DTTC Investments CC v Klopper (1631/2012) [2012] ZAECPEHC 97 (13 December 2012)

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[2012] ZAECPEHC 97
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DTTC Investments CC v Klopper (1631/2012) [2012] ZAECPEHC 97 (13 December 2012)

NOT
REPORTABLE
IN THE HIGH COURT OF SOUTH AFRICA
EASTERN CAPE, PORT ELIZABETH
Case No.
1631/2012
Date
Heard: 6 December 2012
Date
Delivered: 13 December 2012
In the
matter between:
DTTC
INVESTMENTS CC
.................................................................................
Applicant
and
HENNIE KLOPPER
.......................................................................................
Respondent
JUDGMENT
EKSTEEN J:
[1] This is an application for the eviction of the respondent from
Owvanhuk Farm (hereinafter referred to as “the farm”)
in
terms of the provisions of the Prevention of Illegal Eviction from
and Unlawful Occupation of Land Act, 19 of 1998 (hereinafter
referred
to as “PIE”). The farm is the registered property of the
applicant which is presently occupied by the respondent.
[2] Two points
in limine
arise. The application was originally
launched on notice pursuant to the provisions of Rule 6 of the
Uniform Rules of Court. The
application was duly served upon the
respondent and the respondent filed answering papers. The applicant
thereafter replied. When
the papers were complete and the matter
ready for argument the applicant caused notice in terms of the
provisions of section 4
of PIE to be served. On 6 November 2012
Tshiki J made an order in the following terms:
‘
1.
That the form and contents of the draft notice in terms of section
4(2) of the Prevention of Illegal Eviction from and Unlawful

Occupation of Land Act, 19 of 1998, which is annexed to the founding
affidavit and marked annexure “A” be hereby authorised.
2. That the Applicant be
directed to serve the notice referred to in paragraph 1 above
together with a copy of this Order on the
Respondents in accordance
with the provisions of Rule 4(1) of the Uniform Rules of Court.
3. That service as aforesaid
shall be effected by the Sheriff, …’
[3] The notice approved by Tshiki J reflected the date for the
hearing of the application as 29 November 2012. After the order
had
been made but before service thereof the Registrar of this court
advised that the application should not be heard on that day
as the
roll was already overcrowded and he amended the date set out in the
proposed notice to 6 December 2012 and duly initialled
it.
[4] The notice, as amended, was duly served and the matter was
enrolled for 6 December 2012. On 29 November 2012, in accordance
with
the rules of this court, the respondent filed heads of argument in
which the two points
in limine
arise.
[5] Firstly, the respondent complained that the notice of set down in
terms of Rule 6(5)(f) of the Uniform Rules of Court advising
of the
hearing on 12 December 2012 had not been served on the respondent.
Secondly, he contended that the alteration of the date
of hearing in
the notice in terms of section 4(2) of PIE after the order approving
the contents and the manner of service had been
made constituted an
irregularity. It is argued that on either of these grounds the matter
should be struck off the roll.
[6] In response to the receipt of the heads of argument the applicant
immediately caused a notice of set down in terms of the provisions
of
Rule 6(5)(f) to be served on the respondent.
[7] In view of the aforegoing Mr
van Rooyen
, on behalf
of the respondent, intimated at the hearing of the matter, correctly
in my view, that he would not persist in the first
point
in
limine.
[8] Mr
Marais
, for the applicant advised from the Bar
that he is instructed that the alteration of the date occurred after
reference to and with
the approval of Tshiki J. This assurance Mr
van
Rooyen
accepted, I think fairly, and accordingly he did not
persist with the second point
in limine
.
Factual background
[9] As recorded earlier the applicant is the owner of the farm. It is
common cause that early in October 2011 the respondent approached
one
Tanja Schroeder, the sole member of the applicant, with a request to
hire the farm. After some consideration Schroeder agreed
and an oral
agreement of lease was entered into between the parties. There is
much dispute on the papers relating to the terms
of the agreement.
Schroeder contends that it was agreed between the parties that the
respondent would hire the farm for an initial
period of six months at
a rental of R4 000 per month and thereafter on a periodic lease
from month to month at a similar rental.
In addition she contends
that the respondent undertook to assume responsibility for the
payment of the municipal water and electricity
bill.
[10] The respondent contends for a far more elaborate agreement. He
is in agreement with the respondent in respect of the monthly
rental,
and subject to what is set out below, his undertaking to assume
responsibility for the payment of the water and electricity
bill. He
contends however that the lease concluded was for a period of five
years with an option to renew and an option to purchase
the farm at
an amount of R4 million. In addition he contends that the parties
agreed that he would undertake a proper “re-establishing
of the
farm” at his own cost, including the cutting of black wattle
trees to make way for natural grazing. Finally, he contends
that the
parties agreed that whereas the applicant intended to sell the farm
the respondent would be entitled to six months notice
upon the
conclusion of such sale.
[11] It is common cause that the respondent took occupation of the
farm on 5 October 2011. The occupation was free and undisturbed.
The
respondent states in his answering affidavit that shortly after he
took occupation of the property he took one Willie Steffens
(herein
referred to as “Willie”), his wife and his two children
in as Willie was unemployed and his family destitute.
The
arrangement, the respondent contends, was that Willie and his family
could occupy a section of the farmhouse and that Willie
could earn
money by delivering calves to prospective buyers on behalf of the
respondent. It is indeed common cause that the said
Steffens did take
occupation of portion of the farmhouse.
[12] Shortly thereafter Willie’s father also showed a keen
interest in the farming operation which the respondent was now

