About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Kwazulu-Natal High Court, Pietermaritzburg
SAFLII
>>
Databases
>>
South Africa: Kwazulu-Natal High Court, Pietermaritzburg
>>
2017
>>
[2017] ZAKZPHC 30
|
|
Pattundeen NO and Others v Priyanka Service Station CC (AR263/16) [2017] ZAKZPHC 30 (19 May 2017)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU
NATAL DIVISION, PIETERMARITIZBURG
APPEAL
CASE NO: AR 263/16
In
the matter between:
SANJAY
KASIEPRASAD PATTUNDEEN
N.O. FIRST
APPELLANT
RAJEEN
KASIEPRASAD PATTUNDEEN N.O. SECOND
APPELLANT
NARENDRA
KASIEPRASAD PATTUNDEEN N.O. THIRD
APPELLANT
and
PRIYANKA SERVICE STATION
CC RESPONDENT
ORDER
1.
The appeal
is upheld with costs including the costs of the application to
appeal.
2.
The order
in the court a quo is set aside and substituted by an order that The
application is dismissed with costs.
JUDGMENT
Gordon
A J
[1]
The Appellants are the trustees of a trust known as The Kasieprasad
Pattundeen Trust. The parties refer to the Trust as The
Kasieprasad
Family Trust. This error is regarded by the parties as not material
and indeed the written agreement of lease described
the Trust under
the name The Kasieprasad Family Trust. Accordingly no point was taken
in this regard by the parties.
Background
[2]
On 14 June 2011 the parties entered into a written agreement of
lease, which was accompanied by a Schedule and a document setting
forth General Conditions of Lease.
[3]
In terms of the Schedule:
[3.1] parties were
identified;
[3.2] the premises were
identified as […] T. Road, Jacobs;
[3.3] the period of the
lease was for five years;
[3.4] the rental was
agreed for the period 1 January 2011 to 31 December 2015.
[4]
The respondent sought confirmation of the renewal of the lease. The
matter was heard and disposed of upon affidavits.
[5]
The order of the court a quo was the following:
‘
1) That the lease agreement
between the Applicant and the Respondent in respect of the premises
[…] T. Road, Durban has been
validly renewed for a period of
five years from the 1December 2015 to 31 December 2020
.
2) The rental for the renewed period
shall be:
i) 1 January 2016 to 31 December
2016 R46232.36.
ii) 1 January 2017 to 31
December 2017 R50 856.60.
iii) 1 January 2018 to 31 December
2018 R55941.16.
iv) 1 January 2019 to 31 December 2019
R61553.28
v) 1 January 2020 to 31 December
2020 R67688.81
(c)sic The Respondents’ to pay
the costs of the application.’
[6]
Leave to appeal to this Court was granted by the judge of the court a
quo.
The
Dispute
[7]
The dispute between the parties is whether an option was properly
exercised.
Option
[8]
On 25 September 2014 the Respondent’s attorney wrote to the
Appellants as follows:
‘
Dear Sirs
RE: LEASED PREMISES 230 TEAKWOOD
ROAD, JACOBS
PRIYANKA SERVICE STATION CC t/a
SILVER SERVICE STATION
1.
We act on behalf of
Priyanka Service Station CC.
2.
Kindly be advised that
our client
hereby
gives notice of its intention to exercise its option to renew the
lease agreement
concluded between our client and the Kasieprasad Family Trust in
respect of the aforementioned property, for a further period of
five
years, commencing 1 January 2016.
3.
Kindly would you acknowledge
receipt hereof
and
further acknowledge the exercise of this option to renew
.’
(my
emphasis
)
[9]
Clause 7.1 of the Schedule read as follows:
‘
7.5 Option to renew: 5
YEARS
.’
[10]
There can be no doubt as to the proper interpretation of those words
but because there was no interpretive discussion before
the court and
in the affidavits, I will in favour of the Respondent regard it as an
option to renew the lease for a further period
of five years, if
properly exercised.
[11]
The date of the termination of the lease was agreed to be 31 December
2015 so I will also accept that the Respondent attempted
to exercise
the option on the 21 September 2014 which is approximately 15 months
before the agreed termination of it.
[12]
In option–cases there is often a difficulty caused by the
language used to explain the execution of it.
[13]
The words ‘intend’, ‘desire’, ‘want
to’, ‘wish to’ or similar words are often
used when
a reference is made to ‘the option’.
