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[2018] ZAGPPHC 599
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Basenzi Construction CC t/a Power Wheel and Tyres and Another v Hofmil Investments (Pty) Ltd (3573/16) [2018] ZAGPPHC 599 (18 January 2018)
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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
(1)
NOT REPORTABLE
(2)
NOT OF INTEREST TO
OTHER JUDGES
(3)
REVISED
CASE NO.:
3573/16
18/01/2018
In
the matter between:
BASENZI
CONSTRUCTION CC t/a POWER WHEEL AND
TYRES
(REG
NO:
2002/081957/23)
1
ST
APPLICANT
WINKIE AMOS PETA
([….])
2
ND
APPLICANT
and
HOFMIL INVESTMENTS (PTY)
LTD
HOFMIL 4(WAREHOUSE)
(REG NO:
159/002691/07)
RESPONDENT
Heard:
4 January 2018
Delivered
18 January 2018
JUDGMENT
Coram;
VAN
DER SCHYFF AJ
[1]
This is an application for leave to appeal. The notice for
application for leave to
appeal was presumably drafted in a hasty
manner and scant attention was given to detail. It is not a model of
good draftsmanship.
The first indication hereof is found in the
introductory paragraph of the notice for application for leave to
appeal. It is not
stated in the first paragraph of the notice that
the applicants give notice of their intention to bring an application
for leave
to appeal the judgment and / or order that I made, but that
'the Applicants hereby give notice of intention to bring
Application for Leave to Appeal of her Ladyship Acting Judge Evan der
Schyff
on the 1dh November 2017...
'. From the content of the
notice for application for leave to appeal it can be deduced that the
application is for leave to appeal
against aspects of the judgment
and the order.
[2]
An application for leave to appeal a
decision from a single judge of the High Court is regulated by Rule
49 of the Uniform Rules
of Court. The substantive law pertaining to
applications for leave to appeal is dealt with in
section 17
of the
Superior Courts Act, No. 10 of 2013
.
[3]
Rule 49(1)(b)
prescribes that:
'When leave to appeal is required and it has
not been requested at the time of the judgment or order, application
for such leave
shall be made and the grounds therefor shall be
furnished within 15 days after the date of the order appealed
against: Provided
that when the reasons or the full reasons for the
court's order are given on a later date than the date of the order,
such application
may
be
made
within 15 days after such later date: Provided further that the court
may, upon good cause shown, extend the aforementioned
periods of 15
days.'
[4]
Section 17(1)
in turn stipulates that:
'Leave to appeal may only be given where the
judge or judges concerned are of the opinion that-
(a)
(i) the appeal would have
a
reasonable prospect of success; or
(ii) there is some other compelling reason
why the appeal should be heard, including conflicting judgments on
the matter t1nder
consideration;
(b)
the decision sought on appeal
does not fall within the ambit of
section 16
(2) (a); and
(c)
where the decision sought to be
appealed does not dispose of all the issues in the case, the appeal
would lead
to
a
just and prompt resolution of the real issues between the parties.'
[5]
Before the merits of the application are
considered. it needs to be determined what is required by
Rule
49{1){b)
, and to what extent a party is bound to the grounds set out
in the application for leave to appeal in adherence to
Rule 49(1)(b).
[The need for such an approach is not only inherent to the process of
adjudicating an application of this nature, but necessitated
by the
fact that it is contended on behalf of the respondent that the
applicants failed to set out the grounds of appeal in such
a way that
it meets the requirements of
Rule 49{1)(b)
, and that the applicants
are bound to the grounds as set out in their notice for application
for leave to appeal.]
[6]
An applicant seeking leave to appeal
must set out its grounds of appeal succinctly and in unambiguous
terms in order to enable the
court and the respondent to assert the
case the applicant seeks to make out and which the respondent has to
meet in opposing the
application for leave to appeal -
Songono
v. Minister of Law and Order
1996(4)
S.A. 384 (E) at 395J to 386A;
Philip
v Estate Agency Affairs Board
{39922/12)
[2013) ZAGPPHC 276 {2 October 2013) para [31];
Fuku
v Mpoka
(A137/2013)
[2013] ZAFSHC
152
(19 September 2013) para [5];
Lewis
NO and Others v Cooper NO and Another, Lewis v Soundprops 236 (Pty)
Ltd and Others
{11292/08, 14889/08)
[2009] ZAWCHC 51
(27 February 2009) para [2]. An application for
leave to appeal can be dismissed on the basis of non-compliance with
Rule 49{1)
-
Lewis NO, supra
para
[2];
Songono, supra
3866.
