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[2016] ZAGPPHC 1075
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Mahanjana v Webb and Others (90024/15) [2016] ZAGPPHC 1075 (20 December 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NUMBER: 90024/15
DATE:
20 December 2016
Reportable:
No
Of
interest to other judges: No
Revised.
VERONICA
NOMLAMALI
MAHANJANA
Appellant
v
GEORGE
WEBB
First
Respondent
TRAFALGAR
PROPERTY MANAGEMENT (PTY) LTD
Second
Respondent
CITY
OF TSHWANE METROPOLITAN MUNICIPALITY
Third
Respondent
CITY
OF TSHWANE METROPOLITAN MUNICIPALITY
Third
Respondent
JUDGMENT
MABUSE
J:
[1]
This is an application for eviction of the first respondent and all
other persons occupying through him from the property situated
at […]
Kent Road, Meyerspark, Pretoria, within 14 days of the granting of
the order or within such other period as this
Court may determine.
This application is opposed only by the first respondent.
[2]
The applicant in this matter, Veronica Nomlamali Mahanjana
("Mahanjana"), describes herself as an adult female who
resides at 12 Nama Road, Faerie Glen, Pretoria. She is the registered
owner of the immovable property known as […] Kent
Road,
Pretoria, Gauteng Province ("the property"). She is in that
capacity the lessor of the property. This is the property
that forms
the subject of this application. The first respondent, George Webb
("Webb") is described as an adult businessman,
who,
together with people unknown to Mahanjana, resides on the property.
The second respondent, Trafalgar Property Management (Pty)
Ltd
("Trafalgar"), against which no order is sought, is a
company duly registered as such In terms of the company laws
of this
country with its principal place of business located at 829 Church
Street, Arcadia, Pretoria, Gauteng Province. The third
respondent is
the municipality established as such in terms of the Local Government
Municipality Structures Act No. 117 of 1998
("the Act"). It
conducts its business at 320 Bosman Street, HB Philips Building,
Pretoria, Gauteng Province.
[3]
I proceed to set out the salient facts relevant to this application.
On or about 26 June 2015 and at Pretoria, Mahanjana, in
her
capacities as the owner and lessor of the property, entered into a
written agreement of a residential lease ("the lease
agreement")
with Webb, as the lessee or tenant. Mahanjana let to Webb who hired
from Mahanjana the property for residential
purposes. At the
conclusion of the said lease agreement, Mahanjana was represented by
Trafalgar.
[4]
The letting and hiring of the property was entered into on the
following terms and conditions, among others, set out in the
written
Agreement of Residential Lease, the General Conditions of Lease and
Annexures thereto and the Disclosure Document. There
are quite a
number of clauses In this lease agreement which appear to be relevant
in this application. Therefore I deem It apposite
at this stage to
quote the clauses In the parties' lease which
might have a bearing In the
consideration of
this application.
4.1
The Lease will be for a period (that Is
hereinafter called 'the lease period') of 12 months starting on 1July
2015(that date hereinafter
called 'the Commencement Date') and
terminating on JUNE 2016 (that date is hereinafter called ('the
Termination Date').
4.2
the monthly rental for the property was the
amount of R13 500.00;
4.3
the tenant must pay to the landlord monthly
rental and all other amounts which are payable by the tenant to the
landlord under this
lease monthly in advance without any deduction or
setoff whatsoever on or before the 7'' day of each and every month
during the
lease period;
4.4
the monthly rental and any other charges payable
by the tenant in terms of this lease must be paid into and cleared in
the landlord's
bank account on or before the 1" day of every
month in advance. The tenant is not allowed to pay a lower amount of
rent than
the monthly rental for any reason whatsoever. If the tenant
pays the monthly rental or other amount(s) payable in terms of this
lease by any means other than by way of a cheque at the offices of
Trafalgar, the tenant must immediately advise Trafalgar of the
date,
place, amount and method of payment and send proof of that payment to
Trafalgar. The tenant acknowledges that unless he or
she advises
Trafalgar of that payment, it will not be possible for Trafalgar to
identify the payment and to credit the tenant's
account and the
tenant will be liable for any fees raised as a result of that payment
being overdue. Furthermore, if the
tenant pays the monthly
rental by electronic banking or by any other direct deposit, he or
she will only be entitled to a receipt
in respect of that payment if
he or she has properly notified Trafalgar of that electronic or
direct payment;
4.5
no alterations in or to the premises or to any
fixtures in the premises may be made except with the landlord's prior
written consent;
4.6
if any alterations are made to the premises or
any of its fixtures during the lease period without the landlord's
consent, the landlord
may (in addition to its rights to terminate the
lease and claim damages from the tenant) require the tenant to
restore the premises
to its original condition when this lease ends.
