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[2016] ZAGPPHC 119
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Imperial Bank v Lanseria International Airport (Pty) Ltd (A154/2014) [2016] ZAGPPHC 119; [2016] 2 All SA 812 (GP) (30 March 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
/ES
(
GAUTENG
DIVISION, PRETORIA
)
CASE
NO: A154/2014
(
A
quo
Case no: 2006/15860)
Not
reportable
Not of
interest to other judges
Revised
DATE:
30/3/2016
IN
THE MATTER BETWEEN
IMPERIAL
BANK APPELLANT
(Respondent
in court
a quo
)
AND
LANSERIA
INTERNATIONAL AIRPORT (PTY)
LTD RESPONDENT
(Applicant
in court
a quo
)
JUDGMENT
PRINSLOO,
J
[1]
This appeal came before us, sitting as a Full Court of this Division,
with the leave of the learned Judge
a quo
, Pretorius J.
[2] In
very broad terms, it can be said that it is the case of the
respondent that it was at all relevant times the sub-lessor,
and the
appellant its sub-lessee, of a portion of the total property
comprising the Lanseria International Airport. According
to the
respondent, the appellant failed to make timeous payment of the lease
instalments, prompting the respondent to cancel the
lease and to seek
the eviction of the respondent.
The
appellant, on the other hand, denies that there was any privity of
contract between it and the respondent, so that the latter
did not
have the required
locus standi
to purport to cancel the lease
agreement, let alone to evict the appellant.
Brief
notes about the history of the case
[3]
The history of this case, spanning more than twenty years, features a
remarkable (and, at times, almost overwhelming) variety
of property
sale transactions, leases, notarial leases, head-leases and cessions.
[4]
Lanseria Airport is situated on a property comprising about twenty
smaller properties under various title deeds and the whole
airport
property is described as the remaining extent of Portion 12 (a
Portion of Portion 9) of the farm Zwartkop/Rooiwal 530,
Registration
Division JQ, Gauteng ("the property").
[5]
The leased premises ("the premises"), to which I have
referred, and which form the subject of this dispute, form part
of
the property, and are described as Lease Area no 11 (also known
as Hangar Site no 4 or Erf 57), situated on the remaining
extent of
Portion 12 (a Portion of Portion 9) of the farm Zwartkop or Rooiwal
530, Registration Division JQ, Gauteng.
[6]
The premises are also mentioned in the notice of motion. It is
convenient to quote the first two paragraphs of the notice
of motion:
"1. An order confirming the cancellation of notarial deed of
lease registered by the Registrar of Deeds, Pretoria under reference
number K6754/94L;
2. An order directing the respondent to vacate the premises forming
the subject-matter of the aforesaid lease, being Lease Area
no 11
(also known as Hangar Site no 4 or Erf 57) ..."
The
"respondent" referred to is, of course, the respondent
a
quo
or the present appellant.
[7]
The name of the airport was originally Lanseria Airport (Pty) Ltd and
it was changed to Lanseria International Airport (Pty)
Ltd on 17
December 2002. This is the respondent in the present appeal,
and will be referred to as such.
[8] A
property holding company of the airport/respondent, Lanseria Airport
Properties (Pty) Ltd ("LAP") originally bought
the property
from the Transvaal Provincial Administration and the Krugersdorp and
Roodepoort municipalities.
[9]
During June 1993 LAP sold the property to the Southern Life
Association Ltd ("Southern") for some R30 million.
[10]
Under the heading "sub-leases", the first portion of clause
14 of the deed of sale between LAP and Southern reads
as follows:
"14.1 It is recorded that the tenants listed in annexure 'D'
annexed to the lease agreement, (marked '6' annexed hereto),
presently lease various premises comprising part of the property.
14.2 The seller (this is obviously LAP) hereby, to the extent that
this does not apply by operation of law, cedes to the purchaser,
(obviously Southern) effective as at the transfer date, all of such
leases listed on annexure 'D'.
14.3 Simultaneously with the abovementioned cession, the purchaser,
as lessor, will cede to Lanseria Airport (Pty) Ltd, as lessee,
effective as at the transfer date, the leases listed in such annexure
'D', which will then become sub-leases of the lessee of the
respective premises."
[11]
It is common cause that the transfer date from LAP to Southern was
9 December 1993.
[12]
There was, consequently, an agreement between LAP, Southern and the
respondent that:
• With effect from the transfer date LAP would cede the leases
referred to to Southern. It is convenient to record, at
this
stage, that the reason why it is stipulated in clause 14.2 that this
cession would take place "to the extent that this
does not apply
by operation of law" emanates from the trite legal position
that, with effect from the transfer date, Southern
would, in any
event, step into the shoes of LAP as the lessor. This is common
cause between the parties – see
Genna Wae Properties
(Pty) Ltd v Medio-Tronics (Natal) (Pty) Ltd
[1995] ZASCA 42
;
1995 2 SA 926
(A) at
939A C.
• Simultaneously Southern, as lessor, will cede the leases to
the respondent who will become the sub-lessor of the tenants
of the
airport.
[13]
Pursuant to the aforesaid transaction, a lease agreement (referred to
throughout as "the head lease") was entered
into
between Southern as lessor and the respondent as lessee. It was
signed on 30 September 1993 on behalf of the respondent
and
12 October 1993 on behalf of Southern.
Clauses
13.1 and 13.2 of the head-lease provide:
"13.1 This lease is subject to the cession of all sub-leases
listed on annexure 'D' together with any further sub-leases
entered into after the compilation of annexure 'D', from Lanseria
Airport Properties (Pty) Ltd to the lessor (obviously, Southern)
and
a copy of such written cession furnished to the lessor prior to the
effective date, failing which cession this agreement will
be void.
13.2 The lessee shall be entitled to sub-let portions of the property
but shall not be entitled to cede or assign such sub-leases
to
persons other than the lessor without the prior written consent of
the lessor first had and obtained."
[14]
Annexure "D" referred to in clause 14 of the sale agreement
between LAP and Southern, is the same as annexure "D"
referred to in clause 13 of the head-lease. The head-lease
is referred to in clause 5.1.1 of the sale agreement between
LAP and
Southern.
[15]
In the head-lease, a "sub-lessee" is defined as meaning:
"A sub-lessee of a defined portion of the property in terms of a
sub-lease between the sub-lessee and the lessee".
The
reference to "the lessee" is obviously a reference to the
respondent. One would also assume that "sub-lease"
would have a corresponding meaning to "sub-lessee".