[7]
In
Songono,
supra
385E- 386A, Leach J explained:
'I
am
not
aware of any judgment dealing specifically with grounds of appeal
as
envisaged by Rule 49(1)(b); however,
Rule 49(3) is couched in similar terms and also requires the filing
of
a
notice
of appeal which shall specify 'the grounds upon which the appeal is
founded'. In regard to that subrule it is now well established
that
the provisions thereof are peremptory and that the grounds of appeal
are required, inter alia, to give the respondent an opportunity
of
abandoning the judgment, to inform the respondent of the case he has
to meet and to notify the Court of the points to be raised.
Accordingly, insofar as Rule 49 (3) is concerned, it has been held
that grounds of appeal are bad if they are so widely expressed
that
it leaves the appellant free to canvass every finding of fact and
every ruling of the law made by the court
a
quo, or if they specify the findings
of fact or rulings of law appealed against so vaguely as to be of no
value either to the Court
or to the respondent, or if they, in
general, fail to specify clearly and in unambiguous terms exactly
what case the respondent
must be prepared to meet
-
see, for example, Harvey v Brown
1964
(3)
SA
381
(E) at 383; Kilian v Geregsbode, Uitenhage
1980 (1)
SA
808
(A) at 815 and Erasmus Superior
Court Practice B1-356-357 and the various authorities there cited.
It seems to me that, by
a
parity of reasoning, the grounds of
appeal required under Rule 49(1)(b) must similarly be clearly and
succinctly set out in clear
and unambiguous terms so
as
to enable the Court and the
respondent to be fully and properly informed of the
case
which the applicant seeks to make out
and which the respondent is to meet in opposing the application for
leave to appeal. Just
as Rule 49(3) is peremptory in that regard,
Rule 49(1)(b) must also be regarded as being peremptory.'
[8]
These principles, espoused by Leach J, were approved by the Full
Court of the Eastern
Cape High Court in
Xayimpi and Others v
Chairman Judge White Commission (formerly known
as
Browde
Commission) and Others
[2006] JOL 16596
(E).
[9]
In addition, Mavundla J held in
Phiri v Phiri and Others
(39223/2011) [2016) ZAGPPHC 341 (14 March 2016) para [10] that
'[i]t does not help the applicant to marshal grounds of appeal
over the bar which have not been s t out clearly and succinctly in
the notice of leave to appeal, no matter how meritorious these might
be,
...,
otherwise, there is no need for the Rules.
This
view accords with the view held by Murray AJ in
Ntsoereng and
Another v Sebofi and Another; In re: Sebofi v Ntsoereng
(4518/2012)
[2016) ZAFSHC 153 (7 July 2016) paras [33] and [52]. (See also
Kilian
v Geregsbode, Uitenhage
1980 (1) SA 808
(A) 8150).
[10]
In light of the discussion above it needs to be determined to what
extent the applicants' application
for leave to appeal meets the
peremptory requirements stated in Rule 49(1)(b) and whether the
argument raised from the bar is to
be discounted for lack of being
captured in the notice for application for leave to appeal.
[11]
Four grounds of appeal are listed in the
notice for application for leave to appeal. Although all these
grounds were not expressly
persisted with and championed during oral
argument, it is necessary to set out these grounds in light of the
fact that respondent's
counsel argued that a new ground of appeal was
introduced in applicants' heads of argument and raised by counsel
from the bar.
If it is found that a new ground of appeal has been
introduced that was not captured in the notice of application for
leave to
appeal, I have to decide whether to consider such ground in
light of the decisions referred to above read with Rule 49 of the
Uniform
Rules and section 17 of the
Superior Courts Act.