conducting of the farm. The respondent states that he then allowed
Willie’s father to work with him in the enterprise. Matters

between them soured shortly thereafter and the relations between the
applicant and the respondent appears to have followed the
same
course.
[13] The respondent contends that after matters soured between him
and the Steffens family he personally advised both Willie and
his
father to leave the farm. He states that he even caused an attorney’s
letter to be addressed to them on 15 December 2011.
The letter,
written by Attorneys Landman Steyn and Ellis records:
“
Ons
kliënt se instruksies is dat daar ‘n mondelinge ooreenkoms
tussen u en hom bestaan in terme waarvan u die woning
te Owvanukplaas
op ‘n maand tot maand basis mag bewoon.
Meneer Klopper se posisie het
egter verander en benodig hy die woning vir sy privaat doeleindes.
Dit is ons instruksies om die
ooreenkoms te kanselleer en gee ons u hiermee kennis om die woning
voor of op 15 Januarie 2012 te
ontruim.”
[14] The respondent contends on this basis that he holds no
responsibility for the occupation of the farmhouse by Willie and his

family. He states that he asked them to leave the farm by 15 January
and they thereafter told him that they remain in occupation
by virtue
of the consent of Schroeder, an averment which remains entirely
unsubstantiated.
[15] On 19 December 2011 one Jim Boyens, an attorney in Jeffreys Bay
directed a letter on behalf of the applicant to the respondent

purporting to cancel the agreement of lease and demanding that the
respondent vacate the property by no later than 30 January 2012.
[16] I pause to mention that in her founding papers Schroeder records
that although she authorised the letter the content of the

instruction did not emanate directly from her and that one Steffens
(it is unclear whether it was Willie or his father) gave the

instructions to Attorney Boyens. The applicant disavows any reliance
on this letter of cancellation for purposes of this application.
[17] The letter did, nevertheless, elicit a response from Attorneys
Landman Steyn and Ellis. The response acknowledges that the

respondent occupies the farm pursuant to an oral agreement in terms
of which rental is paid at an amount of R4 000 per month.
It
then proceeds to record:
“
Ons
kliënt se verdere instruksies is egter dat hy inderdaad wil
voortgaan met die huurooreenkoms tussen homself en die verhuurder,

waarvan die terme en voorwaardes in ‘n skirftelike ooreenkoms
vervat en deur u opgestel word. Ons kliënt is selfs bereid
om ‘n
verhoogde huurbedrag te betaal, mits gemelde bedrag redelik en billik
is. U is welkom om die skrywer te kontak ten
einde ‘n afspraak
te bewerkstellig om die terme en voorwaardes van sodanige ooreenkoms
te bespreek.”
[18] This letter is, of course, irreconcilable with the version
currently advanced by the respondent that a firm agreement was