[16]
Clause 13,
supra
, goes under the sub-heading, in the
head-lease, of "sub-letting of premises". It is
clearly aimed at regulating
the arrangement whereby the respondent,
as sub-lessee of the lessor (Southern) can sub-let portions of the
property. The effective
date of the head-lease is also
stipulated to be the date of transfer of the property from LAP to
Southern.
It is
therefore clear, from a general reading of the deed of sale between
LAP and Southern as well as the head-lease, that it was
always in the
contemplation of the parties that, on the effective date, the
respondent would become the sub-lessor.
Moreover,
it seems to me that the purported suspensive condition contained in
clause 13.1 of the head-lease, to the effect that
LAP has to cede the
sub-leases to Southern before the effective date, must be seen to be
superfluous and without binding effect,
because, by operation of law,
Southern in any event became the lessor on the effective date –
Genna-Wae, supra
.
[17]
On 1 October 1993, LAP, while it was still the owner of the property,
as the effective date of 9 December 1993 had not yet
arrived,
although the sale to Southern had already taken place, let the
premises to Avfin Marketing (Pty) Ltd ("Avfin").
[18]
In this written agreement of lease, the premises is correctly
described as "Lease Area 11, measuring 2596m² situated
on
the remaining extent of Portion 12 (a Portion of Portion 9) of the
farm Zwartkop or Rooiwal 530, Registration Division JQ, Transvaal,
... also known as site no 4, Lanseria Airport, with which the
lessee is acquainted". I will refer to the
lease
agreement as "the Avfin lease".
[19]
The Avfin lease is not listed in annexure "D" to the
head-lease neither can it, in my view, be described as a "sub-lease"
because it is a straight lease between the owner (LAP) and the
lessee. It is, consequently, not one of the leases contemplated
in clause 13.1 of the head-lease, which purportedly had to be ceded
in writing by LAP to Southern before the effective date.
[20]
Nevertheless, and significantly, the fact that LAP had sold the
property to Southern before entering into the Avfin lease,
as well as
the agreement between the parties that the respondent was to become
the sub-lessor, is recognised in clause 18 of the
Avfin lease in the
following terms:
"18.
Sale of properties.
It is hereby recorded that –
(a) the lessor (landlord) has sold the properties on which the
premises are situated to a new owner ('new owner') in terms of a
written agreement of sale ('sale agreement') and the new owner has
leased the properties to Lanseria Airport (Pty) Ltd ('Airport')
in
terms of a written agreement of lease ('head-lease') all with effect
from the date upon which the properties are registered
in the name of
the new owner ('effective date');
(b) in terms of the sale agreement and the head-lease, the lessor
(landlord), Airport (obviously this is the respondent) and the
new
owner (obviously Southern) have agreed that, with effect from the
effective date, this lease will be ceded by the lessor (landlord)
to
the new owner and thereafter be ceded by the new owner to Airport."
[21]
These provisions are, of course, in harmony with what was stipulated
in clause 14 of the deed of sale between LAP and Southern
with clause
14.2, in any event, recognising that the cession of the annexure "D"
leases (not including the Avfin lease)
by LAP to Southern, was not
necessary because it happened by operation of law.
[22]
From a general reading of clause 18, as well as the other documents
referred to, it is, in my view, clear that all the parties,
including
Avfin, agreed that, from the effective date, the position would be as
follows:
• Southern would be the owner of the property;
• Southern would lease the property to the respondent
(head-lease, and clause 18(a) of the Avfin lease); and
• the respondent, as sub-lessor, would lease to Avfin as
sub-lessee.
[23]
Because the Avfin lease is the one forming the subject of this
dispute, it is convenient to record, at this stage, that all
the
parties, in fact, acted on the basis contemplated above, because the
respondent invoiced Avfin on a monthly basis for the rental
of the
premises and was duly paid by Avfin. Independently from this,
the respondent paid rent to Southern in a lump sum,
and in respect of
all the sub-leases, in terms of the provisions of the head-lease.
[24]
This situation, with Avfin recognising the respondent as its
sub-lessor, and paying the rent to the respondent, prevailed for
a
period of more than four years from the effective date in December
1993 until the Avfin lease was notarialy ceded to a company
called
Transafrican Aviation (Pty) Ltd in February 1998.
[25]
In August 1994, more than a year after the Avfin lease commenced in
June 1993, it was converted into a notarial deed of lease
and
registered, as such, in the Deeds office on 24 November 1994.
This
notarial lease consists of a first part (a relatively concise affair)
and a "Part B" which is incorporated into
the notarial
lease by reference in the first part, which I will refer to as "Part
A" although it does not carry that
description.
Clause
6 of Part A stipulates -
"The contents of this notarial deed of lease shall be read in
conjunction with Part B annexed hereto, the provisions of which
shall
be an integral part of this notarial deed of lease and any signed
annexure attached hereto."
[26]
In Part A, Southern, duly represented by Mr John Martin Rippon who
also testified before the court
a quo
in support of the
respondent, then the applicant
a quo
, is cited as the lessor.
Avfin is cited as the lessee.
Where
no formal recognition is given to the respondent as the sub-lessor,
counsel for the appellant, Mr Luderitz SC with Mr Botha,
strongly
argued that this introduction of Southern as the lessor, defeats any
notion of a sub-lessor/sub-lessee relationship between
the respondent
and the appellant and, consequently, supports the appellant's
argument that there was no privity of contract between
the respondent
and the appellant, so that the former did not have the necessary
locus standi
to cancel the Avfin lease, let alone evict the
appellant from the premises.
[27]
On this subject Mr John Martin Rippon ("Rippon") who was
the group property investment manager of Southern from 1993
to 1998
and who,
inter alia
, signed the head-lease on behalf of
Southern and whose name also appears on the notarial deed of lease,
now under discussion, as
the representative of Southern authorising
the conversion of the Avfin lease between LAP and Avfin into a
notarial deed of lease
between Southern and Avfin, said the following
in a supporting affidavit to the replying affidavit of the applicant
a quo
(now the respondent):
"With regard to the notarial deed of lease ... I am able to
state that I was authorised by Southern Life to attend to the
notarial execution and registration of the said lease. I am
informed that the respondent in the present application (of course
now the appellant) contends that the lease which was notarially
executed and registered was a different lease from the lease
appearing
on pp142 160 of the papers (this is the Avfin lease)
and that the notarial deed of lease was a new lease concluded
directly
between Avfin and Southern Life after Southern Life became
the owner of the property. This contention is incorrect.
The correct position is that the previously existing lease between
Lanseria Airport Properties (Pty) Ltd and Avfin (appearing on
pp142
and further) was subsequently notarially executed and registered
after the initial lessor, being Lanseria Airport Properties
(Pty)
Ltd, was replaced as lessor by Southern Life as the new owner of the
property."
