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Pienrox Investments CC v MEC for Health, Free State Province (4897/2018) [2022] ZAFSHC 85 (26 April 2022)

80 Reportability
Contract Law
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Brief Summary

Lease Agreement — Termination — Notice period — Plaintiff claimed damages for Defendant's failure to provide three months' notice before vacating leased premises, resulting in vandalism and decreased property value — Court considered whether the lease required a three-month notice period and whether the Defendant was liable for consequential damages — Held that the Defendant did not terminate the lease in accordance with the contract, and was liable for damages suffered by the Plaintiff due to insufficient notice and subsequent vandalism of the property.

Comprehensive Summary

Summary of Judgment


1. Introduction


The proceedings were an action for contractual damages arising from the termination (and alleged abandonment) of leased premises and the subsequent condition of the property. The plaintiff sought recovery of unpaid rental allegedly due under the termination clause of a written lease, as well as consequential damages said to flow from the defendant’s manner of vacating the premises.


The parties were Pienrox Investments CC as plaintiff (the lessor and owner of the premises) and the MEC for Health, Free State Province as defendant (the lessee, acting through the provincial department). The dispute concerned the interpretation and continued operation of a written lease concluded in 2007, and the legal consequences of the defendant’s vacation of the premises during 2017.


The matter proceeded to trial in the High Court of South Africa, Free State Division, Bloemfontein, before Ramlal AJ. Evidence was heard on 18, 19 and 21 January 2022. Heads of argument were received on 8 February 2022, and judgment was delivered electronically on 26 April 2022.


The general subject-matter of the dispute was whether the lease, after the initial fixed term, continued on the original contractual terms (including a three-calendar-month written notice requirement), whether the defendant breached those terms by vacating without proper notice, and whether the defendant was additionally liable for the loss in value attributed to vandalism after the premises were vacated.


2. Material Facts


It was common cause that a written lease agreement was concluded between the parties during 2007, for an initial duration of three years, and that the defendant remained in occupation beyond that period. It was also common cause that the plaintiff continued to receive and accept rental payments, and that rental was paid until August 2017.


The lease agreement contained a termination provision in clause 2. The clause provided for a three-year term with an annual escalation, and thereafter a continuation “on a monthly basis” terminable by either party on three calendar months’ written notice to the other. The court treated the dispute as turning materially on whether that clause continued to regulate termination after the fixed term expired, and whether it had been amended or replaced.


It was further common cause that, on 11 September 2017, representatives of the defendant attempted to hand over keys to the premises to the plaintiff’s representative, but the plaintiff’s representative refused to accept the keys. The plaintiff’s attorney thereafter addressed correspondence to the defendant on 14 September 2017, asserting that three months’ written notice was required and requesting an inspection before keys would be accepted, and further follow-up communications were sent on 20 September 2017, 3 October 2017, 9 October 2017, and 12 October 2017.


The judgment recorded that an inspection attended by representatives of both parties occurred on 16 October 2012, revealing vandalism, while other portions of the evidence summary and reasoning treated the inspection as having occurred on 16 October 2017, when keys were handed over and substantial vandalism was observed. On the version accepted in the reasoning portion of the judgment, the inspection meeting took place after the September 2017 communications and the vandalism was then observed by those present.


It was also common cause that the premises were extensively vandalised and, as a consequence, the plaintiff later sold the property for R120 000.00, alleging a loss of R360 000.00 attributable to the reduced selling price. The parties filed two expert reports dealing with damages, and the contents of those reports were not in dispute.


On the disputed aspects, the defendant relied on an internal memorandum dated 16 February 2012 suggesting that the occupation continued on a month-to-month basis pending alternative accommodation. The defendant’s witness maintained that the memorandum did not mention a three-month notice requirement and asserted that this supported the defendant’s stance that no such requirement applied after the initial term. The defendant conceded, however, that no new written lease was concluded with the plaintiff and that the internal memorandum was never accepted by the plaintiff.


The plaintiff’s evidence was that no new agreement was concluded and that the original lease continued on its terms, including the three-month notice requirement. The plaintiff’s witness also conceded that the lease did not expressly require an exit inspection at the time of key handover, while maintaining that an inspection formed part of a proper handover process. The plaintiff’s witness further conceded that, after becoming aware on 11 September 2017 that the premises were vacant and observing visible damage, the plaintiff did not secure the premises between 11 September and the later inspection meeting.


