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[2021] ZAGPJHC 92
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Oasis Liquour Wholesalers CC v Doornfontein Girls College (Pty) Ltd t/a Destiny Gorls College (28571/20) [2021] ZAGPJHC 92 (20 July 2021)
HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
(1)
REPORTABLE: Electronic
reporting only.
(2)
OF INTEREST TO OTHER
JUDGES: No.
(3)
REVISED: Yes
28
April 2021
Case
No:
28571/20
In
the matter between:
OASIS
LIQUOR WHOLESALERS
CC
Applicant
and
DOORNFONTEIN
GIRLS COLLEGE (PTY) LTD
t/a
DESTINY GORLS
COLLEGE
Respondent
Case
Summary
:
Ejectment – Commercial Immovable Property – Application
by owner of property after cancellation of agreement
of lease –
whether agreement of lease validly cancelled by owner and tenant’s
right to occupy the property, therefore,
terminated.
JUDGMENT
MEYER J
[1]
The applicant, Oasis Liquor Wholesaler, seeks the ejectment of the
respondent, Doornfontein
Girls College (Pty) Ltd t/a Destiny Girls
College from its commercial premises – Erf 7, Doornfontein
situate at 178 Helen
Joseph Street, Doornfontein, Johannesburg (the
property).
[2]
The facts relevant to the determination of this application are
largely uncontroversial.
The applicant is the owner of the
property. On 1 December 2017, the applicant and the respondent
concluded an oral commercial
lease agreement in terms whereof the
applicant let the property to the respondent to be utilised by it as
a private school for
girls (the agreement). The lease of the
property would commence on 1 December 2017 and would continue
indefinitely, subject
to either party’s right to terminate the
agreement on 30 days’ written notice to the other. In
terms of the agreement,
the respondent would be responsible for the
payment of rental, electricity, effluent and water charges.
Monthly rental in
the amount of R27 000.00 would be paid by the
respondent on the first day of each month without deduction or set
off.
[3]
Pursuant to the conclusion of the agreement, the respondent took
occupation of the
property. The applicant invoiced the
respondent as follows during the period October 2919 until August
2020:
Month
Rent
Water
Electricity Effluent
Refuge
October
2019: R27
000.00 R41 954.57 R3 982.58
R2 834.51 R731.64
November 2019:
R27 000.00 R 3 719.00 R6 504.16
R2 591.43 R731.64
December 2019:
R27 000.00 R19 647.00 R6 504.16
R2 591.43 R731.64
January
2020: R27
000.00 R19 647.00 R6 504.16
R2 591.43 R731.64
February
2020: R27 000.00
R19 647.00 R6 504.16
R2
591.42 R731.64
March
2020:
R27 000.00 R19 647.00
R6 504.16
R2 591.42 R731.64
April
2020:
R27 000.00
R28 956.00 R7 802.73
R9 441.20 -
May
2020:
R27 000.00
R27 338.10 R6 999.35
R8 294.29 -
June
2020:
R27 000.00 R18
612.53 R2 332.74
R1 819.96 -
July
2020:
R27 000.00
R18 068.14 R8 664.23
R1 412.92 -
August
2020:
R27 000.00 R22 522.15 R5
693.10
R4 742.62 -
[4]
The payments made by the respondent to the applicant during the
period October 2019
until August 2020, were the following:
October
2019: R13
500.00
November 2019:
R37 000.00
December 2019:
nil
January
2020: nil
February
2020: R15 000.00
March
2020:
R15 000.00
April
2020:
nil
May
2020:
nil
June
2020:
nil
July
2020:
nil
August
2020:
nil
The
applicant avers that the respondent is indebted to it in the amount
of R570 146.77 as at 1 August 2020.
[5]
By letter dated 13 February 2020 addressed to the respondent, the
applicant’s
attorneys advised the respondent
inter alia
that
it was in breach of the agreement as at 1 February 2020 in the amount
of R446 210.22 in respect of outstanding rental and municipal
consumption charges. The respondent was notified that unless
such amount was received by the applicant within seven business
days,
the applicant shall cancel the agreement and proceed with an
application for the respondent’s eviction from the premises
(the letter of demand). On 20 February 2020, the letter of
demand was served by the sheriff at the property. Despite
the
letter of demand, the respondent failed to remedy its breach.