[12
]
The first ground of appeal is that
'[t]he Court erred in dismissing
Applicant's
(sic)
application
for rescission
(sic)
for
lack of sound reasons and was unfair in rejecting the defences
brought by the Applicant. In particular: the defence that the
contract was
a
nullity
and void ab initio due to the fact that it did surpass the muster of
the Building Regulation and Building Standars
(sic),
Act, Act 103 of 1977.'
[13]
If the first sentence of this ground of
appeal is read in seclusion, it will definitely not pass the test of
being clear and unambiguous.
If taken as an individual ground of
appeal, this first sentence is so broad that it encompasses each
factual and legal founding
made in the judgment. Such an approach is
not tenable in light of the requirement set out in Rule 49(1)(b). It
is only when read
with the second sentence that a more defined ground
of appeal emerges. In light thereof, this ground of appeal is to be
restricted
as referring only to my rejection of the defence that the
contract is a nullity and void
ab
initio
due to the fact that it did
not surpass the muster of the National Building Regulation and
Buildings Standards Act.
[14]
The applicants' defence that the
'contract is
a
nullity and void ab initio due to the
fact that it did not surpass the muster of the Building Regulation
and Standard Act'
was not found to
constitute a
bona fide
defence
due to the decision in
Hyprop
Investments Limited and Another v NSC Carriers and Forwarding
CC
and Another
(2009/12568,
2009/47543) [2010] ZAGPJHC 20 (12 April 2010). The first ground of
appeal is thus directly linked to, and in fact replicated
by the
fourth ground of appeal. The fourth ground of appeal as contained in
the notice for leave to appeal reads-
'[t]he
Court erred in stating that the decision of Hyprop Investment Limited
v NSC Carriers and Forwarding
CC
[2010] ZA GP JHC 20 has application
in this
case
as
the facts and legal issues before were not substantially similar
(sic)'.
[15]
During argument counsel for the
applicants indicated that he is not persisting with the ground of
appeal that I erred in applying
the
dicta
in
Hyprop
Investment Limited v NSC Carriers and Forwarding
CC,
supra.
In
light of the recent decision of the Supreme Court of Appeal in
Wierda
Road West Property (Pty) Ltd v Sizwe Ntsaluba Gobodo Inc
(1156/16)
[2017] ZASCA 170
(1 December 2017) where it was held that a tease
agreement is not rendered invalid and unenforceable by ss (4)(1) and
14(1), read
with s
4(4)
and
S 14(4)(a) of the National Building Regulations and Building
Standards Act 103 of 1977, the decision not to continue with this
ground of appeal was correct.
[16]
That leaves the second and third grounds
of appeal as contained in the notice for application for leave to
appeal. Although these
grounds were not referred to at all during
oral argument, or addressed in the heads of argument filed by the
applicants' counsel,
it is necessary to briefly deal with them for
the sake of completeness.
[17]
The second ground for appeal reads:
'[t]he Court effed in dismissing the
Applicant's application for rescission due to the fact that the Court
considered documents
that were advanced from the Bar (by the
plaintiff at trial) which had not been disclosed during exchange
(sic)
of
pleadings or discovery. The effect is that the contract relied upon
was not properly before the honourable Court and
as
a result there was no valid cause of
action, thus the applicant had
a
bona fide defence.'
[18]
For the sake of the record it must be
stated that the document handed up from the bar during the rescission
application was handed
up by the 2nd applicant. It was the contract
on which the claim was based. Due to the fact that the summons was
not in the court
file when I heard the application for rescission, I
requested either of the parties to hand up a copy of the contract.
After hearing
the arguments I reserved judgment. Since the summons
was not in the court file I wanted to see on which bases default
judgment
was granted. On 24 October 2017 I had an e-mail sent to both
the 2nd applicant (who appeared on behalf of the 1at applicant) and
the respondent requesting them to provide me with a copy of the
summons and all the documents attached thereto. Respondent delivered
same to me. The contract attached to the summons was a copy of the
original contract handed up by the 2
nd
applicant. Nothing untoward happened through which the applicants
were prejudiced. The cause of action was set out in the summons,
and
the contract not being in the court file at the time when the
application for rescission was argued inconvenienced the court
but
did not render the cause of action non-existent. The second ground of
appeal therefore does not hold water.
