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[2023] ZAFSHC 160
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Van Basten v Odendaal (4648/2019) [2023] ZAFSHC 160; [2023] 3 All SA 289 (FB) (28 April 2023)
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IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number:
4648/2019
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
In
the matter between:
CORNEL
VAN BASTEN
Plaintiff
and
ADRIAAN
HENDRIK ODENDAAL
Defendant
CORAM:
VANZYL, J
HEARD
ON:
28 OCTOBER 2022
DELIVERED
ON:
28 APRIL 2023
[1]
At the commencement of the trial, both parties' counsel addressed me
on what the respective
parties' cases would entail. Mr Potgieter,
appeared on behalf of the plaintiff and Mr Snellenburg on behalf of
the defendant. The
first witness on behalf of the plaintiff, who is
an expert witness, Mr R Lamprecht, was then called to present his
evidence. Between
the end of the second day of the trial when Mr
Lamprecht was still under cross examination and the commencement
of the third
day of the trial, the parties reached an agreement in
terms whereof they requested that I make an order in terms of Rule
33(4)
that the dispute between the parties with regard to the
validity of the alleged demand that preceded the alleged cancellation
of
the agreement by the plaintiff, be determined separately before
further evidence was to be presented. I conceded to the said request.
Background:
[2]
The plaintiff and the defendant are sister and brother.
[3]
The plaintiff is the owner of the farms commonly known as "Die
Kranse" and
"De Rotsen" in the district of Vrede, Free
State Province ("the farms").
[4]
The farms were inherited by the plaintiff from her late father,
Hendrik Johannes Odendaal
("the testator'), in terms of his
Will. In terms of the said Will all four children of the testator
inherited different farms
from him.
[5]
During or about 2016 the testator and the defendant entered into a
written lease agreement
in terms whereof the defendant leased the
farms for a term of five years from 1 February 2016 to 30 January
2021, with the option
to extend the term of lease for a further 4
years and 11 months ("the lease agreement").
[6]
According to the plaintiff the defendant failed to comply with
certain provisions the lease agreement, which failure constituted
a
material breach of the lease agreement.
[7]
In terms of clause 7.1 of the lease agreement the lessor is entitled
to cancel the
agreement if seven days' notice is given to the lessee
to comply with the provisions of the lease agreement.
[8]
Should the lessee not rectify the breach as stated in clause 7.1 of
the lease agreement,
the lessor would be entitled to cancel the lease
agreement.
[9]
According to the plaintiff, despite demand having been made to the
defendant to comply
with the relevant provisions of the lease
agreement, which the plaintiff alleges he was in breach of, the
defendant failed to do
so.
[10]
It is the plaintiff's case that she was consequently entitled to
cancel the lease agreement which, according to the plaintiff,
was
done on 30 July 2019.
[11]
It is the plaintiff's case that the defendant's right to occupy the
farms.terminated on 30 August 2019, but despite demand
the defendant
has failed to vacate the farms.
[12]
The plaintiff is consequently seeking an order confirming the
cancellation of the lease agreement
between the parties, an order for
ejectment of the defendant from the farms, as well as his property
and livestock, and costs of
suit.
[13]
In his amended plea the defendant denied various averments made in
the particulars of claim,
the details of which denials are not all
relevant for present purposes. I will hereunder deal with those ones
which are relevant
for purposes of this judgment.
[14]
As a result of what the defendant pleaded in his amended plea to the
particulars of claim, he
is requesting that the plaintiff's claims be
dismissed with costs.
Separate
adjudication of the dispute re proper demand:
[15]
On 28 August 2022, which was the third day of the trial, I made the
following order by agreement
between the parties:
"In
terms of Rule 33(4), the determination of the issue whether proper
demand was made in terms of the lease agreement is separated
from the
other issues in the trial and is to be determined before further
evidence is presented."
I
will henceforth refer to the aforesaid dispute as "the separated
issue".
[16]
The parties agreed that certain particular documents, which form part
of the discovered documents,
and the contents thereof, be admitted by
the parties and be placed before me in a separate bundle ("the
separate bundle")
for purposes of the adjudication of the
separated issue.
The
particulars of claim:
[17]
The averments pleaded in the particulars of claim which are relevant
to the separate issue, are
the following:
"7.
7.1
In terms of clause 7.1 of Annexure 'B' the plaintiff is entitled to
cancel the agreement
if seven (7) days' notice is given to the lessee
by the lessor to comply with the provisions of the lease agreement
marked Annexure
"B".
7.2
The lessor will be entitled to terminate the lease agreement and to
take occupation of the
farms without prejudice to any claim the
lessor may have against the lessee for
inter alia
the recovery
of any damages suffered etc. if the defendant did not rectify the
breach as stated in clause 7.1 of the lease agreement,
...
8.
The
defendant failed to comply with clause 9.1.2.1 to 9.1.2.3 of Annexure
"B,,.
9.
9.1
On or about the 30th of November 2017 the plaintiff made demand to
the Executor for the
defendant to comply with clause 9.1.2.1 to
9.1.2.3 of the lease agreement, marked Annexure 'B' (
sic
)
attached hereto.
9.2
Despite the demand made to the Executor to ensure that the defendant
comply with the provisions
of the lease agreement with specific
reference to paragraph 9.1.2.1 to 9.1.2.3, the defendant took no
steps to keep the property
free of invader plants ... [and] to
prevent further erosion by taking reasonable steps to the
satisfaction of the lessor as per
the provisions of clause 9.1.2.3 of
the lease agreement ...
10.
The
defendant further contravened ..., which is a violation of clause
10.8 of the lease agreement. ..
11.
The
violation of clause 9.1.2.1, 9.1.2.2 and 9.1.2.3 of the lease
agreement ... is a material breach of the terms of the lease
agreement as per clause 7.2 of the lease agreement ....
12.
12.1
On the 30th of July 2019 the plaintiff was entitled to cancel the
aforesaid agreement due to the defendant's
failure and/or refusal to
adhere to the terms of the agreement as referred to supra.