already in place for a period of five years together with an option
to renew.
[19] The next development occurred on 7 March 2012 when Attorneys SC
Heystek, on behalf of the applicant addressed a further letter
to the
respondent. He referred to the letter addressed to the respondent by
Attorneys Boyens recording that any agreement between
the parties is
cancelled. The letter proceeds to record that there was at this stage
an outstanding electricity bill in the amount
of R15 999,20
which Attorney Heystek contended that the respondent was liable for.
In these circumstances Attorney Heystek
records that he had advised
the applicant to request the municipal authorities to terminate the
electricity supply to the farm
and reiterated that the respondent had
no right of occupation. He requested an urgent indication as to when
respondent would be
vacating the property. On 9 March 2012 Attorneys
Landman Steyn and Ellis again responded on behalf of the respondent
now contending
that a five year contract of lease was in place. They
record their instruction that the respondent denies that the
applicant had
had the right to cancel the contract unilaterally. In
respect of the electricity bill they record that the respondent only
became
aware of the arrears when Attorney Boyens wrote to him in this
regard on 27 January 2012 and that he was already in negotiation
with
the municipality in respect of the bill, questioning, indirectly, the
accuracy of the bill.
[20] This was followed by a further letter from Attorney Heystek on
30 March 2012 advising that he had instructions to bring an

application for the eviction of the respondent. The respondent denied
that applicant had the right to an eviction order and the
battle
lines were drawn.
[21] In respect of the electricity bill it is not in dispute that the
municipal account reflected a credit in December 2011 before

reflecting a considerable deficit in January 2012. The respondent
contends that the applicant had never made any demand upon him
for
payment of an electricity bill prior to January 2012 and that he
embarked upon enquiries immediately upon learning of this
debt. He
has annexed copies of the farm’s municipal accounts for August,
September, October and November 2011 from which
it appears that there
was no electricity reading taken for the farm for some period prior
to January 2012. He records that a municipal
official, one Maneli,
confirmed to him that there had not been any payment on the account
for some period of time and neither had
there been proper readings
taken.
[22] The import of these averments are that a substantial portion of
the account may have been incurred prior to him taking occupation
of
the farm. In these circumstances the respondent contends that he has,
on the estimation of Mr Maneli that R1 500 per month
represented
a reasonable estimate of the monthly usage, paid such an amount as he
believed that he has been utilising each month
as from April 2012. He
has made no payment in respect of the preceding six months and made
no tender in this regard.
[23] Against this background the respondent contends that,
acknowledging his obligations in term of his lease with the
applicant,
he is entitled to a remission on rental and a remission on
the electricity and water incurred by virtue thereof that he has had

restricted beneficial occupation and no accurate indication of his
electricity usage. He has unilaterally withheld portion of the
rent
and paid only what he considers reasonable for his consumption of
water and electricity as from April. He acknowledges that
for the
period from October 2011 to June 2012 he has paid only R27 000
in respect of rental and that he has paid R7 000
in respect of
electricity and water in respect of the period April to June 2012
only.
Disputes of fact
[24] I have recorded above that there is a substantial dispute of
fact relating to the terms of the contract. In addition, and
perhaps
more material to the present application, there is a dispute as to
who is responsible for the continued presence of Willie
on the farm.
This is significant because, if Willie’s presence on the farm
is at the instance of the applicant and it detracts
from the
respondent’s right to use the property, then the respondent
would indeed be entitled to withhold part of the rental
and
electricity payment and he could then raise the
exceptio non
adimpleti
contractus
to resist the present application.
[25] In
Plascon-Evans Paints v Van Riebeeck Paints
[1984] ZASCA 51
;
1984
(3) SA 623
(A) Corbett JA considered the approach to be adopted to
disputes of fact in motion proceedings. At p. 634H-635B he stated:
“
It is
correct that, where in proceedings on notice of motion disputes of
fact have arisen on the affidavits, a final order, whether
it be an
interdict or some other form of relief, may be granted if those facts
averred in the applicant’s affidavits, a final
order, whether
it be an interdict or some other form of relief, may be granted if
those facts averred in the applicant’s
affidavits which have
been admitted by the respondent, together with the facts alleged by
the respondent, justify such an order.
The power of the Court to give
such final relief on the papers before it is, however, not confined
to such a situation. In certain
instances the denial by respondent of
a fact alleged by the applicant may not be such as to raise a real,
genuine or
bona
fide
dispute of fact (see in this regard
Room
Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty)
Ltd
1949
(3) SA 1155
(T) at 1163-5;
Da
Mata v Otto NO
1972 (3) SA 858
(A) at 882D-H). If in such a case the respondent has
not availed himself of his right to apply for the deponents concerned
to be
called for cross-examination under Rule 6(5)(g) of the Uniform
Rules of Court (cf
Petersen
v Cuthbert & Co Ltd
1945 AD 420
at 428;
Room
Hire
case
supra
at 1164) and the Court is satisfied as to the inherent credibility of
the applicant’s factual averment, it may proceed on
the basis
of the correctness thereof and include this fact among those upon
which it determines whether the applicant is entitle
dot the final
relief which he seeks (see eg
Rikhoto
v East Rand Administration Board and Another
1983 (4) SA 278
(W) at 283E-H).”
[26] I do not think that the dispute of fact relating to the duration
of the contract is material to the resolution of the matter.
On
either version the applicant would be entitled to cancel the contract
where a material breach of contract has occurred.
[27] The parties are, as recorded earlier, in broad agreement that it
was a term of the agreement that the respondent would accept

