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[2018] ZAGPPHC 20
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Berrydust 52 (Pty) Ltd v Minister of Public Works (22240/2013) [2018] ZAGPPHC 20 (16 February 2018)

IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
N0:22240/2013
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
REVISED
In
the matter between:
BERRYDUST
52 (PTY) LTD

PLAINTIFF
and
THE
MINISTER OF PUBLIC WORKS

DEFENDANT
JUDGMENT
THOBANE
AJ,
Introduction
[1]
The plaintiff, a company with limited liability , duly registered and
incorporated
in terms of the company laws of the Republic of South
Africa, instituted an action against the defendant, a Government
Minister
responsible for the Department of Public Works in his
representative capacity, for damages in respect of unpaid rent as
well as
compensation for repairs to the plaintiff's building.
[2]
This matter, which is defended, proceeds only in respect of merits
thereof,
owing to a separation of issues in accordance with the
provisions of Rule 33(4) of the Uniform Rules of Court.
Plaintiff's
pleaded case
[3]
In the particulars of claim the plaintiff makes the following case;
3.1.
On 5 February 2009 the plaintiff and the defendant entered into a
written agreement of
lease of premises situated 31 Gallagher Avenue,
Midrand;
3.2.      The
lease commenced on 1 March 2009 and was to terminate on 28 February
2011, at a monthly
rental of R103 879-60 escalating at a rate of 10%
per annum for the duration of the lease;
3.3.
On 1 March 2009 the defendant took occupation of the premises.
3.4.
On or about the second week of May 2011, while the defendant was in
occupation of the premises,
or while the lease subsisted, extensive
damages were caused thereto, seemingly due to vandalism;
3.5.
On 10 June 2011 the plaintiff and defendant entered into a written
addendum in terms of which
the termination of the lease was extended
to 31 August 2011 ;
3.6.
All the terms of the lease agreement entered into on 5 February 2009
were, in terms of
the addendum, to be effective until the extended
date of termination. In essence, the lease agreement was extended;
3.7.
On 28 November 2011 , the plaintiff's legal representatives wrote a
letter of demand
to the defendant, the thrust of which was to;
3.7
.1. Confirm that the defendant had undertaken to carry out repairs on
the property so as to hand it back in the condition it
was prior the
lease or at the commencement thereof;
3.7.2.
Seek details concerning the date of commencement of the repairs as
well as the date of hand over;
3.7.3.
State that its own Quantity Surveyor would be utilized and that the
agreed Bill of Quantities
would not be deviated from;
3.7.4.
Insist that rental was to be paid during the period of repairs up
until the premises are handed
back to the plaintiff;
3.7.5.
That outstanding payments were to be made,
3.7.6.
To caution that in the event repairs were not completed on time,
annual escalation
would have to be made effective.
3.8.
That on 18 December     2012 the defendant
returned possession of the property
to the plaintiff;
3.9.
That the defendant only paid rental until end of February 2012 and
was therefore
in arrears with rental from 1 March to 18 December
2012;
3.10.
That the defendant was therefore indebted to the plaintiff in the sum
of R1.4 million.
Defendant's
plea
[4]
In its plea, the defendant;
4.1.
Admitted that the lease

agreement was concluded between the parties and acknowledged its
terms;
4.2.
Denied that they remained in occupation of the premises until 18
December 2012.
4.3.
Pleaded that they remained in occupation until August 2011 but that
payment of rent
continued until the return of the premises;
4.4.
The property was returned in March 2012 but that the plaintiff
refused to take occupation;
4.5.
The damage to the building, the demand for the repairs as well as the
undertaking
to effect the repairs were admitted;
4.6.
It was purely out of courtesy, it is pleaded, that the repairs were
effected
in that there was no obligation to effect them. This is so
because in terms of the lease agreement the plaintiff was supposed to

obtain insurance cover for damages to the premises owing to
vandalism.