3. Legal Issues


The central legal questions the court was required to determine were whether the defendant terminated the lease in accordance with the contract, whether the plaintiff was entitled to insist on termination only upon three months’ written notice, and whether the defendant was liable for consequential damages flowing from vandalism after the defendant vacated without proper notice and, on the plaintiff’s version, without a proper handover.


The dispute concerned a combination of law and fact, and the application of legal principles to those facts. The legal aspects included the interpretation and continued operation of the written lease terms after expiry of the initial fixed term, the allocation of the onus regarding alleged contractual amendment, the causation enquiry linking breach to consequential loss, and the availability of contributory negligence/apportionment as a defence where the claim is framed in contract.


The causation issue required an evaluative determination of whether, on the facts accepted, the vandalism and resulting diminution in value were sufficiently connected to the defendant’s contractual breach (the failure to give proper notice and the vacation/abandonment), and whether the plaintiff’s conduct could reduce the claim under apportionment principles.


4. Court’s Reasoning


The court approached the matter by first identifying the governing contract and the content of its termination clause. Clause 2 of the 2007 written lease expressly provided for a three-year term, followed by a continuation on a monthly basis which could be terminated by either party on three calendar months’ written notice. The court accepted that, after expiry of the three-year period, the defendant remained in occupation and continued paying rental, and the plaintiff accepted such rental, without a further written lease being concluded.


A key step in the reasoning was the court’s treatment of the defendant’s attempt to rely on the 2012 internal memorandum as evidencing different termination terms. The court noted that although a version of a “new contract” or amended terms was put to plaintiff witnesses in cross-examination, the existence of such a new contract or amendment was not canvassed in the pleadings as the basis of the defendant’s case. The court then treated the evidence as supporting the conclusion that no new agreement was concluded and that the termination period in the written lease was never altered by agreement.


In allocating the burden of proof, the court stated that the plaintiff bore the onus to establish continuation of the lease on the original terms, while the defendant bore the onus to prove any amendment to those terms. The defendant’s own witness conceded that the internal memorandum was never accepted by the plaintiff; the court treated this as fatal to the defendant’s reliance on amended terms purportedly reflected in that memorandum. The court further found support for the continued operation of the original lease terms in the rental history, specifically that rental increases were paid consistently with the 8% escalation contemplated in the original written lease.


On the issue of breach and unpaid rental, the court concluded that the defendant’s failure to give three months’ written notice constituted a breach of contract. On this basis, the plaintiff was entitled to recover rental for the months September, October and November 2017, quantified at R26 778.60.


The court then addressed whether the defendant was liable for the consequential loss arising from vandalism and the reduced sale price. It recorded that the plaintiff became aware on 11 September 2017 that the premises had been vacated without prior notice, observed visible signs of damage, and promptly instructed its attorney to pursue the issue. The court emphasised that the plaintiff sent multiple communications seeking to arrange an inspection and regularise termination, and that the inspection meeting occurred only some six weeks later, to accommodate the defendant’s availability. In the court’s assessment, the plaintiff acted with urgency once the abandonment was discovered.


The court applied the principle that a lessor seeking compensation for damage to leased property must at least first show that the damage occurred during the lessee’s tenancy. The court also noted that the defendant suggested (in a version put in cross-examination) that there were visible signs of vandalism already on 11 September 2017, potentially indicating damage occurring while the premises were still under the defendant’s control. The court nevertheless concluded, on the evidence as a whole, that the vandalism occurred as a direct result of the defendant’s abandonment of the property and the failure to comply with its contractual obligation to provide proper notice before vacating.


In determining causation, the court relied on an inference framed as “common sense,” reasoning that if the defendant had not breached by abandoning the property without notice, the vandalism and devaluation would not have occurred. On that basis, the court found a sufficiently direct causal link between the breach and the consequential loss.


The defendant invoked an apportionment argument, pleading that the plaintiff contributed to its own damages and seeking a reduction under section 1 of the Apportionment of Damages Act 34 of 1956. The court rejected this defence on the basis that contributory negligence is not available where the claim is based on breach of contract, relying on authority from the Supreme Court of Appeal. Accordingly, no reduction was applied to the plaintiff’s contractual damages claim.


On costs, the court found no basis to deprive the successful plaintiff of its costs, and it included the costs of the two expert witnesses whose reports were before the court.