On 29 July 2020 and on 3 August 2020, the applicant’s
sent a
letter to the respondent via email and by registered post. The
respondent was notified that as a result of its failure
to remedy its
breach of agreement, the agreement is cancelled forthwith. It
was also demanded from the respondent to vacate
the property by 12
noon on 5 August 2020 (the notice of cancellation).
[6]
The respondent opposes the relief claimed by the applicant on the
following grounds:
First,
in limine
it contends that the
applicant’s founding affidavit was not signed in accordance
with the Regulations Governing the Administering
of an Oath or
Affirmation made by the State President in terms of s 10 of the
Justices of the Peace and Commissioners of Oaths
Act 16 of 1963 (the
Act) and published under GN R1258 in
GG
3619 of 21 July 1972,
as amended from time to time (the Regulations), and is therefore
invalid. Second, that the applicant’s
cancellation of the
agreement in terms of its notice of cancellation on 29 July 2020 is
unlawful, invalid, and therefore null and
void, since the agreement
was cancelled while the country was still under a state of disaster
as a result of the Covid 19 pandemic.
Third, the respondent
avers that the applicant has overcharged it for its consumption of
water and electricity and effluent charges,
and the applicant’s
cancellation of the agreement was therefore invalid since it was
based on incorrect figures. Fourth,
the respondent avers that
the ’Applicant claims to have cancelled the lease agreement in
a letter dated 29 July 2020, which
was allegedly sent to the
Respondent by registered mail, which letter never came to the
attention of the Respondent’.
Fifth, the respondent ‘will
suffer severe prejudice, if it would be ordered to vacate, because it
will be required to apply
in writing six months in advance in order
to change the school’s address’.
[7]
The respondent contends that the commissioner of oaths, Mr Tshepo GL
Mohapi, ‘appended
his signature on the founding affidavit
before it could be signed by the deponent’ and ‘that the
founding affidavit
is invalid and therefore it should be declared
null and void’. Regulation 4 of the Regulations provide
as follows:
‘
(1)
Below the deponent’s signature or mark the commissioner of
oaths shall certify that the deponent has
acknowledged that he knows
and understands the contents of the declaration and he shall state
the manner, place and date of taking
the declaration.
(2) The
commissioner of oaths shall-
(a)
sign the declaration and print his full
name and business address below his signature; and
(b)
state his designation and the area for
which he holds his appointment or the office held by him if he holds
his appointment
ex officio.’
[8]
The deponent to the applicant’s founding affidavit explains
that he signed the
founding affidavit before the commissioner of
oaths on 14 September 2020. He, however, made a
bona fide
error when he signed the affidavit in the space provided for the
commissioner of oaths to sign. He also attaches to his replying
affidavit an identical founding affidavit where he signed at the
place provided for the signature of the deponent, which affidavit
was
commissioned by a different commissioner of oaths. The applicant’s
founding affidavit was commissioned as follows (my
use of italics
indicates where it was completed in manuscript):
DEPONENT
I HEREBY CERTIFY
THAT THE DEPONENT HAS ACKNOWLEDGED THAT HE KNOWS AND UNDERSTANDS THE
CONTENTS OF THIS AFFIDAVIT WHICH WAS SIGNED
AND SWORN TO BEFORE ME AT
NORWOOD
ON THIS THE
14
DAY OF
Sept
2020.
THE REGULATIONS CONTAINED IN GOVERNMENT NOTICE NO R1258 OF 21 JULY
1972, AS AMENDED AND GOVERNMENT NOTICE NO R1648 OF
19 AUGUST 1977, AS
AMENDED, HAVING BEEN COMPLIED WITH.