12.2
The plaintiff terminated the lease agreement attached hereto [by
means of] the letter for cancellation of
the lease agreement dated
the 30th of July 2019, marked Annexure "D", which was
served on the defendant at his
domicilium citandi et executandi
by the sheriff on the 15th of August 2019. A copy of the sheriff's
return is attached hereto marked Annexure "E".
13.
....
The
defendant's right to occupy the property therefore terminated on the
30th of August 2019, but despite demand the defendant has
failed to
vacate the property."
The
amended plea:
[18]
The defendant pleaded as follows to the particulars of claim in his
amended plea:
"8.
AD
PARAGRAPH 7.1 - 7.2:
8.1
The content of these paragraphs is admitted in as far as it
corresponds with the express,
alternatively tacit, alternatively
tacit (
sic
) terms of the lease agreement.
8.2
Defendant specifically pleads that no notice to comply with the lease
agreement was issued
in terms of the lease agreement.
8.3
The defendant specifically pleads that no notice of alleged breach
was issued in terms of
the lease agreement.
9.
AD
PARAGRAPH 8:
9.1
The defendant bears no knowledge of the allegations contained in this
paragraph, accordingly
denies same and puts plaintiff to the proof
thereof.
9.2
The defendant specifically pleads that ....
9.3
...
10.
AD
PARAGRAPH 9.1:
10.1
The defendant bears no knowledge of the allegations contained herein,
accordingly denies same and puts plaintiff
to the proof thereof. The
defendant specifically pleads that no written demand was made to the
defendant.
10.2
The defendant specifically pleads that the Executor was at all
material times satisfied that the provisions
of the lease agreement
has been complied with.
11.
AD
PARAGRAPH 9.2:
11.1
The content of this paragraph is denied.
11.2
The defendant specifically pleads that:
11.2.1
The plaintiff made no demand to the defendant.
11.2.2
In the circumstances, defendant bears no knowledge of the alleged
breach.
11.2.3
11.2.4
11.2.5
The defendant complied with the provisions of clause 9.1.2.1 to
9.1.2.3 of the lease agreement.
11.2.6
The defendant complied with the express, alternatively implied,
alternatively tacit terms of the lease agreement.
12.
AD
PARAGRAPH 10:
..,
The
content of this paragraph is denied and the plaintiff is put to the
proof thereof.
13.
14.
AD
PARAGRAPH 12.1 AND 12.2:
14.1
The content of these paragraphs is denied for the reasons already
pleaded.
14.2
The alleged termination of the lease agreement was not lawful, was
without any basis and has no force and
effect.
15.
AD
PARAGRAPH 13:
15.1
The content of this paragraph is denied for the reasons already
pieaded.
15.2
The defendant specifically pleads that it lawfully occupies the
leased premises and, as such, that the defendant
is under no
obligation to vacate the leased premises."
The
lease agreement:
[19]
The following clauses of the lease agreement are relevant to the
adjudication of the separated
issue:
"6.
DOMICILIUM EN KENNISGEWINGS:
6.1
Die verhuurder kies as domicilium citandi et executandi vir alle
doeleindes hierkragtens
te die plaas Brakleegte, distrik Vrede,
Provinsie Vrystaat.
6.2
Die huurder kies as domicilium citandi et executandi R[...]
[...],
Vrede, 9[...].
6.3
Enige kennisgewing wat ingevolge hierdie ooreenkoms gegee moet word,
moet deur enigeen van
die partye aan die domicilium citandi et
executandi van die ander party gerig word of aan sodanige ander adres
as wat enigeen van
die partye deur skriftelike kennisgewing vir
sodanige doeleindes aan die ander mag gee.
6.4
Alie kennisgewings moet deur die een party aan die ander party per
hand gestuur word.
6.5
Enigeen van die partye is daarop geregtig_ om deur skriftelike
kennisgewing aan die ander,
van tyd tot tyd, sy domicilium citandi et
executandi en/of sy adres vir kennisgewing te verander met
dienverstande dat dit slegs
'n fisiese adres mag wees.
6.6
7.
REPUDIERING:
7.1
lndien die huurder versuim om die huurgeld of 'n gedeelte daarvan op
die opeisbaarheidsdatum
daarvan te betaal of 'n ander voorwaarde van
hierdie huuroreenkoms breek en hy sewe dae lank in gebreke bly nadat
hy 'n kennisgewing
van die verhuurder ontvang het wat betaling van
die huurgeld of herstel van die breuk na gelang die geval, vereis
..., het die
verhuurder die reg om hierdie ooreenkoms onverwyld te
kanselleer en om die verhuurde eiendom weer te betree en daarvan
besit te
neem sender benadeling van enige eis wat die verhuurder teen
die huurder vir huurgeld reeds verskuldig, vir skadevergoeding, vir
kontrakbreuk of andersins mag he ....
ALGEMEEN:
16.1
...
16.2
Hierdie ooreenkoms kanselleer en vervang alle kontrakte aangegaan
tussen die partye voor datum hiervan en
geen wysigings of aanvullings
hiervan sal van enige krag hqegenaamd wees, tensy dit op skrif gestel
en deur die partye onderteken
is.
AFSTERWE:
17.
Dit word hiermee ooreengekom dat, indien die verhuurder te sterwe mag
kom gedurende die duur van hierdie huurkontrak of enige
hernuwing
daarvan, hierdie huurkontrak desnieteenstaande sal voortgaan en
bindend sal wees op die erfgename van die verhuurder.
Correspondence
as contained in the separate bundle and submissions on behalf of the
respective parties:
[20]
It is common cause between the parties that one of the other
daughters of the testator, Ms Carin
van Aswegen, was the appointed
executrix in the estate of the testator. It is also common cause
between the parties that for purposes
of the present matter, the
executrix "
stood in the shoes of the lessor
” until
such time as the farms were registered in the name of the plaintiff
during or about May 2019.
[21]
The plaintiff is relying on two letters/e-mails which, according to
the plaintiff, read together,
constituted the letter of demand. The
first is a letter, dated 20 November 2017, addressed by the
plaintiffs attorneys (of first
instance) to the executrix. The said
letter
inter alia
stated the following:
"BOEDEL
WYLE: HENDRIK JOHANNES ODENDAAL
ONS
KLIENT: CORNEL VAN BASTEN
Ons
plaas egter op rekord dat ons klient steeds nie die geldigheid van
die ooreenkoms erken nie, maar in terme van die kontrak,
plaas ons
die volgende op rekord en versoek dat u onmiddelik in terme van die
bepalings van die huurkontrak, sal optree.