Common
cause issues
[5]
The following facts are common cause ;
5.1.
That the parties concluded an agreement of lease on 5 February 2009;
5.2.
That the lease was for a period of two years commencing on 1 March
2009 and terminating
on 28 February 2011;
5.3.
That on 1O June 2011 the parties concluded a further agreement, an
addendum, extending the date
of termination to 31 August 2011;
5.4.
That the premises were vandalized;
5.5.
That the plaintiff demanded repairs to the building and that the
defendant agreed to effect
the repairs and return the building to the
condition it was prior the vandalism, fair wear and tear being
excepted;
5.6.       That
the defendant undertook to pay rental while the repairs were being
effected;
Issue
for determination
[6]
The court is firstly called upon to determine when exactly was the
property handed
back by the defendant to the plaintiff. This will
assist in the determination of rent payable. Secondly, whether at the
time when
the building was handed over, was there compliance with an
undertaking made by the defendant to repair the damages which
resulted
from vandalism.
Plaintiff's
evidence
[7]
Michael Fraser Vermaak, a director of the plaintiff, testified that
prior to
the lease agreement entered into between the plaintiff and
the defendant, the premises that were leased by the defendant were in

a good condition with functional electricity, water, alarms,
electrical fence, PABX networks and had an electricity generator.
The
offices were modern in furnishings, complete with a canteen and they
had a somewhat open plan appearance to them. In May of
2011 he
received a call from a neighbor to their building who stated that
vandalism was taking place on their building and that
he had reported
it to the Defendant as well as to the SAPS. A joint site inspection
was conducted and it was discovered that there
had been extensive
vandalism resulting in the removal of air conditioners, theft of DB
boxes, damages to the ceiling and to bathrooms,
the ripping of
cables, damages to doors and the alarm system and theft of intra-red
eye gadgets. He prepared an email to the defendant
detailing the
damage.
[8]
Around July 2011, after the vandalism had take place , the addendum
was signed and
he personally did so. Beginning of August of 2011 he
received a letter to the effect that the lease would not be renewed
beyond
August 2011. He responded by writing a letter detains all the
outstanding issues. A spreadsheet was prepared with details of
repairs
the defendant had to effect as well as the costing.
[9]
Despite directing correspondence at the defendant, he did not have
the courtesy
of a reply. He tried to engage services of an estate
agent with the view to possibly marketing the property, however he
was advised
that in its then state , the property would chase away
prospective clients instead of inviting or interesting them. In the
mean
time rent was being received from the defendant until the end of
February 2012.
[10]
The plaintiff prepared its own quotation and in the process
discovered that the defendant had
not effected all the previously
identified repairs. At some point he was asked to remove a crane that
was positioned on the premises.
E-mails were being exchanged between
the parties and he was generating monthly invoices to the defendant.
Eventually the building
or the premises were handed over or returned
to the plaintiff on 18 December 2012.
[11]
The claim is in respect of rental for the period 01 March 2012 to 18
December 2012 as well as
a balance for the incomplete repair work as
at the time of return of the premises.
Defendant's
evidence
[12]
Tubatse Peter Moloi testified that he is an admitted an attorney with
a B. Proc and an LLB degree.
At the time of the lease agreement he
was a Deputy Director Leasing, within the defendant and was
personally involved in the conclusion
of the agreements. At the onset
he readily conceded that the defendant made an undertaking to, while
repairing the damage to the
premises, pay rental to the plaintiff.
The undertaking that the defendant made, namely, to pay rental while
awaiting repairs to
the premises, was made out of goodwill, and
further that there was never an agreement to extend the lease. The
settlements that
were made were meant to simply lay the matter to
rest.
[13]
He stated that the defendant tried a few times to hand back the
premises to the plaintiff but
the plaintiff would not accept them.