[14]
This from time to time requires judges to have to decide whether the
usage is:
i) to express an
intention to exercise the option; or
ii) nothing more than the
expression of a future actual acceptance of the option.
[15]
Initially the courts ruled that an option could fail because the
acceptance of it was required to be clear and unequivocal
and unless
otherwise recorded in the option, unconditional.
[16]
It appears to have been common practice in England for leases of land
to be entered into for long terms. The written leases
gave to one or
other party to enjoy a right to bring the lease to an early
conclusion by the service of a notice of a particular
kind at a
particular time and which are referred to as ‘break clauses’.
The equity in such contractual action
was to allow usually the tenant
to determine the lease prior to the date which otherwise would be the
date of termination of a
long lease.
[17]
The English law became haunted by, in particular two important
decisions. The first by Lord Denman, C.J. in
Cadby
v Martinez (
1840)
11 Ad & El 720:
[1840] EngR 390
;
113 ER 587.
This case was concerned with a lease
for 21 years from Michaelmas day (29 September 1823). The lease had a
covenant if the tenant
should desire to determine its demise at the
end of the first 14 years he should give six calendar months’
notice immediately
preceding the expiration of the first 14 years,
the lease would then determine six months’ before the June
preceding the
expiration of the first 14 years.
[18]
The tenant gave notice that he wanted to quit on 24 June 1837.
[19]
This was three months’ short of the 14 years. The
landlord appreciated that the Defendant had made a mistake and
testified that the notice was not a good one:
‘
I saw that the moment it was
delivered to me but it was not for me to say so’.
Lord
Denman held at 726:
‘
We have heard the case argued
and are of opinion that the covenant to pay rent during the whole
term cannot be got rid of by any
notice to quit which is not in
accordance with the proviso introduced into the lease for the
purpose.
The Lord Justice
concluded that a deed cannot be satisfied by a notice inconsistent
with the terms of it: ‘no authority is
required for so plain a
proposition.’
[20]
The next case is
Hankey v Clavering
[1942] 2 ALL ER 311.
Extraordinarily this case was also a 21 year lease (from 25 December
1934). Again the tenant elected to
give six months’
notice relying on the break clause after seven years as authorised by
the terms of the lease. He gave
notice of the determination of
the lease through the break clause and chose the date of expiration
as 21 December 1941. The tenant
wrote to the landlords solicitors in
March 1940 and asked them to confirm that he had terminated the lease
to take effect on 21
December 1941. The solicitors acknowledged
the receipt of the notice and wrote:
‘
Our instructions are such that
we are able to inform you that the notice therein contained is
properly served upon us.’
[21]
Lord Greene, M.R held at 312-314:
‘
This appeal raises a short
point in connection with a break clause in a lease. The
respondent was the lessor and the appellant
was the lessee. The lease
was dated June 10,1935, and was for a term of 21 years from Dec.25,
1934, determinable as therein provided.
The break clause was as
follows, so far as relevant:
“
If the lessee shall desire to
determine the present demise at the expiration of the first 3 years
and either party at the expiration
of the first 7 years or 14 of the
said term and shall give to the other party 6 calendar months notice
of such his desire…
then immediately at the expiration of such
3, 7 or 14 years, as the case may be, the present demise and
everything herein contained
shall cease and be void.”
That is all I need read. The
first 7 years expired on Dec.25, 1941. On Jan.15, 1940, the
respondent wrote to the solicitors
for the appellant, the lessee, a
letter which contained the following sentences:
“
As I may have to be away for
some time in the near future. I will be obliged if you would
accept the 6 months notice to terminate
your client’s lease
which I am allowed to give on June 21, 1941 ; this would mean that he
would have to give up the cottage
on Dec. 21, 1941. The reason
I am doing this now is that I may be away at the time the notice
should be given. Perhaps
you would confirm you accept this
notice on his behalf.’
The respondent, when he wrote that
letter, was under some curious misapprehension or made some curious
slip because he seems to
have thought that in order to exercise his
power to determine at the end of the first 7 years he would have to
give a notice on
June 21, 1941. Where he got that date from
nobody can explain; but he was under the impression that the seventh
year of the
lease would end on Dec.21, 1941, whereas in point of fact
it would end on Dec.25, 1941. Nevertheless, it seems to me
quite
clear that what he is attempting to do on the face of this
document is to determine the lease by notice on Dec.21, 1941.
The whole thing is quite obviously a slip on his part and there is a
natural temptation to put a strained construction upon language
in
aid of people who have been unfortunate enough to make slips.