Dit
blyk uit die deskundige se verslag hiertoe aangeheg dat daar sekere
gedeeltes van die plaas is wat deur Mnr Odendaal gehuur
word, welke
as gevolg van sy optrede totaal en al oorbewei is. Hierdie is 'n
bepaling in die kontrak wat deur Mnr Odendaal verbreek
word en verwys
ons spesifiek na die klousules van die kontrak hierbo vermeld.
U
sal ook merk dat ten opsigte van die aanbevelings van die deskundige,
daar onmiddelik voortgegaan moet word om sekere prosesse
in plek te
kry, soos die oprigting van nuwe heinings, alternatiewelik die
verbetering van die heinings wat onderskeie plase in
kleiner weikampe
verdeel, om oorbeweiding te voorkom.
U
sal ook merk dat daar in die verslag vermeld word dat daar verskeie
indringer plante op die plase voorkom, welke onmiddelik verwyder
en/of behandel moet word, soos per die verslag van die deskundige
hiertoe aangeheg.
Daar
moet ook dringend sogenaamde 'barriers', soos per die verslag van die
deskundige hiertoe aangeheg, opgerig word om die gronderosie
wat
reeds op die plaas duidelik sigbaar is, te voorkom en te beperk.
Ons
plaas op rekord dat y Mnr Odendaal onmiddelik in terme van die
bepalings van die kontrak, aangesien y op hierdie stadium in
die plek
van die verhuurder staan, sal aanmaan om met die nodige herstelwerk,
voorkomingswerk en verwydering van enige ongewensde
plante hierin
moet voortgaan, binne die sewe dae tydperk soos in die kontrak na
verwys, spesifiek in terme van klousule 7.1 daarvan.
Ons
plaas verder op rekord dat u 'n afskrif van hierdie skrywe sowel as
die verslag aan Mnr Odendaal sal oorhandig en versoek dat
u aan ons
die nodige bewys sal voorsien dat die inhoud van hierdie skrywe,
sowel as die verslag, ten opsigte van die werk wat op
die eiendom
gedoen moet word, persoonlik aan horn oorhandig is.
Ons
plaas verder op rekord dat dit ons instruksies is dat indien Mnr
Odendaal nie binne die sewe dae na datum van ontvangs van voormelde
skrywe en kennisgewing begin .om die nodige werk te.doen ten opsigte
van die bepalings van die kontrak wat deur Mnr Odendaa! hierin
nagekom moet word nie, ons instruksies hou om aan u opdrag te gee om
onmiddelik voort te gaan om die huurkontrak Met Mnr Odendaal
hierin
te kanselleer en ook stappe te neem, indien hy-sou weier om die
eiendom hierin te verlaat, 'n aansoek te bring om Mnr Odendaal
en sy
vee vanaf die plaas af te sit." (My emphasis)
[22]
The second letter/e-mail which the plaintiff is relying on, is a
subsequent e-mail sent from
the executrix to the defendant, which
reads as follows:
"Hi
Broer!
Ek
het jou probeer skakel maar kon jou nie op een van jou nommers in die
hande kry nie.
Sien
asseblief dringend aangehegte skrywe van NiemannGrobbelaar, wat
Cornel verteenwoordig en sien asseblief hulle aangehegte skrywes
en
verslag.
Jou
dringende terugvoer sal waardeer word.
Dankie
en groete daar!
Carin"
[23]
Mr Potgieter submitted that the executrix was requested to demand
compliance with the provisions
of the lease agreement from the
defendant, which the executrix did by means of the e mail
addressed to the defendant, dated
20 November 2017, read together
with the annexure thereto.
[24]
Mr Potgieter contended that it is evident that the defendant had
knowledge of the letter of demand
and that he further knew in which
respects he had been demanded to comply with the provisions of the
lease agreement. In support
of his contention Mr Potgieter relied on
the following:
1.
The contents of an e-mail which was sent from the defendant to the
executrix
on 21 November 2017, which reads as follows:
"Hi
Carin
Ek
het darem 7 dae maar skenk dringende aandag natuurlik hieraan.
Ek
het reeds die Westelike kant wat die vlei insluit toegespan teen 'n
koste van nagenoeg R35 000.00, so het m.a.w. reeds begin.
Ek
gaan self objektiewe regsadvies inwin ten aansien van die bewering
dat ek die grand oorbewei aangesien ek juis reeds die grand
geweldig
verbeter het deur rotasie tussen Middenin se kampe en De Rotse.
Die
advies wat ek wil kry voordat ek enige vorm van onderneming maak is
die volgende:
(a)
Die verslag bepaal glad nie watter skades aangerig is vir die sowat
12 jaar voorafgaande
my huurooreenkoms nie, welke skade direk aan
Camel toegeskryf kan word as begunstigde van die plaas vir daardie
tydperk.
(b)
Die vraag of al hierdie versoeke t.a.v. maak van kontoere, omheinings
ens. op verbeterings
en of onderhoud en voorkoming neerkom.
(c)
Wat
ek wel kan bevestig is dat ek definitief ook die plaas wil opbou en
keer dat erosie ens. plaasvind. Om die plaas in terme van
die verslag
in kampe op te verdeel sal egter nie gebeur nie, aangesien ek nie die
kapasiteit daarvoor het nie.
Ek
sal dus meet self uitvind tot waar my verantwoordelikheid strek tot
op hede en daarvolgens handeL ... "
2.
An e-mail from the executrix sent to the plaintiff's attorney, dated
27 November
2017, and which e-mail was also copied to the plaintiff,
paragraph 1 of which e-mail states that "[
D]ie bewys dat u
skrywe van 20 November 2017, met die bygaande verslag, aan Mnr
Odendaal oorhandig is, is aangeheg
". A document was attached
to the e-mail, which document reflects the signature of the
defendant, ·with the handwritten
date "27/11/2017",
which signature was appended beneath the words "[B]
evestiging
dat bogenoemde dokumente ontvang is
".
