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[2016] ZAGPJHC 164
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Beyers v Chapelle and Others (16454/2015) [2016] ZAGPJHC 164 (17 June 2016)
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION,
JOHANNESBURG
CASE NO:
16454/2015
DATE: 17 JUNE 2016
In the matter between:
ANDRE
BEYERS
...............................................................................................................
APPLICANT
And
ETIENNE
CHAPELLE
.....................................................................................
FIRST
RESPONDENT
KARIN LEFEVRE
CHAPELLE
................................................................
SECOND
RESPONDENT
THE CITY OF JOHANNESBURG
METROPOLITAN
MUNICIPALITY
............................................................
THIRD
RESPONDENT
Judgment
Van
der Linde, J:
[1] This is an application by a homeowner for the
eviction of his two tenants on the basis that their lease has
expired. They resist
their eviction on the basis that they extended
their lease for 18 months in terms of a contractual right to do so.
The right concerned
avails only if at the time it is exercised the
tenants were not in breach of the lease.
[1]
[2] At the relevant moment, 9 December 2014, they
owed the applicant R86 635.27
[2]
in rental and utilities that was overdue, and were thus in breach,
[3]
were it not for the following. They say that they paid those arrears
by set-off, and whether their contention was sound was the
central
issue in the application.
[3] As it happened the parties settled the merits of
the application shortly before it was argued. The terms of the
settlement included
that the tenants will vacate the house by 30
September 2016. They were not able to settle the question of costs,
and argued it
for determination by this court. The parties helpfully
prepared draft orders catering for the range of eventualities that a
costs
order may entail, and this court is to select the appropriate
one, depending on the conclusion to which it comes on costs.
[4] The principles that apply to the determination
of costs when parties have settled a matter, include that a decision
on costs
is a decision on the merits.
[4]
That derives from the concept that a person who has had to engage
professional legal assistance is entitled to be reimbursed, if
engaging the legal process was justifiable in the circumstances.
Conversely, if resisting the engagement of the legal process against
one was justifiable, then the defendant too is entitled to be
reimbursed.
[5] That comes down to the unavoidability of having
to engage with the merits of the case so as to decide the question of
costs,
with this proviso. Costs should not be incurred just to decide
costs, and so the matter should be disposed of in a relatively brief
fashion.
[5]
[6] Returning then to the merits:
[6]
payment is a matter in respect of which the onus rests on the debtor.
Here, the tenants say that the applicant owed them R73 463.15
[7]
in contractual damages and that this amount has extinguished the
overdue debt, together with an amount of R13 000 also owed
to
them by the applicant, this time in respect of electricity. Since
this contractual damages claim is the largest of the two,
I start
with it. The claim arises in this way.
[7] The applicant is contractually “…
responsible for the maintenance of and for all repairs …
becoming necessary from time to time …”
to the
exterior of the house, including its systems.
[8]
One such system is the plumbing and water piping that leads water
from the municipal supply to the house. Back in July 2012 the
tenants
experienced a sharp increase in their water billing.
[9]
They complained with the applicant (through his agent) about it,
saying that there must be an error in the billing.
[10]
[8] These complaints went on for some time until the
tenants employed a professional to check whether there was a leak
somewhere.
A leak was promptly detected and repaired, and the problem
solved.
[11]
The tenants say that the applicant is liable to them for the amounts
that they had paid for the unnecessary consumption of water
caused by
the leak. They estimate that their normal consumption over this
period would have been about a third of what it actually
was, and
their arithmetic therefor translates into the amount claimed and
consequently set off against the debt.
[12]
[9] Two issues were raised by the applicant in
response to this contention. The first is that there was no lawful
claim against
the applicant for the amount, and the second is that in
any event, even if there were a claim, the amount is not liquidated
and
so not capable of being set off.
[10] Concerning the first, the applicant’s
proposition is that contractual “
responsibility”
for keeping the water pipes in good order and repair does not imply
breach of that obligation until the tenants will have identified
and
will have demanded repair of the leak and the applicant will have
refused to do so. Since the tenants and not the applicant
occupy the
house, it was up to them to have identified the problem, and to have
conveyed it to the applicant. When indeed this
was done, the problem
was sorted. But, according to the applicant, he is not liable for the
costs incurred in the lead-up to that
moment.
[11] The tenants’ response to this proposition
is that their complaint is that the applicant did nothing in response
to their
repeated complaints about the large water bills. They say
that he should at least have done something to get going and to
investigate
what the cause was of the problem.
[12] This is the kernel of the dispute. Was it up to
the applicant to have done so, or was it up to the tenants to have
done so?
In my view it was up to the tenants to have done so, for the
following reasons.
[13] The word “
responsible”
has a
wide range of meanings.
[13]
It could conceivable mean – in a wide sense - that the
applicant needs to have in place a schedule of repair and replacement
whether or not problems arise; or it could mean – in a narrow
sense - that the applicant need only respond as and when problems
arise. Whether it bears the wide or the narrow meaning depends, in my
view, on the context.
[14] Take the painting of the house, as an example.
The applicant would have to paint the exterior of the house, from
time to time,
and need not be reminded of it by the tenants. This is
because it would be obvious to any reasonable person driving past
that a
coat of paint was needed.