That is a temptation which must be resisted because documents
are not
to be strained and principles of construction are not to be outraged
in order to do what may appear to be a particular
fairness in an
individual case.
…
That takes me back to the real point
in the case, namely, whether or not the notice was a good notice,
that is to say, whether it
had the effect of terminating the lease on
Dec.25, 1941. Notices of this kind, given under powers in
leases of this description,
are documents of a technical nature,
technical for this reason, that if they are in proper form they have
of their own force without
any assent by the recipient the effect of
bringing the demise to an end. They are not consensual
documents; they are documents
which must do the thing which the
proviso in the lease says they are to do ; they must on their face
and on a fair and reasonable
construction do what the lease says they
are to do. It is perfectly true that in construing such a
document, as in construing
any other document, the court in case of
ambiguity will lean in favour of reading the document in such a way
as to give it validity
as, a document ; but I dissent entirely from
the proposition that, where a document is clear and specific on a
particular matter,
such as that of date, it is possible to ignore the
inaccurate reference to a date and substitute a different date
because it appears
that the date was put in by a slip. In the
present case what the respondent purported to do by the notice on its
face was
to bring the lease to an end on Dec.21, and if he had said:
“I hereby by this notice give you 6 months’ notice to
determine
your lease on Dec.21, 1941,” he would have been
attempting to do something which he had no power to do; and however
much
the recipient might guess, or however certain he might be, that
this was a mere slip, it would not cure the defect because the
document immediately it is despatched is a document which is
incapable on its face of producing the necessary legal consequence.’
[22]
These two cases governed the English Law for a century in one
instance and for a half century in the other. During the
period
of their influence on the common law they imposed an enormous burden.
[23]
There were of course numerous attempts by practitioners and judges to
avoid the straight jacket of the law eg a mistaken date,
an innocent
error inaccurately determining a month, a mistaken address and in
effect any slight deviation from the wording of contractual
terms, in
exercising an option to determine a lease or to give notice of its
exercise would be necessarily struck down by invalidity.
[24]
Fortunately the two cases were overridden by the majority judgment of
the House of Lords in
Mannai
Investment Company Limited v Eagle Star Life Assurance Company
Limited
[1997]
3 All ER 352.
[1]
[25]
The relevant facts in that case was that the tenant Mannai Investment
Company Limited concluded two leases consisting of premises
on the
second floor at 98 – 99 Jermyn Street, London, SW1, and the
Basement Car Park of the building.
[2]
[26]
The head note reads:
‘
Where a tenant served a notice
purporting to exercise his contractual right to determine a lease,
that notice would be effective
to do so notwirthstanding the fact
that it contained a minor misdescription, provided that, construed
against its contextual setting,
it would unambiguously inform a
reasonable recipient how and when it was to operate. In the instant
case, having regard to the
fact that the leases commenced on 13
January and were determinable on the third anniversary of the term of
commencement, it would
have been obvious to a reasonable recipient
that the notices purporting to determine the leases on 12 January
contained a minor
misdescription and that the tenant sought to
determine the leases on “the third anniversary of the term
commencement”,
ie 13 January. It followed that the
notices were effective to determine the leases and the tenant’s
appeal would accordingly
be allowed.’
[27]
Lord Steyn reduced his conclusion to numbered propositions at
368-370:
‘
(1) This is not a case of a
contractual right to determine which prescribes as an indispensable
condition for its effective exercise
that the notice must contain
specific information. After providing for the form of the notice ("in
writing"), its duration
("not less than six months")
and service ("on the landlord or its solicitors"), the only
words in cl 7(13)
relevant to the content of the notice are the words
"notice to expire on the 3rd anniversary of the term
commencement date
determine this Lease". Those words do not
have any customary meaning in a technical sense. No terms of art are
involved.
And neither side has suggested that anything should be
implied into the language. That is not surprising since the tests
governing
the implication of terms could not conceivably be
satisfied. The language of cl 7(13) must be given its ordinary
meaning. A notice
simply expressed to determine the lease on third
anniversary of the commencement date would therefore have been
effective. The
principle is that that is certain which the context
renders certain: see
Sunrose
Ltd v Gould
[1961] 3
All ER 1142
,
[1962] 1 WLR 20.
(2) The question is not how the
landlord understood the notices. The construction of the notices must
be approached objectively.