3.
An e-mail from the defendant sent to the executrix, dated 22 March
2018, in which
the defendant, inter alia, stated the following:
"Die
aanvanklike aanmaning
van Niemann Grobbelaar ontken aan
die een kant die bestaan van die huurooreenkoms en dwing aan die
ander kant die inhoud daarvan
c1f " (My emphasis)
[25]
Mr Potgieter referred to the purpose of a letter of demand as
recorded in
Journal for Juridical Science
, Vol. 30 No. 1,
2005, M. Paleker,
Letters of Demand
(
Interpellatio
extraiudicalis
):
Substance
and Form:
"The
primary purpose of a demand is to inform the defendant that the
plaintiff has a cause of action against him or her, and
to persuade
him or her to settle the claim, or to remove the cause of complaint
within a stated time so as to avert formal proceedings
from being
instituted."
[26]
During his argument Mr Potgieter agreed, correctly so, with the
principle that a party suing
on a contract cannot cancel the contract
for non-performance of its obligations in terms of the contract,
unless the guilty party
is in mora. In this regard he referred to the
judgment in
O-Line (Pty) Ltd v Datacentrix (Pty) Ltd
(56269/2016) [2021] ZAGPPHC 16 (22 January 2021), where the following
was stated at para (90]:
"[90]
In the Full Bench decision in GPC Development CC [GPC Development CC
& other v Uys
[2017] 4 All SA 14
(WCC) para 27 - 29], the court
laid down the following legal principle regarding cancellation of an
agreement:
'[27]
Counsel were in agreement regarding the applicable legal principles.
In his judgment Nuku J relied on a passage in the 6th
edition of
Christie
. The following passage in the 7th edition is to the
same effect:
'If
the contract lays down a procedure for cancellation, that procedure
must be followed or a purported cancellation will be ineffective.'
In
the later edition the author refers to
Bekker, Hand
and
Hano
Trading
in support of the approach.
[28]
In
Bekker
Yekiso J, relying on the decision in
Godbold
,
held as follows:
'[17]
The purpose of a_ notice requiring a purchaser to remedy a default is
to inform the recipient of that notice of what is required
of him or
her in order to avoid the consequences of default. It should be
couched in such terms as to leave him or her in no doubt
as to what
is required, or otherwise the notice will not be such as is
contemplated in the contract.'
[29]
In
Godbold
the learned judge cautioned as follows:
'The
question for decision is always whether the conditions on which the
right to cancel was dependent have been fulfilled (
Rautenbach v
Venner
1928 TPD 26
at 31). The purpose of
such a notice is to inform the recipient of what is required to do in
order to avoid the consequences
of default, and if it is in such
terms as to leave him in doubt as to the details of what he is
required to do, then it may be
that it will be held that the notice
is not one such as is contemplated by the contract (
Rautenbach's
case,
supra
at p 31)"'
[27]
Mr Potgieter also relied on the judgment in
Datacolor
International (Pty} Ltd v lntamarket (Pty) Ltd
[2000] ZASCA 82
;
2001 (2) SA
284
(SCA). The said judgment dealt with repudiation, but Mr Potgieter
submitted that the underlying principles are analogue to the present
matter and that fruitful guidance can consequently be taken from it.
He pointed out that in the flynote of the matter, the following
is
noted:
"Actual
communication of·decision to cancel, once made and manifested,
may be conveyed to guilty party by a third party."
Mr
Potgieter further relied on extracts from the said judgment which
dealt with the test for repudiation and the fact that it is
an
objective test and not a subjective test. I will, however, later
return to this judgment.
[28]
Mr Potgieter submitted that the courts nowadays lean more in favour
of what is fair and reasonable
between parties, as opposed to a
strict formalistic approach.. Therefore, so he submitted, with regard
to a letter of demand the
real question is not how the letter of
demand was sent, but whether it had come to the knowledge of the
party who is to be placed
in mora. In this regard Mr Potgieter relied
on the judgment in
Beadica 231 CC and Others v Trustees, Oregon
Trust and Others
2020 (5) SA 247
(CC) at para [35], where the
court stated as follows with reference to the majority judgment in
Barkhuizen v Naipier
[2007] ZACC 5
;
2007 (5) SA 323
(CC):
"[35]
The majority judgment further explained that public policy, as
informed by the Constitution, imports 'notions of fairness,
justice
and reasonableness', takes account of the need to do 'simple justice
between individuals' and is informed by the concept
of ubuntu. The
majority recognised that public policy, in general, requires parties
to honour contractual obligations that have
been freely and
voluntarily undertaken. This is.because the principle of
pacta
sunt servanda
is a 'profoundly moral principle, on which the
coherence of any society relies'."
[29]
Mr Potgieter submitted that one should be mindful of the fact that
the executrix is not trained.in
the law, but a layperson in this
regard. He submitted that the executrix intended to and in fact did
sent a letter of demand to
the defendant. She did everything to
ensure that it comes to his attention, by having sent it to him via
e-mail and thereafter
handing.it to him personally.
[30]
He submitted that from the totality of the facts it is evident that
the defendant was fully aware
that he had been demanded to comply
with the relevant provisions of the lease agreement.
[31]
Mr Potgieter consequently submitted that the provisions of clause 7.1
of the lease agreement
had properly been complied with and therefore
the e-mail of 20 · November 2017, read with the annexure
thereto, constituted
a proper and valid demand in terms of the lease
agreement.
[32]
Mr Snellenburg, in his argument on behalf of the defendant, referred
to the wording of paragraph
7.1 of the lease agreement which reads
"
nadat hy 'n kennisgewing van die verhuurder ontvang het
'
and pointed out that in paragraph 7.1 of the particulars of claim,
the plaintiff specifically places reliance on this clause.