5. Outcome and Relief


The court upheld the plaintiff’s claim and found the defendant liable for damages arising from breach of the lease, including both the unpaid rental component and the consequential damages attributed to the vandalism-related diminution in value.


The defendant was ordered to pay the plaintiff R386 778.60, together with interest at 10.25% calculated from the date of issue of summons to date of payment. The defendant was also ordered to pay the plaintiff’s costs of suit, including the costs of the two expert witnesses Mr Ignatius Fourie and Mr Raymond Taylor.


Cases Cited


Nel v Dobie 1966 (3) SA 352 (N)


Thoroughbred Breeders’ Association of South Africa v Price Waterhouse 2001 (4) SA 551 (SCA)


Legislation Cited


Apportionment of Damages Act 34 of 1956 (section 1)


Rules of Court Cited


No rules of court were cited in the judgment.


Held


The court held that the 2007 written lease continued to govern the parties’ relationship after the initial three-year period, operating on a month-to-month basis but subject to the contractual requirement of three calendar months’ written notice for termination. It held that the defendant failed to terminate in accordance with that clause, and that this failure constituted a breach of contract entitling the plaintiff to recover three months’ rental.


The court further held that the defendant’s abandonment of the premises without proper notice caused the vandalism and the resulting diminution in value, and that the defendant was liable for the plaintiff’s consequential contractual damages quantified at R360 000.00, in addition to the unpaid rental. The court held that apportionment or contributory negligence was not available to the defendant because the claim was founded in contract, not delict.


LEGAL PRINCIPLES


The judgment applied the principle that where a written lease provides for a fixed term followed by continuation on a periodic basis, the parties’ continued occupation and acceptance of rental may support a finding that the lease relationship continues on the original contractual terms, unless a valid amendment or replacement agreement is proved.


The judgment applied an onus-based approach: the plaintiff must prove the contractual basis for its claim (including the continued application of the original terms), while a defendant asserting that the original contract was amended bears the burden of proving a valid amendment. An internal document generated unilaterally by one party, without acceptance by the other, was treated as insufficient to establish amended contractual terms.


In relation to damages, the judgment applied the requirement that a lessor claiming compensation for property damage must at least show that the damage occurred during the lessee’s tenancy. It then treated the causation enquiry as one of linking the breach (vacating without the required notice and abandoning the premises) to the loss (vandalism and diminished value), and it accepted an inference that compliance with the notice requirement would have avoided the loss.


The judgment applied the principle that contributory negligence and apportionment are not available as a defence to reduce liability where the claim is grounded in breach of contract, referencing Supreme Court of Appeal authority for that proposition.

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[2022] ZAFSHC 85
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Pienrox Investments CC v MEC for Health, Free State Province (4897/2018) [2022] ZAFSHC 85 (26 April 2022)

SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case number:
4897/2018
In
the matter between:
PIENROX
INVESTMENTS CC
Plaintiff
and
MEC
FOR HEALTH, FREE STATE PROVINCE
Defendant
CORAM
:
AK

RAMLAL, AJ
HEARD
ON
:
18, 19 & 21 JANUARY 2022
HEADS
OF ARGUMENTS RECEIVED
:
8 FEBRUARY
2022
JUDGMENT
DELIVERED
:
26 APRIL 2022
This
judgment was handed down electronically by circulation to the
parties’ representatives by email, and release to SAFLII.