[28]
In the same affidavit, Rippon also says the following:
"It should be pointed out that during the period between the
conclusion of the initial lease appearing on pp142 160 of
the
papers (in October 1993) and the notarial execution and registration
of the deed of lease appearing on pp172 188 on 24 November
1994 (this is the notarial lease) Southern Life had become the
registered owner of the property in question and concluded the
head-lease with the applicant (the present respondent) and had by its
conduct ceded its rights in terms of the lease (pp142 160)
to
the applicant."
[29]
Of course, this evidence is in perfect harmony with what is
stipulated in clause 18
of Part B of the notarial
lease
which is identical to what is stipulated in the
corresponding clause of the Avfin lease. It is convenient to
quote the contents
again:
"18.
Sale of properties
It is hereby recorded that –
(a) the LESSOR (landlord) has sold the properties on which the
premises are situated to a new owner ('new owner') in terms of a
written agreement of sale ('sale agreement') and the new owner has
leased the properties to Lanseria Airport (Pty) Ltd ('Airport')
in
terms of a written agreement of lease ('head lease'), all with
effect from the date upon which the properties are registered
in the
name of the new owner ('effective date');
(b) in terms of the sale agreement and the head-lease, the LESSOR
(landlord), Airport and the new owner have agreed that, with
effect
from the effective date, this lease will be ceded by the LESSOR
(landlord) to the new owner and thereafter be ceded by the
new owner
to Airport;
(c) in terms of the sale agreement and the head-lease further, it was
agreed that, upon the cancellation of the head-lease (for
whatsoever
cause or reason), the new owner shall immediately become the LESSOR
(landlord) to the LESSEE (tenant) in terms of this
lease and be
entitled to all the benefits, and be obliged to perform all
obligations, hereunder; and
(d) the LESSEE (tenant) has agreed to be bound by the provisions of
clause (c) above."
I add
that counsel for the respondent, Mr Vorster SC and Mr Heystek,
argued that clause (c) never came into operation because
the
head-lease was never cancelled, for present purposes. If I
understood counsel for the appellant correctly, they advanced
a
different view. On my reading of the papers, the argument
offered on behalf of the respondent is the preferred one.
[30]
In my view, the fact that the respondent ("Airport") is
recognised in the notarial lease as the sub-lessor, as it
was in the
Avfin lease, clearly lends support to the evidence of Rippon that the
status quo
flowing from the Avfin lease and the head-lease,
with reference to the respondent's position as sub-lessor, did not
change at all
as a result of the registration of the notarial lease,
with Southern as the lessor and Avfin as the lessee.
It
should be borne in mind that this recognition of the respondent as
the sub lessor came not only from Southern, but also
from Avfin
as lessee in terms of the notarial lease. I mention this
because Avfin is a predecessor in title of the appellant
as lessee in
terms of the Avfin and the notarial leases. I will revert
to this subject.
[31]
Moreover, I am of the view that compelling support for this approach
flows from the fact that, from the outset, all parties
acted on the
basis that the respondent is the sub lessor of Avfin, with the
latter being invoiced on a monthly basis by the
respondent and paying
the rental to the respondent. As I pointed out earlier in this
judgment, the situation with Avfin recognising
the respondent as its
sub-lessor, and paying the rent to the respondent, prevailed for a
period of more than four years from the
effective date in December
1993 until the Avfin lease was notarially ceded to Transafrican
Aviation (Pty) Ltd in February 1998,
more than three years after the
notarial lease was registered.
[32] I
add that when Rippon testified in support of the respondent's case
before the court
a quo
, he stated that according to
Southern's business plan it had no interest whatsoever in becoming
directly involved with the tenants
occupying the premises at the
airport. This would have included Avfin. Southern had no
meaningful contact with the lessees
on the premises. Southern
had nothing to do with the underlying leases or the issuing of rental
statements, rental raising
or rental collection. Southern was only
interested in receiving one rental cheque per month from the
respondent.
[33]
In cross-examination before the court
a quo
, Rippon was asked
about clause 18 of the notarial lease, which I quoted, and testified
that there was tacit acceptance that where
there was a new owner
coming in they entered into the head-lease with the respondent and
the latter then had the whole bank and
underlying sub-leases.
[34]
Despite lengthy and intensive cross-examination, Rippon, on my
reading of his evidence, was in no way discredited. He
insisted
that the position did not change when the notarial lease was
registered. He said, had that been the case, Southern
would
have started charging rental which they did not do.
As to
the need to have a notarial bond registered at all, Rippon testified
that it was his understanding that it had to do with
the registration
of a mortgage bond "and as the owner of the airport they
would have required our consent for that lease
to be notarially
registered".
[35]
It should be added that the evidence of Rippon, who was intimately
involved in all these developments as the representative
of Southern,
was undisputed for all practical purposes.
The
only witness called by the appellant, before the court
a quo
,
was one Vincent Crous, who only got involved in June 2005, well after
the relevant events took place.
[36]
After this brief interlude involving arguments and counter-arguments
about the effect, or lack thereof, of the registration
of the
notarial lease, I revert to describe more of the history of the case.
[37]
In February 1998, as I have already briefly mentioned in this
judgment, and about three and a half years after the registration
of
the notarial lease, Avfin in terms of a written instrument registered
on 18 March 1998, ceded the notarial lease to a company
called
Transafrican Aviation (Pty) Ltd.
[38]
It is common cause that after this cession took place and
Transafrican took occupation of the premises, it was again "business
as usual" in the sense that Transafrican was invoiced for the
rent on a monthly basis by the respondent and paid the rent
to the
latter with the respondent paying a lump sum in respect of all the
rental of the various sub leases to Southern on
a regular basis.
[39]
During April 1998 Southern sold the property to a company Lanseria
Airport 1993 (Pty) Ltd ("Airport 1993") with the
latter
taking transfer of the property on 17 August 1998.
[40]
At this stage, as explained with reference to
Genna Wae
,
Airport 1993 became the landlord (lessor) in terms of the head-lease
and the respondent remained the sub-lessor of Transafrican.
[41]
After this, it was again "business as usual" with all
parties recognising that Transafrican had to pay monthly rental
to
the respondent who then made lump sum payments to Airport 1993.
[42]
This state of affairs endured for more than five years until
Transafrican was liquidated in October 2003.
[43]
The liquidator, Ms Gail Warricker, elected to keep the notarial lease
intact, and made a few payments in respect of rental
to the
respondent.
