Nyere Trading Enterprise CC v Elasly & others (EL 1133/2020) [2021] ZAECELLC 13 (20 April 2021)

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[2021] ZAECELLC 13
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Nyere Trading Enterprise CC v Elasly & others (EL 1133/2020) [2021] ZAECELLC 13 (20 April 2021)

REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(EAST
LONDON CIRCUIT LOCAL DIVISION)
In
the matter
between:
Case No:
EL 1133/2020
NYERERE
TRADING ENTERPRISE CC
Applicant
REGISTRATION
NUMBER: 2006/194746/23
And
ELIZABETH
ELASLY

First Respondent
PETER
VERDOUKAS TRUST and
MARIA
VERDOUKAS N.O

Second Respondent
JUDGMENT
Govindjee
AJ:
Background
[1]
The applicant approached this Court for the following relief,
together with costs:
‘
1.1 The Addendum
to the lease agreement dated 14 October 2020 entered into between the
first and second respondents in respect of
the premises at 268 Oxford
Street, East London is declared void;
1.2  a) The
lease agreement dated 16 April 2019 entered into between the first
and second respondents in respect of the premises
at 268 Oxford
Street, East London is cancelled;
b) There is no
existing lease agreement between the applicant and first respondent;
c) That the
applicant is entitled to evict the first respondent and / or any
other person occupying the premises, known as the Oxford
Bottle
Store, situate at No. 268 Oxford Street, East London;
1.3  The first
respondent and / or any other person found in the premises described
at paragraph 1.2(c) above is hereby directed
to vacate the aforesaid
premises within a period of 10 (ten) days from the date of receipt of
order issued by the above Honourable
Court; and
1.4  The
Sheriff of this Honourable Court, duly assisted by the members of the
South African Police Services, if needs be, are
authorized and
permitted to evict the first respondent and / or any other person(s)
found at the premises described at paragraph
1.2(c) above, should
they fail to vacate within 10 (ten) days of service of the order.
1.
That the applicant is hereby granted leave to evict the respondent
and / or any other person found
in the premises described at
paragraph 1.2(c) and in carrying out such eviction, the applicant
allows the respondent 10 (ten) days
period for voluntary vacating and
/ or leaving the premises.
2.
That only in the event of the respondent and / or persons occupying
the premises refusing to vacate
the premises, the applicant is
permitted to instruct the Sheriff to evict the first respondent to
ensure that the first respondent
vacates the premises and to ensure
that the applicant is restored with vacant possession of the said
premises.’
[2]
Instead of opposing the application, the first respondent brought an
urgent application for
a temporary stay (‘the stay’) of the main
application (‘the application’), pending the finalisation of an
action issued under
case number EL203/2021 (‘the action’) for a
rectification of the Agreement of Lease concluded on 16 April 2019.
The applicant
opposed the stay and the matter was argued before me.
[3]
Much of the background is common cause. The applicant purchased the
leased premises from the
second respondent after the conclusion of
the lease, and became the current landlord of the first respondent by
operation of law.
The first respondent seeks to rectify the lease so
that the use of the premises described in clause 8.1 provides for
both a ‘tavern
and bottle store’, claiming that the omission of
the word ‘tavern’ was a mistake common to the first and second
respondents
and that a rectification would accord with their true and
common intention at the time that the lease was concluded in 2019.
The
first respondent avers that a rectification is necessary in order
for it to rely on its defence in the application that it is not
in
breach of the lease agreement.
[4]
The issue to be decided is, accordingly, whether it is in the
interests of justice to grant
the first respondent the stay in order
for her to attempt to rectify the lease by way of the action before
the application is considered.
The first respondent places reliance
on the following correspondence from the second respondent on 2
October 2020 (after the property
had been sold to the applicant) to
advance the stay:
‘
This is to
certify that Elizabeth Elasly trading as Oxford Bottle Store was
granted verbal authority to use the premises leased from
us at 268
Oxford St, East London as a tavern during the term of her first lease
with us. Due to an error, this was not included in
the lease when
renewed but it was agreed by us that the use of the premises as a
tavern could continue for the full term of the lease.’
[5]
Subsequent to that correspondence, the first and second respondents
purported to enter into
an addendum to the lease on 13 and 14 October
2020 (in which the word ‘tavern’ is incorporated), which the
applicant claims is
void.