If the tenant does not so restore the premises to its original
condition, the landlord
may restore the premises to its original
condition, and the tenant must then pay the costs of that restoration
to the landlord;
4.7
if any alterations or additions are made to the
premises or its fixtures, whether with the landlord's consent or
without it, the
tenant will not be compensated for those alterations;
4.8
no alterations or fixtures may be removed unless
the landlord requires the tenant to do so;
4.9
the landlord and Trafalgar shall be entitled to
access the premises at all reasonable times in order to inspect the
premises; or
to enable prospective tenants or purchasers of the
premises to view the premises or to make any repairs or alterations
to the premises
that the landlord or Trafalgar of this lease if the
tenant does not pay the monthly rental ta the landlord monthly in
advance on
the first day of any month during the lease period; or the
tenant does not pay to the landlord monthly in advance on the first
day of any month during the lease period any other amount which the
tenant must pay to the landlord on that day in terms of this
lease or
the tenant has committed any other material breach of this lease or
material failure to comply with this lease;
4.11
If a breach (as described in clause 19.1) happens
and :
4.11.1. the Landlord has
given the Tenant a written notice calling upon the Tenant to pay that
Monthly Rental, ta pay that other
amount, to remedy that material
breach or to rectify that material failure, as the case may be,
within 20(twenty) business days
after the date on which the Landlord
gave that written notice to the Tenant; and
4.11.2. the Tenant has
not within that 20 (twenty) business day period paid that Monthly
Rental, paid that other amount, remedied
that material breach or
rectified that material failure, as the case may be, then the
Landlord may either cancel this Lease or
require that the Tenant
makes that payment, remedies that material breach or rectifies that
material failure.
4.12
no change to this lease, other than changes to
any charges payable by the tenant in terms of this lease and the
other changes contemplated
by this lease shall be of any force or
effect unless that change is made in writing and is signed by the
parties;
4.13
this lease as read with the RHA and the CPA
contains all the terms and conditions of the lease between the
parties. The parties
acknowledge that there are, subject to
applicable law, no understandings, representations, or terms
l:>etween the landlord and
the tenant in regard to the letting of
the premises other than those set out in this lease.
[5]
On 26 June 201S a further agreement was reached between Mahanjana and
Webb by way of an addendum. The relevant clause of the
addendum reads
as follows:
'The
first respondent agrees to maintain the following at his own costs
and that no refund from the owner will be expected:
(a)
swimming pool;
(b)
fix small items inside the house (once-off)
(c)
cleaning of carports (once-off)
(d)
maintain the garden. "
Webb
admitted the terms of the written lease agreement of the addendum.
[6]
On or about 2 July 201S the Webb conducted an inspection of the
property with one Isaac Mindo, an assessor in the employ of
Trafalgar. This Inspection was the one contemplated in clause S(3)(c)
of the Rental Housing Act SO of 1999. During this inspection
all the
defects that were actually evidend on the premises were identified
and an Assessment Report was completed and signed both
by Mindo and
Webb. A copy of the Assessment Report, consisting of 18 pages, was
attached to the founding affidavit as annexure
VNM6. The first page
of it was siined on 2 July 201S at 1:00 by Mlndo, the inspector and
Webb.
[7]
Webb does not deny that he and Mlndo inspected the property in terms
of the provisions of clause 5(3)(c) of the Rental Housing
Act. He
denies, however, that the report contained all the defects in the
property which was to be occupied. He contends
that he discovered
within the first week of his occupation of the property many more
defects, such as locks in various doors that
did not have keys,
electrical repairs, pool motor repair and the re-marbilite of the
pool, a gate motor and various other repairs
which the applicant
authorised him to do.
[8]
Mahanjana denies that she had authorised Webb to make any repairs. In
support of her denial she referred to the fact that Trafalgar
had
been authorised to act for her and that in such circumstances she
could not have had any discussions with Webb. Secondly, she
referred
to the correspondence exchanged between Trafalgar and Webb. Webb has
not produced any letters exchanged between him and
Mahanjana. He does
not refer to any form of communication he has had with Mahanjana. In
the circumstances it is highly unlikely
that he communicated with
Mahanjana and that Mahanjana authorised him to make any repairs.
