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[2010] ZAGPPHC 302
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Cumberland Hotel (Pty) Limited v MAA Enterprises (Pty) Ltd (MAHLB-000437-10) [2010] ZAGPPHC 302 (6 December 2010)
IN THE HIGH
COURT OF BOTSWANA HELD AT LOBATSE
MAHLB-000437-10
Cumberland
Hotel (Pty)
Limited
.............................................................................................
Applicant
And
MAA
Enterprises (Pty)
Ltd
..................................................................................................
Respondent
Mr.
Osei-Ofei (with Ms O. Kealotswe) for the applicant
Ms
TB Mooketsi for the respondent
J
U D G M E N T
DINGAKE J:
1.
This is an opposed application for the eviction of the respondent
from the rented premises, namely Shop No. 2, Plot 474/5/6 Khama
1
Avenue, Lobatse.
2.
I heard the matter on the 30th November, 2010, and at the end of the
submissions, I granted the applicant the orders sought and
promised
to give my full reasons in due course.
3.
These are my reasons.
4.
By way of background, it bears stating that by notice of motion dated
2
nd
August, 2010, the applicant approached this court for
the following relief:
(i)
Cancellation of the Lease Agreement entered into between the
applicant and the respondent sometime during June 2006 is hereby
confirmed;
(ii)
Ordering the respondent to vacate the premises, namely (
Shop 2
Cumberland Complex
),
Plot 474/5/6, Khama 1 Avenue, Lobatse
within three (03) days of the making of an order to that effect;
(iii) Ordering and
directing the Deputy Sheriff in the event of the respondent failing
to vacate the premises within Three (03)
days of the making of this
order, to evict the respondent from the premises; (iv) Ordering the
respondent to pay the costs of this
application on an attorney and
own client scale.
(v) Such further
and/or alternative relief as this Honourable Court may deem fit.”
5.
The application is supported by the founding affidavit of Darren
Clark, who avers that he is the general manager of the applicant.
6.
The application is opposed and the respondent has filed an answering
affidavit deposed to by Bachchw Miah in his capacity as
the managing
director of the respondent.
7.
The applicant filed a replying affidavit to the respondent's
answering affidavit on or about the 1
st
of September,
2010.
8.
In this application, there are sufficient common cause facts to
dispose of the application in its entirety.
9.
It is common cause that:
1.
Sometime in June 2006 the applicant and the respondent executed a
sublease agreement (hereinafter referred to as “the agreement”)
in which they became sub-lessor and sub-lessee respectively as more
clearly indicated in annexure “A” of the founding
affidavit of Darren Clark, the General Manager of the Applicant
company.
2. In terms of
Clause 2 of the agreement the duration of the initial sub-lease was
from 1
st
May 2006 to 29
th
April 2010.
3.
The rental payable was BWP 3,000.00 (Three Thousand Pula) per month
with an annual escalation of 5% in respect of the first year
and 10%
per annum in respect of subsequent years.
4.
Pursuant to the afore-mentioned agreement, the applicant gave the
respondent vacant possession of the premises, which respondent
occupied to date.
5. On the 26
th
January 2010 the applicant wrote a letter to the respondent
indicating that the agreement would not be renewed on its expiry
date,
and that it will terminate on the 30
th
April, 2010.
6.
On the 9
th
February 2010 the respondent wrote a letter to
the applicant indicating that it was not aware that it was required
to give six
(6) months notice if it intended to renew the
lease.
7.
On the 5
th
May 2010 the applicant responded by reminding
the respondent that the agreement expired on the 30
th
April, 2010, and that the respondent should “
stop trading
immediately and begin to vacate the premises
……”
8.
On the 14
th
June 2010 the applicant wrote yet another
letter to the respondent giving the respondent 7 days notice to
vacate the premises.
9.
The respondent declined to vacate the rented premises because, in its
view, there were still some outstanding issues to be resolved
by the
parties.
10.
On the basis of the aforesaid common cause facts, the question that
falls for determination is whether the applicant is entitled
to the
order it seeks on the basis that the lease agreement was terminated
by the effluxion of time?
11.
The parties’ position on the question whether the lease was
capable of being renewed and/or whether the respondent is
entitled to
be compensated for improvements to the rented premises are
diametrically opposed.
12.
The applicant contends that on the basis of the sublease, Annexure
"A" to the applicant's founding papers, the lease
was for a
fixed period of time. It run from the 1
st
of May,
2006, to the 29th of April, 2010.
13.
The applicant contends further that the lease did not make any
provision for renewal.
14.
On the question of compensation for improvements the applicant
contends that if the respondent had any claim against it, it
should
have counter sued, which it did not. It also contends that the
motion proceedings are inappropriate for a claim in
damages.
15.
The respondent, on the other hand, concedes that the lease did not
expressly provide for renewal but contend that it was an
implied term
of the lease that renewal of the lease was permissible.
16.
According to counsel for the respondent, the reason for saying that
there was an implied term to renew the lease is that the
respondent
sometime in February 2010 wrote a letter to the applicant, as a
follow up to earlier meetings between the parties, indicating
that it
was not aware of the requirement that if the respondent wished to
renew the lease it must give six months notice to that
effect.
17.
According to the respondent, Annexure "C" to the
applicant's founding affidavit, being a letter dated 9th February,
2010, written by the respondent to the applicant "showed clearly
that the applicant had all along haboured the intention to
renew the
lease".
18.
On the question of compensation, the respondent relies on Annexure
"MAA6" to the respondent's answering affidavit
which is a
letter to the applicant listing the improvements to the rented
premises and the corresponding prices.
19.
It seems to me that the resolution of this matter is not complicated
at all.