[44]
Thereafter, the liquidator sold all the right, title and interest in
and to and arising from the notarial deed of lease by
public auction
on 9 March 2004. The appellant, who, as a creditor, had an
interest in the matter, took part in the bidding
process and turned
out to be the successful buyer, thereby acquiring all the aforesaid
rights in and to the notarial deed of lease
and, in law, becoming the
lessee of the premises, subject to the conditions contained in the
original Avfin lease, later echoed
in the notarial lease, as
explained.
[45]
On 21 April 2004 the liquidator advised the respondent that the
appellant had acquired the rights flowing from the notarial
deed of
lease from Transafrican. The respondent was advised that, with
effect from 1 May 2004, the appellant would be responsible
for the
payment of the monthly rental and all other relevant charges.
The rent until the end of April was properly paid by
the liquidator.
[46]
From then on, it was again "business as usual", with the
appellant being invoiced for the monthly rental and the
latter making
payments to the respondent as sub lessor.
[47]
From a general reading of the papers, it is clear that the appellant
was not a model lessee and the payments were invariably
late.
[48]
It is nevertheless clear, from the conduct of the appellant and the
respondent, that they acknowledged the existence of a binding
agreement of lease between them.
[49]
It emerges from the evidence that, not only were the rental payments
erratic, but, at times, no payments were made at all.
For
example, at one stage the rental in respect of the leased premises
for the months July, August, September and October 2004
remained
unpaid.
Correspondence
and demands were exchanged.
Towards
late 2005, the respondent's attorney, Mr Le Roux, also took the
matter up with the appellant's representative, Mr Crous
(also, in
some of the papers, referred to as Mr Kraus, but I will persist
with the name Crous which appears to represent the
correct spelling).
[50]
When payments remained outstanding, the respondent, represented by Mr
Opperman, instructed Mr Le Roux to cancel the lease on
behalf of the
respondent.
[51]
On 3 October 2005, Attorney Le Roux wrote the following letter to the
appellant, for the attention of Mr Crous:
"
Lease agreement – Yourself/Lanseria International
Airport (Pty) Ltd Hanger Site 4 Lanseria International Airport
We act for Lanseria International Airport (Pty) Ltd, your landlord in
respect of Hanger Site 4, Lanseria International Airport.
It is our instructions that you are presently in arrears with your
monthly rentals and other charges in respect of your lease agreement
for the months of July 2005, August 2005 and September 2005 in the
amount of R28 553,07.
As a result of your breach to pay your monthly rentals on due date
you are hereby notified that your lease agreement is cancelled
forthwith and you must accordingly vacate the leased premises
immediately and arrange for all improvements to be removed in terms
of the provisions of your lease.
Yours faithfully"
[52]
It is common cause that this letter ("the cancellation letter")
was hand-delivered as well as delivered by telefax
to the appellant,
represented by Mr Crous, on the same date, 3 October 2005.
[53]
This is the cancellation which forms the subject of the present
dispute, and which is referred to in the notice of motion.
[54]
The relevant portions of clause 11 of the Avfin lease as well as
clause 11 of Part B of the notarial lease (which subject
I have
dealt with) reads as follows:
"11.
BREACH
In the event of:
(a) the rental or any other amounts due in terms hereof not being
paid on due date;
OR
(b) the lessee failing to remedy any breach or any other conditions
of this agreement within 7 (seven) days after written registered
notice or within 7 (seven) days after receipt of a hand-delivered
notice will have been given by the LESSOR to the LESSEE to remedy
such breach; or
(c) ...; or
(d) ...; or
(e) ...;
then the LESSOR shall be entitled but not obliged, notwithstanding
any previous waiver or anything to the contrary herein contained,
to
cancel this lease forthwith, without prejudice, and retake possession
of the Premises, without prejudice to its claim, or any
arrear rental
and/or other sums payable hereunder and/or for any damages which it
may suffer by reason of such breach and/or cancellation,
or to any
other remedy which it may have against the LESSEE arising out of this
lease or in law."
[55]
From the aforegoing, it is clear that, in terms of the lease, the
lessor was entitled to cancel forthwith in the event of non-payment
of the rental, and not, for example, obliged first to give a seven
day notice to the lessee to remedy the breach.
This
much was common cause before us.
[56]
After this cancellation, the appellant, initially, raised defences to
the effect that, through its conduct, the respondent
had waived the
right to cancel the lease ("the waiver defence") and was,
consequently, estopped from doing so ("the
estoppel defence").
[57]
The remaining, and third, defence was that the respondent did not
have the necessary
locus standi
to cancel the lease and seek
the appellant's eviction from the premises (the so called "
locus
standi
issue"). This was based on the argument that there
was no privity of contract between the parties.
[58]
Throughout the long, and somewhat tortuous, journey which this case
travelled through the courts, the appellant persisted with
these
three defences.
[59]
However, in heads of argument filed for purposes of the appeal which
came before us, counsel for the appellant stated that
their client
was not persisting with the estoppel or waiver defences.
What
remains for decision, therefore, is the "
locus standi
defence".
[60]
So much for the background and history of the case.
The
journey through the courts
[61]
The respondent (as applicant
a quo
) launched the application
for confirmation of the cancellation of the lease and eviction of the
appellant (as respondent
a quo
) in September 2006.
[62]
In March 2007, the matter came before Ebersohn, AJ, who, on 13 April
2007, upheld the application with regard to the
locus standi
issue and referred the waiver and estoppel defences to oral evidence.
He did so in the following terms:
"1. It is declared that the applicant has the necessary
locus
standi
to seek the relief set out in the notice of motion.
2. All the defences raised by the respondent in this application,
save for the defences referred to in prayer 3 below, are dismissed.
3. The application is referred for the hearing of oral evidence, on a
date to be arranged with the Registrar, on the following
issues:
3.1 whether the applicant has waived its right to rely on the notice
of cancellation dated 3 October 2005 ...;
3.2 whether the applicant is estopped from cancelling the deed of
lease, annexure FA10 to the founding affidavit (
my note
: this
is the notarial lease) ..."
[63]
The appellant applied for leave to appeal against the judgment in
respect of the
locus standi
issue which application was
dismissed on 25 August 2008.
[64]
The appellant then petitioned the Supreme Court of Appeal, which, on
1 December 2008, granted leave to appeal to the Full Court
of this
Division.
[65]
This appeal lapsed through non-compliance with the rules, but was
reinstated and when the appeal came before the Full Court,
that court
decided to refer the
locus standi
issue to oral evidence as
well.
[66]
The application, as referred to oral evidence on all three issues,
came before Pretorius, J on 26-28 November 2012.