There were other attempts to hand over the premises to the plaintiff
however they did not
result in any positive result. One of the
obstacles related to the crane which needed to be moved and
repositioned. Further, the
defendant had posted security guards, in
circumstances where there was no obligation on the part of the
defendant, to guard the
building so as to avoid damages thereto. He
asserted that there was an offer to hand over the building but that
such an offer was
refused by the plaintiff.
[14]
During cross examination he was asked about the effect of exchanged
emails and discussions contained
therein concerning outstanding
repairs as well as whether these had any binding effect on the
parties. One such email with a list
of outstanding repairs was sent
on 14 May 2012.
[15]
Beyond the date stated above, the parties continued to communicate
with the view to handing over
the premises to the plaintiff. The
defendant could not recall whether after the above date certain
matters remained outstanding
beyond. What is not disputed however is
that the defendant still had its security personnel on the premises
and most importantly
there was no finality to the list of outstanding
repairs.
[16]
The security personnel that remained on the premises beyond the date
of the lease as well as the rental
that was paid beyond the date of
lease was purely
ex gratia
and was aimed at guarding the
building against further vandalism. Not guarding the building beyond
March 2012 would not have necessarily
amounted to wasteful
expenditure, in the defendant's view.
Legal
principles
[17]
Parties to an agreement have reciprocal obligations. In
R H
Christie
&
GB Bradfield Christie's The Law of
Contract in South Africa 6 ed (2011)
at 437. the authors
state the following:
'In
BK Tooling (Edms) Bpk v Scope Precision Engineering
(Edms)
Bpk
1979 1 SA 391
(A)
the Appellate Division reviewed in
some detail the history and scope of what have come to be known as
the principle of reciprocity
and the exceptio non adimpleti
contractus. The principle of reciprocity recognises the fact that in
many contracts the common intention
of the parties, expressed or
unexpressed , is that there should be an exchange of performances ,
and the exceptio gives effect
to the recognition of this fact by
serving as a defence for the defendant who is sued on the contract by
a plaintiff who has not
yet performed or tendered to  perform.'
[18]
There is an obligation on a lessee to restore the leased premises to
the lessor in a good condition,
or at least in substantially the same
condition as they were in at the time he took occupation thereof ,
fair wear and tear excepted.
See
Bartman v Leonard and Others
1952 (2) SA 582
(C)
at 596G;
Phil Markel Ltd v Lawson
&
Kirk (Pty) Ltd
1955 (3) SA 249
(C); Sandown Park v Hunter
Your Wine
&
Spirit Merchant
1985 (1) SA 248
(W).
[19]
In
Sapro v Schlinkman 1948(2) SA 637 (A)
the Supreme
Court of Appeal, in the context of a breach that resulted in
cancellation of a lease, found that in such circumstances,
a
plaintiff, notwithstanding his breach, was entitled to sue for rent
due during the full period in which the Defendants had enjoyed

undisturbed occupation of the leased premises. The court briefly
discussed
' holding over".
"To
sum up: the authorities all show that the date that matters in regard
to the termination of the
lessees
liability to pay rent in
terms of the lease is not the date of the breach, or the date on
which the lessee purported to cancel the
lease,
but the date
on which he actually quitted the premises.
'
[20]
The full bench in
Nedcor Bank Ltd v Withinshaw Properties (Pty)
Ltd 2002(6) SA 236 (C)
at 2538, held as follows:  -
"
Once a party to the lease agreement has, however, elected to cancel
it, or the parties have mutually agreed to terminate
it, the rights
and obligations relating to the payment of rent must be regarded as
having likewise terminated.
Should the lessee then fail to
restore the leased premises to the lessor, he would be liable to him
in damages.
It may well be appropriate , I respectfully
suggest, for the Supreme Court of Appeal to reconsider the ratio
underlying the
Sapro
judgment, should the
opportunity arise."
(Emphasis added).
Application
of law to the facts
[21]
It is common cause that the initial lease the parties concluded was
meant to commence on 1 March
2009 and terminate on 28 February 2011.
It is further common cause that by way of an addendum, it was
extended to 31 August 2011.