20.
An examination of the sublease, Annexure"A" to the
applicant's founding affidavit clearly shows that the lease was
for a
fixed period of time.
Nowhere
does the lease provide for the option to renew.
21.
Clause 2 of the sublease provides that:
“
DURATION
OF LEASE:
Notwithstanding
the date of signing hereof the lease shall be for a period of 4
(four) years, commencing on 1
st
May 2006 and terminating
on 29
th
April 2010.”
21.
The rationale and boundaries of implying a term in a contract was
stated by Van Winsen JA in
South African Mutual Aid Society v Cape
Town Chamber of Commerce
1962 (1) SA 598
at page 615:
“
A
term in sought to be implied in an agreement for the very reason that
the parties failed to agree expressly thereon. Where
the
parties have expressly agreed upon a term and given expression to
that agreement in the written contract in unambiguous terms
no
reference can be had to surrounding circumstances in order to subvert
the meaning to be derived from a consideration of the
language of the
agreement only. See Delmas Milling Co. Ltd. v. du Plessis
1955
(3) S.A. 447
(A.D.)”
22.
In my respectful view, Clause 2 referred to above is clear.
There are no ambiguities in it. There is nothing in
the
language of the said clause to justify any contention that it was an
implied term that the lease could be renewed.
23.
In my mind, to read any implied term in clause 2 quoted above would
be to do unjustifiable violence to the clear language of
the
parties. The parties expressly left no room to suggest that
renewal was permissible. It would be unreasonable and
totally
unjustifiable to imply renewal in contradiction to the express term
of the agreement.
24.
The law on implied terms was stated with breathtaking clarity
in the cases of
Pan American World Airway Inc v SA Fire and
Accident Insurance 1965 (3) 150 and TGB Drill Contractors (Botswana)
(Pty) Limited v
NDB
[1987] BLR 116
.
25.
In the case of
Pan American World Airway Inc
cited supra, at
page 175 C, the court stated the position of the law as follows:
“
When
dealing with the problem of an implied term, the first inquiry is of
course whether regard being had to the express term of
the agreement
there is any room for importing the alleged implied term”.
26.
In the case of
TGB Drill Contractors (Botswana) (Pty) Ltd. v.
National Development Bank
the court stated that:
“
In
order to decide whether a term is to be implied in a written
contract, the express terms of the contract must first be examined.
The express terms may deliberately exclude the possibility of
implying terms of a particular type. Nor can a term be implied
on any question to which the parties have applied their minds and for
which they have made express provision in the contract, so
that it is
quite evident that no term can be implied in contradiction of an
express term of the contract.”
27.
It is also trite law that in a written contract the intention of the
parties is to be gathered from the contract itself, not
outside,
unless there is ambiguity in the language employed by the contract.
28.
If any authority is needed for the above settled position, I need
only refer to the often quoted case of the
Bytes Technology Group
v Game Management Services
[2003] 2 BLR 148
A-B
where the
court stated that:
“
The
common fundamental principle to be distilled from these authorities
which have been hallowed by longstanding judicial tradition,
is that
once a contract has been reduced to writing and the language used is
free from ambiguity, the common intention of the parties
must be
gathered from the language used. Extraneous circumstances
surrounding and preceding the making of the contract cannot
be used
to aid the exercise of interpreting the contract. The court
must do its best to deduce the common intention of the
parties from
the language used by the parties.”
29.
Having regard to the authorities stated above, it would be wrong to
use the correspondence of the parties of January/February,
2010 to
interpret the contract entered into in 2006, whose terms are crystal
clear.
30.
The principle that a written contract that is not ambiguous cannot be
interpreted by recourse to other extraneous evidence or
documents was
stated by Watermeyer JA in the case of
Union Government
v
Vianini ferro-Concrete Pipes (Pty) Ltd
1941 AD 43
at p47,
when he stated that:
“
Now
this court has accepted the rule that when a contract has been
reduced to writing, the writing is, in general, regarded as the
exclusive memorial of the transaction and in a suit between the
parties no evidence to prove its terms may be given save the document
or secondary evidence of its contents, nor may be contents of such
document be contradicted, altered, added to or varied by parole
evidence.”
31.
On the issue of compensation, the respondent stands on a much weaker
footing. Firstly, the respondent has not made any
counterclaim
and can therefore not be entitled to the relief sought.
Secondly, even if it had, motion proceedings would have
been
inappropriate to claim damages, as each head/item claimed had to be
proved by credible and cogent evidence.
32.
On one or all of the above grounds alone, I would dismiss the claim
for compensation.
33.
On the issue of costs, the parties provided in the sublease agreement
that in the event of the sublessor taking action in terms
of Clause
18.1.5, the sublesee shall be obliged to pay the costs of such action
including legal costs at attorney and own client
scale.
34.
In the result:
1.
Cancellation of the Lease Agreement entered into between the
applicant and the respondent sometime during June 2006 is hereby
confirmed;
2.
The respondent shall vacate the premises, namely (
Shop 2
Cumberland Complex
),
Plot 474/5/6, Khama 1 Avenue, Lobatse
within seven (7) days of the making of this order;
3.
In the event of the respondent failing to comply with this order by
vacating the premises within the period stipulated in paragraph
2
above, the Deputy Sheriff is in that event hereby authorized to evict
the respondent from the premises forthwith;
4.
The respondent shall pay the costs of this application on an attorney
and own client scale.
DELIVERED
IN OPEN COURT THIS 6
th
DAY OF DECEMBER,
2010.
---------------------
OBK
DINGAKE
JUDGE
SEGOPOLO
& COMPANY – PLAINTIFF’S ATTORNEYS