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[2021] ZAGPJHC 150
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Freestone Property Investment (Pty) Ltd vs Remake Consultants CC and Another (2020/29927) [2021] ZAGPJHC 150; 2021 (6) SA 470 (GJ) (25 August 2021)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, JOHANNESBURG
REPORTABLE
OF
INTEREST TO OTHER JUDGES
25/8/2021
Case
No.: 2020/29927
In
the matter between:
FREESTONE PROPERTY
INVESTMENTS (PTY) LIMITED Plaintiff
and
REMAKE
CONSULTANTS
CC First
Defendant
CLARE
SCOTT Second
Defendant
JUDGMENT
This
judgment was handed down electronically by circulation to the
parties’ legal representatives by email and is deemed to
be
handed down upon such circulation.
Gilbert AJ:
1. The
plaintiff as lessor and the first defendant as lessee concluded two
written lease agreements for commercial
premises in a shopping
centre. The first defendant trades from the leased premises in
providing expertise in building, renovation
and interior decoration.
The plaintiff terminated the lease agreements in November 2020
because of non-payment of rental and other
charges.
2.
On
15 March 2020 a national state of disaster was declared in terms of
the
Disaster Management Act, 2002
to combat the Covid-19 pandemic.
[1]
The first defendant was trading from the premises when the ‘hard
lockdown’ commenced towards the end of March 2020
in terms of
the Disaster Management Regulations.
[2]
The first defendant ceased trading. Although the ‘hard
lockdown’ ended on 30 April 2020,
[3]
the first defendant only recommenced trading in June or August 2020.
3.
The
plaintiff seeks summary judgment for the first defendant’s
ejectment from the two commercial premises and for arrear rental
and
other charges. The plaintiff also seeks summary judgment for payment
against the second defendant as surety and co-principal
debtor.
[4]
4. The
defendants’ primary defence is that the respective obligations
of the plaintiff as lessor and of the
first defendant as lessee were
suspended for the period March to June 2020: the plaintiff was
excused from tendering occupation
of the premises and the first
defendant was excused from paying rentals. The parties’
respective obligations became incapable
of performance, the
defendants argue, because of supervening impossibility of performance
as the declaration of the state of disaster
with its associated
regulations made it unlawful for both the lessor and the lessee to
perform their obligations. So, the defendants
continue, the plaintiff
is not entitled to rentals for that period and, it follows, the
plaintiff was not entitled to terminate
the lease agreements because
of the first defendant’s failure to pay those rentals.
5. Neither
counsel nor I have found authority squarely on point dealing with the
effect of the declaration of the
state of disaster and its associated
regulations arising from the Covid-19 pandemic on the respective
obligations of the lessor
and lessee of commercial premises.
6. The
defendants admit that the first defendant as lessee is in arrears in
a sum of R629 952.94. Although
the defendants dispute the
precise period to which these arrears relate, they relate to at least
the period March to October 2020.
This period includes the ‘hard
lockdown’ for the month of April 2020.
7. What
is immediately evident is that the arrears relates to a period
considerably beyond the ‘hard lockdown’
that ended on 30
April 2020.
8. The
parties have approached the effect of the declaration of the state of
disaster and its associated regulations
on the lease agreements as an
issue to be determined in the context of the doctrine of supervening
impossibility of performance.
9.
In
the leading case of
Peters,
Flamman & Co v Kokstad Municipality
1919
AD 427
the appellant firm had contracted with the municipality to
light the streets of Kokstad for twenty years. During the term of the
contract, in war-time, the partners of the firm were interned as
enemy subjects and their business wound up under the relevant
war legislation. The liquidator terminated the agreement. The court
a
quo
rejected the municipality’s claim for damages on the basis that
the firm’s partners had been deprived by the action
and
authority of the State of the power to carry out their obligations
under the contract to provide lighting to the streets. On
cross-appeal, the Appellate Division upheld the court
a
quo
’s
dismissal of the municipality’s claim for damages for breach of
contract.
[5]
10. Solomon
ACJ said at 437:
“…
it
seems clear that by our law, which is based upon the Civil Law, the
contract was extinguished so soon as it became impossible
for the
defendants to carry it on owing to the order of the Treasury winding
up their business. And if the contract had come to
an end, there
could be no further breach of it, and consequently no action would
lie for damages for breach of contract.”