[67]
On 9 January 2013, the learned Judge, in a written judgment, found in
favour of the respondent (then as applicant
a quo
).
Some
of the findings of the learned Judge are:
(i) the notarial lease is the same as the Avfin lease which had
subsequently been registered;
(ii) "Mr Henwood's evidence (he was one of the witnesses in the
trial) was clear that the tacit cessions took place on 9 December
1993. The evidence confirms that all the parties from that date
onwards conducted themselves in a way which made it abundantly
clear
that all the facts supported the tacit cession."
And
"Having considered all the evidence, all the affidavits and all
the authorities that both counsel for the applicant and the
respondent had referred the court to, the court finds unequivocally
that on the probabilities, the conduct of the parties and the
circumstances which existed that the parties were in agreement and
that the applicant has established that there was a tacit cession
at
all times.";
(iii) the defence of estoppel was dismissed; and
(iv) the waiver defence was dismissed.
[68]
The learned Judge made the following order:
"1. An order confirming the cancellation of notarial deed of
lease registered by the Registrar of Deeds, Pretoria under reference
number K6754/94L;
2. an order directing the respondent to vacate the premises forming
subject-matter of the aforesaid lease, being lease area 11
...;
3. an order directing the respondent to pay the costs of this
application on the attorney and client scale including the costs
of
two counsel."
[69]
On 11 February 2014, the learned Judge granted leave to appeal to the
Full Court of this Division.
This
is the appeal which came before us on 14 October 2015.
Brief
overview of the evidence led during the trial
[70]
The overview is limited to what I consider to be relevant aspects of
the evidence.
(i)
John Martin Rippon
[71] I
have dealt with most of his evidence earlier in this judgment.
[72]
He was intimately involved with the whole transaction involving the
acquisition of the property by Southern. During 1993
to 1998 he
was the Group Property Investment Manager of Southern.
[73]
Southern was not interested in the sub-leases. They were only
concerned with the head-lease and the collection of their
lump sum
payment every month.
[74]
The Avfin lease is not mentioned in annexure "D", the list
of sub-leases, referred to in clause 13.1 of the head-lease,
the
contents of which has already been quoted but, for the sake of easy
reference, it is repeated:
"13.1 This lease is subject to the cession of all sub-leases
listed in annexure 'D' together with any further sub-leases
entered into after the compilation of annexure 'D', from Lanseria
Airport Properties (Pty) Ltd to the lessor (obviously, Southern)
and
a copy of such written cession furnished to the lessor prior to the
effective date, failing which cession this agreement will
be void."
I have
already pointed out that, before us, it was common cause that such a
cession was, in law, unnecessary because Southern, in
any event,
stepped into the shoes of LAP as lessor – see
Genna-Wae
,
supra
.
Moreover,
the Avfin lease was, in any event, not a "sub-lease" in the
true sense of the word: it was a straightforward
lease between the
then owner, LAP, and Avfin. In respect of this lease,
Southern would also, for the reasons mentioned,
automatically, in
law, step into the shoes of LAP as the lessor in respect of the Avfin
lease.
In the
result, I have difficulty to accept the argument offered on behalf of
the appellant in terms of which strong reliance was
placed on the
purported suspensive condition, in clause 13.1 of the head-lease,
that, in the absence of a written cession of the
"sub leases"
by LAP to Southern, and furnished to Southern prior to the effective
date, the head-lease would be
void. Such a cession was patently
not necessary in law. Moreover, the Avfin lease, forming the
subject of this case,
was not a "sub lease", neither
was it mentioned in annexure "D".
In the
cross-examination of Mr Rippon, mention was also made of the
provisions of clause 18(b) of the Avfin lease, the contents
of which
I have quoted. In that clause it is recognised that LAP had
sold the property to Southern, and in terms of that
sale, and the
head-lease, LAP, the respondent and Southern had agreed that with
effect from the effective date, the Avfin lease
will be ceded by LAP
to Southern and thereafter by the latter to the respondent.
It was
the unequivocal evidence of all the witnesses on behalf of the
respondent that written cessions was not considered to be
necessary
(in any event clause 18(b) of the Avfin lease does not make any
mention of
written
cessions) and that, through their conduct,
all parties recognised that inasmuch as cessions may have been
necessary, they were
tacitly effected. It was argued on behalf
of the respondent that objectively, it is clear from the conduct of
the parties
through the years (I have listed these developments
earlier on) that the respondent was recognised as the sub-lessor with
the procession
of tenants (Avfin, Transafrican and the appellant) as
its sub-lessees receiving monthly invoices for the rent from the
respondent
and making payment. I add that the learned
author Christie,
The Law of Contract in South Africa
6
th
ed,
states on p484 that "In general no formalities are required for
a cession, which may validly be made orally or tacitly
even if the
rights ceded form part of a written contract." - See
authorities cited at footnote 237.
For
present purposes, this state of affairs endured for at least twelve
years, from the December 1993 effective date to October
2005 when the
respondent cancelled the lease with the appellant.
It is
also worth repeating that in the deed of sale between LAP and
Southern (clause 14) it is recorded that LAP -
"hereby, to the extent that this does not apply by operation of
law, cedes to (Southern), effective as at the transfer date,
all of
such leases listed on such annexure 'D' ... simultaneously with the
abovementioned cession, (Southern), as lessor, will
cede to Lanseria
Airport (Pty) Ltd (the respondent), as lessee, effective as at the
transfer date, the leases listed on such annexure
'D' which will then
become sub-leases of the lessee of the respective premises."
This
deed of sale was already signed in June 1993, well before the
December 1993 effective date. In my view, it is also arguable
(although I do not recall such a submission being made) that the
written cession in clause 14.2 of the deed of sale under discussion,
that LAP "hereby cedes" the leases to Southern, probably
amounts to material compliance, inasmuch as it may be necessary,
with
the provisions of clause 13.1 of the head-lease.
All
this, in my view, bears testimony to the fact that all concerned
(including the appellant until after the lease was cancelled!)
considered that the necessary cessions had taken place and that there
was a relationship of sub-lessor
-
sub-lessee between the
respondent and the appellant.
Mr
Rippon, testifying in November 2012, some nineteen years after
the event, put it like this:
"--- We never concluded a written cession.
Right, why was that not done because it has an effect on the validity
of the head lease? --- Today when we buy properties
we never
formally cede the leases to the new owners and we never have.
The effective transaction came into being on 9 December
1993
when the property was transferred. It was on that date that the
head lease came into being with ourselves.
So we never
formally ceded the underlying sub-leases to the sub-lessees at the
Airport.