Legal
principles
[6]
A party cannot render any evidence in a dispute that is expressly at
odds with a written agreement,
in terms of the parole evidence rule.
Nor can it tender any evidence to demonstrate the actual intention of
the parties in doing
so, unless the rectification of an agreement is
pursued.
[1]
I have no difficulty
in accepting that this is typically sought by way of action
proceedings.
[2]
[7]
The first respondent relies heavily on
Mokone
v Tassos Properties CC and Another
[3]
to support its argument for a stay of the application pending the
finalisation of the action for rectification. In considering a
stay
in the context of a right of pre-emption, the Constitutional Court,
per Madlanga J, held as follows:
[4]
‘
Put simply, this
(section 173 of the Constitution) says the mentioned courts may
regulate their own process taking into account the
interests of
justice. I will say nothing about equity but, based on this, I do not
see why proceedings may not be stayed on grounds
dictated by the
interests of justice. Whatever the import of what was said by courts
previously may be, the Constitution lays down
its own test; and it
has everything to do with the interests of justice.’
[8]
Mokone’s
case dealt, at least in part, with the validity and enforceability of
a right of pre-emption as a basis for holding eviction proceedings
in
abeyance. In deciding to grant the stay of eviction pending the
finalisation of the action for pre-emption, the majority of the
Constitutional Court held as follows:
[5]
‘
In the litigation
pending before the High Court, Ms Mokone has pleaded that the
purchaser, Blue Canyon, knew of the existence of the
right of
pre-emption before it took transfer of the leased premises. If that
is indeed so, the purchaser’s ownership obtained upon
transfer to
it may well be assailable. It seems unjust to require Ms Mokone to be
uprooted and her business brought to a halt or
destroyed in
circumstances where the purchaser might not have been an innocent
player when it purchased or took transfer of the leased
premises. The
interests of justice dictate that the eviction proceedings be held in
abeyance pending finalisation of the action in
which Ms Mokone is
seeking to enforce the right of pre-emption.’
[9]
The key principles that emerge from this
dictum
are the
following:
a)
The High Court had concluded as a matter of law that there was no way
that Mokone could assail the purchaser’s
title and had not
exercised its discretion whether to stay the proceedings or not.
b)
In fact, the purchaser’s rights in respect of the property were in
dispute.
c)
It would be unjust to evict Mokone in circumstances where the
purchaser might not have been completely
innocent.
d)
The
eviction proceedings were held in abeyance (pending finalisation of
the action to enforce the right of pre-emption) in the interests
of
justice.
[6]
[10]
The dissenting judgment of Froneman J in
Mokone
provides a useful note of clarification in respect of the dichotomy
between law and equity:
[7]
‘
The
pre-constitutional case law in relation to whether courts have an
equitable discretion to stay proceedings in one matter until
determination of a material legal point in another was at pains to
separate law from equity in denying this wide equitable competence
to
our courts. If there is a broad theme of the Constitution, it is to
unshackle our law from this painful historical dichotomy and
tension
between law and fairness. The Constitution demands that they run
together, hand in hand. Ordinary folk assume that is the
purpose of
law – that it should be infused with fairness and justice. Lawyers
should no longer be embarrassed to admit that there
is nothing wrong
with that view.’ (Footnotes omitted).’
[11]
The key question is whether this Court should exercise its equitable
discretion to stay the application
[8]
or, put differently, whether the interests of justice necessitate
this.
[12]
In this regard, the first respondent relies on the ‘common cause
attempt made and intent shown by the
first and second respondent to
rectify the lease, it is submitted that the first respondent’s
prospects of success in the action
are high and worthy of
consideration.’
[9]
[13]
In the circumstances, it is undoubtedly the case that the application
of a stay is inextricably linked
to the rectification of the lease
agreement entered into between the first and second respondents. The
prospects of rectification
must, therefore, affect the exercise of
the judicial, equitable discretion and the proper consideration of
the interests of justice.
The
prospects of rectification
[14]
A party to a contract who claims rectification of that contract must
allege the following (the three
requirements):
[10]
a)
That a contract was entered into by the parties;
b)
That the written record does not reflect the true intention of the
parties and
c)
What the true intention was.
[15]
It is established that rectification is not granted if the effect
would be to prejudice third persons.