[19]
The third, and remaining! ground of
appeal set out in the notice for application for leave to appeal
reads:
'Based on the above it seems
as
if
the Court did not consider the Applicants
(sic)
founding affidavit, reply and Heads
of Argument
as
well
as the additional documents he sought
to
introduce in their totality. As
application for leave to supplement the pleadings was denied by the
honourable Court but the plaintiff
was allowed to introduce papers
that were not before the Court.
(sic)
Applicant submits that the Court was
not fair nor rational in its decision to allow evidence from the bar
from the plaintiff and
to disallow applicant application for leave to
supplement the pleadings
(sic).'
[20]
This ground of appeal does not pass the
test of being clear and unambiguous. In addition, as set out in
paragraph [18]
supra,
no
new 'evidence was allowed from the bar from plaintiff'. As indicated
in my judgment dated 10 November 2017 I did consider both
the
applicants replying and supplementary affidavits. As explained, I was
'extremely lenient'
in
considering both only because the applicants were not represented by
legal representatives. I did, however, not consider the
applicant's
'application for leave to bring new information to the application
for rescission of judgment and its concomitant affidavit
'since
the court rules have already been stretched to its limits in an
effort to accommodate the applicant
-
,
and, the aspects raised in the
affidavit have already been raised previously'
-
(par [6]). In light hereof this ground of appeal does not hold water.
[21]
At this stage cognisance must be taken
of the fact that no claim is made that I erred in misdirecting myself
pertaining to any factual
finding contained in the judgment of 10
November 2016.
[22]
As far as the grounds of appeal as
stated and contained in the notice for application for leave to
appeal go, I am not convinced
that a proper case has been made out
that an appeal has a reasonable prospect of success. As stated in
paragraph [4] above, the
legislature prescribed in section 17(1) that
leave to appeal may only be given where I am of the opinion that the
appeal would
have a reasonable prospect of success. Hughes J
explained in
Nannen and Others v
Momentum and Others
(6796/05,
2275/05) [2017] ZAGPPHC 433 (14 June 2017);
Honda
Giken Kogyo Kabushiki Kaisha t/a Honda Motor
Co
Ltd v Big Boy Scooters
(24784/2016)
[2017] ZAGPPHC 752 (15 November 2017);
BWM
Financial Services (SA) (Pty) Ltd v Finlay and Others
(55858/10,
55860/10, 56219/10) [2017] ZAGPPHC 383 (31 March 2017) that the test
that applied previously (and this is clearly the
test eluded to by
the applicants in their notice for application for leave to appeal)
in applications of this nature, was whether
there were reasonable
prospects that another court
may
come to a different conclusion.
She continues:
'What emerges from section 17 (1) is that
the threshold to grant
a
party
leave to appeal has been raised. It is now only granted in the
circumstances set out and is deduced from the words 'only'
used in
the said section. See The Mont Chevaux Trust v Tina Goosen
&
18 Others 2014 JDR 2325 (LCC) at para
[6], Bertelsmann J held as follows:
"
It
is clear that the threshold for granting leave to appeal against
a
judgment
of
a
High Court has been raised
in the new Act
. The former
test whether leave to appeal should be granted was
a
reasonable prospect that another
court might come to a different conclusion, see Van Heerden v
Cronwright
&
Others
1985 (2)
SA
342
(T) at 343H.
The use of the
word "would" in the new statute _
i
ndicates
a
measure
of certainty that another court will differ from the court whose
,judgment is sought to be appealed against."
[My emphasis]. (Nannen, supra
par
[5]).
[22]
This is, however, not the end of the
matter. Despite the poorly drafted, largely vague and ambiguous
notice for application for
leave to appeal, the main (in fact, only)
argument that was raised from the bar that is set out in the heads of
argument filed
by counsel on behalf of the applicants, needs to be
considered. I first need to consider whether any basis was laid in
the notice
for application for leave to appeal for this ground of
appeal to be brought. Counsel for the respondent argued that no such
basis
has been laid and that I am obliged to follow the
dicta
in
Ntsoeren
and Another v Sebofi and Another; In re; Sebofi v Ntsoereng, supra,
and hold applicants bound to the
grounds of appeal set out in the notice for application for leave to
appeal.