[33]
Mr Snellenburg also referred to paragraph 6.2 of the lease agreement,
which I have already quoted
above, in terms of which the defendant's
chosen domicilium citandi et executand
i is recorded to be
R[...] [...], Vrede, paragraph 6.3 in terms of which "
enige
kennisgewing wat ingevolge hierdie ooreenkoms gegee moet word, moet
deur enigeen van die partye aan die domicilium citandi
et executandi
van die ander party gerig word
' and paragraph 6.4 in terms
whereof "
alle kennisgewings moet deur die een party aan die
ander party per hand gestuur word
".
[34]
Mr Snellenburg also pqinted out that clause 16.2 of the lease
agreement contains a non-variation
clause in terms whereof "
geen
wysigings of aanvullings hiervan sa! van enige krag hoegenaamd wees,
tensy dit op skrif gestel en deur die partye onderteken
is
".
[35]
Mr Snellenburg also deaft with the contents ofsome of the letters in
the separate bundle, specifically
also the letter and e-mail which
the plaintiff is relying orlfor purposes of the demand.
[36]
In his argument Mr Snellenburg also submitted that the Constitutional
Court judgment of
Beadica 231 CC
is not applicable to
the present matter. He also dealt with the
Datacolor
-judgment
and submitted that it is distinguishable from the matter in
casu
,
firstly because the said judgment dealt with repudiation, which is
governed by different principles than those applicable to a
letter of
demand, and secondly, there was no specific provision in that
contract which had to be complied with for purposes of
repudiation,
like there is for purposes of proper demand in the present matter.
[37]
In his conclusion Mr Snellenburg contended that no proper demand in
terms of the lease agreement
had been made.
Consideration
of the arguments:'
[38]
The plaintiff is seeking confirmation of the cancellation of the
lease agreement.
[39]
Paragraph 7.1 of the lease agreement constitutes a
lex
commissoria
.
In North Vaal Mineral Co. Ltd v Lovasz
1961 (3) SA 604
(T) at 606 C - D the Court stated as follows with
regard to a
lex commissoria
:
"Clause
9 is a
lex commissoria
(in the .wide sense of a stipulation
conferring a right to cancel upon a breach of the contract to which
it is appended, whether
it is a contract of sale or any other
contract). It confers a right (viz. to cancel) upon the fulfilment of
a condition. The investigation
whether the right to cancel came into
existence is purely an investigation whether the condition, as
emerging from the language
of the contract (a question of
interpretation), has in fact been fulfilled (
Rautenbach v Venner
,
1928 T.P.D. 26).
"
[41]
Also in the
O'Line
-judgment, to which Mr Potgieter
referred, the following principle was reiterated and confirmed at
para [90] of the judgment:
"In
Hano Trading CC [Hano Trading CC v JR 209 Investments (Pty) Ltd &
another
[2013] 1 All SA 142
(SCA) para 33], it was stated that the
peremptory provisions of a cancellation clause must be strictly
complied with."
[42]
The terms of the lease agreement are not in dispute. The parties are
also
ad idem
that at the date of the alleged letter of demand
the farms had not yet been registered in the plaintiff's name and the
executrix
stood in the shoes of the lessor. The estate of the late Mr
Odendaal, with inclusion of the farms, vested in the executrix in her
capacity as such. The plaintiff, at the time, had no locus standi in
relation 'to the farms.
[43]
It is evident from the letter by the plaintiff's attorney addressed
to the executrix, dated 20
November 2017, that the said attorney
requested, on behalf of the pla ntiff, that the executrix should, on
behalf of the lessor,
demand compliance with the relevant provisions
of the lease agreement from the defendant in terms of the lease
agreement:
"Ons
plaas op rekord dat .u Mnr .Odendaal onmiddelik in terme van die
bepalings van die kontrak, .aange_sien u op hierdie stadium
in die
plek van die verhuurder staan, sal aanmaan ... spesifiek in terme van
klousule 7.1 daarvan."
[44]
Instead of complying with the request, the executrix merely forwarded
the aforesaid letter by means of her e-mail, dated 20
November 2017,
to the defendant. The executrix, herself, did not demand compliance
with the provisions of the lease agreement from
the defendant.
[45]
One must also be mindful of the fact that a letter of demand has to
be unambiguous. In the letter of 20 November 2017,
the plaintiffs
attorney stated that the plaintiff does not admit the validity of the
lease agreement, but, at the same time, the
executrix was requested
"
dat u onmiddelik in terme van die bepalings van die
huurkontrak sal optree
".
[46]
As correctly submitted by Mr Snellenburg, it is evident from
subsequent correspondence that the
executrix questioned certain
allegations made on behalf of the plaintiff in her attorney's letter
of 20 November 2017, being the
very allegations upon which she
instructed the executrix to demand compliance from the defendant. In
an e-mail from the executrix
sent to the plaintiff's attorney and
which was copied to the plaintiff, dated 27 November 2017, the
executrix,
inter alia
, stated as follows:
"Met
verwysing na u skrywe van 20 November 2017. en u versoek dat ek
onmiddelik in terme van die bepalings van die betrokke
huurkontrak
meet optree, neem asseblief kennis van die volgende;
1.
2.
3.
4.
As eksekuteur wat in die verhuurder ·se skoene staan, was ek
nie in Februarie
2016, toe die huurkontrak begin het, op hoogte van
die toestand van De Rotze en De Kranse nie. Ek kan nie insien hoe
daar tot die
slotsom gekom kan word dat sekere gedeeltes van die
plaas as gevolg van 'Mnr Odendaal se optrede' totaal en al oorbewei
is nie.
As u asseblief kan uitbrei oor wat hiermee bedoel word?
5.
De Rotze en De Kranse is 'n moeilik begaanbare plaas wat direk aan
Mnr Odendaal
grens. Ek, as eksekuteur, sal baie moeilik toesig oar
die plaas kan hou en is dit op hierdie stadium tot voordeel van u
klient
dat Mnr Odendaal wel na die plaas kyk.
6.