And was the reason for that because you became the owner of the
property in any event? --- We were the owners of the property yes."
[75] I
add that, in the deed of sale entered into between Southern and
Lanseria Airport 1993 (Pty) Ltd ("Airport 1993")
Southern,
as seller, also "assigned" all the leases to Airport 1993
in the following terms:
"The parties record that there are leases effective in respect
of the property, and registered against the title deeds thereof
(
my
note
: this would probably include the notarial lease which is the
subject of this case). The seller hereby assigns to the
purchaser,
effective as at the transfer date, all leases in respect
of the property to which the seller is a party."
I have
mentioned that this transfer, leading to Airport 1993 becoming the
owner of the property, took place on 17 August 1998, almost
six years
before the appellant became the lessee in terms of the notarial lease
when the auction took place on 9 March 2004.
[76]
On this whole issue of the leases being "formally" ceded,
Rippon said:
"I might rephrase [indistinct] wrong but it was tacit acceptance
that there is a new owner coming in we entered into head-lease
with
Lanseria Airport (Pty) Ltd and they then had the whole bank and
underlying sub-leases."
I have
mentioned this, but the repetition is for easy reference.
[77]
In cross-examination, Rippon was also quizzed about certain documents
reflecting,
inter alia
, that as the owner of the property at
the time, Southern agreed to the cession, already mentioned, of the
notarial lease from Avfin
to Transafrican Aviation (Pty) Ltd.
There
was also a "deed, cession and assignment of lease" dated
May 1994 (after the December 1993 effective date) in terms
of which
LAP, as cedent, ceded the Avfin lease to Southern in terms of clause
18 of the Avfin lease. I already mentioned
that this was not
necessary in law. In my view nothing turns on this, and I do
not recall that any particular emphasis was
placed on this document
during argument before us.
[78]
Rippon was not, as I read his evidence, in any way discredited
despite lengthy cross-examination. As I have mentioned,
his
evidence, on the relevant aspects of the case, was uncontested.
(ii)
Douglas William Henwood
[79]
His supporting affidavits form part of the founding and replying
papers, and he confirmed the correctness thereof.
[80]
When he testified, he had been a director of the respondent as well
as LAP since 1991.
[81]
He testified about the decision to expand the Airport and to
structure the Southern deal as a "typical sale and lease
pack".
[82]
There was no question of Southern having any direct dealings with the
tenants on the properties comprising the Airport.
[83]
About the cessions, he said the following:
"So did you go from the understanding that well if you say you
are going to cede it, it is the same as ceded, we accept that
it is
ceded. We all assume it is ceded and we carry on as though that
has happened? --- Absolutely yes.
And was that the common understanding of the parties at that time?
--- Yes, and I think it is very common in the classical sale
and
lease back agreement that that happens."
Mr
Henwood was clearly an impressive and credible witness, and not in
any way discredited.
(iii)
Daniel Arnoldus Christoffel Jacobs Opperman
[84]
He was the assistant airport manager, a post he had held since 1991
by the time he testified in 2012, some 21 years later.
[85]
He confirmed the evidence he offered in the founding affidavit,
inter
alia
, his statement that until Avfin ceded the lease in question
to Transafrican Aviation (Pty) Ltd during 1998, all parties acted on
the basis that Southern was the lessor and the respondent the lessee
of the leased premises in terms of the head-lease, and Avfin
was the
sub-lessee in accordance with the conditions contained in the Avfin
lease.
[86]
He also confirmed his evidence in the founding affidavit that it is
the respondent's case that in view of the conduct of the
parties as
evidenced by the documentation (this would include,
inter alia
,
monthly invoices for rental and so on) Southern tacitly ceded the
Avfin lease to the respondent. He pointed out that Henwood,
in
his supporting affidavit, supported this evidence.
[87]
The bulk of Opperman's evidence, particularly in cross-examination,
deals with the issues involving the waiver defence and
the estoppel
defence. These defences were strongly pursued by the appellant
in cross-examination of the witnesses, but, as
I have indicated,
abandoned before the matter came before us.
[88]
These were the witnesses called by the respondent.
[89]
Their evidence was impressive and uncontested.
(iv)
Vincent Crous (also spelt differently at times, eg Kraus, as I
have mentioned)
[90]
He was employed by the appellant in the Legal division as a
consultant. His main area of focus was to address accounts
that
had gone into default and the recovery process thereof.
Everything regarding the "Aviation Portfolio" was
only put
under his control during June 2005.
Until
then, he was not involved in making the rental payments to the
respondent.
[91]
He had no personal knowledge about the important aspects, such as the
sale transactions, the cessions and so on.
[92]
The bulk of his evidence had to do with the cancellation of the lease
and aspects involving the waiver and estoppel defences.
With
these having been abandoned, his evidence, in my view, did nothing to
contribute to the adjudication of this case.
[93]
The appellant did not call any other witnesses.
[94]
So much for the brief overview of the evidence.
The
lease has expired
[95]
In their heads of argument, counsel for the appellant, reminded us
that "the initial period of the notarial deed of lease"
expired on 31 May 2013.
[96]
It is stipulated in the 1993 Avfin lease that the date of
commencement thereof would be 1 June 1993 and the expiry date,
twenty years later, 31 May 2013.
[97]
We were informed by counsel that it is common cause that the
appellant vacated the premises at the termination of "the
initial period of the notarial deed of lease".
[98]
Without in any way attributing any form of concession on the part of
counsel for the appellant, it does appear that this development
lends
support to the finding of the learned Judge
a quo
that the
notarial lease is the same as the Avfin lease which had subsequently
been registered. This is also in line with
the evidence offered
on behalf of the respondent and something which I attempted to
articulate earlier on in this judgment.
[99]
It was submitted by counsel for the appellant that the vacating by
their client of the premises does not render the appeal
moot, because
the respondent has instituted an action against the appellant in the
Gauteng Local Division based on alleged unlawful
holding over of the
premises. It was submitted that the issues in that action
overlap with those crystalised in this appeal,
so that the outcome of
the appeal could have an effect on the outcome of the action.
We
received no submissions to the contrary from counsel for the
respondent.
Brief
remarks about the nature of a cession, tacit cessions and the
standard of proof required to establish the existence of a tacit
cession
[100]
In
Johnson v Incorporated General Insurances Ltd
1983 1 SA 318
(A) at 331G H the following was said about a cession:
"Sessie kan gesien word as 'n oordragshandeling (act of
transfer) om die oordrag van 'n vorderingsreg (
translatio juris
)
te laat plaasvind. Dit geskied deur middel van 'n
oordragsooreenkoms (agreement of transfer) tussen die sedent en die
sessionaris
uit hoofde van 'n
justa causa
waaruit die
bedoeling van die sedent om die vorderingsreg op die sessionaris oor
te dra (
animus transferendi
) en die bedoeling van die
sessionaris om die reghebbende van die vorderingsreg te word (
animus
acquirendi
) blyk of afgelei kan word."