The date and time for hand-down is deemed to be 15h00 on 26 April
2022.
[1] The Plaintiff leased
its premises to the Defendant under a written lease agreement entered
into in June 2007, which lease agreement
was later extended between
the parties.
[2] The Plaintiff claims
that it suffered damages when the Defendant vacated the leased
premises, since the Defendant failed to
give proper notice of its
intention to terminate the contract of lease and that such vacation
of the premises led to vandalism
of the leased premises.
[3]
The Plaintiff’s claims against the Defendant are:
3.1   That the
Defendant is liable to the Plaintiff for the payment of three months’
rental which should have been
paid as a result of the provisions of
clause 2 of the lease agreement, which require that the parties
should provide each other
with three months’ written notice
prior to termination; and
3.2   That the
Defendant gave insufficient notice of termination that resulted in
the Plaintiff suffering consequential
damages in the form of the
decreased property value due to the leased premises being vandalised,
after the Defendant abandoned
the property.
[4] It is common cause
that:
4.1   There was
a written contract of lease concluded between the parties during 2007
which endured until 2010. Thereafter,
the contract of lease continued
between the parties as the Defendant remained in occupation of the
rental premises and the Plaintiff
received and accepted rental
payments until August 2017;
4.2   The
representatives of the Defendant attempted to hand over the keys to
the leased premises to the Plaintiff’s
representative on the
11
th
September 2017 and that the Plaintiff’s
representative refused to accept the keys;
4.3   On 16
th
October 2012, an inspection of the premises which was attended by
representatives of the Plaintiff and the Defendant, revealed
that the
premises had been vandalised;
4.4   That as a
result of the extensive damage caused by the vandalism, the Plaintiff
later sold the property for an amount
of R120 000-00 and that
the Plaintiff suffered damages in the amount of R360 000-00, when the
Plaintiff had to sell the property
at the reduced price;
4.5   The two
Expert Reports regarding the alleged damages that Plaintiff suffered
have been filed and that the contents
of those reports are not in
dispute.
[5]
The issues for determination are:
5.1
whether
the Defendant terminated the lease of the Plaintiff’s property
in accordance with the contract between the parties;
5.2
whether
the Plaintiff was entitled to rely on a three month’s written
notice issued by the Defendant to terminate the lease;
5.3
whether
the Defendant is liable for consequential damages suffered, being the
amount by which the value of the property decreased
due to the
vandalism of the property after the Defendant vacated the premises
without a proper handover of the property.
[6] Plaintiff’s
First Witness: Mr van den Berg:
6.1    Mr
van den Berg, the attorney for the Plaintiff, testified that his
involvement in the matter was initiated
when Mr Pienaar
(representative of the Plaintiff) established telephonic contact with
him on 11 September 2017. Mr Pienaar informed
him that the
representatives of the Defendant wanted to hand over the keys of the
leased premises to him. He did not want to accept
the keys from the
representatives of the Defendant as he believed that they needed to
give him 3 months’ notice of their
intention to vacate the
premises and that an inspection of the property should be done to
effect a proper hand over. He was instructed
by Mr Pienaar to address
his concerns with the Defendant.
6.2    Mr
van den Berg duly complied with these instructions by addressing a
letter to the Defendant on 14
th
September 2017, wherein he
informed the Defendant that three months’ written notice is to
be given by either party to the
lease agreement who is desirous of
terminating the lease agreement. The Defendants were also informed
that the Plaintiff would
not accept the keys to the premises before a
proper inspection of the property was done between the parties.
6.3
During cross examination Mr van den Berg conceded that there is
nothing contained in the agreement that stipulates
that at the time
of the handing over of the keys, an inspection of the premises should
be conducted but he explained in re-examination
that the purpose of
an inspection was to conduct an exit inspection as is routine in
order to determine whether any repairs are
necessary and for which
the lessee could be held responsible.
6.4
Although Mr van den Berg testified that he was of the view that the
initial lease agreement had lapsed and
that the lease agreement that
existed between the parties was on a month-to-month basis which
required at least one months’
notice to terminate, he stated
that the Plaintiff was under the impression that three months’
written notice is required
before the lease may be terminated by
ether party.
6.5    Mr
van den Berg also confirmed that he was present when an inspection of
the leased premises was eventually
conducted on 16
th
October 2017 in the presence of the Plaintiff and the Defendant and
that the premises were substantially vandalised. He was also
aware
that as a result of the vandalism the property was sold at a reduced
price resulting in a loss of R360 000-00 being
suffered by the
Plaintiff.
Plaintiff’s Second
Witness: Mr Christiaan Frederick Pienaar:
6.6    Mr
Christiaan Frederick Pienaar testified that the Plaintiff was the
owner of the premises situated at Erf
[….], Koffiefontein and
that these premises were leased to the defendant in accordance with a
lease agreement entered into
between the parties. He stated that the
lease agreement stipulated that the lease will continue for a period
of three years where
after the lease may be extended on a
month-to-month basis and that a three-month notice period is required
for the lease to be
terminated.
6.7    To
the best of his knowledge, Mr Pienaar, testified that the lease
agreement, after the initial period of
three years had expired,
continued on a month-to-month basis on the original terms and
conditions, in that the defendant continued
to occupy the premises
and paid the rentals in accordance with the stipulated 8% increase
[1]
(even though there were times when the Defendant failed to make
regular payments), and that a three months’ written notice
was
required to terminate the lease agreement.
6.8    On
11 September 2017, on the street next to where he lives, Mr Pienaar
was approached by two representatives,
of the Defendant, who
attempted to hand over the keys to the leased premises to him. He
refused to accept the keys and he informed
them that it would be
proper to have an inspection of the premises to assess the condition
thereof. Mr Pienaar then drove past
the leased premises where he
noticed that the gate was opened and one of the doors had been
smashed. He contacted Mr van den Berg
to attend to the matter on his
behalf.
6.9    In
respect of the internal memo
[2]
,
Mr Pienaar testified that he recalled having made suggestions on the
document as to a new lease agreement being entered into but
that no
such new lease had been concluded between him and the Defendant.
6.10  Mr Pienaar
explained during cross examination that he required capable
representatives from the Defendant to attend to
an inspection of the
premises with him but he conceded that this was not a stipulation in
the lease agreement between the parties.
He explained that even
though he did not have the keys to the premises on the 11
th
September 2017, he drove to the premises and observed that one of the
doors next to the kitchen was kicked in. He further stated
that he
could not dispute that there was other damage in the form of missing
geyser pipes at the premises at that time. Mr Pienaar
also conceded
that he did nothing to secure the premises from 11 September 2017 to
16
th
October 2017. He was not comfortable to accept that
he should have acted differently to secure the premises when it came
to his
attention that the premises were vacant on 11
th
September 2017.
6.11  The main
thrust of Mr Pienaar’s evidence was, however, that he was under
the impression that a period of three
months’ notice is
required in order to terminate the agreement in that the Defendants
had remained in occupation of the premises
after the initial three
years’ period had expired and they continued to pay the
increased rentals. He also believed that
an inspection in the
presence of both parties is to be conducted at the termination of the
lease agreement, so that an assessment
of the condition of the
property could be conducted as part of the process of the termination
of the agreement.
6.12  The evidence
of Mr Pienaar also confirmed that he suffered a loss when he sold the
property at a reduced price as a result
of the vandalism that had
taken place. He relied on the expert valuations in order to determine
this loss.
[7]
Defendant’s witness, Mr Charles Swiegels:
7.1
The
Defendant called Mr Swiegels, who is employed at the Free State
Department of Health as a Logistics and Asset Manager, to testify