11.
The
doctrine of supervening impossibility performance is firmly
entrenched in our law
.
If performance of a contract has become impossible through no fault
of the party concerned, the obligations under the contract
are
generally extinguished.
[6]
But
the doctrine is not absolute. For example, the doctrine may be
overridden by the terms or the implications of the agreement
in
regard to which the defence is invoked
[7]
and is not available where the impossibility of performance is
self-created.
[8]
12. A
consideration of a defence of supervening impossibility of
performance in the context of the regulations
passed pursuant to the
state of disaster should be approached from the perspective of its
effect on the performance by the plaintiff
of its obligations as
lessor
and
on the performance by the first defendant’s
obligations as lessee, rather than approached solely from the
perspective of
whether the first defendant was able to perform its
side of the bargain, particularly to pay rentals.
13. In
Peters, Flamman & Co
it was the firm that was unable to
perform because its partners were interned as enemy subjects. The
municipality remained willing
and able to accept performance by the
firm if the firm was able to perform.
14. Similarly,
in
Petersen v Tobiansky and Tobiansky
1904 TH 73 it was
one of the parties that was unable to perform. In that matter, the
defendants were lessees of a store. The
defendants were commandeered
for military service as burghers of the then South African
Republic. As the defendants had to
report for military duty, they
could not at the same time occupy the leased store. The court found
that the defendants were prevented
by
vis major
from
occupying the leased premises and therefore were entitled to a
remission of rent for the period that they could not take up
occupation of the store. In that matter, the plaintiff as lessor was
willing and able to continue to tender occupation of the store.
15. The
implementation of the ‘hard lockdown’ under the previous
Regulations gives rise to a more nuanced
situation than where only
one party is unable to perform.
16. For
example, regulation 11B(1)(a)(i) of the previous Regulations provided
that “
For the period of the lockdown … every person
is confined to his or her place of residence, unless strictly for the
purposes
of performing an essential service, obtaining an essential
good or service, collecting a social grant, pension or seeking
emergency,
life-saving, or chronic medical attention”
.
17. R
egulation
11B(1)(b) of the previous Regulations provided that “
[d]uring
the lockdown, all businesses and other entities shall cease
operations, except for any business or entity involved in the
manufacturing, supply or provision of an essential good or service,
save where the operations are provided from outside the Republic
or
can be provided remotely by a person from their normal place of
residence”.
18.
And,
particularly, regulation 11B(1)(c) of the previous Regulations
provided that “
[r]etail shops and
shopping malls must be closed,
except
where essential goods are sold and on condition that the person in
control of the said store must put in place controls to
ensure that
customers keep a distance of at least one square meter from each
other, and that all directions in respect of hygienic
conditions and
the exposure of persons to COVID-19 are adhered to.”
19. The
defendants did not plead which regulations prevented the parties from
performing their respective obligations
under the lease agreements.
Presumably it was regulations such as these that restricted the
movement of persons that the defendants
had in mind when pleading
impossibility of performance. Given what has been described as the
extraordinary and stringent nature
of summary judgment proceedings, I
will assume so in favour of the first defendant.
20.
There
is no suggestion that either the plaintiff or the first defendant was
entitled to trade during the ‘hard lockdown”
because
either of them fell within any of the exceptions provided for in the
previous Regulations that would have enabled them
to trade. I assume,
again, in favour of the first defendant that (i) the plaintiff was
unable to conduct the trade of conducting
a shopping centre and so
was unable to tender lawful occupation of the leased premises; and
(ii) the first defendant was unable
to conduct the trade of
providing
expertise in building, renovation and interior decoration, and so
unable to take up lawful occupation of the leased premises.
21. The
predicament of the first defendant in being unable to take up lawful
occupation is similar to that faced
by the firm in
Peters, Flamman
& Co
and the lessees in
Petersen
. But somewhat
different in this case is that, as pleaded by the defendants, the
plaintiff also suffered from the predicament that
it could not
lawfully tender occupation of the leased premises to the first
defendant. It is not clear to me how the plaintiff
as lessor was in a
position to continue to tender occupation of leased premises in a
shopping centre where its personnel too may
have been subject to the
same restrictions on movement and may not have been able to leave
their homes to do what was necessary
to tender that occupation.