[23]
Counsel for the applicants endeavoured
to link the 'new' ground of appeal introduced in the heads of
argument to grounds 1 and 4
set out in the application for leave to
appeal. If cognisance is taken of the specific wording of grounds one
and four as set out
in the application, and specifically the argument
set out in paragraph 6.2 of the heads of argument, this is an
artificial effort
to incorporate (literally sneak in) a ground of
appeal that was not crisply and clearly set out in the notice for
application for
leave to appeal.
[24]
The argument that was advanced during
the application for leave to appeal that is contained in paragraph
6.2 of the heads of argument,
is that
'[t]he
first ground is that the Honourable Court erred in rejecting the
defence that the contract was
a
nullity and void ab initio and the
fourth is that the Honourable Court erred in finding that the matter
of Hyprop Investment limited
v NCS
(sic)
Carriers and Forwarding
CC
(hereinafter referred to as "Hyprop'?
is applicable in the application for rescission. I submit that the
matter of Gateway
Properties (Pty) Ltd v Bright Idea projects 249
CC
and Another should be considered in
conjunction with the following allegations made by the applicants
...
'
[25]
It is evident from the specific wording of the
first
ground of
appeal (as quoted in paragraph [12] above) that this first ground of
appeal is specifically aimed at my decision not to
uphold the defence
'that the contract was
a
nullity and void ab initio due to
the fact that it did surpass the muster of the Building Regulation
and Building Standars
(sic),
Act, Act 103 of 1977.'
The
issue is clearly delineated and unambiguously links the first ground
of appeal to the issue of the applicability of the National
Building
Regulations and Building Standards Act 103 of 1977.
[26]
Nothing contained in grounds one or four
of the notice for application for leave to appeal alluded to or
forewarned of an argument
that I erred in not finding that the
contract is void
ab initio
based
on the basis of
exceptio non
adimpleti contractus,
and /or
'due
to the respondent not being able to have the use and the enjoyment
of
the premise'
in
light of the purpose of the lease agreement similar to the situation
dealt with in
Gateway Properties
(Pty) Ltd v Bright Idea projects 249
CC
and Another
[2014]
3 All SA 577
(KZP) (1 July 2014), and/ or that I erred in not finding
mero motu
that
the applicants could be
'excused from
payment of the lease amount total or in part if the
lessee
did not have full use and enjoyment
of the leased premises.'
[27]
This new ground of appeal relates to the
finding I made in paragraph [26] of the judgment of 10 November 2017.
I stated there that
'In the final
instance the applicants' defence that the building they leased was
not suitable for the purpose they wanted to use
it for, needs to be
considered. Even if it is accepted that the building had to be
renovated before it could be occupied and even
if it is accepted that
the removal of the undocumented sub-surface multiple layers of
concrete extended the completion date of
upgrades, the reality is
that the landlord does not guarantee that the 'Leased Premises are
fit for the purposes of the business
to be conducted by the Tenant or
for any other purposes and this Agreement is not made conditional
thereon'. Accordingly I cannot
find that this is a bona fide
defence'.
[28]
I accordingly find that the argument
contained in paragraph 6.2 of the applicants' heads of argument as
advanced from the bar constitutes
a new ground of appeal that was not
set out in the notice for application for leave to appeal.
[29]
However, I deem it in the interest of
justice not to summarily dismiss this ground of appeal.
[30]
It is common cause that the 2nd applicant appeared in person and in
fact drafted the bulk of
the affidavits filed on the applicants'
behalf in the application for rescission of judgment on his own.
Although the 2nd applicant
is clearly not illiterate and in fact
seems to be a successful businessman who is quite capable of drafting
intelligible documents
and e mails, it remains a fact that he
was unrepresented. If I am convinced that I did err in coming to the
conclusion as
quoted in paragraph 27 above, I will be inclined to
grant the application for leave to appeal because I am of the view
that any
material error by me would constitute a compelling reason as
provided for in
section 17(1)(a)(ii)
of the
Superior Courts Act, No.
10 of 2013
, specifically because the 2
nd
applicant acted
without legal representation, even if the applicants' legal
representatives who drafted the notice for application
for leave to
appeal once again failed him by not drafting a proper notice for
application for leave to appeal. Since respondent's
counsel also
dealt with this new ground of appeal in his heads of argument
respondent will not unduly be prejudiced.