The issue is how a reasonable recipient
would have understood the notices. And in considering this question
the notices must be
construed taking into account the relevant
objective contextual scene. The approach in
Reardon
Smith Line Ltd v Hansen-Tangen, Hansen-Tangen v Sanko Steamship Co
[1976] 3 All ER 570
,
[1976] 1 WLR 989
,
which
deals with the construction of commercial contracts, is by analogy of
assistance in respect of unilateral notices such as
those under
consideration in the present case. Relying on the reasoning in Lord
Wilberforce's speech in the
Reardon
Smith
case
[1976] 3 All ER
570
at 574–575,
[1976] 1 WLR 989
at 996–997, three
propositions can be formulated. First, in respect of contracts and
contractual notices the contextual scene
is always relevant.
Secondly, what is
admissible
as
a matter of the rules of evidence under this heading is what is
arguably relevant. But admissibility is not the decisive
matter. The
real question is what evidence of surrounding circumstances may
ultimately be allowed to influence the question of
interpretation.
That depends on what meanings the language read against the objective
contextual scene will let in. Thirdly, the
inquiry is objective: the
question is what reasonable persons, circumstanced as the actual
parties were, would have had in mind.
It follows that one cannot
ignore that a reasonable recipient of the notices would have had in
the forefront of his mind the terms
of the leases. Given that the
reasonable recipient must be credited with knowledge of the critical
date and the terms of cl 7(13)
the question is simply how the
reasonable recipient would have understood such a notice. This
proposition may in other cases require
qualification. Depending on
the circumstances a party may be precluded by an estoppel by
convention from raising a contention contrary
to a common assumption
of fact or law (which could include the validity of a notice) upon
which they have acted: see
Norwegian
American Cruises A/S (formerly Norwegian American Lines A/S) v Paul
Mundy Ltd, The Vistafjord
[1988] 2 Lloyds Rep 343.
Such an issue may involve subjective
questions. That is, however, a different issue and not one relevant
to this appeal. I proceed
therefore to examine the matter
objectively.
(3) It is important not to lose sight
of the purpose of a notice under the break clause. It serves one
purpose only: to inform the
landlord that the tenant has decided to
determine the lease in accordance with the right reserved. That
purpose must be relevant
to the construction and validity of the
notice. Prima facie one would expect that if a notice unambiguously
conveys a decision
to determine a court may nowadays ignore
immaterial errors which would not have misled a reasonable recipient.
(4) There is no justification for
placing notices under a break clause in leases in a unique category.
Making due allowance for
contextual differences, such notices belong
to the general class of unilateral notices served under contractual
rights reserved,
e.g. notices to quit, notices to determine licences
and notices to complete
(see
Delta Vale Properties Ltd v
Mills
[1990] 2 All ER 176
at 183,
[1990] 1 WLR 445
at 454). To those examples may be added
notices under charter parties, contracts of affreightment, and so
forth. Even if such notices
under contractual rights reserved contain
errors they may be valid if they are "sufficiently clear and
unambiguous to leave
a reasonable recipient in no reasonable doubt as
to how and when they are intended to operate": see the
Delta
case
[1990] 2 All ER 176
at 183,
[1990] 1 WLR 445
at 454 per Slade LJ
and adopted by Stocker and Bingham LJJ and
Carradine
Properties Ltd v Aslam
[1976] 1 All ER 573
at 576,
[1976] 1 WLR 442
at 444. That test
postulates that the reasonable recipient is left in no doubt that the
right reserved is being exercised. It acknowledges
the importance of
such notices. The application of that test is principled and cannot
cause any injustice to a recipient of the
notice. I would gratefully
adopt it.
(5) That brings me to the application
of this test. The facts are simple. Crediting a reasonable recipient
with knowledge of the
terms of the lease and third anniversary date
(13 January), I venture to suggest that it is obvious that a
reasonable recipient
would have appreciated that the tenant
wished to determine the leases on the third anniversary date of the
leases but wrongly
described it as 12 January instead of 13 January.
The reasonable recipient would not have been perplexed in any way by
the minor
error in the notices. The notices would have achieved their
intended purpose.’