And regulation 11B(1)(c) expressly required shopping malls to be
closed except for the sale of
essential goods.
22. It
is over-simplistic to analyse the predicament of commercial lessees
under the ‘hard lockdown’ solely
from the
perspective that it was the lessees that were unable to perform.
Lessors too may have been unable to perform. An argument
that a
lessee’s obligation to make payment is not rendered impossible
by the ‘hard lockdown’ as the lockdown
did not prevent
the lessee from making payment as banking facilities remained
available, misses the point. An assessment of whether
there was
impossibility of performance should not be approached from the narrow
perspective that performance in the form of payment
always remained
possible and therefore there is no room for the operation of the
doctrine.
23.
I
do not suggest that a lessee’s commercial inability or
diminished commercial ability to pay rentals because of an inability
to trade during the ‘hard lockdown’ may excuse the lessee
from making payment. Our law is settled that a
vis
major
or
casus
fortuitus
that it makes it uneconomical or no longer commercially attractive
for a party to carry out its payment obligations cannot constitute
a
basis to be excused from performance.
[9]
24.
Rather,
a more nuanced approach is called for that a lessor’s potential
impossibility of performance in the form of being
unable to tender
lawful occupation must also be taken into account, alongside the
lessee’s inability to take up lawful occupation,
irrespective
of the lessee’s commercial means. Issues that may arise for
consideration include the reciprocity of the parties’
respective obligations, such as whether a lessee’s obligation
to pay rental is only triggered once the lessor has tendered
and is
able to give lawful occupation. Under the common law the lessor first
must give occupation for the applicable period before
it can demand
rental from the lessee for that particular period, and so the
residual rule that rental is payable in arrear.
[10]
But, as is now usually the case, the terms of the lease agreement may
provide otherwise, such as the lessee being required to pay
rental in
advance such as on the first day of the month, and before enjoying
the applicable period of occupation corresponding
to that rental
payment.
25.
I
proceed, for purposes of these summary proceedings, on the assumption
in favour of the first defendant
that the
effect of the ‘hard lockdown’ on the lease agreements
incapacitated both the plaintiff and the first defendant
from
performing their respective obligations.
26. When
considered from this more nuanced perspective, what then can be said
for the first defendant’s reliance
on supervening impossibility
of performance caused by the ‘hard lockdown’ regulations
on both its and the plaintiff’s
obligations to perform under
the two lease agreements?
27.
Even
when approached from this nuanced perspective, the first defendant
cannot legally justify its failure to make payment of rentals
and
other charges for the protracted period of March to October 2020.
[11]
Whatever restrictions there may have been that prevented the
plaintiff and the first defendant from performing their respective
obligations for the period of the ‘hard lockdown’ until
30 April 2020, those restrictions did not persist until October
2020.
From 1 May 2020, the lockdown regulations were progressively
eased.
[12]
Any supervening
impossibility of performance did not endure for the entire period
corresponding to the first defendant’s
non-payment of rentals.
28.
In
Hansen,
Schrader and Co v Kopelowitz
1903 TS 707
the Full Court of this Division refused to recognise a right to
remission of rent merely because the lessee
had suffered a loss
because the country in which the leased property was situated was at
war. The court further found
[13]
that the fact that a great number of people had left the country, so
as to reduce the field from which the lessee could draw his
custom,
was also no ground for remission of rent, because the principle upon
which the court grants the remission is that the
vis major
must be the direct and immediate cause of a lessee being deprived of
the use of leased premises. Wessels J graphically described
the
position as follows:
“
In this case
vis major would not be the direct and immediate cause of his leaving
the house. It was not a necessary effect of the
outbreak of war that
these particular premises were not hired by persons. There were
people in Johannesburg and bedrooms were occupied,
only there were
not enough people to occupy all the available bedrooms in the town.
The war no doubt was the indirect cause of
the dearth of tenants, and
a heavy and continued fall in the market may also produce an exodus
of people, and lessees of rooms
may find themselves without
sub-tenants, but the falling stock would not be the direct, immediate
and necessary cause of particular
bedrooms not being let.