[31]
The crux of the new ground of appeal is
that the decision in
Gateway
Properties (Pty) Ltd v Bright Idea projects 249
CC
and Another, supra
(specifically
paragraph 24 thereof) with reference to
Thompson
v Scholtz
[1998] ZASCA 87
;
1999 (1) SA 232
(SCA)
(specifically at 247 A-C) provides the necessary authority for a
court to have found that
'even in
circumstances where there
is
a
warranty clause the lessee can be excluded from payment of the lease
amount in total or in part if the lessee did not have full
enjoyment
of the leased premises'
and
consequently, that the fact that it is clear from the founding and
replying papers relating to the application for rescission
of
judgment that the applicants did not have the full enjoyment and use
of the premises constitutes a
bona
fide
defence.
[32]
In
Gateway
the applicant and 1st respondent
concluded a written contract of lease in terms whereof the applicant
let to the 1ste respondent
a portion of the premises consisting of a
service station, forecourt and convenience store. The entire
agreement was subject to
the fulfilment of a suspensive condition
that the lessee would be granted the necessary site and retail
licences to conduct a service
station and to sell petroleum fuel from
the premises. These site and retail licences were issued to the
lessee. However, the approval
of the retail licence was given subject
to the zoning being changed, and the lessee could not succeed in
securing a zone change
in light of the fact that he could not obtain
the necessary clearance from the fire department. The lessee claimed
that the lessor
had to have prior knowledge of this stumble block and
of the immense costs that it would require to get the building
compliant
with the regulations.
[33]
The lessor, however, argued that the suspensive condition has been
fulfilled because the necessary
licences to conduct a service station
and sell petroleum fuel from the premises has been obtained.
Regarding the failure to obtain
a fire clearance certificate reliance
was placed on clause 23 of the lease that stipulates as follow:
'The Lessor
does
not warrant that the premises are
suitable for the purposes of the business of the Lessee nor does the
Lessor warrant that the premises
comply with all legal requirements
and by-laws that may be applicable for the purposes of carry on
business
as
contemplated
by the
Lessee.
The
Lessee
accepts
all risks in this regard and undertakes to obtain the requisite
licences and permits and approvals to carry on business
from the
premises.'
[34]
The court of appeal, constituted by Van
Zyl J and Jappie DJP, held that the contention that the lessee
accepted all risks in terms
of clause 23 of the lease, and that the
lessor's duty simply was to place the premises at the disposal of the
first respondent
to enable the latter to use it, is devoid of
substance (par [24]). They held that
'the
essence of
a
contract
of lease is that there must be a certain enjoyment or a certain use
of a thing which the lessor undertakes to cause the
lessee to have
during the period agreed upon and it is actually that which
constitutes the subject and substance of the contract
and not the
leased property itself. It would seem to me that the inclusion
of
the warranty clause in the agreement
was simply
a
means
for the applicant
(lessor)
to
divest itself completely of its common law obligations arising from
the agreement. It is clear from the agreement
as
a
whole that the premises were let
for a specific purpose. In these circumstances the applicant was
under a duty to deliver the property
in
a
condition reasonably fit for the
purpose for which it was let.'
[35]
I can relate myself to this approach as
set out in
Gateway,
but
on the premise that every contract of lease should be interpreted on
its own to determine whether the agreement between the
parties is
susceptible to an interpretation that the warranty contained in the
contract (in any) should be discarded or interpreted
in a limited
sense. The general principle as stated in
Gateway
can be substantiated with reference
to
Southemport Developments (Pty) Ltd
v Transnet Ltd
(440/03)
[2004] ZASCA
94
;
[2005] 2 All SA 16
(SCA) (29 September 2004) where the Supreme
Court of Appeal has restated the essential elements for a contract of
lease. The SCA
held in paragraph (6] that
'[t]he
essentials of
a
contract
of lease is that there must be an ascertained thing and a fixed
rental at which the lessee
is
to
have
use
and
enjoyment of that thing.'