[101]
Counsel for the respondent submitted, correctly in my view, that the
existence of a cession (transfer agreement) is a matter
of fact,
which must be proved on a balance of probabilities in the light of
all the admissible evidence – see
Samcor Manufacturers v
Berger
2000 3 SA 454
(T) at 461G-I.
[102]
Christie,
The Law of Contract in South Africa
6
th
edition pp86 89 provides an exposition of the standard of proof
required in order to establish a tacit agreement (and, as
counsel
correctly point out, also a tacit cession). The learned author
demonstrates that the standard of proof required is
no higher than a
preponderance of probabilities. The same was said by the
learned Judge in
Samcor Manufacturers
at 461G.
[103]
In
Standard Bank of South Africa Ltd and another v Ocean
Commodities Incorporated and others
1983 1 SA 276
(A) it was
stated at 292B-C:
"In order to establish a tacit contract it is necessary to show,
by a preponderance of probabilities, unequivocal conduct
which is
capable of no other reasonable interpretation than that the parties
intended to, and did in fact, contract on the terms
alleged. It
must be proved that there was in fact 'consensus
ad idem
'."
– See also
Kropman and others N.N.O. v Nysschen
1999 2
SA 567
(T) at 575E and 576D.
[104]
In my view, the overwhelming weight of the evidence clearly
illustrates that, towards the end of 1993, there was a clear
"agreement of transfer" in the spirit of what was said in
Johnson, supra
, between the cedent (Southern) and the
cessionary (the respondent) that the sub leases, including the
Avfin lease, would be
ceded to the respondent because Southern wanted
nothing to do with the sub tenants and was only interested in
collecting the
lump sum rental payment every month.
The
existence of such a cession is supported by the fact that it was also
foreshadowed by LAP as clearly stated in clause 18(b)
of the Avfin
lease and, of course, it was also endorsed by Avfin for the same
reason. As I pointed out earlier, clause 18
was adopted, in
identical terms, in Part B of the notarial lease with the respondent
unequivocally recognised as the sub-lessor.
[105]
Moreover, as I have pointed out, the intention to cede is clearly
stipulated in paragraph 14 of the deed of sale between
LAP and
Southern, which precedes the effective date of 9 December 1993.
[106]
Quite apart from what is stipulated in all these contracts, the
conduct of the parties, in my view, clearly point towards
the
existence of a cession: for some twelve years, for present purposes,
namely from December 1993 until about October 2005 (when
the lease
agreement was cancelled by the respondent) all concerned, including
the procession of lessees in terms of the Avfin lease,
recognised the
existence of a lease agreement between the respondent and all the
sub-tenants, including, in the end, the appellant.
[107]
Against this background, and with reference to the standard of proof
required to establish a tacit contract, or cession, it
is useful to
revisit the words of the learned Judge in
Ocean Commodities,
supra
:
"In order to establish a tacit contract it is necessary to show,
by a preponderance of probabilities, unequivocal conduct
which is
capable of no other reasonable interpretation than that the parties
intended to, and did in fact, contract on the terms
alleged ..."
Conclusionary
remarks and brief reference to some arguments advanced on behalf of
the appellant
[108]
I have already briefly dealt with the argument that the head-lease is
void because of non-compliance of the purported suspensive
condition
contained in clause 13.1.
I have
pointed out that such a cession (from LAP to Southern) was not
necessary in law (
Genna-Wae
and other authorities).
Moreover,
I have expressed the view that the clear cession, contained in clause
14 of the deed of sale between LAP and Southern,
of the sub-leases in
annexure "D" probably amounts to substantial compliance
with this "suspensive condition"
such as it may be.
Apart
from the aforegoing, the parties to the cession did not seek to
enforce or recognise the "suspensive condition"
and, for
many years, through their conduct, acted as though the cession had
taken place.
[109]
In any event, the Avfin lease was not a "sub-lease" as
intended by the "suspensive condition" neither
was it
mentioned in annexure "D".
[110]
As I understand the argument of the appellant, non-compliance with
the "suspensive condition" leading to the invalidity
of the
head-lease, meant that the relevant parties (presumably including
LAP, Southern, the respondent and Avfin) were only under
the mistaken
impression that there had been a cession, so that it was not
established that a tacit or implied contract (cession)
came into
existence.
In
this regard, counsel for the appellant relied on the case of
Landmark
Real Estate (Pty) Ltd v Brand
1992 3 SA 983
(WLD). The
principle, endorsed in this decision (although I could not find clear
reference thereto in the text) is summarised
as follows in the
headnote:
"Where it is alleged that a tacit contract between two parties
came into existence, but it is clear that the parties erroneously
assumed that there was a contract between them, that erroneous
assumption prevents the court from inferring that a tacit or implied
contract came into existence."
In my
view, the case in
Landmark
is distinguishable, on the facts,
from the present, and, in any event, I find no indication of an
"erroneous" assumption
of the existence of a cession.
All the parties on behalf of the respondent testified that there was
such a cession, at least
by conduct, and this is supported by a
series of contractual provisions that I have mentioned.
The
argument that formal (written) cessions were required to establish
the existence of a cession, is also, in my view, ill-founded:
there
is no mention of formal or written cessions in clause 14 of the deed
of sale or in clause 18 of the Avfin lease. Clause
13.1 of the
head-lease does not have a bearing on the Avfin lease and was in any
event unnecessary in law. It cannot be seen
to override the
trite principle that Southern in any event stepped into the shoes of
LAP as lessor.
In my
view, the learned Judge
a quo
correctly rejected this argument
based on
Landmark
and other authorities. She pointed out
that Rippon's evidence was clear that no formal cessions were
envisaged at any stage.
In any event, the appellant offered no
evidence to rebut that of Rippon, Henwood and Opperman for that
matter.
[111]
There was also an argument, flowing from what was stated in the
preceding paragraph, that even if Rippon's evidence was to
the effect
that formal cessions were not envisaged, it was in breach of the
parol evidence rule. It was argued on behalf
of the appellant
that such evidence of Rippon was inadmissible because it flew in the
face of the requirements of clauses 14.2
and 14.3 of the deed of
sale, which required "formal" cessions.