”
[14]
29. Similarly
in the present matter, that the declaration of the state of disaster
and the continued effect of
the Covid 19 pandemic may have
resulted in a dramatic decline of custom through the shopping centre
in which the leased premises
were situated, does not afford a defence
to the first defendant as lessee.
30. The
court in
Johannesburg Consolidated Investment Co v Mendelsohn &
Bruce Limited
1903 TH 286
also rejected a claim for remission of
rental because of a decline in custom arising from the outbreak of
war and which rendered
it no longer profitable to operate a
stationer’s shop. The court posited the following particularly
relevant analogy at 295,
296:
“
The
consequence of holding that the defendants in this case are entitled
to a remission of rent appears to me to be far-reaching.
It would
involve this, that on the happening of any event amounting to vis
major, which caused a temporary diminution of the
population of a
town, every tradesman who could show that he had sustained a
temporary loss or a considerable diminution of profit
might be
entitled to a remission of rent. Suppose, for instance, that in
consequence of the outbreak of an epidemic disease a large
proportion
of the inhabitants fled, with the result that owing to the absence of
their usual customers the tradesmen temporarily
were carrying on
business at a loss, and closed their shops, it would come as an
unpleasant surprise to the lessors to find that
the whole of the loss
is to fall upon them, and that they occupy in effect the position of
insurers of their lessees' custom.”
31. The
first defendant’s decision not to open its doors for business
after the regulations were eased sufficiently
to legally permit it to
recommence trading also does not constitute a defence. The first
defendant’s decision to keep its
doors closed is not because
the prevailing regulations prevented it from trading. The first
defendant’s decision to cease
trading is not a direct
consequence of a
force majeure
. As recently stated by Weiner J
in
Matshazi v Mezepoli Melrose Arch (Pty) Limited and another and
related matters
[2020] 3 All SA 499 (GJ) in the context of
deciding whether a restaurateur was excused from performing its
obligations to pay
its employees because it was not trading:
“
The respondent
companies are not excused from its obligations to its employees
because it has decided not to trade in circumstances
where it is able
to do so, but has elected not to, in anticipation that such trading
will not be profitable. Trading may be burdensome
or economically
onerous, but economic hardship is not characterised as being a force
majeure event;
[15]
it does not render performance objectively and totally
impossible.
”
[16]
32.
Whatever
the defence the first defendant may have that it was excused from
paying rentals for the period of the ‘hard lockdown’,
that impossibility of performance does not relate to the full period
for which it did not make payment. The plaintiff’s cancellation
of the lease agreements in November 2020 based upon the first
defendant’s non-payment of arrears for a period that extended
beyond when the regulations may have prevented the occupation of the
premises is lawful.
33. The
first defendant relies upon counterclaims arising from what it
contends was a misrepresentation made by
the plaintiff. These
counterclaims do not constitute a defence to the cancellation of the
lease agreements, particularly as the
lease agreements expressly
provide in clause 4 that the rentals are to be paid free of
exchange and without deduction or set-off.
34.
In
any event, the divergence between the misrepresentation pleaded by
the defendants in their plea and the misrepresentation described
in
their affidavit resisting summary judgment is so great, I in any
event am unable to find that the counterclaims are
bona
fide
raised.
[17]
35. Counsel
for the first defendant in his heads of argument, and again in oral
argument, submitted that should
the court grant an ejectment order,
the order should nonetheless be suspended for an appropriate period
of eight to twelve months
in the exercise of the court’s
discretion under Uniform Rule 45A. The difficulty, which
was readily appreciated
by counsel, is that no case was made out for
such relief, whether in the first defendant’s plea or affidavit
resisting summary
judgment. In the circumstances, no case has been
made out to trigger any discretion that I may have to otherwise
suspend the ejectment
order.
36. The
plaintiff is entitled to the ejectment of the first defendant from
the two leased premises as the first
defendant’s continued
occupation after the termination of the lease agreements is unlawful.
37. What
remains to be decided is whether summary judgment should be granted
for the plaintiff’s claim for
arrear rentals. Upon adopting the
more nuanced approach, it cannot be said, at least for purposes of
resisting summary judgment,
that the defence that the first defendant
was excused from making payment of rentals for the ‘hard
lockdown’ is unarguable
as the plaintiff as lessor too may not
have been able to perform its obligations to tender lawful occupation
for that period. That
period forms part of the overall period for
which the plaintiff claims payment of arrear rentals and other
charges.