Mnr Odendaal het aan my bevestig:
6.1
Dat hy definitief die plaas wil opbou; wil keer dat erosie ens.
plaasvind en dat Mnr Rickus
Lamprecht se verslag horn goeie leiding
verskaf;
6.2
Dat geen beeste op di ,oomblik op die grond loop nie;
6.3
Dat hy reeds 'n kwotasie vir mandjies (
'wire mesh stone bariers'
)
aangevra het om die gronderosie te beveg;
6.4
Dat hy die Westelike kant, wat die vlei insluit, toegespan het teen
'n koste van nagenoeg
R35 000.00;
6.5
Dat hy onafhanklike advies inwin oar:
6.5.1
Die bewering van oorbeweiding;
6.5.2
Hoe indringer plante bestry kan word;
6.5.3
Tot watter mate hy aanspreeklik is aangesien hy slegs vanaf Februarie
2016 huur... Sy terugvoering in hierdie
verband sal aan u
gekommunikeer word.
Al
boqenoemde punte inaggenome voel ek dat u klient se belang, tydens
die bereddering van die boedel. nie nadelig bei'nvloed word
deur die
huurkontrak nie
. Aangesien ek in my pa, die oorledene en
verhuurder, se skoene staan, wil ek ook sy wense eerbiedig tot en met
die afhandeling
van die boedel. Uit die oogpunt van my pa, het hy met
inagneming van die aangehegte brief van Mnr Derick van Basten, u
klient se
versoek om 'n skikking te bewerkstellig en hul emmigrasie
na Nieu-Seeland, nie voorsien dat die huurkontrak vir u klient 'n
probleem
sou wees nie."
(My emphasis)
[47]
The executrix, by means of the last mentioned e-mail, therefore
indicated her stance: that in
her view, there were no proper grounds
upon which a letter of demand could be addressed to the defendant,
that she was not willing
to address such a letter of demand to the
defendant and that she was not willing to cancel the lease agreement.
[48]
In a subsequent e-mail which was sent from the executrix to the
plaintiffs attorney, dated 10·April
2018, the executrix
stated,
inter alia
, as follows in the last paragraph of the
e-mail:
"Ek
is in afwagting op 'n onafhanklike regsopinie aangaande die feit dat
'n party wat nog nie eienaarskap van 'n betrokke eiendom
geneem het
nie, die geldigheid van die huurooreenkoms op hierdie eiendom betwis
maar betrokke wil wees by die afdwing van die inhoud
van die
huurooreenkoms, nie die gepaardgaande onsekertieid wat dit vir die
huurder inhou met die aangaan van kostes op die efendom."
[49]
It was only in a later letter, dated 6 August 2018, addressed by the
plaintiffs attorney to the
executrix that the validity of the lease
agreement was eventually admitted. Importantly, it was also stated in
the letter that
there were no other provisions with regard to the
lease of the farms except those explicitly set out in the lease
agreement:
"Ons
plaas op rekord dat ons nou instruksies vanaf ons klient ontvang het
om die volgende op rekord te plaas:
1.
Dat ons klient die geldigheid van die huurkontrak erken, socs
aangeheg te ons
skrywe aan u gedateer die 11de Augustus 2017, en
welke u op terselfde datum bevestig het dat dit die enigste en
geldige huurkontrak
is wat gesluit is tussen Mnr A.H. Odendaal en die
oorledene;
2.
Dat ens klient die inhoud, soos blyk uit die huurkontrak hierinbo na
verwys,
die enigste termes is waarop daar tussen Mnr A.H. Odendaal en
die oorledene op ooreengekom is (
sic
); en
3.
Dat daar geen bepalings ten opsigte van die huur van die eiendom is
behalwe die,
socs uitdruklik uiteengesit op die huurkontrak, socs aan
u voorsien gedateer die 11de Augustus 2017 nie."
[50]
In a later e-mail from the executrix addressed to the plaintiff's
attorney and which e-mail was
also copied to the plaintiff, dated 18
September 2018, it is evident that even then it was still the stance
of the executrix that
there was no reason why the defendant was to be
placed on terms by means of a letter of demand:
"Die
nakoming van die betrokke huurkontrak, word met verwysing na die
inhoud van my skrywe van 27 November 2017, toegepas.
Ek het die plaas
op 6 Mei 2018 besoek en kan bevestig dat dit vir die somermaande
gerus het. Sien aangehegte foto wat op die datum
geneem is. Dit was
vir die oorledene, ons pa, belangrik dat die plaas nie oorbewei moes
word nie en redelike sorg geneem moes word
om die plaas te bewaar en
dit is in dieselfde gesindheid wat ek die huurkontrak toepas en is
nie bereid om dit op enige ander manier
toe te pas nie. lndien u
klient onteverde is met hierdie benadering, bevestig asseblief of u
klient die kontrak direk wil afdwing
met die nodige gesag, beheer en
aanspreeklikheid en ek sal dit met die Meester opneem ..."
[51]
With regard to the
Datacolor
-judgment, Mr Potgieter
acknowledged that the matter deals with repudiation, but, as
previously indicated, he submitted that the
underlying principles are
analogue to the present matter. The Court dealt at para [28] of the
judgment with the manner in which
an _innocent party to a breach of
contract is to exercise his election to cancel the agreement:
"[28]
The innocent party to a breach of contract justifying cancellation
exercises his right to cancel if
(a)
by words or conduct
manifesting a clear election to do so
(b)
which is
communicated to the guilty party.
Except where the contract itself
otherwise provides
, no formalities are prescribed for either
requirement.
(My emphasis)
[52]
I agree with Mr Snellenburg's contention that the last mentioned
matter is distinguishable from
the present matter, since the lease
agreement in
casu
specifically provides in paragraph 7.1
thereof as to when, how and by whom the letter of demand is to be
given to the lessee. The
matter in
casu
, consequently falls
within the exception specifically stated by the court in the
Datacolor
judgment where it is stated in the said
para [28] "
except where the contract itself provides
otherwise
".
[53]
In his oral argument Mr Snellenburg,
inter alia
, relied on the
judgment in
Bekker v Schmidt Bou Ontwikkelings CC and Others
2007 (1) SA 600
(C), at paras [16] and [17], both for purposes of the
requirements of a valid letter of demand and for the principle that
in the
absence of a valid letter of demand, no valid cancellation of
an agreement can follow:
"[16]
... The seven days' notice required to remedy the breach was not
complied with. At no stage was payment demanded from
the applicant
other than a demand to give guarantees. More so, none of the notices
addressed to the applicant requiring her to
perform were addressed to
her
domicilium
, as provided for in the deed of sale.
