressed,
[44]
(albeit without reference to any new or additional authority), the
distinction is marginal as the author continues (in line with
the
earlier contention), to note that ‘since the case was
specifically about arrear rent, the question whether the hypothec
goes beyond arrear rent was not before the Court’.
[45]
[55]
Accordingly, given that the lessor’s
hypothec for damage to the premises was received from the common law,
and, was not abolished
subsequently by The Administration of Estates
Proc 28 of 1902 (T), (in the Transvaal), together with the fact that
Woodrow
is
not authority for the demise of the hypothec, the issue becomes
whether the lessor’s hypothec for damages has fallen into
disuse, or not.
[56]
Cooper
[46]
posits that
if
obligations other than the payment of rent were ever secured by the
lessor’s hypothec (in provinces other than Natal
[47]
),
the operation of the hypothec in
respect of such obligations, in such provinces, ‘has become
abrogated by disuse.’
Kerr
[48]
refutes Cooper’s view.
[57]
The applicant’s submission that the
lessor’s hypothec for damages should not now be invoked, in the
light of its absence
from our case law for some time, is
satisfactorily answered by
LTA
Engineering Co Ltd v Seacat Investments (Pty) Ltd (‘Seacat’
),
[49]
in that:
‘
The
mere fact that our Courts have overlooked and were unaware of a rule
of our common law … does not serve to excise that
rule from
our law
[50]
… nor could it be said that the rule now under consideration
is
contra rationem juris.
…
... it is difficult to
hold that D.3..3.34, ... was not received in South Africa, or that it
is now undesirable to apply it.
On the contrary, the eminent
equity of the rule demands its continued recognition unless there is
some obstacle as
stare decisis
or abrogation by disuse.
Stare decisis
, clearly, does not operate … This is
eminently a case where “
we should be doing wrong were
we now, though satisfied that a mistake has clearly been made, to
perpetuate that mistake and thus
cause an injustice, not only to the
present (appellant), but also, no doubt, to many litigants in the
future” …
... The question
whether D.3.3.34 has been abrogated by disuse … may be dealt
with very briefly. The basis of the doctrine
of abrogation
rests upon a supposed tacit repeal “through disuse by silent
consent of the whole community” (
per
Innes, JA, in
Green
v Fitzgerald …
). In my view, there can be no
question of such silent consent in the circumstances of the present
case where the community
was for a comparatively short period of time
not aware of a rule which has existed for centuries, and the Courts
have expressed
the desirability of such a rule being enacted. ...’
[58]
The statements of the SCA apply, in my
view, equally to the matter at hand.
[59]
It is apparent from the cases already
referred to, that
stare decisis
is not an obstacle to the application of the lessor’s hypothec
in respect of damages.
[60]
Kerr
[51]
accepts that instances of the invocation of the hypothec in order to
secure obligations other than the payment of arrear rent,
have been
few. However, ‘disuse’ of the hypothec over the years can
be ascribed to various factors.
[61]
The disuse cannot be pursuant to the
‘silent consent of the whole community,’ in the face of
the erroneous decision,
(regarding the lessor’s hypothec for
damages), in
Woodrow
,
which was accepted by the authors,
[52]
published, and, proliferated in the standard reference books.
[62]
In considering ‘disuse’ of the
hypothec, cases involving insolvency must be excluded from
consideration, resulting in
few instances in which the issue may
arise.
[53]
Further,
Waverley Trust
[54]
has been overlooked,
[63]
In so far as reliance upon
Woodrow
rested upon a misapprehension, it should not now be mistaken for
‘disuse by silent consent of the whole community’.
Past
reliance in error, does not provide a platform for ‘disuse (of
the hypothec) by silent consent’.
[64]
I refer in addition, in this regard, to
Business Aviation Corporation (Pty) Ltd
& Another v Rand Airport Holdings (Pty) Ltd,
[55]
to the effect that:
‘…
the mere fact that decisions based on a wrong
interpretation of the law were given many years ago, would not be
sufficient reason
for refusing to correct the error, because, so
Innes J said (at 93): “If it were otherwise, the result
would be an
unfortunate one. For when does a decision become so
venerable that its original error is to be regarded as modifying the
law?”…’
[65]
Accordingly, the error should not now be
perpetuated to the disadvantage of
[66]
Neither party referred to the provisions of
section 2 of the
Security by Means of
Movable Property Act.
[56]
Hence, I need not consider the applicability thereof.
[67]
In the final analysis, for the reasons
expanded upon herein, the lessor’s hypothec for damages was not
abolished under The
Administration of Estates Proc 28 of 1902 (T),
has not been abrogated by disuse and applies in this matter.