about the lease agreement entered between the Plaintiff and the
Defendant.
7.2
Mr
Swiegels confirmed that he had knowledge of the lease agreement
entered into between the parties in 2007. The duration of the

agreement was three years so it expired during 2010. After
discussions with the Plaintiff and officials from the Defendant, the

lease was extended for a year and again until December 2011. An
internal memorandum dated 16
th
February 2012 was generated
and approved internally by the accounting officer to continue the
lease with the Plaintiff on a month-to-month
basis until new
accommodation had been provided to the Defendant, by the Department
of Public Works. The purpose of the internal
memorandum being
generated was to ensure that payments would be made for the lease of
the premises when the invoices are generated.
7.3
According
to Mr Swiegels, no mention was made of a three-month notice period
being required for the termination of the extended
agreement. He
stated that if this was the position, it would have been reflected on
the memorandum. He further stated that the
Plaintiff was paid the
increased rentals as per the initial agreement. The amount as
stipulated on the internal memorandum of the
16th February 2012 was
not paid by the Defendant as it was not part of the agreement between
the Plaintiff and the Defendant.
7.4
During
cross examination Mr Swiegels conceded that no new written contract
was discussed and that the internal memorandum dated
16
th
February 2012 was never accepted by the Plaintiff. He was of the view
that since the memorandum on which the payments were approved