[9]
Ever since he took occupation of the property Webb breached the
material terms of the lease agreement as follows:
9.1
he made alterations to the premises without
Mahanjana's prior written consent, in breach of clauses 9.1 and 9.2
of the General Conditions
of the Lease;
9.2
he failed to pay monthly rental and all other
amounts payable for municipal services in breach of clause 3 in the
Schedule to the
lease agreement and clause 6.1 of the General
Conditions; and
9.3
he set-off, and undertook to set-off, amounts
from the monthly rental payable in breach of clause 3 of the
schedule.
[10]
It is not in dispute that Webb has, without any regard to the terms
and conditions of the Agreement of Lease, deducted and
set-off
certain amounts payable for rent to Mahanjana and that still he
claimed compensation notwithstanding. It was argued by
counsel for
Mahanjana, and in my view quite correctly so, that Webb has shown
total disregard not only for the terms of the parties'
agreement but
also for Mahanjana's rights of ownership and has acted with impunity
towards Mahanjana. A court should under no circumstances
accommodate
such a conduct from a litigant. Clause 3 of the Agreement of
Residence of Lease as set out above states as follows:
'The
tenant must pay ta the landlord the monthly rental and all other
amounts which are payable by the tenant to the landlord under
this
lease monthly in advance (without any deduction or a set-off
whatsoever) on or before the f h day of each and every month
during
the lease period. "
In
his heads of argument counsel for Mahanjana pointed that in an email
dated 23 September 2015 and which was attached by Webb as
annexures
'GW21' and 'GW22' to his answering affidavit, Webb stated in not less
than six occasions that he had deducted several
amounts from the
rental, by way of set-off, in respect of repairs which he alleges
needed to be made on the property. An example
of such statements is
as follows:
"As
I am sending this mail to you now I confirm
that
I will ensure
that
a
geyser is installed, whether it is
done by me or
by any contractor, billed
to
your
client for payment. If payment does not take place I will again take
it from the rental that is due."
Furthermore
he stated the following:
'The
water pipe has been repaired over the past weekend and I have worked
on it for 5 hours (double rate since it was in the midnight
hours).
And I attach my invoice hereto for settlement failure whereof I will
deduct from the rental."
[11]
Webb could not deduct or set-off any amounts from the rental amount
payable. This was contrary to the clause 3 of the
agreement of
rental lease which prohibited him from withholding or from setting
off
any amounts. Mahanjana regarded Webb's conduct as a
material breach of the agreement which entitled her to cancel the
agreement.
Mahanjana then proceeded to terminate the lease
agreement.
[12]
In terms of the agreement, in particular, clause 9 of the General
Conditions of Lease, the parties had agreed that no alterations
in or
to the premises or to any fixtures in the premises may be made except
with the landlord's prior written consent. Webb simply
ignored the
general terms of this clause. He proceeded to breach the lease
agreement by continuing to make alterations and improvements
on the
premises without Mahanjana's written consent, Having made those
alterations without the requisite consent Webb set-off amounts
from
the rental amount payable despite being notified to cease his conduct
and to make payment of the arrear rental. Mahanjana
has on the basis
of the breach cancelled the lease agreement between the parties and
as a result that made Webb and all those who
occupy through her
unlawful occupiers. He has not provided a valid reason which
entitles him to continue to occupy the property.
[13]
Webb has raised a number of defences including two points
in
/imine
against the application. The first of such points
in
limine
relates to the applicant's
locus standi.
He
contends in his answering affidavit in this respect that Mahanjana
makes an application in terms of s 4 of the Illegal Occupation
of
Land Act 19 of 1998 ("Pie") in her capacity as the owner of
the property in question. He continues to state that although
in her
founding affidavit Mahanjana has stated that proof of her ownership
was a deed search here attached as annexure 'VNM', she
has failed to
attach the relevant deed search. Instead she had attached the
registration documents and her power of attorney. It
is contended by
Webb that on that basis Mahanjana has failed to prove that she was
the owner of the property in question.