[68]
My conclusion regarding the applicability
of the lessor’s hypothec for damages herein, is not dispositive
of the matter. The
quantification by the respondent of its damages
claim, remains to be considered.
[69]
The respondent sought only interim relief.
Hence, a case established
prima facie
although open to some doubt, is
sufficient. In so far as the applicant relied upon the test
applicable to disputes of fact in motion
proceedings,
[57]
that test does not apply in matters of interim relief.
[58]
[70]
The applicant denied failing to repair and
restore the premises and alleged that the premises were in the same
condition upon termination
of the lease, as they were in upon its
commencement, fair wear and tear excepted.
[71]
Insofar as the premises were not in the
required condition upon termination of the lease, the applicant
alleged that the respondent
denied it access to the premises,
effectively preventing the applicant from restoring the premises as
it was obliged to do.
[72]
The respondent declined to reply in the
counter-application, (this because the respondent was met with a bare
denial coupled with
a contradiction from the applicant in its
answering affidavit, and the applicant did not raise any dispute).
[73]
The applicant adequately refuted for the
purposes of this application, the respondent’s damages claim in
respect of the security
cameras, the kitchen and solar geysers and
the guarding service, leaving damages and costs incurred in restoring
the premises to
its original condition, of approximately R100
256.62.
[59]
[74]
Other than the applicant’s denial and
contradiction afore, the applicant was silent in respect of the items
of damage comprising
the amount of some R100 256.62. The applicant’s
denial thereof was undermined by the inherent contradiction, in
effect rendering
the applicant’s version untenable.
[75]
Accordingly, the respondent met the
requirement of
prima facie
although open to some doubt, as regards the existence of damages to
the premises.
[76]
Both parties agreed that the costs of this
application should follow the merits. The respondent sought to
rely upon the provision
of the lease for costs on the scale as
between attorney and own client.
[77]
The fact of an agreement between parties in
respect of costs does not serve to oust the Court’s
discretion
[60]
in that regard. Essentially, the question of costs is a matter
of fairness to both sides. The issue at hand was novel
and
absent the contractual provision, the circumstances of this case
would not ordinarily require consideration of costs other
than on the
party and party scale. Nothing in the content or conduct of this
matter would otherwise have given cause for attorney
and own client
costs. In the circumstances, I intend to order party and party
costs.
[78]
I grant the following order:
1.
The application is dismissed with costs.
2.
The respondent’s hypothec in respect of the movables
particularised on annexure Z to the applicant’s founding
affidavit,
which movables are situated at stand 1234, corner Max and
Tang Streets, Germiston Ext 13, Germiston, is hereby confirmed.
3.
The order granted in terms of paragraph 2 immediately above, shall
operate as an interim order interdicting the applicant from
removing
or causing the removal of the movables referred to on annexure Z
pending finalisation of the action in the Gauteng Division,
Pretoria, under case number 19589/2015, and the execution of such
order.
4.
The applicant is ordered to pay the costs of the counter-application.
A
A CRUTCHFIELD
ACTING JUDGE OF THE HIGH COURT OF SOUTH
AFRICA
GAUTENG LOCAL DIVISION,
JOHANNESBURG
COUNSEL FOR
APPLICANT
Adv L Hollander
INSTRUCTED
BY
Phillip Silver Swartz INC
COUNSEL FOR
RESPONDENT
Adv H P West
INSTRUCTED
BY
Brazington & McConnell
DATE OF
HEARING
27 January 2016
DATE OF
JUDGMENT
20 April 2016
[1]
Dreyer
NNO v AXZS Industries (Pty) Ltd
2006 (5) SA 548
(SCA) [4]; Van der
Merwe v Taylor NO
2008 (1) SA 1
(CC)
[22].
[2]
Webster
v Ellison (‘Webster’)
1911
AD 73
at 79 and 89.
[3]
Lieberman
v Guardian Assurance and Trust Co of Port Elizabeth
1909 TS 1050
at 1052;
Webster
at 87.
[4]
2003
(2) SA 495
(T) at 500 G-H.
[5]
1911
AD 73.
[6]
Id
at p 85 – 86.
[7]
W E Cooper
Landlord and Tenant
p 179 – 180
n
184.
[8]
A
J Kerr
The Law of Sale and Lease
3 ed p 390 n 383.
[9]
Cooper
Landlord
and Tenant
p 179 – 180; F du Bois
Wille’s
Principles of South African Law
9 ed p 655 – 659;
Kerr
The Law of Sale and Lease
p 391; 17(2)
Lawsa
2
ed para 438;
R
W Lee
An Introduction to Roman-Dutch
Law
5 ed p 189;
Van der Merwe
Sakereg
2 ed p 698 – 699.