The building was vandalized while in the
hands of the defendant. The vandalism by all accounts and if the
invoices and the testimony
of Mr Vermaak is anything to go by, was
quite extensive. The damage to the building is common cause as well
as the fact that the
defendant attempted to restore the property to
the condition it was in before the vandalism . The defendant chooses
to explain
the attempts to repair and also pleaded, that the repairs
were done "out of courtesy",
" ex gratia"
or
"out of goodwill".
[22]
It is clear from the common cause facts that the defendant remained
in occupation of the premises
beyond the extended date of termination
being 31 August 2011. During that time, the defendant continued
paying rent while some
of the repairs were being attended to. The
letter from the plaintiff's legal representative, annexure "X3",
dated 28
November 2011, in part was confirmation of the defendant's
decision communicated in a letter dated 22 November 2011, to carry
out
the repairs on the building and to later hand it back in a
condition that it was prior the damage. The defendant may view the
repairs
as having been carried out 'out of goodwill". That
contention is however not legally sustainable in light of the fact
that
there was in any event an obligation on the defendant to hand
over the premises
"in
a
good condition, or at least in
substantially the same condition as they were in at the time he took
occupation thereof, fair wear
and tear excepted ".
[23]
On the defendant's evidence there were in total three attempts to
hand over the premises to the
plaintiff, all of which did not
materialize. Two of those attempts were in February 2012. On 29 March
2012 there was a site meeting.
I pause to indicate that the
date of the meeting is the date the defendant argues the plaintiff
refused to take back the
premises. When Mr Moloi testified, he stated
that on that day the building was offered to the plaintiff who
refused to take it
back. On his version , more items were pointed at
as not having been repaired including the issue of the crane which
remained unresolved.
Beyond 29 March 2012, according to the
defendant, security personnel were kept on the premises for purposes
of guarding against
further vandalism.
[24]
The defendant sticks to the version that there was an attempt to hand
the building over to the
plaintiff on 29 March 2012 but the plaintiff
refused that offer. On the same breath however the defendant admits
that there were
repairs outstanding beyond 29 March 2012. Earlier, on
9 December 2011, the defendant had stated in a letter that;
24.1.
The  premises would  be handed back in the  same
condition they were prior the vandalism
;
24.2.
The tenancy will continue until the building is handed
back.
[25]
The defendant it seems, seeks to minimize the importance of the
letter. It came through during
argument that the defendant was of the
view that the letter amounted to a mere undertaking and did not
amount to a contract. As
authority for his proposition counsel for
the defendant relied on
Siyepu and Others v Premier of the
Eastern Cape (20312000) [2011] ZAECBHC B;
2013 (2) SA 425
(ECB).
In
the judgment Alkema J discusses briefly the difference  between
a_  "gentlemen's  agreement "
and  an
enforceable contractual obligation. In
Sipeyu
(supra),
the court was called upon to determine if a clause in a written
agreement was legally enforceable. The dispute was summarized thus;
"[4]
In summary, clause 3 records Government's "commitment" to
job c!eation (generally) in the transport industry
for the 1644 wo
rkers , and in particular , to
"..
.assist former TRTC
employees to secure employment in a new transport arrangement."
The clause specifically records that
"...
government will
put in place mechanisms to address transport needs in the Province
and thereby creating employment opportunities."
[5]
The gravamen of the dispute
is
whether clause 3 is legally
enforceable. There is a further dispute between the parties relating
to the question whether or not
Gove rnment, as a matter of fact,
complied with its obligations under clause
3."