Accordingly, I cannot under these circumstances find that the
agreement concluded between
the applicant and the first respondent
was validly cancelled.
[17]
The purpose of a notice requiring a purchaser to remedy a default is
to inform the recipient of that notice of what is required
of him or
her in order to avoid the consequences of default. It should be
couched in such terms as to leave him or her in no doubt
as to what
is required, or otherwise the notice will not be such as is
contemplated in the contract. (See
Godbold v Tomson
1970
(1) SA 61
(D)
at 65C '" D.)
In my view the first
respondent clearly failed strictly to comply with the provisions of
the cancellation clause so that under no
circumstances can it be said
that the deed of sale concluded between the applicant and the first
respondent was validly cancelled,
as the first respondent seeks to
contend. (My emphasis)
[54]
As indicated earlier, Mr Potgieter also placed reliance on the fact
that the service of notices
in terms of section 129 of the National
Credit Act are in certain divisions accepted as proper notice even in
circumstances where
it had been digitally sent to a creditor.
However, I agree with Mr Snellenburg's contention that the service of
a section 129-notice
is governed by the National Credit Act, read
with applicable case law which have pronounced on the said issue, but
which are not
mutatis mutandis
applicable to the law of
contract where the parties freely and voluntarily agreed on the
formalities to be applicable to a letter
of demand in the particular
circumstances.
[55]
With regard to Mr Potgieter's reliance on the judgment of the
Constitutional Court in
Beadica 231 CC
, I am in
agreement with the submission by Mr Snellenburg that the said
judgment is not applicable to the facts and circumstances
of the
present matter. In the said judgment the court dealt with the
judgment in
Barkhuizen v Naipier
, supra, and stated as
follows at paras [34] to [35]:
"[34]
On appeal, Ngcobo J, writing for the majority, rejected the High
Court's direct application of the Bill of Rights to
contractual
terms, opting instead for an indirect application through the:
vehicle of public policy. The majority judgment explained
that public
policy is now deeply rooted in the Constitution and its underlying
values. The majority held:
'(T)he
proper approach to the constitutional challenges to contractual terms
is to determine whether the term challenged is contrary
to public
policy as evidenced by the constitutional values, in particular,
those found in the Bill of Rights.'
[35]
The majority judgment further explained that public policy, as
informed by the Constitution, imports 'notions of fairness,
justice
and reasonableness', takes account of the need to do 'simple justice
between individuals' and is informed by the concept
of ubuntu. The
majority recognised that public policy, in general, requires parties
to honour contractual obligations that have
been freely and
voluntarily undertaken. This is because the principle of
pacta
sunt servanda
is a 'profoundly moral principle, on which the
coherence of any society relies'. The majority further stated that
this principle
'gives effect to the
central constitutional values of freedom and dignity. Self-autonomy,
or the ability to regulate one's own affairs,
even to one's own
detriment, is the very essence of freedom and a vital part of
dignity.' "
In
fact, the court dealt with and re-confirmed the importance of parties
to a contract to being held to the terms of the said contract
and
that it is only where a contractual term, or its enforcement, is so
unfair, unreasonable or unjust that it is contrary to public
policy,
that the court may refuse to enforce it. In this regard the following
dicta
are stated at paras [80] to [81] of the judgment:
[80]
... However, a court may not refuse to enforce contractual terms on
the basis that the enforcement would, in its subjective
view, be
unfair, unreasonable or unduly harsh. These abstract values have not
been accorded autonomous, self-standing status as
contractual
requirements. Their application is mediated through the rules of
contract law including the rule that a court may not
enforce
contractual terms where the term or its enforcement would be contrary
to public policy. It is only where a contractual
term, or its
enforcement, is so unfair, unreasonable or unjust that it is contrary
to public policy that a court may refuse to
enforce it.
[81]
The rule of law requires that the law be clear and ascertainable. As
stated by this court in
Affordable Medicines
: 'The law must
indicate with reasonable certainty to those who are bound by it what
is required of them so that they may regulate
their conduct
accordingly.' The application of the common-law rules of contract ·
should result in reasonably predictable
outcomes, enabling
individuals to enter into contractual relationships with the belief
that they will be able to approach a.court
to enforce their bargain.
It is therefore vital that, in developing the common law, courts
develop clear and ascertainable rules
and doctrines that ensure that
our law of contract is substantively fair, whilst at the same time
providing predictable outcomes
for contracting parties. This is what
the rule of law, a foundational constitutional value, requires. The
enforcement of contractual
terms does not depend on an individual
judge's sense of what fairness, reasonableness and justice require.
To hold otherwise would
be to make the enforcement of contractual
terms dependent on the 'idiosyncratic inferences of a few judicial
minds'. This would
introduce an IJ acceptable degree of uncertainty
into our law of contract. The resultant. uncertainty would be
inimical to the
rule of law."
[56]
Considerations of public policy are, in my view, not at all
applicable to the present matter.
The present matter deals with a
lease agreement which was concluded freely and voluntarily by two
parties who were on the same
footing.
[57]
The second leg of non-compliance with the provisions of the lease
agreement in respect of the·-letter of demand which
the
defendant is relying upon, is the fact that1he alleged letter of
demand was not directed at the defendant's
domicilium citandi et
executandi
as determined in clauses 6.2 and 6.3 of the lease
agreement, nor was it handed over per hand at the chosen
domicilium
.
[58]
In the
Schmidt Bou Ontwikkelings CC
-judgment, which I
have already cited above, the court, at paras [13], [14], (15] and
(16], required service upon the agreed
domicilium
:
[13]
... It was dispatched to the applicant per telefax transmission to
the applicant's then attorneys, instead of applicant's
domicilium
,
as provided for in clause 15 of the deed of sale.
[14]
The second such purported notice of cancellation is by way of a
telefax transmission dated 16 October 2003.... The letter is
not
addressed to the applicant's
domicilium
but, instead, is
transmitted per telefax both to the applicant and her then
attorneys.... Once again, the prepaid registered post
and the seven
days' requirement has not been complied with.