[14]
This point
in limine
is, in my view, ill-advised and badly
raised. In her founding affidavit Mahanjana had attached a copy of
the title deed to prove
that she was the owner of the property. The
document attached was proof enough that she was the owner of the
property. Secondly,
Mahanjana had attached a deed search marked 'R1'
to her replying affidavit to support her claim of ownership of the
property in
question. The deed search showed convincingly that
Mahanjana was indeed the owner of the property in question. Thirdly,
and lastly,
Mahanjana made the necessary allegation in paragraph 4 of
her founding affidavit. Webb has not denied this allegation.
Accordingly,
what is not denied is deemed to be admitted. The point
in limine
has no merit and is accordingly dismissed.
[15]
The second point
in limlne
relates to the non-compliance by
Mahanjana with the provisions of s 4(2) of Pie. It is contended by
Webb that Mahanjana has failed
to give him and the municipality
notice of the evictions proceedings, at least fourteen days before
the hearing. According
to Webb's testimony, the notice of
motion in the matter was dated 6 November 2015 and was served on him
by the sheriff on 10 November
2015. The said notice sought eviction
within fourteen days. He filed a notice to oppose the application on
12 November 2015. The
matter was earmarked for hearing on 18 December
2015. Webb claimed that Mahanjana could not attempt to comply with s
4(2) at that
stage.
[16]
The order authorising the service of the notice in terms of s 4(2) of
Pie was obtained on 18 December 2015. In terms of clause
2 of the
said notice the application for eviction would be heard on 4 February
2016 at l0h00. More than 14 days from the date which
the order was
granted. Copies of the application were served on Webb on 10 November
W15. In the sheriff return of service he was
notified that the
application for leave to serve the section 4(2) notice would be heard
on 18 December 2015. It is also clear from
the report that Webb
refused to sign receipt of the papers as requested by the sheriff.
Section 4(2) requires the notice of the
proceedings in section 4(1)
to be served 14 days before the hearing of such proceedings. It does
not require the notice to be Issued
first and thereafter the
proceedings. It is enough if 14 days before the hearing of the
application for eviction as set in s 4(1)
the notice in s 4(2) is
served. The fact that the Webb first received the eviction
proceedings before the s 4(2) notice is not
fatal and did not
prejudice him in any way. The question is whether he received the
said notice in terms of s 4(2) 14 days before
the hearing of the
eviction proceedings. If the answer is yes, caedit quaestio.
Accordingly no merits exist in this point in limine
and it is
accordingly dismissed.
[17)
Webb denies that he and those who claim through him are in unlawful
occupation of the property. The bases of his denial are
firstly that
he effected certain repairs to the premises and that such repairs
were authorised by Mahanjana. Secondly, he contends
that there is a
dispute of fact with relation to the authorisation to make
improvements and repairs to the property and an arrangement
for the
cost of such improvements to be set off from the rental of the
property. Thirdly, he disputes the validity of the cancellation
of
the agreement on the basis of the contention that Mahanjana had
defaulted with her obligations in respect of the further agreement
concluded, with reference to the expenses incurred in respect of the
necessary repairs to the properly. Fourthly, and lastly, he
contends
that he is legally entitled to retain possession of the property
until such time as he has been compensated for such expenses.
[18]
The starting point by Webb was to deny that the Assessment Report
contained all the defects in the property that was to be
occupied and
the contention that he discovered further defects within the first
week of his occupation of the property. The problem
with this denial
and contention is that Webb does not deny, firstly, that a thorough
inspection of the property was conducted on
or about 2 July 2015 and
that he was not only present at such inspection but also took part in
the inspection. He does not explain
why he and Isaac Mindo were,
during the said inspection, unable to discover the defects that he
subsequently discovered during
the first week of his occupation of
the property. Judging from the extent of the report compiled by Isaac
Mindo and Webb I find
it very hard to believe that there could have
been any further unnoticed defects in the property after the said
inspection.
[19]
Webb then contends that he engaged Mahanjana who authorised him to
effect the repairs. He states furthermore that he and Mahanjana
had
agreed to overlook Trafalgar. Based on their oral agreement he made
several repa'1rs and sent invoices thereof to Mahanjana.
After he
testified that he and Mahanjana had agreed behind the back of
Trafalgar orally, he turns around and testifies that Trafalgar,
acting on behalf of Mahanjana, confirmed the oral agreement that he
would be allowed to effect the necessary repairs. His evidence,
in my
view, is inconsistent.