[11]
As Christie puts it, “Rectification will not be granted if it will
adversely affect the rights of innocent third parties, ‘innocent’
in this context meaning innocent of knowledge…”
[12]
In
Industrial
Finance and Trust Co (Pty) Ltd v Heitner
,
[13]
the plaintiff was a third-party innocent of knowledge of the
agreement. The Court held:
[14]
‘
A negotiable
instrument is a written contract, with some special features. No
logical or practical reason suggests itself why it should
not be as
capable of reformation as any other written contract...To fulfil this
condition the rectification would have to be
strictly limited, in
its effect, to the parties concerned in the error sought to be
rectified
. That is, in fact, a requirement of the rules as to
rectification of contracts other than negotiable instruments. In this
respect
there is no difference between rectification and the
admission of extrinsic evidence under Lord Watson’s rule: innocent
third parties
may not be allowed to suffer prejudice in consequence
of the application of a rule which is essentially founded on
equitable considerations.’
(Own emphasis).
[16]
In
Movie
Camera Company (Pty) Ltd v Van Wyk
,
[15]
the Court held as follows: ‘For a party to succeed with a claim for
rectification of a written agreement, he / she must prove a
common
intention which the parties intended to express but by mistake failed
to express.’ In that case, the plaintiff sought to
avoid the
conclusion that rectification ought to be ordered by submitting that
since the plaintiff was not a party to the conclusion
of the contract
rectification should not be granted as it would adversely affect the
rights of an innocent party (the plaintiff).
The Court concluded that
“…in the reference to innocent third parties the word ‘innocent’
means ‘innocent of knowledge’.
Were this not so, a party having
knowledge of a particular state of affairs would be able to snatch at
a bargain by ignoring such
knowledge.”
[16]
Analysis
[17]
It is self-evident that the contract that the first respondent seeks
to rectify was not entered into
with the applicant, even though the
applicant subsequently stepped into the shoes of the landlord
subsequent to the purchase of the
property in terms of the
huur
gaat voor koop
maxim. The ‘common mistake’ that the first
respondent relies on is an alleged mistake common to the first and
second respondents,
and rectification is sought so that the lease
accords with their claimed intention at the time of the conclusion of
the lease agreement
in 2019.
[18]
A stay pending the conclusion of the action for rectification should
be granted if this is in the interests
of justice, to be determined
in the discretion of this Court. The prospects of rectification and
the ‘innocence’ of the applicant
are important considerations in
this regard, and the law must ultimately be infused with fairness and
justice.
[17]
[19]
In my view, the prospects of rectification are extremely poor. The
contract that is the subject matter
of the rectification action was
not entered into by the first respondent and the applicant, but was a
contract between the first
and second respondents. This is
problematic considering the authorities suggesting that rectification
ought to be strictly limited,
in its effect, to the
parties
concerned in the error sought to be rectified
.
This must relate to the first and second respondents, whereas a
future judgment granting rectification would impact on the applicant.
As the Court held in
Trust
Bank of Africa Ltd v Frysch
:
[18]
‘
A contract can
only be rectified if it does not recite accurately the contract which
the parties had in fact entered into. The wrong
recording may be
rectified to make the contract recite what the parties had in fact
agreed upon. This being so the first requisite
for rectification is
that the error must be a mutual one. If the Court were to order a
contract to be rectified to include a term
or to cover circumstances
that had not been mutually agreed upon, the Court would not be
ordering the rectification of the agreement
but would be imposing
upon the parties a contract which had not been arrived at by their
agreement –
consensus
, the foundation upon which all
contracts, i.e. agreements, rest.’
[20]
The first respondent’s argument in this respect seems to be that
the applicant, as purchaser, stepped
into the shoes of the seller for
purposes of the lease agreement and in effect became a party to that
contract by operation of law,
seemingly opening the door for possible
rectification. In fact, the established requirements for
rectification make little sense
when an attempt is made to read ‘the
parties’ (the first requirement) to refer to the purchaser (the
applicant) and the tenant
(the first respondent). Even if that were
the case, it cannot possibly be contended that the written record
does not reflect the
true intention of the purchaser (the second
requirement) or that there could have been a ‘true intention’ in
respect of the tenant
and purchaser, at the time the contract was
entered into, that is different from what is recorded in writing
(requirements two and
three).
[21]
The historical development of the
huur
gaat voor koop
maxim has been described in a number of cases, including
Mignoel
Properties (Pty) Ltd v Kneebone
.