responsibility for the payment of the electricity bill. The
respondent contends, however, that prior to receiving notice from the

applicant’s attorneys in respect of the status of the account
he had no idea what he owed towards his monthly consumption
as the
applicant had failed to make any demand upon him. The respondent
contends that to the best of his knowledge that information
was privy
to the applicant alone being the owner of the property. He
nevertheless contends that once he was confronted with such
an
excessive account he started making enquiries. He attended at the
Thornhill Post Office and enquired if there were any municipal

accounts for the farm. There were indeed such municipal accounts
dating back to August 2011 which, it appears, were readily made

available to him and revealed a credit on the farm account until
December 2011. These documents, obtained by the respondent without

any difficulty, are annexed to his affidavit.
[28] The respondent continued to state that he approached the
Despatch Municipal Office where one Maneli, an employee of the
municipality
granted him an audience and confirmed to him that there
had not been payments on the account for some period, neither had
proper
readings been taken. Maneli advised that there had been
“over-estimations” done on the account and that he would
prepare
an updated account based on, what he considered to be the
average monthly consumption of the farm at about a R1 500 per
month.
[29] On this basis it is argued by Mr
van Rooyen
that
it was a tacit term of the oral agreement that the respondent would
only be liable to pay the electricity bill when the applicant
advised
him of his consumption. Nowhere in the papers did the respondent
contend for a tacit term. Rather he contented himself
by stating:
“
Despite
my obligation to make payment of my municipal consumption charges, I
submit that it was the obligation of the Applicant
to timeously and
accurately notify me of the extent of my liability and thereby allow
me a fair opportunity to perform in terms
of our agreement and to
make payment.”
[30] In any event, a tacit term can only be introduced into a
contract where it is “necessary in the business sense to give

efficacy to the contract”. It must accordingly be necessary to
give business efficacy and not merely reasonable. (See
Christie
Law of Contract in South Africa
6
th
ed
p. 176 and the authorities referred to therein.) This distinction was
succinctly stated by Millin J in
Rapp and Maister v Aronovsky
1943 WLD 68
at 74-75 as follows:
“
It has
often been pointed out that it is not sufficient to show that a term
would be highly reasonable or convenient to one or other
or even both
of the parties. The cases show that the Court has to be continually
on its guard against being persuaded to introduce
a term which, on
analysis of the argument, appears to be no more than a term which
would make the carrying out of the contract
more convenient to one of
the parties or to both of the parties and might have been included if
the parties had thought of it and
if they had both been reasonable.
You are not to imply the term merely because if one of the parties or
a bystander had suggested
it, you think only an unreasonable person
would have disagreed. You have to be satisfied that both parties did
agree. It is quite
a different proposition, if in the hypothetical
case Scrutton LJ puts in, you feel the parties might say: ‘You
have called
our minds to something we have not thought of and what
you say is not unreasonable, let us discuss it.’ If that is all
that
the Court feels might have happened then the Court is not
entitled to imply the term.”
[31] I think that at best for the respondent, on the case made out in
the papers, it could be said that it would have been a reasonable

term. The facts show that it was entirely within the means of the
respondent, without the assistance of the applicant, to obtain

information relating to the electricity consumption from the
municipal authorities and even to collect the accounts themselves.
He
chose not to do so and made no attempt to pay anything at all towards
his electricity consumption prior to April 2012.
[32] In these circumstances I do not think that there is a real or
bona fide
dispute of fact, relating to this clause. On the
facts which are common cause the respondent accepted responsibility
for the payment
of the electricity accounts. He did not honour this
obligation.
[33] Since April 2012 to the date of the issue of process in this
matter the respondent, by his own admission, paid a reduced rental.