[15] But take the water leak. The reasonable
driver-by would not know that there was a water leak requiring
repair. And before a
water leak is actually established, one will not
know whether there is a leak, for which the applicant is
contractually “
responsible.”
It may, after all,
have been a billing error; and there is no contractual provision that
renders the applicant “
responsible”
for billing
errors. To the contrary, under clause 15.4.2 the applicant is
probably not contractually liable for billing errors.
[16] Where does that leave one? The tenants live on
the site. They know their water consumption. They know whether there
would have
been some conduct on their part that might have been
beyond the usual. As it happened, it was they that actually
incentivized the
detection of the problem by employing a
professionally leak detector. Although their argument was that the
applicant should have
done this earlier, they are not able to explain
why, in the event, they themselves did not do it earlier.
[17] This impels one to the conclusion that in the
context of clause 15.3 and clause 15.4 the obligation was on the
tenants to have
identified the problem as being one for which the
applicant was “
responsible”
. It follows then that
the applicant’s contractual obligation is not to guarantee that
there will not be a water leak; that
is impossible to perform. His
obligation is to fix, or pay to fix, a water leak if one should
occur, as did here. From this it
follows that he is not in default
until he is placed in default, meaning until he is told about the
leak, and asked to fix it.
[18] On the facts of this case the applicant was
therefore not in breach of his obligation, and the tenants have no
claim against
the applicant for payment of what the tenants assert
are damages suffered by them.
[19] This conclusion makes it unnecessary to
consider whether the damages claim was liquidated, but since it was
argued, I express
my view in that regard. The manner of assessment is
simple, as the tenants argued, that is true. But so is the assessment
of damages
for pain and suffering as a result of a femur fractured in
a motor vehicle crash. Yet that does not make it liquidated. The
plaintiff
is still required to tell a court that s/he has suffered
pain.
[20] In this case, the tenants were still required
to come to court to explain that their consumption remained, largely,
within
their usual pattern. Their evidence was still liable to be
tested. It follows that I would have concluded, had it been
necessary,
that for this reason set-off did not occur.
[21] It is also unnecessary, in view of my
conclusion, to examine the dispute concerning the electricity
billing. It is also undesirable
that I should do so, since another
appropriate forum may be called upon to do so.
[22] The applicant was accordingly entitled to have
engaged the system to secure the eviction of the tenants, and is
entitled to
his costs. The scale of costs was an issue, the tenants
arguing that the Magistrates’ Court, or the Regional Court, had
jurisdiction
to have heard the matter.
[23] Assuming that the tenants are right, the fact
remains that the parties expressly agreed in their written lease
[14]
that they could approach either the Magistrates’ Court or the
High Court, if they had to involve the system. The applicant
chose
the latter, and was thus entitled to have done so.
[24] In the result I make the following order:
The draft order annexed,
initialed, dated and marked “X” is made an order of
court.
WHG van der Linde
Judge, High Court
For the applicant: Adv. A Bester
Instructed by: Marto Lafitte & Ass
11 Smith Street
Bedford View
011- 6166420
Ref: Mr J Pereira/LB332R
For the respondent: Adv. AJ Venter
Instructed by: D & K Attorneys
218 Barkston Drive
Blairgowrie
Randburg
011 – 7894598
Ref: J Van Eeden/JVE13541
Date argued: 15 June 2016
Date of judgement: 17 June 2016
[1]
Clause 6.2.2.
[2]
Page 34.
[3]
Clause 8.2.
[4]
These principles are collected in LAWSA, 2
nd
ed, vol 3 Part 2, paragraph 297, and particularly the cases
collected at footnote 7.
[5]
An added reason why this should be so, is derived
from the principle that courts are reticent to allow appeals on
costs only.
Indeed, under s.17(1)(b) of the Superior Courts Act 10
of 2013, leave to appeal may not be granted if the issue falls under
s.16(2)(a)
of that Act. And the latter section provides: “
(2)
(a) (i) When at the hearing of an appeal the issues are of such a
nature that the decision sought will have no practical effect
or
result, the appeal may be dismissed on this ground alone.
(ii) Save under exceptional
circumstances, the question whether the decision would have no
practical effect or result is to be
determined without reference to
any consideration of costs.”
This
implies that when all issues are settled between the parties, except
costs, the court of appeal will have no power to hear
the appeal,
save for the “exceptional circumstances” under
s.16(2)(a)(b); compare Legal Aid South Africa v Magidiwana
and
Others, 2015 (2) SA 568 (SCA).
[6]
It is unnecessary to consider the applicant’s
submission that the respondents have in effect conceded the eviction
relief
claimed. The tenants’ response, that they will vacate
when the extended lease, on their version, expires, seems a complete
answer.
[7]
Page 79, annexure C to the answering affidavit.
[8]
Clause 15.3.
[9]
Answering affidavit, page 55, paragraph 14.2, and
the annexures there referred to.
[10]
Ibid, and paragraph 14.3.
[11]
Ibid.
[12]
Ibid, and paragraph 14.4.
[13]
Compare Webster’s Unabridged Dictionary,
2
nd
ed, Random House, sv “
responsible.”
[14]
Clause 33.