There
is no reference in clauses 14.2 and 14.3 to "formal"
cessions and, in any event, the Avfin lease is not included
in
annexure "D".
Counsel
for the respondent reiterated that the appellant's representative and
only witness, Crous, was not involved in the sale
transaction and the
leases concluded in 1993 (the appellant only got involved with the
leases when the execution sale took place
in March 2003) so that
Crous does not have any personal knowledge regarding the dealings
between the relevant parties, the background
to the transactions or
what their intentions and conduct were.
Interestingly,
counsel for the respondent also advanced an argument that it is not
for a third party (like the appellant) to seek
to bind contracting
parties, not involving the appellant, to a term contained in their
contract, if they agree on how to apply
and enforce such a term.
In
Aussenkehr Farms (Pty) Ltd v Trio Transport CC
2002 4 SA
483
(SCA) at paragraphs [25] and [26], the following was said:
"[25] Where the parties dispute the meaning of a term then a
court must necessarily look to the wording of the provision itself
to
determine its correct construction. But where they agree on its
meaning, even though the provision appears objectively
to reflect a
different understanding, it would be absurd to insist on binding them
to a term upon which neither agrees only because
of a third party's
insistence on reliance on the apparent meaning of the provision.
[26] Accordingly, in my view, it should not be open to the defendant
to contend that, although the parties intended the cession
to
constitute security only for the overdraft, it covered also all other
debts owed or that might in future be owed to the bank.
And
similarly, where the parties have agreed that the cession will be
extinguished when the overdraft ceases to exist, it should
not be
open to the defendant to argue that the re cession must be in
writing in order for it to take effect ..."
[112]
There were other arguments offered as well, which, in my respectful
view, have no merit. My failure to deal with those
arguments,
such as they are, is not out of disrespect for counsel.
[113]
Finally, in my view, it should be borne in mind that this is a
so called "facts appeal" or an appeal on fact.
For the reasons mentioned, the existence of a cession is a question
of fact. The matter was referred to evidence in order
to
establish the facts and to make a finding thereon. The learned
Judge, after considering all the evidence and the documentation,
stated, as I have already mentioned, "the court finds
unequivocally that on the probabilities, the conduct of the parties
and the circumstances which existed that the parties were in
agreement and that the applicant has established that there was a
tacit cession at all times".
It is
trite that the powers of a court of appeal on fact are limited and
that such a court will be slow to interfere with the findings
of the
court below. The trite principles were laid down in
Rex v
Dhlumayo and another
1948 2 SA 677
(AD) at 705 706, and also
apply to civil appeals. In such a civil case,
Taljaard v
Sentrale Raad vir Koöperatiewe Assuransie Bpk
1974 2 SA 450
(AD) the following was said by the learned Judge of Appeal at 452A-B
after he referred to
Dhlumayo:
"Daar
is geen regverdiging vir die tersydestelling van die verhoorhof se
beslissing nie. Teenoor die geregverdigde kritiek
wat teen
sekere aspekte van die uitspraak van die hof
a quo
uitgebring
kan word, is daar dus ook gewigtige oorwegings wat op die korrektheid
van die kern bevinding dui. By heroorweging
van die getuienis
op appèl is die vraag, soos hierbo reeds genoem, nie of daar
redelike twyfel bestaan oor die juistheid
van die konklusie van die
Verhoorhof nie, maar wel of die Hof van Appèl om gegronde
redes oortuig is dat dit verkeerd is.
In die onderhawige geval
is dit, ondanks sekere bedenkinge soos genoem, nie moontlik om tot
daardie oortuiging te geraak nie."
In
State v Francis
1991(1) SACR 198 (A), the learned Judge of
Appeal, referring to both
Dhlumayo
and
Taljaard
, said
the following at 204c e:
"The court's powers to interfere on appeal with the findings of
fact of a trial Court are limited (
R v Dhlumayo and another
...) ... In the absence of any misdirection the trial Court's
conclusion, ... is presumed to be correct. In order to
succeed
on appeal accused no 5 must therefore convince us on adequate grounds
that the trial Court was wrong in accepting D's evidence
–
a reasonable doubt will not suffice to justify interfering with
its findings (
Rex v Dhlumayo (supra)
;
Taljaard v
Sentrale Raad vir Koöperatiewe Assuransie Bpk
...).
Bearing in mind the advantage which a trial Court has of seeing,
hearing and appraising a witness, it is only
in exceptional cases
that this Court will be entitled to interfere with the trial Court's
evaluation of oral testimony ..."
[114]
In all the circumstances, and for the reasons mentioned, I have come
to the conclusion that the appeal has to fail.
Costs
[115]
In the court below, costs were awarded against the unsuccessful
respondent (now the appellant) on the scale as between attorney
and
client.
[116]
If I understood counsel for the respondent correctly, this order for
costs on a punitive scale was based on the provisions
of clause 11 of
the Avfin lease, also forming part of Part B of the notarial
lease. The relevant portion reads as follows:
"In the event of the LESSOR invoking any of the provisions of
this clause and instructing a firm of attorneys for such purpose
or
for the purpose of collecting from the LESSEE any amount payable by
the LESSEE in terms of this lease, the LESSEE shall, in
addition to
any other payments which it is liable to make in terms hereof, be
obliged to pay all legal costs in connection therewith
on the
attorney and client scale, including collection commission as well as
the costs of any such collection agency as may be
incurred."
[117]
Clause 11 goes under the heading "BREACH" which is the
clause on which the October 2005 cancellation (the subject
of this
case) was based.
[118]
In the result, I see no reason why the same approach, as to costs,
should not be adopted in the present matter.
The
order
[119]
I make the following order:
1. The appeal is dismissed.
2. The respondent is ordered to pay the costs of the appellant, on
the scale as between attorney and client, and which costs will
include the costs flowing from the employment of two counsel.
W R C
PRINSLOO
JUDGE OF THE
GAUTENG DIVISION, PRETORIA
A154-2014
I
agree
V V
TLHAPI
JUDGE
OF THE GAUTENG DIVISION, PRETORIA
I
agree
T
VILAKAZI
ACTING
JUDGE OF THE GAUTENG DIVISION, PRETORIA
HEARD
ON: 14 OCTOBER 2015
FOR
THE APPELLANT: K W LÜDERITZ SC ASSISTED BY A C BOTHA
INSTRUCTED
BY: BEZUIDENHOUT VAN ZYL INCORPORATED
FOR
THE RESPONDENT: J P VORSTER SC ASSISTED BY A M HEYSTEK
INSTRUCTED
BY: LE ROUX VIVIER & ASSOCIATES