The SCA
continued and stated in the very same paragraph that whilst it is
open to parties to a contract of lease to agree on the
intended use
of the leased property, such is not to be considered as an
essentialia
of
an agreement of lease. The court then explained with reference to
Oatorian Properties (Pty) Ltd v
Maroun
1973 (3) SA 779
(A) at 785G
that where the parties did agree on the intended use of the leased
property such an agreement constitute a material
term of the
agreement. It is evident from the decision in
Oatorian
Properties (Pty) Ltd v Maroun
1973
(3) SA 779
(A) at 785G, that a lessee is bound to use the property
for the purpose provided for in the lease, and that the lessor is
entitled
to cancel the lease in case of a breach. The materiality of
the breach is irrelevant. It would therefore likewise be just and
equitable
to hold that a lessee who is not able to use the leased
premises for the intended purpose stipulated in the lease agreement
would
be able to cancel the contract, if any special requirements
that needed to be in existence for the lessee to use the property for
the intended purpose have clearly been stipulated and brought under
the intention of the lessor at the time when the lease agreement
was
concluded.
[36]
Where the purpose for which leased
property may be used is therefore stated in contract. a clause that
the landlord does not guarantee
that the leased premises are fit for
the purpose of the business to be conducted by the tenant, will not
in all circumstances provide
a blanket protection to the lessor, but
has to be considered in light of all the facts.
[37]
In the current application I have to consider whether applicants who,
on their own version:
•
gave
instructions to their attorneys to 'defend the main action and if
possible' to reach a settlement (applicants' founding affidavit
paras
4.3 and 4,6);
•
have
since the serving of the summons made numerous payments toward the
arrear rentals (applicants' founding affidavit par 4.5;
4.12, 4.13;
4.14);
•
regarded
the matter as capable of a settlement between the parties
(applicants' founding affidavit par 4.6);
•
after
becoming aware of the fact that default judgment was granted,
instructed their 'new attorneys' to propose a new offer of settlement
in terms of
Rule 34(1)
& (5) (applicants' founding affidavit par
4.11);
•
signed
the agreement well knowing that certain changes have to be effected
before business operations could commence, while already
in
possession of illegible building plans (e-mail dated April 2015 while
contract was signed May 2015);
•
did
not request the landlord's permission to effect any alteration to the
premises as provided for in clause 8.1.1 (respondent's
opposing
affidavit par17.7):
•
effectively
took occupation of the property;
•
carried
'on business' from the premises (applicants' founding affidavit par
2) to the extent that 'business prospects improved and
customers
supported the business (applicants' founding affidavit par 5.7), and
•
had
to be evacuated forcefully from the premises after the lease
agreement was cancelled due to the lessee's failure to pay the
monthly charges rental and other charges,
can rely on the principle set out in
Gateway
where the factual situation was found to be that the lessee was
not given possession and occupation of the property and as such was
deprived of the full use and enjoyment of the premises -
Gateway,
supra
para [31].
[38]
In addition I have to consider that
provision is made in clause 3.2 of the contract for a rent-free
period during which approved
decorations, fittings and furnishings
can be installed with the qualification that if the lessee commences
with trading during
the rent free period, the lessor shall be
entitled to payment of all charges and rent.
[39]
It should be noted that the conclusion
of the current rental agreement was not subject to a suspensive
condition, and that the purpose
for which the premises were leased
was set out in the contract as
'tyre
sales, replacement, balancing and alignment and battery sales, number
plates, brake pads and installations of car tracking
system;.
It
was not stated anywhere in the written ·contract that the
lessee would need to break through multiple layers of concrete
to
install equipment to enable itself to commence with business. In
fact, the respondent stated that a request to engage in such
activities was never received from the applicants (respondent’s
opposing affidavit par 17.7).
[40]
In light of the circumstances set out
above, in paragraphs [37] to (39] above, I am of the view that the
facts of the current matter
are distinguishable from the facts in
Gateway
and
that the warranty contained in the contract between the parties in
this application, should not be disregarded on the basis
of the
Gateway
decision.
[41]
I accordingly find that there is no reasonable prospect that another
court would come to a different
conclusion.
[42] Consequently
the following order is made: The applicants' application for leave to
appeal is
dismissed with costs.
VAN
DER SCHYFF
Acting
Judge of the High Court