internally by the Defendant did not reflect that a three-month notice
period is required for the termination of the agreement,
no such
period was applicable.
7.5
Lastly,
Mr Swiegels confirmed that he was part of the delegation that
conducted the inspection of the premises on the 16
th
October 2012 when the keys were handed to the Plaintiff.
[8] The original written
contract of lease between the parties was entered into during 2007.
This lease was for a period of three
years.
[9] Clause 2 of the
written lease agreement
[3]
stipulates that the lease shall continue on a monthly basis and that
such lease may be terminated by either of the parties giving
three
calendar months’ written notice to the other party. The
agreement is drafted in Afrikaans and clause 2 thereof reads
as
follow:
“
Die huur sal
vir ‘n periode van 3(drie) jaar wees met ‘n eskalasie wan
8% jaarliks, daarna sal dit op ‘n maandlikse
basis wees wat
beeindig mag word deur enigeen van die PARTYE op ‘n 3
kalendarmaande skriftelike kennisgewing gegee deur een
van die PARTYE
aan die ander……”
[10] Upon the expiry of
the three-year period, the Defendant continued to occupy the leased
premises and continued to pay the rental,
until August 2017, without
any further written lease agreements being entered into.
[11] Although the aspect
of a new contract being entered into between the parties or that the
initial terms regarding the cancellation
period was amended by
agreement between the parties, was put to the Plaintiff’s
witnesses, the existence of a new contract
or the amendment of the
original terms, was not canvassed by the Defendant in the pleadings.
[12] The evidence placed
before the court by Mr Pienaar in evidence in chief as well as in
cross examination is plainly that no
new contract was entered into
between the parties and that the written terms of the agreement
regarding the termination period
of three months’ written
notice was never altered. The lease agreement continued as stipulated
in clause 2 of the lease agreement
that was entered into during June
2007.
[13] The onus of proof
regarding the continuation of the lease on the original terms and
conditions rests on the Plaintiff whilst
the Defendant bears the onus
to prove any amendment to the original terms and conditions.
[14] Mr Swiegels, who
testified on behalf of the defendant, confirmed that the terms
contained in the Internal Memo
[4]
on which the Defendant relied to prove a new contract, was never
accepted by the Plaintiff, consequently, the amended terms of
the
contract that the Defendant relied on, never came into operation.
[15] The evidence given
by Mr Pienaar regarding the amount of the rental that was paid
monthly by the Defendant also confirms that
the original terms of the
agreement were adhered to by the Defendant, in that, the rental
amount was R5500-00 at the commencement
of the lease agreement and as
a result of the 8% annual increase in the rental payments, at August
2017, the Defendant was paying
an amount of R8926-20 per month.
[16] The evidence
supports the claim by the Plaintiff that the original lease agreement
was entered into for a period of three years.
Thereafter, the lease
continued on a monthly basis and that such lease could be terminated
by either of the parties giving three
calendar months’ written
notice to the other party.
[17] The failure of the
Defendant to give the plaintiff three months’ written notice to
terminate the lease agreement constitutes
a breach of contractual
obligation of the Defendant. The Plaintiff is therefore entitled to
the payment of the unpaid rental for
the period September, October
and November 2017, totalling R26 778-60, as claimed.
[18] The final issue for
determination is whether the vandalism was a direct cause of the
Defendant having breached the terms of
the lease agreement by
vacating the premises without affording the Plaintiff adequate prior
notice of its intention to vacate the
property:
The
Plaintiff alleges that it was not invited to inspect the building
with a representative of the defendant and accordingly could
not take
occupation of the premises as the Plaintiff was unaware whether some
of the Defendant’s goods were still in the
buildings or not or
whether the Defendant would agree to the checklist of alterations,
improvements and/or repairs that had to
be made to the property,
typically of the termination of the long lease
[5]
and that during the inspection of the property it was found that the
property had been completely vandalised, which vandalism was
a direct
cause of the Defendant breaching the terms of the Lease Agreement by
vacating the property without giving Plaintiff adequate
prior notice
of its intention to vacate the property.
[6]
[19]
The Defendant denies that its failure to give proper notice of its
intention to terminate the lease caused the Plaintiff to
suffer
damages in the form of loss of proceeds of sale in respect of the
property.
[20]
The Defendant in addition pleads that the Plaintiff contributed
towards it own damages and prays for a reduction of the award
of
damages in terms of the Apportionment of Damages Act
[7]
[21]
Mr van den Berg in his evidence conceded that there is no provision
in the lease agreement that stipulates that an inspection
of the
premises must be done at the time of the termination of the agreement
of lease or at the time that the keys are handed over.
He however
stated that as part of the handing over process an inspection should
be conducted to determine the state of the property
and record any
damages for which the tenant could be held accountable.
[22]
The evidence of Mr Pienaar demonstrates that the Plaintiff became
aware on the 11
th
September 2017 that the Defendant had
vacated the leased premises. Prior to 11 September 2017, the
Defendant gave no notice to
the Plaintiff that they were no longer in
occupation of the premises. Mr Pienaar drove to the property where he
established that
there were visible signs of damage to the property
in the form of the door being smashed. He immediately instructed his
legal representative
to address the failure of the Defendant to
comply with the terms of the lease agreement with the Defendant on
his behalf.
[23]
Mr van den Berg confirmed that he addressed a letter to the
Defendant, dated 14 September 2017 wherein he requested the presence