[20]
Mahanjana denied that she had any contact with Webb and that she had
authorised Webb orally or otherwise to make any repairs
to the
property. The duty is accordingly on Webb to prove that he has had
contact with Mahanjana and that orally Mahanjana had
given him
permission to make these repairs. In the following circumstances, it
is highly unlikely that Mahanjana and Webb communicated
with each
other beh'1nd the back of Trafalgar. Firstly, Mahanjana and Webb had
to communicate with each other through Trafalgar.
Trafalgar acted at
the time as Mahanjana's agent. Webb was aware of it and was aware
furthermore that he had to communicate with
Mahanjana through
Trafalgar. It was not Webb's case that they communicated with
Mahanjana through the second respondent. He does
not indicate who of
the two of them started, contrary to the agreement, to communicate
with the other of them and why they ignored
Trafalgar. It is highly
unlikely that they communicated with each other as claimed by Webb.
[21]
Secondly, in the papers before Court there is no proof that Mahanjana
communicated directly with Webb. No written confirmation
could be
found in all the correspondence before this Court which proves that
there was any form of communication between them.
The duty is on Webb
to prove it. He has failed to discharge this duty.
[22]
Thirdly, if anything, and contrary to his evidence, there is
sufficient evidence prove to demonstrate that Webb communicated
with
Mahanjana through the Trafalgar. For instance, his email dated 7 July
2014 which was sent to Chandre Barnard at 09h29 am and
which was
copied to Isaac Minda states as follows:
"I refer to our
discussion with regards to repairs at the property.
Please could you
advise what to do with regards to the expenses we have incurred since
we moved into this property. are we subtracting
these on the
month-end statement when we pa y the first rental due? Do we subtract
it from the rental due or do we give you the
invoices and wait for
payment.
Also please remember
to send the statement and invoice before the last day of the month so
that we can effect payment on the 7
th
of each month as
agreed.
Regards George Webb
Managing Director -
Tronbuild Group Cell: 082 844 1495."
It
is as clear as crystal from the said email that within the first week
of taking occupation he had already incurred certain expenses
in
making alterations or improvements to the property and that already
he was asking, contrary to the terms of the agreement, whether
he
should subtract the amount in respect of the expenses from the
rental. What is even clearer is that nowhere in this said email
did
he refer to any communication he might have had prior to incurring
such expenses with Mahanjana. In the premises the conclusion
is
inevitable that when he sent that relevant email he had already made
certain repairs without first having spoken to Mahanjana
and without
having sought and obtained her consent. All these were done contrary
to the terms of the agreement and that constituted
a material breach
of the terms of the agreement.
[23]
His email dated 7 July 2015 sent at 12:36 PM, demonstrates that he
had done certain repairs. It states as follows:
"Hallo Isaac
Thanks for the report.
Please be advised that we have done certain necessary repairs which
we need to invoice for. What is the process
and what will be done
about the oven that is not mentioned on this report.
I await your urgent
reply in this matter. Regards
George Webb
Managing Director -
Tronbulld Group Cell: 082 844 1495."
Nowhere
in the aforegoing email did Webb confirm that he had been authorised
to make such repairs. Nowhere in the said email did
he seek
permission to make repairs. Nowhere did he confirm that he had sought
and obtained permission prior to making such repairs,
Again this
email proves that communication between him and Mahanjana was
conducted through Trafalgar. This, in my view, confirms
that his
evidence that he spoke to Mahanjana who authorised him to make the
repairs that he claims he has done, before he did so,
is not true. if
this evidence is not true it follows that he was not authorised
verbally by Mahanjana to make such repairs.
[24]
On 9 July 2015 Trafalgar sent an email to Webb. The said email read
as follows:
"Morning George
I see Isaac did email
you yesterday regarding the maintenance.
Please be advised that
all discussions between you and the owner needs to be in writing, we
must be notified because it seems that
certain items were discussed
that we are not aware of Actually I suggest that you work through our
office because we cannot be
held responsible for issues not being
resolved between you and the owner.
If you did not fix the
items you mentioned below, send the quote as she requested for
approval. If you did fix the items I need
proof like photos and the
invoice, I will then discuss with her.
Thank you
Kind
regards/vriendelike groete
Natasha Herbst
Presidential Portfollo
Manager Pretoria Branch
Trafalgar Property
Management."
[25]
The contents of the aforegoing email prove that Webb had not obtained
prior authorisation to effect any repairs on the property.