This, he alleges, he is entitled to do by virtue of the occupation of
Willie and his family in the farmhouse. For her part Schroeder
states
that the applicant is not responsible of the presence of Willie and
his family on the farm nor for their consumption of
electricity. The
respondent accordingly contends in argument that there is a dispute
of fact relating to who is responsible for
the presence of Willie and
his family in the farmhouse. Mr
van Rooyen
argues that
I should accept the version of the respondent in this regard,
alternatively, I should refer the matter to oral evidence
on this
issue.
[34] It is not in dispute that the free and undisturbed possession of
the property was given to the respondent on 5 October 2011.
Having
the right to the full use of the property the respondent chose, as he
was entitled to do, to permit Willie and his family
to take
occupation in the farmhouse. The occupation of Willie and his family
in the farmhouse was accordingly solely on the strength
of the
agreement between Willie and the respondent. It did not affect the
respondent’s obligations towards the applicant
in any manner.
This the respondent acknowledges.
[35] When relations between Willie and the respondent soured the
respondent gave notice to Willie to vacate the premises. He failed
to
do so. The applicant has no obligation in these circumstances to
evict him. There is no acceptable allegation of an agreement
between
Schroeder and Willie. He is there at the instance of the respondent
and it is only the respondent who has the authority
to evict him, the
respondent being the tenant of the property and having the full use
thereof.
[36] In the circumstances, the unsubstantiated hearsay allegations
relating to Willie’s alleged justification for his continued

occupation do not create a material dispute of fact. I do not think
that the respondent can be heard to lay the blame for Willie’s

presence on the farm upon the applicant. That being so I am similarly
not persuaded that there is a real or
bona fide
dispute of
fact relating to Willie’s occupation.
Cancellation
[37] Irrespective of whether the applicant’s version of the
contract is accepted or that of the respondent the applicant
would
have been entitled to cancel the contract upon a material breach. The
agreement, on either version, makes no provision for
a particular
procedure of cancellation. It must accordingly be governed by common
law. At common law a notice of cancellation must
be clear and
unequivocal but need not correctly identify the cause of
cancellation. (See
Christie
The Law of Contract in South
Africa
6
th
ed p. 562 and the authorities referred
to therein.) In argument before me Mr
van Rooyen
,
correctly in my view, conceded that the letter of 7 April 2012 by
Attorney Heystek constitutes a clear and unequivocal communication
of
cancellation. At that time the applicant contends that the respondent
was in breach of his contractual obligations by virtue
of his failure
to have paid any sum due in respect of electricity.
[38] Cancellation would take effect from the date of the delivery of
the notice of cancellation. Where there has been no notice
of
cancellation communicated cancellation would take effect from the
date of the service of the summons or the notice of motion.
(See
Middelburgse Stadsraad v Trans-Natal Steenkoolkorporasie Bpk
1987 (2) SA 244
(T) 249A-G;
Du Plessis v Government of
the Republic of Nambia
1995 (1) SA 603
(Nm) 605C-F; and
Win
Twice Properties (Pty) Ltd v Binos
and Another
2004 (4) SA 436
(W).) In these circumstances, in any event, provided
there was a valid reason for cancellation, the service of the notice
of motion
and founding papers would constitute notice of
cancellation. Indeed in the founding papers Schroeder states:
“
34.
The Respondent is fully aware thereof that I seek, on behalf of the
Applicant, the termination of the agreement and the eviction
of the
Respondent.
35. In the event of demand being
required by the Respondent, I respectfully submit that this
application (should it be necessary)
will serve as demand.”
For purposes hereof I shall accept that the service of the
application constitutes the notice of cancellation.
[39] What remains from a contractual point of view, is whether a
material breach justifying the cancellation of the agreement,