38. Plaintiff’s
counsel argued that the first defendant has expressly contracted to
be liable for rentals
notwithstanding any supervening impossibility
of performance, and so has expressly contracted to be liable for
rentals even for
the period of the ‘hard lockdown’.
39. The
operation of the doctrine has been explained on the basis of a term
that is implied into the contract that
if performance becomes
impossible, the contract shall not remain binding. For example, the
Solomon ACJ for the Appellate Division
in
Peters, Flamman & Co
referred to the oft-cited English authority of
Tamplin
Steamship Co v Anglo Mexican Petroleum Products Co Limited
L.R.
1916 2 AC 422
in which Lord Parker said:
“
My Lords in
considering the question arising on this appeal it is, I think,
important to bear in mind the principle which really
underlies all
cases in which a contract has been held to determine upon the
happening of some event which renders its performance
impossible.
This principle is one of contract law depending upon some
term or condition to be implied in the contract itself
and
not on something entirely
dehors
the contract which brings the
contract to an end.
" (My emphasis).
40. Lord
Loreburn in the same English authority said that:
"
An examination
of the decisions confirms me in the view that, when our Courts have
held innocent parties absolved from further performance
of their
promises,
it has been upon the ground that there was an
implied term in the contract which entitled them to be absolved
.
Sometimes it is put that performance has become impossible and that
the party concerned did not promise to perform an impossibility.
Sometimes it is put that the parties contemplated a certain state of
things which fell out otherwise.
" (My emphasis).
41.
In
Schlengemann
v Meyer, Bridgens and Co Limited
1920
CPD 494
at 500) the court referred to another English case,
Marshall
v Glanville and another
.
[18]
“
The true
principle was laid down in
The Tamplin Steamship Co. v.
Anglo-Mexican Petroleum Products Co
., and the question was: Did
the parties make their bargain on the footing that a particular state
of things would continue to exist?
Here it is clear that the parties
contracted on the footing that it would continue to be lawful to
perform and accept the contemplated
service, but, from July 1916,
that footing no longer existed, and the contract came to an end.
”
42.
It
follows that where the parties have expressly in their written
agreement stipulated for what will happen in the event of supervening
impossibility of performance, there can be no room for an implied
term that the parties are excused from performance. This explains
why
the doctrine of impossibility of performance cannot apply if the
contract provides otherwise.
[19]
A term cannot be implied where there are express terms that provide
otherwise. A term is implied in an agreement for the very reason
that
the parties failed to agree expressly thereon.
[20]
43. But
irrespective of whether the jurisprudential basis of the doctrine is
an implied term, our law undoubtedly
allows for parties to
contractually regulate the position should there be supervening
impossibility of performance.
44. Clause
22.1 of each lease agreement provides that:
“
The Tenant
shall have no claim or right of action of whatsoever nature against
the landlord for damages, loss or otherwise,
nor shall it
be entitled to withhold or defer payment of rent, nor shall the
tenant be entitled to a remission of rent
, by reason of an
overflow of water supply or fire or any leakage or any electrical
fault or by reason of the elements of the weather
or by reason of the
Leased premises or any other part of the Building or Property being
in a defective condition or falling into
disrepair or any particular
repairs not being effected by the Landlord or by reason of there
being any defect in the equipment
of the Landlord or
as a
result of any other cause whatsoever
.
” (My
emphasis).
45. The
plaintiff’s argument is that in terms of this clause the
plaintiff and the first defendant have contracted
that the first
defendant as the lessee is not entitled to withhold or defer payment
of rent and is not entitled to a remission
of rental “
as a
result of any other cause whatsoever
”. Plaintiff’s
counsel also referred to clauses 4, 9, 17 and 20 of the lease
agreements, which he submitted, when read
in the context of the lease
agreements as a whole, also precluded the first defendant from
relying upon supervening impossibility
of performance and from
claiming a remission of rental.
46.