[26]
Alkema J discusses whether or not what was contained in clause 3 of
the agreement was legally
enforceable, the concept of a gentlemen's
agreement as well as the question  whether  undertakings in
a written  agreement
constitute enforceable undertakings. The
issues the court was confronted with are clearly distinguishable from
the facts of this
case. It is therefore, in my view, no authority for
the proposition that what was contained in the letter of 9 December
2011 in
which the defendant "assured" the plaintiff that
the building will be handed back in good condition and also "agreed"

that tenancy will continue until the such time that the building is
handed back has no legal effect. Even if I am wrong and the
facts of
this case are applied to the three requirements that counsel for the
defendant in argument asked that they be applied,
namely, commercial
sense , efficacy and the nature of the undertaking, it is my view
that the "undertaking" meets all
the requirements for
various reasons. FDr a start, the undertaking would be founded on a
sound legal principle that there is an
obligation on a lessee to hand
back the property in a good condition. It is therefore clear that
even commercially speaking it
is not anomalous to keep the defendant
to the undertaking. Secondly, the damages that were caused to the
building were extensive,
therefore there is no other manner of
applying fairness and doing what is just other than through the
undertaking. The undertaking,
if it is that, is restorative in
nature. In
Sipeyu
the court was prepared to accept that
the undertaking made was binding. The court said the following at
paragraph 38 ;
"/
am therefore prepared to accept, in favour of the plainti ffs,
that the content of the clauses manifest an intention on the part
of
Government to be bound by its written commitments and obligations."
[27]
The posture by the defendant that the building was handed back is not
supported by objective
evidence. The plaintiff is not under
obligation to accept the building in circumstances where it had been
seriously vandalized.
I accept that the plaintiff could have opted to
accept the building not completely repaired as was the case at the
aborted handover
of the 29 March 2012 and to thereafter record all
the outstanding repairs. At that stage however the defendant had not
only acknowledged
the damages on the building but had also shouldered
the responsibility for the repairs. In addition, the defendant,
despite the
attempt to distance himself from the letter of 9 December
2011, had readily accepted to pay monthly rental for the period of
the
repair work and the continuation of the tenancy during that time.
[28]
What is more telling however is that on the version of the defendant,
on the date of the handover
a list of more outstanding work was
prepared. It is my view that in light of the outstanding work at the
time, the plaintiff can
not be faulted for not having accepted the
building back. On 14 May 2012 an email with a list of outstanding
work was sent to the
defendant. In cross examination Mr Moloi
conceded that if he was of the view that the outstanding work
referred to in the annexure
to the aforesaid letter had been
completed he would have written back and indicated that much. In any
event the letter was never
respondent to by the defendant. It is a
significant concession because it puts paid to the contention that at
the time the building
was not taken back by the plaintiff all the
outstanding work had been completed .When the plaintiff needed to go
back to the building
to effect some repairs permission was sought
from the defendant. This additionally shows that the defendant was in
firm possession
of the premises.
[29]
On 29 October 2012 there was yet another letter written by the
defendant in which reference was
made to outstanding repairs. Mr
Moloi conceded that at the time the letter was written there were
still outstanding repairs as
they were still sourcing funds. This
additional concession is another indication that the building was not
repaired even in October
2012.
Conclusion
[30]
I am persuaded that the premises were not on 29 March 2012, in a
state they were when the lease
was entered into fair wear and tear
excepted. I find that the plaintiff was under no obligation to take
possession thereof. I am
further of the view that beyond that date
the premises remained partially in a state of disrepair as shown in
the letter of October
2012. I find that the premises were only handed
back on 18 December 2012 and even then certain repairs were still
outstanding.
For the period 1 March 2012 to 18 December 2012, the
defendant is liable for rent. Lastly I find that when the premises
were handed
back there were still outstanding repairs.
Order
[31]
I therefore make the following order,
1.
The defendant is held liable for rent for the period 1 March 2012 to
18 December 2012;
2.
The defendant is held liable for the repairs of items outstanding on
the day of the hand over, 18 December
2012, agreed or proven;
3.    The
defendant is directed to pay the plaintiff's party and party costs
for the determination of liability.
SA
THOBANE
ACTING
JUDGE OF THE HIGH COURT
GAUTENG
DIVISION, PRETORI