[19]
It is unnecessary to repeat those developments. What is important for
present purposes is that  ‘…after a sale, the seller
ex
lege
falls out of the picture and his place as lessor is taken by the
purchaser. No new contract comes into existence; all that happens
is
that the purchaser is substituted for the seller as lessor without
the necessity for a cession of rights or an assignment of
obligations.
On being so substituted for the seller, the purchaser
acquires all the rights which the seller had in terms of the lease,
except,
of course, collateral rights unconnected with the lease.’
[20]
[22]
The fact that the purchaser is, as a matter of law, substituted as
lessor in place of the seller and
that, as a logical concomitant of
that position, the purchaser acquires all the rights which the lessor
enjoyed,
qua
lessor, in terms of the lease, does not make the purchaser a
party
to the contract at the time it was entered into for purposes of
consideration of rectification. Further support for this approach
is
to be found in the authorities that liken the effect of the
huur
gaat voor koop
maxim
to a delegation by operation of law.
[21]
Delegation is a form of novation by which, by agreement between all
concerned, a third party is introduced as debtor in substitution
for
the original debtor, who is discharged.
[22]
[23]
Significantly, an order granting rectification would then have the
effect of prejudicing the applicant
(as a third party in this
context), provided that it may be said that the applicant was
‘innocent’ or had no knowledge of the
state of affairs that form
the basis of the action. If that is the case, the action holds no
prospects of success and the interests
of justice would favour the
applicant when considering the stay.
[24]
It is clear from the papers that the applicant had visited the
premises prior to purchase and noted the
use of the premises as a
tavern:
‘
When our entity
purchased the property, on the lease agreement it is clearly stated
that the premises are to be used as a bottle store
and no other use
unless there is written agreement (sic). When we visited the property
we noticed that there were a number of breaches
of leases in a number
of commercial spaces in the building, but it was not for us to point
out as the property was not transferred
to our entity. We noticed
that the place is being used as a tavern and not as per the lease and
some tennants residing in cormercial
spaces (sic). We enquired with
the selling agents about any addendum to lease and we were notified
there was no such (sic). As per
the lease agreement, only a bottle
store is permitted by the signed lease. A tavern is not permitted by
Nyerere Trading Enterprise
in the building.’
[25]
Does this knowledge (that the premises was being used as a tavern),
on its own, result in the applicant
not qualifying as an ‘innocent
party’? I think not. As the correspondence quoted above suggests,
the applicant remained completely
‘innocent’ of knowledge of the
alleged true intention of the parties (the first and second
respondents) at the time the contract
was entered into, because this
was not disclosed at the time of purchase. The selling agents were
even asked about any addendums
to the lease and relied on the wording
of the lease agreement. As such, the applicant must qualify as
‘innocent’ and lacking
knowledge of the alleged state of affairs
that forms the basis of the action. Rectification would accordingly
operate to the prejudice
of the applicant and would not be permitted.
[26]
In all the circumstances, it is not in the interests of justice to
exercise the Court’s discretion
to grant the stay in this instance,
and that application is dismissed. The issue of costs is considered,
below.
Eviction
[27]
The first respondent contends that it should be given the
opportunity, to the extent possible, to file
opposing papers to the
application in the event that the stay is refused.
[28]
The applicant applied for the eviction-related relief (quoted in para
1, above) during November 2020.
The papers were served on the first
respondent on 16 November 2020 and the first respondent served its
notice to oppose on 23 November
2020.  No opposing affidavit has
been served or filed since that time.
[29]
The facts relevant to the application are straightforward and largely
common cause. The first and second
respondents entered into a lease
agreement on 16 April 2019, containing terms similar to those of an
initial lease agreement entered
into between those parties on 25
October 2010. In particular:
a.
Clause 20 provides that ‘This lease constitutes
the whole agreement
between the parties and no warranties or representations, whether
express or implied, not stated herein shall
be binding on the
parties;
b.
Clause 8 provides that the use of the
leased premises shall be for a bottle
store involving the sale of
alcoholic drinks, and for no other purpose without the prior written
consent of the Lessor.
[30]
The property where the lease operated was sold to the applicant on 27
September 2019. The applicant stepped
into the shoes of the second
respondent on transfer of the property to it on 26 March 2020, as
explained above, and the purported
lease agreement dated 14 October
2020 (between the first and second respondents) must be declared
void.
[31]
The first respondent presently operates a tavern on the premises
contrary to the terms of the lease agreement.