Given
the stringent and extraordinary nature of summary judgment
proceedings, I am unable to find that these clauses, including
clause
22.1, are so clearly applicable to the situation that presented
itself that summary judgment should be granted. A more restrictive
interpretation of the clauses might be called for. I have already
emphasised the potential bilateral incapacity of the plaintiff
and
the first defendant to perform their respective obligations as lessor
and lessee. Questions arise whether the clauses, correctly
interpreted with recourse to such evidence as is admissible in aiding
the interpretative exercise, which is now more generously
received
than before,
[21]
does permit
the plaintiff as lessor to claim rental for a period for which it may
not have been able to tender lawful occupation.
The plaintiff states
in its affidavit that it has already granted discounts in respect of
the rental during the period of the national
disaster. Although the
plaintiff states that it was not obliged to do so, it nonetheless did
so and this may constitute subsequent
conduct that can aid in the
interpretation of clause 22 and the lease agreement generally, even
in the absence of ambiguity.
[22]
47. I
am also cognisant that these clauses were only referred to in
argument by the plaintiff and did not feature
in the pleadings or the
affidavits. I have not had the benefit of close argument on these
issues, particularly in the context of
the interpretative exercise
that needs to be undertaken as to what the particular clauses mean,
which are more appropriately explored
at trial, after hearing
evidence and full argument.
48. I
am unable to find that the first defendant does not have an arguable
defence in respect of at least a portion
of the arrears.
49. As
the arrear rental claimed by the plaintiff covers the ‘hard
lockdown’ period, and insufficient
detail has been provided by
the plaintiff either in its particulars of claim or its affidavit
supporting summary judgment to enable
the rental and other charges
for that period to be readily severed from the balance of the arrears
claim, it would not open to
me to grant summary judgment in terms of
Uniform Rule 32(6) for that portion of the arrears claim that does
not relate to the period
when the plaintiff may not have been unable
to tender lawful occupation. Although I was invited by the
plaintiff’s counsel
to undertake such an exercise with
reference to the rental statements attached to the papers, it does
not appear to me to be a
straightforward exercise.
50. The
plaintiff has nonetheless had substantial success in obtaining
ejectment in these summary judgment proceedings
and is therefore
entitled to its costs for the summary judgment proceedings. The
plaintiff and the first defendant agreed in the
lease agreements on
the scale of costs.
51. As
the second defendant’s liability is that of a surety and
co-principal debtor for the first defendant’s
indebtedness, I
need not consider the defences raised in relation to that liability.
52. Summary
judgment is accordingly granted, and on order is made, as follows:
52.1. The
first defendant and all those in occupation through the first
defendant are ejected from
and are to vacate the commercial leased
premises described as Unit SF10A (measuring approximately 212m²
and which includes
the storeroom measuring 100m² and the eight
basement parking bays) in The Colony Shopping Centre, 345 Jan Smuts
Avenue, Craighall Park, Johannesburg, within one week of this order,
failing which the sheriff and/or deputy sheriff is authorised
to take
such steps as are necessary to give effect to this paragraph and, if
necessary, to obtain the assistance of the South African
Police
Services.
52.2. The
first defendant and all those in occupation through the first
defendant are ejected from
and are to vacate the commercial leased
premises described as Unit S210 (measuring approximately 400.79m²)
in The Colony Shopping
Centre, 345 Jan Smuts Avenue,
Craighall Park, Johannesburg, within one week of this order, failing
which the sheriff
and/or deputy sheriff is authorised to take such
steps as are necessary to give effect to this paragraph and, if
necessary, to
obtain the assistance of the South African Police
Services.
52.3. The
first defendant is pay the costs of the summary judgment proceedings
on an attorney and own
client scale.
52.4. Leave
to defend is granted to the defendants on the plaintiff’s
claims for payment of the
arrears and of interest thereon, with costs
in the cause.
Gilbert AJ
Date of
hearing: 17
August 2021
Date of judgment:
25
August 2021
Counsel
for the Plaintiff: Mr
J G Dobie
Instructed
by: Reaan
Swanepoel Attorneys
Johannesburg
Counsel
for the First and Second Defendants: Mr A S L van
Wyk
Instructed
by: Douglas
McCusker Attorneys
Johannesburg
[1]
GG
43096 of 15 March 2020,.
[2]
Regulations
published in terms of
section 27(2)
of the
Disaster Management Act
57 of 2002
: GN 318 of 2020 in GG. No 43107 (18 March 2020), and as
amended by GN 398 of 2020 in GG. No 43148 (25 March 2020) [“the
previous Regulations”]. These regulations were replaced on 29
April 2020 by the regulations published in GN 480 of 2020
in GG.