of the Defendant to conduct an inspection of the leased premises.
When no response to this request was received, Mr van den Berg
sent
further electronic communication to follow up and attend to the
termination of the lease agreement. That these communications
were
sent on 20 September 2017, 3 October 2017, 9 October 2017 and 12
October 2017, is not disputed by the Defendant.
[24]
On 12
th
October 2017, it was agreed that the parties would
meet at the leased premises on the 16
th
October 2017. It
is common cause that such meeting took place and the material
vandalism of the property was observed by all present.
It is apposite
to mention that the Plaintiff, when he became aware that the premises
had been abandoned, immediately initiated
steps to address the breach
of the terms of the agreement by the Defendant. Despite the urgency
with which the Plaintiff acted,
the meeting between the Plaintiff and
the Defendant only took place some six weeks later, to accommodate
the availability of the
Defendant.
[25] A lessor who seeks
to recover compensation from a lessee for damage to a leased property
must at least in the first instance
show that such damage had
occurred during the tenancy of the lessee.
[8]
During cross examination, a version was put to Mr Pienaar that
evidence would be led by the Defendant that there were other visible

signs of vandalism already at the leased premises on 11 September
2017 when representatives of the Defendant observed that the
pipes
outside of the premises were damaged or vandalised, thus suggesting
that this damage had occurred whilst the premises were
still in the
possession and under the control of the defendant.
[26]
Common sense dictates that if the breach by the Defendant had not
taken place, and the property was not abandoned before any
notice was
given to the Plaintiff, the vandalism and consequential devaluation
of the property would not have occurred. The evidence
demonstrates
that the vandalism to the Plaintiff’s property occurred as a
direct result of the Defendant’s abandonment
of the property
and its failure to comply with its contractual obligation of
furnishing the requisite notice of intention to terminate
the lease
agreement.
[27] It is common cause
that the extensive damage caused by the vandalism resulted in the
Plaintiff selling its property for R120 000
and that the
Plaintiff suffered damages in the amount of R360 000-00.
[28]
In consideration of the Defendant’s prayer
[9]
that the Plaintiff’s claim be reduced and apportioned in
accordance with the provisions of section 1 of the Apportionment
of
Damages Act, Act 34 of 1956, the defence of contributory negligence
is not available when the claim is based on the breach of
a
contract
[10]
, as is the
position in this case.
[29]
The Defendant is liable for damages suffered by the Plaintiff as a
result of its breach of contract with the Plaintiff.
[30]
There is no plausible reason to deprive the Plaintiff as the
successful party of the costs of suit.
[31]
In the result the following order is granted:
1. The Defendant is
ordered to pay to the Plaintiff the amount of
R386 778-60
(Three Hundred and Eighty-Six Thousand Seven Hundred and
Seventy-Eight Rand and Sixty Cents);
2. The Defendant is
ordered to pay the Plaintiff interest at the rate of 10.25% from the
date of the issuing of the summons to the
date of payment;
3. The Defendant is
ordered to pay the Plaintiff the costs of suit, which costs include
the costs of the two expert witnesses, Mr
Ignatius Fourie and Mr
Raymond Taylor.
__________________
A.K. RAMLAL, AJ
On
behalf of the Plaintiff:
Adv JS Rautenbach
Instructed
by:

Phatshoane Henney Inc
35 Markgraaf Street
Westdene
BLOEMFONTEIN
On
behalf of the Defendant:      Adv MJ Merabe
Instructed
by:

State Attorney
11
th
Floor Fedsure Building
BLOEMFONTEIN
[1]
Clause
2 of Annexure “A” to the Particulars of Claim
[2]
Page 3 Defendant’s Trial Bundle
[3]
P.16
of pleadings. Annexure “A” to the Particulars of Claim
[4]
Page 3 Defendant’s Trial Bundle
[5]
Paragraph 9 of the Particulars of Claim
[6]
Paragraph 11 of the Particulars of Claim
[7]
Pleadings Bundle page 43
[8]
See Nel v Dobie 1966(3)SA352(N)at 355D-F
[9]
Page 43 Pleadings Bundle
[10]
Thoroughbred Breeders’ Association of SA v Price Waterhouse
2001(4)SA551 SCA

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