[28]
Lord Hoffmann approached the matter in a different way at 375:
‘
I propose to begin by examining
the way we interpret utterances in everyday life. It is a matter of
constant experience that people
can convey their meaning
unambiguously although they have used the wrong words. We start with
an assumption that people will use
words and grammar in a
conventional way but quite often it becomes obvious that, for one
reason or another, they are not doing
so and we adjust our
interpretation of what they are saying accordingly. We do so in order
to make sense of their utterance: so
that the different parts of the
sentence fit together in a coherent way and also to enable the
sentence to fit the background of
facts which plays an indispensable
part in the way we interpret what anyone is saying. No one, for
example, has any difficulty
in understanding Mrs Malaprop. When she
says "She is as obstinate as an allegory on the banks of the
Nile", we reject
the conventional or literal meaning of allegory
as making nonsense of the sentence and substitute "alligator"
by using
our background knowledge of the things likely to be found on
the banks of the Nile and choosing one which sounds rather like
"allegory".
Mrs Malaprop's problem was an
imperfect understanding of the conventional meanings of English
words. But the reason for the mistake
does not really matter. We use
the same process of adjustment when people have made mistakes about
names or descriptions or days
or times because they have forgotten or
become mixed up. If one meets an acquaintance and he says "And
how is Mary?"
it may be obvious that he is referring to one's
wife, even if she is in fact called Jane. One may even, to avoid
embarrassment,
answer "Very well, thank you" without
drawing attention to his mistake. The message has been unambiguously
received and
understood.’
[29]
Lord Hoffmann at 378 then stated:
‘
Let us compare this rule
with ordinary common sense interpretation of what people say. If
someone has gone to great pains, well
in advance, to secure tickets
for himself and a friend for a Beethoven concert at the Royal
Festival Hall by a famous visiting
orchestra on 13 January and
says to the friend a week earlier "I'll see you at the Festival
Hall concert on 12 January,"
it will be obvious that he is
referring to the concert on 13 January. According to the old rules of
construction, the law will
agree if there is no concert at the
Festival Hall on 12 January. In that case there is a latent
ambiguity. But if there is a concert
on that date (Stockhausen, say,
played by a different orchestra) he will be taken to have referred to
that concert.
This extraordinary rule of
construction is, as it seems to me, the only explanation for the
decisions in
Hankey v
Clavering
[1942] 2 All ER
311
,
[1942] 2 KB 326
and
Cadby
v Martinez
.’
[30]
In
Boerne v Harris
1949 (1) SA 793
(A) the Appellate Division
had to interpret a letter which had been sent by a lessee with the
intention of exercising a right to
renew a lease. The lease in
question was entered into on the 15
th
April, 1942, for a
period of five years, terminating on the 14
th
April,
1947. A clause of the lease provided that ‘the lessee
shall have the option to renew this lease upon the same
terms and
conditions for a further period of five (5) years provided that he
shall give to the lessor notice in writing at least
six (6) months
prior to the expiration of the first period of five (5) years of his
intention so to renew the lease ….’
On
the 5 October, 1946, the lessee’s attorneys sent the lessor a
registered letter in the following terms: ‘We refer
to the
lease in respect of the Savoy Hotel, Somerset West, between our
client, Mr A.L.M.Boerne, and yourself, and have to advise
that our
client intends to renew the lease for a further period of five (5)
years from the 15th October, 1946, in terms thereof’.
This letter was received by the lessor but was not acknowledged by
her. Subsequent to the 14
th
April, 1947, the lessor applied to the Cape Provincial Division for a
declaratory order that the lease had expired by effluxion
of time.
This order was granted, and the decision was affirmed by the
Appellate Division (Schreiner, JA, dissenting).
[3]
[31]
The case is certainly a hard one from the lessee’s point of
view, for there is little doubt that if the words ‘from
the
15
th
October, 1946’ had been omitted from the letter there would
have been a good exercise of the option. The dissenting judgment
of
Schreiner JA is more comfortable because the learned judge recognised
that in the exercise of options to renew there can be
words or
figures which just cannot be correct. The learned judge held,
in effect, that a court does have the power to correct
or substitute
or to ignore a patent mistake. By that process a court can avoid a
manifest mistake. Schreiner JA would have
allowed the appeal
and declared that the Appellant lessee has
sufficiently
exercised
his rights of renewal in terms of the lease.
[32]
We should align ourselves with the majority judgment of the House of
Lords. We have spent some time on setting forth the development
in
law of the departure from the initial exactitude that courts required
for a proper exercise of an option. There is sufficient
in our law
[4]
to establish that a statement of an intention to exercise an option
embodies the exercise of an option. We accordingly find that
the
Respondent purported to exercise the option. But the option was
fundamentally flawed because there was no provision for
the
calculation of rental for the extended period.