Despite being advised
to desist, it continues to do so. The applicant relies on the
rei
vindicatio
for the relief sought. The applicant merely has to allege and prove
its ownership and the fact that the
res
is held by another, in order to succeed with an order for the return
of the
res
or
for eviction. The onus is then on the first respondent to allege and
prove a right to stay in possession.
[23]
If the owner acknowledges that the occupier has or had a right of
occupation, such as a lease, the onus is on the owner to prove
that
the right no longer exists or is not enforceable.
[24]
[32]
In this case, it is clear and undisputed that the applicant is the
owner of the property in question,
and that the first respondent
remains in occupation. The lease agreement was breached, the lessee
notified to remedy the breach
[25]
and failed to do so, entitling the applicant to cancel the agreement
and regain possession of its property. The applicant cancelled
the
agreement formally on 23 October 2020.
[33]
I have considered the
pacta sunt servanda
principle and
whether its strict enforcement in this case would offend
constitutional values in the context of a possible eviction
of the
first respondent from the commercial premises presently occupied. I
am of the view that the applicant has made out a case
for the relief
sought.
[34]
As to costs, the applicant prayed for attorney and client costs on
the strength of a clause in the lease
agreement, despite the notice
of motion making no reference to this. Although an order for costs on
the attorney and client scale
will only be made where there is a
special prayer to that effect, such an order may be made even in the
absence of this.
[26]
In
Intercontinental
Exports (Pty) Ltd v Fowles,
[27]
the Supreme Court of Appeal noted as follows:
‘
The court’s
discretion is a wide, unfettered and equitable one. It is a facet of
the court’s control over the proceedings before
it. It is to be
exercised judicially with due regard to all relevant considerations.
These would include the nature of the litigation
being conducted
before it and the conduct of the parties (or their representatives).
A court may wish, in certain circumstances,
to deprive a party of
costs, or a portion thereof, or order lesser costs than it might
otherwise have done as a mark of its displeasure
at such party’s
conduct in relation to the litigation. …as a matter of policy and
principle, a court should not, and must not,
permit the ouster of its
discretion because of agreement between the parties with regard to
costs.’
[35]
In
Geldenhuys
v East and West Investments (Pty) Ltd
,
[28]
the Supreme Court of Appeal dismissed an appeal with costs on the
attorney and client scale. In this case, a contract of lease obliged
the appellant to pay attorney and client costs, and the court noted
that there existed a contractual stipulation which the respondent
was
entitled to enforce. It held that no grounds had been advanced on
appeal for the court to exercise its residual judicial discretion
against granting the costs of appeal on such scale.
[29]
[36]
In this instance, the applicable clause in the lease provides as
follows:
‘
In the event of
the Lessor instructing its attorneys to take measures for the
enforcement of any of the Lessor’s rights under this
lease, the
Lessee shall pay to the Lessor such collection charges and other
legal costs on an attorney/client basis as shall be lawfully
charged
by such attorney, to the Lessor on demand made thereof by the
Lessor’.
[37]
I am satisfied that costs on the attorney and client are warranted in
the circumstances, both in respect
of the applicant’s costs
occasioned by the application and the unsuccessful stay.
Order
The
following order will issue:
a.  The first
respondent’s application (the stay) is dismissed with costs, to be
paid on the attorney and client scale, the
costs to include the costs
occasioned by the postponement on 9 March 2021.
b.   The
Addendum to the lease agreement dated 14 October 2020 is declared
void.
c.
The lease agreement entered into between the first and second
respondents on 16 April 2019 is cancelled
and there is no lease
agreement between the applicant and first respondent.
d.
The applicant is entitled to evict the first respondent and / or any
other person occupying the premises,
known as the Oxford Bottle
Store, situated at No. 268 Oxford Street, East London.
e.
The first respondent and / or any other person found at the premises
is hereby directed to vacate the premises
within a period of 10 (ten)
days from the date of receipt of this order;
f.
The Sheriff of this Honourable Court, duly assisted by the members of
the South African Police Services,
if needs be, are authorised and
permitted to evict the first respondent and/or any other person(s)
found at the premises should they
fail to vacate within 10 (ten) days
of service of this order.
g.
The first respondent is to pay the costs of the application on the
attorney and client scale.
________________________
A.
GOVINDJEE
ACTING
JUDGE OF THE HIGH COURT
Appearances:
Obo
the Applicant
: Adv S. X. Mapoma
Instructed
by                   :
S.N.