irrespective of whether it is the agreement contended for by the
applicant or that of the respondent, has occurred. A contract
of
letting and hiring is concluded where one party undertakes to let or
to give to the other the use of the property in exchange
for a fixed
or fixable rental. (See
Wille’s
Principles of
South African Law
, 9
th
ed p. 907 and the
authorities referred to therein.) The essentials of the contract are
accordingly that the one party is to give
the use of the property to
the other in exchange for the payment of rental. The use of the
property and the payment of rental are
the two issues which go to the
root of the contract.
[40] In respect of the dispute relating to the outstanding
electricity account which may have predated the occupation of the
respondent
I think the uncontested explanation of the respondent is
valid. Whilst he is liable for the monthly escalation in the
outstanding
bill, exclusive of interest, the breach contended for by
Attorney Heystek had not, in my view, occurred. This, however, does
not
preclude the applicant from relying on the breach relating to the
monthly consumption of electricity nor non-payment of rental.
In
Datacolor International (Pty) Ltd v Intamarket (Pty) Ltd
[2000] ZASCA 82
;
2001 (2) SA 284
(SCA) Nienaber JA stated at 299F:
“
It is
settled law that the innocent party, having purported to cancel on
inadequate grounds, may afterwards rely on any adequate
ground which
existed at, but was discovered after, the time.”
[41] In the present case, relying on service of the process as notice
of cancellation, the cancellation takes effect upon the service
of
the application. The non-payment of rental is indeed relied upon in
the application and it is not in dispute that respondent
he has
wilfully failed to pay the full rental agreed upon.
[42] On behalf of the respondent it was argued that because the
respondent is not enjoying the full beneficial occupation of the
farm
he is relieved of having to pay the full rental. Reliance was placed
on
Fourie NO en ‘n Ander v Potgietersrus se Stadsraad
1987 (2) SA 921
(A). The difficulty with this argument, as set out
above, is that the respondent did obtain full and undisturbed
possession and
it was the respondent who chose to permit Willie and
his family to occupy a portion of the farmhouse. While he has
purported to
cancel his agreement with Willie he has taken no steps
to evict him. In the circumstances Willie’s presence there, as
I have
found earlier, is at his instance. He is accordingly not
entitled to withhold payment of rental.
[43] Whereas the non-payment of rental constitutes a fundamental
breach of contract I think, irrespective of which version of the

contract one accepts, that the applicant has established that it has
validly cancelled the contract as it was entitled to do.
PIE
[44] Section 4(7) of PIE provides that where a occupier has occupied
land in question for more than six months at the time when
the
proceedings were initiated the court may grant an order for eviction
if it is of the opinion that it is just and equitable
to do so, after
considering all relevant circumstances, including whether the land
has been made available or can reasonably be
made available by the
municipality, an organ of state or another land owner for the
relocation of the unlawful occupier, including
the rights and needs
of the elderly, children, disabled persons and households headed by
women.
[45] The plaintiff is a warrant officer in the South African Police
Services. He conducts a cattle farming enterprise on the farm.
The
facts of the matter reveal that the respondent is not a man of straw.
He is resident on the farm with his daughter, a minor
child, he being
a single parent. I do not think that this is a matter in which the
respondent can claim to be destitute or where
the rights of his
daughter are likely to be infringed. The respondent claims to be
entitled to be on the property by virtue of
a contract of lease. Once
the contract is terminated the respondent has no right to be on the
property. In these circumstances
I think that it is just and
equitable that the respondent be evicted.
[46] I have recorded that the respondent farms on the property. He
runs a herd of cattle, apparently buying and selling calves,

presumably after fattening them for some period. In these
circumstances I think that it would be just and equitable to afford
the respondent a period of thirty days from the date of this judgment
to vacate the farm.
[47] In the result I make the following order:
1. The respondent, and all those occupying through him, are evicted
from the property known as the Remainder of Farm 448, Thornhill,
more
commonly known as Owvanhuk Farm, Thornhill.
2. The respondent is ordered to vacate the said property within
thirty (30) days of the date of this judgment.
3. The respondent is ordered to pay the costs of this application.
________________________
J W EKSTEEN
JUDGE OF THE HIGH COURT
Appearances:
For Applicant:
Adv P Marais instructed by Jacques du Preez
Attorneys, Port Elizabeth
For Respondent:
Adv C van Rooyen instructed by James Riley
Attorneys, Port Elizabeth