Deponent’s
signature
COMMISSIONER OF
OATHS
Signature of
Commissioner of oaths
Tshepo GL Mohapi
EX OFFICIO
COMMISSIONER OF
OATHS
PRACTISING ATTORNEY
REPUBLIC OF SOUTH
AFRICA
1 THE AVENUE,
NORWOOD 2192, JOHANNESBURG
Printed
full names and surname of commissioner of oaths’
[9]
It is settled law
that the court has a discretion to refuse to receive an affidavit
attested otherwise than in accordance with the
Regulations depending
upon whether there has been substantial compliance with the
Regulations. In, for example,
Lohman
v Vaal Ontwikkeling
1979 (3) SA 391
(T) at 398G-399A, Nestadt J said the following:
‘
It
is now settled (at least in the Transvaal) that the requirements as
contained in regs 1,2,3 and 4 are not peremptory but merely
directory; the Court has a discretion to refuse to receive an
affidavit attested otherwise than in accordance with the regulations
depending upon whether substantial compliance with them has been
proved or not (
S v
Msibi
1974 (4) SA
821
(T)). In
Ladybrand
Hotels v Stellenbosch Farmers’ Winery
(
supra
)
[1974 (1) SA 490
(O)] a similar conclusion was arrived at.
In that case the admissibility of an affidavit was attacked on the
basis that
the certification did not state that the deponents had
signed it in the presence of the commissioner of oaths. It was
held
that the maxim
omnia
praesumuntur
rite esse acta
applied,
that there was an
onus
on
the person who disputes the validity of the affidavit to prove by
evidence the failure to comply with the prescribed formalities
and
that in the absence of such evidence the objection taken failed.
In any event, it was held that if the affidavit was
defective it
should be condoned.
It
is of course a question of fact in each case whether there has been
substantial compliance or not.’
[10]
In casu
I am similarly of the view that substantial compliance
with the Regulations has been proved and the defect (the deponent
signing
at the wrong place when the founding affidavit was
commissioned before the commissioner of oaths) should be condoned.
[11]
There is, in my view, also no merit in the respondent’s attack
on the validity of the applicant’s
cancellation of the
agreement on 29 July 2020, because it was cancelled at a time when
our country was under lockdown as a result
of the Covid 19 pandemic.
Regulations in terms of the Disaster Management Act 57 of 2002 (the
DMA Act) were published to
regulate the different levels of the
national lockdown. The DMA regulations find no application
in
casu
in so far as the lease is a commercial lease. The
applicant’s cancellation of the agreement is not invalid merely
because
it was cancelled during the National State of Disaster.
[12]
The respondent’s contention that the applicant’s
cancellation of the agreement was
invalid, because it was based on
incorrect figures as result of the respondent being overcharged for
its consumption of water and
electricity, and effluent charges, is,
in my view, also unmeritorious. The respondent did not take
issue with its liability
vis-à-vis the applicant for payment
of monthly rentals of R27 000 on the first day of each month during
the currency of
the lease, and that it only made payment of the total
amount of R65 500 to the applicant in respect of rent, water and
electricity
consumption, effluent and refuge charges, during the five
month period October 2019 until February 2020 when the letter of
demand
was served by the sheriff at the property on 20 February
2020. The total monthly rental that it was obliged to pay to
the
applicant during that period amounted to R135 000, leaving an
arrear balance in respect of only its monthly rental payment
obligation
in the amount of R69 500.00. Since then until the
time when the notice of cancellation was sent to the respondent via
email
and by registered post on 29 July 2020 and on 3 August 2020
respectively, it made only one further payment in the amount of R15
000 during March 2020 to the applicant. By then, the total
monthly rental that the respondent was obliged to have paid to
the
applicant for the ten month period October 2019 until July 2020
amounted to R270 000, whilst it had only paid the total amount
of R80
500 to the applicant, leaving an arrear balance in respect of only
the monthly rental owed by it in the amount of R189 500.
[13]
It is trite that a notice of cancellation will be effective even
though it gives a wrong reason
for cancelling the agreement. In
this regard it was said by Jansen JA in
Stewart Wrightson (Pty)
Ltd v Thorpe
1977 (2) 943 (A) at 953F, that ‘[i]t has also
been long recognised in our practice that a party purporting to
terminate for
a wrong reason may later justify the termination an a
different and valid ground existing at the time of the termination’.
(See also
Putco Ltd v TV & Radio Guarantee Co (Pty) Ltd
and other Related Cases
1985 (4) SA 809
(A) at 832C-D);
Design
and Planning Service v Kruger
1974 (1) SA 689
(T) at 699C-E.).