Jiba Attorneys, Office 1, Central Square,
East London Tel:
(043) 722 4003
Obo
the Respondent     : Adv C.D. Kotze
Instructed
by
: Allams Attorneys, 6 Sansom
Road, Vincent,
East London
Heard:
: 25 March 2021
Delivered:
: 20 April 2021
[1]
Tesven
CC and Another v South African Bank of Athens
2000 (1) SA 268 (SCA).
[2]
Fourie’s
Poultry Farm (Pty) Ltd v Kwanatal Food Distributors (Pty) Ltd (in
liquidation) and Others
1991 (4) SA 514
(N) at 527A-F.
[3]
2017 (5) SA 456 (CC).
[4]
At para 67. The decision on this aspect is effectively unanimous,
with Froneman J dissenting only in respect of one aspect of the
majority judgment relating to pre-emption.
[5]
At para 70.
[6]
In
Pillay
v Pillay
2010 ZAKZDHC 81, decided before
Mokone
,
the court placed emphasis on the ‘balance of convenience’ in
favouring a stay. The balance was affected by a number of factual
disputes and the likelihood that there would be a need for the main
application to be referred to oral evidence. In
Industrial
Development Corporation v Hsu-Nan Tsung
2011 JDR 1469 (WCC) (case 5932/2006), the Court also considered the
possible prejudice to the two parties and the plaintiff’s
entitlement to an expeditious hearing and not to be subjected to
delays which have little or no basis in law.
[7]
At para 79.
[8]
Clipsal
Australia v GAP Distributors
2010 (2) SA 289 (SCA).
[9]
First Respondent’s Heads of Arguments, para 33.
[10]
AJ Kerr
The
Principles of the Law of Contract
(6
th
ed) (2002) (Butterworths) 152.
[11]
Kerr 154. See
Meyer
v Merchants Trust Ltd
1942 AD 244
at 254. Also see
Durmalingam
v Bruce
[1964] (1) SA 807
(D) at 811H.
[12]
RH Christie
The
Law of Contract in South Africa
(5
th
Ed) (LexisNexis Butterworths) (2006) 332.
[13]
[1961] (1) SA 516
(W). In the context of negotiable instruments,
this case is authority for the following: a) parties to a bill may
in actions between
themselves prove, in defiance of the parol
evidence rule, contemporaneous agreements between themselves which
tend to vary the
unambiguous term of the document; b) such
agreements relate to the nature of their relationship
inter
se
;
c) by implication, the agreements must not relate to various terms
of the contract, and d) such agreements may not be proved to
the
prejudice of third parties to the bills or note.
[14]
At 522D. Also see
Durmalingam
supra
at 812A.
[15]
[2003] 2 All SA 291
(C) at para 21.
[16]
At para 25.
[17]
Mokone
at paras 70, 79.
[18]
1976 (2) SA 337
(C) at 338F-H.
[19]
[1989] ZASCA 110
at para 9
et
seq
.
[20]
At paras 24, 25.
[21]
See
Boshoff
v Theron
1940
TPD 299
at 303, relying on
Scrooby
v Gordon & Co
(1904, T.S.): ‘Now when the owner of land which has been leased
sells it to someone else the purchaser takes the land subject
to the
lease, so that he is bound to the tenant and the tenant is bound to
him in the relation of lessor and lessee (van Leeuwen,
Censura
Forensis
,
1.4.22.15;
Voet
,
19.2.19; Groenewegen,
ad.
Dig,
19.3.32).
It seems to me that it would be impossible to contend in respect of
the ordinary obligations of a lessor arising in respect
of the
property during the continuance of a lease, that the tenant would
have a right of action not against the landlord who had
failed to
fulfil these obligations…but against the person with whom he had
originally contracted…’
[22]
Christie 462, 463.
[23]
Chetty
v Naidoo
1974 (3) SA 13
(A) at 20A.
[24]
Ibid
at 21.
[25]
Reference is made in Annexure G to the application to written
notification to cease using the premises for a tavern and failure
to
remedy the breach for a period of seven days, in terms of the
provisions of the lease agreement.
[26]
Fein
v Rabinowitz
1933 (CPD 289 292.
[27]
1999 (2) SA 1045
(SCA) 1055F-I.
[28]
2005 (2) SA 74
(SCA) 77C-E.
[29]
AC Cilliers
The
Law of Costs
(3
rd
Ed) (LexisNexis) (Durban) (1997) 4-23.