[10]
Waverley Trust and
Trading Co v Depaux
1902 TH 73.
[11]
Du Bois
Wille’s
Principles of South African Law
p 655 n 222 and 223.
[12]
Cooper
Landlord and Tenant
p180,
selected footnotes omitted.
[13]
D
20.2.2.
[14]
20.2.2; 46.1.12.
[15]
Note
248.
[16]
Woodrow
& Co v Rothman
(1884) 4 EDC 9
....
[17]
…
De
Wet & Van Wyk 365 say that the lessor’s tacit hypothec
does not serve as
security for the due fulfilment of the terms of a lease in general.
…
[18]
Bodenstein 87; Kerr
Sale
and Lease
249. (I was not able to locate the text of
Bodenstein.)
[19]
Law
13 of 1887 (N) sec 5 – ‘Any tacit hypothec not herein
before specially provided for is hereby abolished.’
The Natal Act recognised the lessor’s hypothec for rent only.
[20]
Wille
Landlord & Tenant
p
195. A statement by Innes JA in Webster v Ellison (n175) 86
is wide enough to support the argument that our courts
recognise a
lessor’s hypothec for
rent only, but it must be borne in mind that
when making the
statement the learned judge may not have had the question under
discussion in mind. See too
Waverley
Trust & Trading
Co v Depaux
1902 TH 73
where it
appears to have been accepted that a lessor
has a hypothec for rent only. For the principle
to be applied
in determining whether a rule of law has become
abrogated through disuse see
Green v
Fitzgerald
1914 AD
88.
[21]
(1884) 4 EDC 9.
[22]
1902
TH 73.
The case was decided upon a clause in the lease.
[23]
H J Erasmus C G, Van Der
Merwe and A H Van Wyk
Lee and Honoré: Family, Things
and Succession
2 ed para 485;
Van der Merwe
Sakereg
p
699; Du Bois
Wille’s
Principles of South African Law
p 656 n 235; Cooper
Landlord
and Tenant
p 180 n 179.
[24]
Cooper
Landlord and
Tenant
p 180 n 179.
[25]
Act 5 of 1861 operated
in the Cape Province and was repealed in its entirety by the
Pre-
Union Statute 36 of 1976.
[26]
Section 72 was repealed
by the Pre-union Statute 36 of 1976.
[27]
Cooper
Landlord and
Tenant
p180.
[28]
G
Wille
Landlord & Tenant in South Africa
5
ed p 195.
[29]
20.2.2.
[30]
20.2.2.
[31]
46.1.12.
[32]
17(2)
Lawsa 2
ed para 438, footnotes
omitted.
[33]
Cooper
Landlord and
Tenant
p 160.
[34]
Sakereg
p 699 n
746.
[35]
(1616/2007)
[2007] ZAECHC 101
(22 November 2007).
[36]
Id para 15.
[37]
Kerr
The Law of Sale
and Lease
p 390 – 391, footnotes omitted.
[38]
Kerr
The Law of Sale
and Lease
p 391 n 390.
[39]
Id n 391.
[40]
Id n 393.
[41]
1914 NPD 209
at 305.
[42]
G
Glover
Kerr’s Law of Sale and
Lease
4
ed p 452.
[43]
Id at
p 453.
[44]
A J
Kerr
The Law of Sale and Lease
3 ed p 389 – 390
n 383.
[45]
Id.
[46]
Cooper
Landlord and
Tenant
p 180.
[47]
Law 13 of 1887 (N) (
now
repealed by the Pre-Union Statute Law Revision Act 36 of
1976) limited the
hypothec in Natal to securing the obligation to
pay rent.
[48]
A J
Kerr
The Law of Sale and Lease
3 ed p 390 - 391 n 385.
[49]
1974
(1) SA 747
(A) at 770 – 771.
[50]
Id at
770H.
[51]
See n
48 above.
[52]
See n 9 above.
[53]
See n 51 above.
[54]
1902
TH 73.
[55]
2006
(6) SA 605
(SCA) at [38] – [42].
[56]
Act
57
of 1993.
[57]
The so called
‘Plascon-Evans’ test.
[58]
National
Director of Public Prosecutions v Zuma
[2009] ZASCA 1
;
2009 (2) SA 277
(SCA) at
[26]
.
[59]
Comprised
of R18 500 to restore the offices to their original condition;
R48 500 to
restore the factory to its original condition; R13 893.80 for
the replacement of the alarm system; R9 362.82
for a new security system and R10 000 to obtain an electrical
compliance certificate.
[60]
Intercontinental
Exports (Pty) Ltd v Fowles
1999 (2) SA
1045
(SCA).