In casu
, the applicant is entitled to rely at least on the
non-payment of the monthly rentals by the respondent as justification
for its
cancellation of the agreement, which is not a different
reason but only part of the reason stated in its letter of demand and
notice
of cancellation.
[14]
In its founding affidavit the applicant makes the following averment:
‘
On
29 July 2020 and on the 3
rd
of August 2020 the Applicant’s attorneys of record sent a
letter to the Respondent via email and registered post. The
letter, a copy of which is annexed hereto marked “SG5”,
advised the Respondent of cancellation of the lease and demanded
that
the Respondent vacate the premises by 5 August 2020.’
In its answering
affidavit the respondent replies to this averment as follows:
‘
The
Applicant claims to have cancelled the lease agreement in a letter,
dated 29 July 2020, which was allegedly sent to the Respondent
by
registered mail, which letter never came to the attention of the
Respondent.’
[15]
But, the applicant clearly states that the notice of cancellation was
sent to the respondent
by registered mail and via email. The
respondent did not reply to the averment that the notice of
cancellation was sent to
it by email nor whether the one that was
sent by email came to its attention. Nevertheless, cancellation
of an agreement
takes effect from the time it is communicated to the
other party. (See
Swart v Vosloo
1965 (1) SA 100
(A) at
105G;
Phone-a-copy Worldwide (Pty) Ltd v Orkin
1986 (1) SA 729
(A) at 751A-C.) If it has not previously been communicated it
takes effect from service of summons or notice of motion
(
Middelburgse Stadsraad v Trans-Natal Steenkoolkorporasie Bpk
1987
(2) SA 244
(T) at 249A-G), unless a contract prescribes a particular
procedure (
Swart v Vosloo
at 112F), which is not the case in
this instance.
[16]
The prejudice which the respondent will suffer if it is ordered to
vacate the property, because
it will be required to apply to the
Gauteng Province Department of Education in writing six months in
advance in order to change
the school’s address, is of its own
making. It has been aware of the applicant’s cancellation
of the agreement
and its demand that it vacates the property since 29
July 2020, when the applicant’s attorneys of record sent the
notice
of cancellation of the lease via email to it, or at least
since this application, which was issued on 1 September 2020, was
served
upon it. Apart from two payments of R25 000 and of R50
000, which it made to the applicant on 24 September 2020 and on 22
December 2020 respectively after the agreement had already been
cancelled by the applicant, it has not made any payment of the
monthly rentals and other charges since April 2020. The
applicant remains liable for the payment of all municipal rates and
taxes and service/consumption charges in respect of the property, it
is not able to let the property due to the respondent’s
failure
to vacate the property and it continues to suffer damages. It
should also be borne in mind that the respondent in
any event agreed
to let the property indefinitely, subject to either party’s
right to terminate the agreement on 30 days’
written notice to
the other.
[17]
The applicant, as it was entitled to do, cancelled the agreement and
the respondent’s right
to occupy the property, therefore,
terminated.
[18]
In the result, the following order is made:
(a)
The respondent and all those who occupy Erf 7, Doornfontein situate
at 178 Helen Joseph Street, Doornfontein,
Johannesburg (the property)
by virtue of the respondent’s occupancy thereof, are hereby
ejected from the property.
(b)
The respondent and all those who occupy the property by virtue of the
respondent’s occupancy thereof,
shall vacate the property
within 30 days of service of this order on the respondent, failing
which the sheriff of this court is
hereby authorised to forthwith
enter upon the property and eject the respondent and all those who
occupy the property by virtue
of the respondent’s occupancy
thereof.
(c)
The respondent is to pay the costs of the application.
P.A. MEYER
JUDGE
OF THE HIGH COURT
Judgment:
20 July 2021
Heard:
29 April 2021
Applicant’s
Counsel:
Adv V Vergano
Instructed
by:
Joshua Apfel Attorneys, Norwood, Johannesburg
Respondent’s
Counsel: Mr TML
Mashitoa
Instructed
by:
TML Mashitoa Inc., Benoni
C/o Mokhabukhi
Attorneys, Johannesburg