43258 (29 April 2020), and which have been amended frequently since
then [“the present Regulations”].
[3]
When
Alert Level 4 was declared to be in effect, in terms of
regulation
15
of the present Regulations, from 1 May 2020, replacing the ‘hard
lockdown’ under the previous Regulations.
[4]
The plaintiff in its summons also seeks damages arising from the
termination of the leases but as those are correctly not the
subject
of the summary judgment proceedings, those damages with their
related defences need not be considered
[5]
At
434.
[6]
For example,
Oerlikon
South Africa (Pty) Limited v Johannesburg City Council
1970 (3)
SA 579 (A) at 585A-C.
[7]
Hersman
v Shapiro & Co
1926
TPD 367
at 372, cited with approval in
Nuclear
Fuels Corporation of SA (Pty) Ltd v Orda AG
1996 (4) SA 1190
(A) at 1206B.
[8]
King
Sabata Dalindyebo Municipality v Landmark Mthatha (Pty) Ltd and
another
[2013]
3 All SA 251
(SCA) para 28.
[9]
Unibank
Savings and Loans Ltd (formerly Community Bank) v ABSA Bank Ltd
2000
(4) SA 191
(W) at 198D/E, applying
Macduff
& Co Ltd (in liquidation) v Johannesburg Consolidated Investment
Co Ltd
1924 AD 573
at 606 to 607.
[10]
Van
der Merwe v Reynolds
1972
(3) SA 740
(A) at 746B.
[11]
Although the defendants seek to make something of the arrear rentals
including the month of November 2020 and which then overlaps
with
the damages claim in the summons, it is clear from the rental
statement annexed to the plaintiff’s particulars
of claim that
arrear rentals and other charges are only claimed until the month of
October 2020. This is sufficiently clear that
in my view the
defendants cannot complain of any real prejudice on this aspect.
[12]
This
commenced with the substitution of the previous Regulations with the
present Regulations with effect from 1 May 2020, and
which
introduced Alert Level 4 in Chapter 3. Easing of restrictions that
followed, without professing to be exhaustive, included
Alert Level
3 from 1 June 2020 (GN 608 of 28 May 2020 in GG 43364), Alert Level
2 from 18 August 2020 (GN 891 of 16 August 2020
in GG 43620) and
Alert Level 1 from 21 September 2020 (GN 998 of 17 September 2020 in
GG 43719)
[13]
At
715, 716.
[14]
At
716.
[15]
Citing
Unibank
Savings
above.
[16]
At paragraph 40.5
[17]
See
para 10 in
Vukile
Property Fund Ltd v True Ruby Trading 1002 CC and another
(case number 2020/9705) per Moorcroft AJ, in Gauteng Division,
Johannesburg (21 May 2020).
[18]
116 LT at 560. Also referred to in
Bekker
NO v Duvenhage
1977 (3) SA 884
(E) at 889E/F.
[19]
See, for example,
Ex
Parte Lebowa Development Corporation Limited
1989
(3) SA 71
(T) at 105H/I;
Nuclear
Fuels Corporation
above
at 1206F/G and at 1208I, citing
Oerlikon
above at 585 B.
[20]
South
African Mutual Aid Society v Cape Town Chamber of Commerce
1962
(1) SA 598
(A) at 615D.
[21]
Unterhalter
AJA for the Supreme Court of Appeal recently in
Capitec
Bank Holdings Ltd and another v Coral Lagoon Investments 194 (Pty)
Ltd and others
[2021] ZASCA 99
(9 July 2021) in para 39 (and see also para 46)
referred to the Constitutional Court’s affirmation in
University
of Johannesburg v Auckland Park Theological Seminary and
another
[2021] ZACC 13
, especially para 68, that an expansive approach
should be taken to admissibility of extrinsic evidence of context
and purpose,
whether or not the words used in the contract are
ambiguous, so as to determine what the parties intended.
[22]
Comwezi
Security Services (Pty) Ltd v Cape Empowerment Trust Ltd
[2012]
ZASCA 126
, para 15. See however the caution sounded in
Capitec
Bank
above, para 50.