[33]
In fact the letter dated 6 October 2014 from the Appellants attorney
which contained the following:
‘
Dear Sir
‘
RE: LEASE PREMISES […] T.
ROAD, JACOBS
PRIYANKA SERVICE STATION cc t/a
SILVER SERVICE STATION
We act for the trustees of the
Kasieprasad Family Trust who have handed us a copy your letter dated
25 September 2014. We
have also been furnished with a copy of
the agreement of lease note that although there is a reference to an
option to renew in
clause 7.5 of the schedule, the agreement is
silent in regard to a basic monthly rental for any renewal period. In
this circumstance,
the
parties will be required to
reach agreement in
regard to a basic monthly rental failing which, your client will be
obliged to vacate the
premises at the termination of the lease on the 31 December
2015
.
(our emphasis)
We have discussed your client’s
request to renew the lease with the trustees who have informed us
that your client should
contact either Mr Naren Pattundeen or Mr
Rajeen Pattundeen to schedule a meeting to explore the possibilities
or reaching agreement
in respect of the basic monthly rental for the
period after the lease expires on the 31 December 2015. Any
agreement reached
in this respect will only be binding on the parties
once reduced in writing and signed by both parties as required by the
provisions
of Clause 22.
Kindly acknowledge receipt
Yours faithfully
Rowland Watts’
[34]
It would seem that Mr Watts was not unhappy with the renewal per se,
but was concerned about the terms of the renewal which
had not been
agreed. The letter concluded with an invitation to the parties to
meet with a view to agree a basic monthly rental
for the period after
the lease expired on 31 December 2015. They did not do so. This means
that the renewed lease had no provision
for the payment of rental.
The Respondent’s attitude was that it did not have to
participate in any such discussion because
it had renewed the lease.
[35]
The basic rule is that rent must be agreed and must be certain in a
contract of lease.
[5]
In
the present case the renewed lease has no provision for rental and
accordingly the option was invalid. The original lease
sets out the
rental for the original term of five years at the escalated rates set
forth in the document. The escalation was 8
per cent for the first
two years and 10 per cent for the remaining three years. What
the Respondent did was of its own accord
to determine a five year
period and add a 10 per cent escalation to each year. That was
a unilateral act in which both the
Respondent and the acting judge of
the court a quo simply wrote a new contract for the parties. It is
not for a party or the Court
to make any contract which was not
agreed upon between the parties.
[36]
It is correct that after the termination of the original lease the
Respondent paid amounts increased by 10 per cent each year.
These
payments were accepted by the Appellants as damages by reason of
unlawful holding over by the Respondent as damages.
[37]
We accordingly grant an order in terms of the order set forth at the
beginning of this judgment.
__________________
Gordon
AJ
__________________
I agree
Mnguni
J
__________________
I agree.
Lopes
J
APPEARANCES
Date
of hearing: 10
th
February 2017
Date
of Judgment: 19
th
May 2017
Counsel
for the Appellants: Mr M R
Naidoo
(instructed by Kushen
Sahadaw Attorneys c/o AK Essack Morgan Naidoo & Co.)
Counsel
for the Respondent: Mr G M
Harrison
(instructed by Zeiler
Jankey Incorporated c/o Austen Smith Attorneys)
[1]
Lord Steyn, Lord Hoffmann, Lord Clyde
with Lord Goff and Lord Jauncey in the dissenting minority in the
House of Lords.
[2]
Jermyn Street is among the most
expensive in London which no doubt persuaded the tenants to enable a
“break clause”
to determine the lease on the expiry of
the 3
rd
anniversary of the term commencement date. The effective date
was 13 January 1995 but the letters however referred to 12
January
1995. At this point we are going to make a brief reference to
the ingenuity of the counsel. It was argued
that the last
moment of time on 12 January, is the same as the first moment of
time on the 13
January.
The preceding judge in the Court of Appeal dismissed the argument
(Nourse L J).
“
As
a “magical result” an immeasurable stroke of midnight
can take effect on the 12
th
or 13
th
January.” It is simply incorrect.
[3]
Boerne v Harris
1949 (1) SA 793 (A).
[4]
Kahn v Raatz
1976 (4) SA 543
(A);
Ebrahim
and Others v Khan and Others
1979 (2) SA 498 (N).
[5]
Aris Enterprises (Finance) (Pty)
Ltd v Waterberg Koelkamers (Pty) Ltd
1977 (2) SA 425
(A) at 434D-E.