[15]
... Similarly, this letter was neither dispatched to the applicant
per prepaid registered post nor was it addressed to the
applicant's
domicilium
as required in terms of the deed of sale. It would
appear that it is on the strength of this purported cancellation that
the first
respondent saw fit to offer the property for sale to a
third party.
[16]
... More so, none of the notices addressed to the .applicant
requiring her to perform were addressed to her
domicilium
, as
provided for in the deed of sale. Accordingly, I cannot under these
circumstances find that the agreement concluded between
the applicant
and the first respondent was validly cancelled."
[59]
It is consequently evident that also for this reason, the alleged
letter of demand did not comply
with the provisions of the lease
agreement and therefore did not validly place the defendant in mora.
Conclusion:
[60]
The alleged letter of demand on which the plaintiff relies, did not
constitute a proper and valid
letter of demand in terms of the lease
agreement, in that:
1.
The executrix, being the person who stood in the shoes of the lessor
at the time,
did not demand and never intended to demand compliance
with the relevant provisions of the lease agreement from the
defendant as
determined in clause 7.1 of the lease agreement; and/or
2.
The alleged letter of demand was not directed at the chosen
domicilium citandi et executandi
of the defendant and was not
handed to him per·hand at the said
domicilium
.
[61]
The separated issue of "
whether proper demand was made in
terms of the lease agreement
" is consequently determined to
be that no proper such demand was made.
[62]
In the absence of a proper ·.and valid letter of demand which
properly complied with the provisions of the lease agreement,
the
plaintiff was not entitled to have cancelled the lease agreement.
[62]
The parties were in agreement that should I determine the issue in
terms of Rule 33(4) in favour
of the defendant, like I have done, the
plaintiff cannot be successful with her claim and it should then be
dismissed.
Costs:
[63]
Mr Snellenburg submitted that the costs of the action are to follow
the outcome thereof. He,
however, of own accord, conceded that it
will be in my discretion to take into consideration that neither
party raised the separate
adjudication of the aforesaid issue
regarding the validity of the letter of demand, at the commencement
of the trial.
[64]
Mr Potgieter stated in reply that the conduct of the defendant has a
bearing on the wasted or
unnecessary costs. In this regard he
referred to the Rule 37 agenda filed by the plaintiff on 6 October
2022 in terms whereof,
at paragraph 4, the plaintiff requested that
the defendant admit all the correspondence and the content thereof,
as set out in
the plaintiff's Discovery Bundle, including letters and
e-mails between the plaintiff's attorney, the executrix of Estate
Late
HJ Odendaal, Ms Carin van Aswegen, and the defendant. During the
Rule 37 conference which was held on Thursday, 13 October 2022,
·-the
defendant. declined to admit same. In a further undated document
titled "Defendant's Reply to Outstanding Issues"
the
defendant was only willing to admit that "
the correspondence
contained in the plaintiff's bundle at pages 26, 30, 32, 47 and 64
was sent and received
. ·
The content of the aforesaid
correspondence is not admitted.
". Mr Potgieter submitted
that in the absence of the defendant's admission of the
correspondence and the content thereof, the
plaintiff could not have
suggested the separate adjudication of the present point. It was only
now when the defendant admitted
the relevant correspondence contained
in the separate bundle that it became possible to deal with the issue
in this manner.
[65]
Mr Potgieter further referred to the aforesaid Rule 37 agenda and the
Rule 37 minute where the
plaintiff, in paragraph 4.3 of the agenda,
requested the· defendant to agree that the plaintiff's
evidence be tendered virtually,
since she resides in Nieu-Zealand.
However, the defendant was not willing to agree thereto. This
necessitated the plaintiff to
have travelled from Nieu-Zealand to
South Africa at great expense.
[66]
Mr Snellenburg, with my leave, responded to the aforesaid submissions
in reply and. submitted
that the defendant was entitled to have
placed . the correspondence and the content thereof in dispute. He
furthermore submitted
that the defendant was under no obligation to
have agreed to a virtual trial.
[67]
I agree with Mr Snellenburg's contention that the defendant was under
no obligation to have agreed
to the aforementioned two aspects. I
addition,. there was no indication or. suggestion at any stage prior
to or at the commencement
of the trial that the plaintiff was
intending or would··:be requesting an order in terms of
Rule 33(4) pertaining
to the separated issue, but that the defendant
was obstructing same due to his stance with regard to the
correspondence. The first
mention which was made of the possible
adjudication of the separated issue as a means which, depending upon
its outcome, could
curtail. the proceedings immensely, was made by
myself to Mr Snellenburg and Mr Potgieter at the end of the second
day's trial.
I made the said proposal as a result of their respective
opening statements from which is became evident to me that the
separated
issue may determine the whole outcome of the trial.
[68]
Mr Potgieter also submitted that the separated issue should have been
raised by the defendant
by means of an exception. In this regard he
referred to the article of Paleker in the
Journal for Juridical
Signs
,
supra
. I cannot agree with the last mentioned
contention. The plaintiff's cancellation of the lease agreement and
her entitlement to
have done so constitute elements of the
plaintiff's cause of action which, therefore, had to be proved by the
plaintiff by means
of evidence" In this instance it was done by
means of the evidence as contained in the correspondence which was
put before
me by agreement between the parties. It is not something
that could have been adjudicated merely on the pleadings, as required
for purposes of an exception.
[69]
Since neither of the two parties raised the separate adjudication of
the issue regarding the.
validity of the letter of demand, at the
commencement of the trial or within the two court days which
followed, I consider it fair
that -each party is to be ordered to pay
his/her own costs of those two days.
Order:
1.
The plaintiff's action against the defendant is dismissed.
2.
The plaintiff is to pay the costs of the action, excluding the costs
of 25 and
26 October 2022.
3.
With regard to the costs of 25 and 26 October 2022, each party is to
pay his/her
own costs.
C
VAN ZYL, J
On
behalf of the plaintiff:
Adv
NJ Potgieter
Instructed
by: Honey Attorneys
BLOEMFONTEIN
On
behalf of defendant:
Adv N
Snellenburg SC
Instructed
by: Bezuidenhouts Inc.
BLOEMFONTEIN