UNAUTHORISED
IMPROVEMENTS AND THE CONSEQUENCES THEREOF
[26]
On his own version, Webb admitted that he had effected some
improvements on the property. Such improvements constituted
alterations
which could, in terms of the agreement of lease, only be
done with the consent of Mahanjana obtained In advance. The making of
such improvements without the consent of Mahanjana, as agreed in
clause 9.1 of the General Conditions of Lease, constituted a material
breach of the parties' agreement which entitled her to cancel the
agreement. But more importantly, the agreement of lease contained
an
express clause which permitted the cancellation of the agreement
following the specific breach. Clause 19.2 of the General Conditions
of Lease states that:
"If any alterations
are made to the Premises or any of its fixtures during the Lease
Period without the Landlord's consent,
the Landlord may (in addition
to its right to terminate the Lease and claim damages from the
tenant) require the Tenant to restore
the Premises to its original
condition when the Lease ends. if the Tenant does not so restore the
Premises to its original condition,
the landlord may restore the
Premises to its original condition, and the Tenant must then pa y the
cost of that restoration to
the Landlord. "
[27]
Finally, a lessee is only entitled to compensation for the
improvements he made to the property of another if such improvements
were made with the consent of the lessor. Accordingly, Webb is only
entitled to such improvements as he made with the consent of
Mahanjana. It is of crucial importance in this case to point out that
Webb had not obtained the consent of Mahanjana to make any
repairs to
the property. Thus Mahanjana's consent was required before any
improvements could be made. This was the requirements
set out in
clause 9.1 of the General Conditions of Lease. Webb should have been
aware of it. Secondly, which is equally of crucial
importance, is
that Webb has waived any right he had to compensation for whatever
improvements he would have effected on the property.
Webb is bound by
the terms of clause 9.3 of the General Conditions of Lease. Finally,
Webb may not rely on any oral agreement as
the parties did not agree
to be bound by any such agreement. In terms of clause 26.3 of the
general conditions of lease:
"No change to this
lease, other than changes to only charges payable by the tenant in
terms of the lease
and
other charges contemplated by this lease shall be of any force or
effect unless that change is made in writing and is signed
by the
parties. "
Furthermore
in terms
of
clause 26.4 of the general conditions of lease:
'The lease as read with
the RHA and the CPA contains all the terms and conditions of the
lease between the parties. The parties
acknowledge that there are,
subject to the applicable law, no understandings, representations or
terms between the landlord and
the tenant in regard to the letting of
the premises other than those set out in this lease."
FAILURE
TO PAY RENT AND ITS CONSEQUENCES
[28]
The duty to pay rent was one of Webb's most important obligations.
The Agreement of Residential Lease stipulated when such
payment
should take place. Webb's failure to pay monthly rental and to in
fact deduct and set
off
from
the monthly rental constitutes a material breach of the lease
agreement. Mahanjana explicitly reserved herself the right to
cancel
the lease on breach of material condition. Once there is such a
breach the applicant is entitled to cancel the agreement
in
accordance with clause 19 of the General Conditions of Lease. In
Oatorlan Properties (Pty) Ltd v Maroun 1973(3) S A 779 [A.DJ
at
785A-B, the court quoted with approval the following passage from
North Vaal Mineral Co. Ltd v Lovasz, 1961(3) S A 604 (T) at
p. 606:
".... A lex
commissoria (in the wide sense of a stipulation conferring a right to
cancel upon breach of the contract to which
it is appended, whether
it is a contract of sale or any other contract). It confers a right
(viz. to cancel) upon the fulfilment
of a condition. The
investigation whether right to cancel came into existence is purely
an investigation whether then condition,
as emerging from the
language of the contract (a question of interpretation ), has in fact
been fulfilled. (Rautenbach v Venner
1928 T P D at p. 26)". By
clause 19 of the General Conditions of Lease, Mahanjana "reserved
to herself the right to cancel
the lease on breach of a material
condition of the lease. Once there is such a breach, the materiality
of the breach is irrelevant
and the Court will not enquire Into the
conscionableness or unconscionableness thereof "See Oatorian
Properties (Pty) Ltd
v Mqroun supra at p. 7858-C
[29]
Webb did not dispute the fact that clause 3 of the Agreement Of
Residential Lease as set out in paragraph 4.3
supra
was a
material condition of the lease. He also did not contend that clause
3 was not a material condition of the Lease. In my view,
the
strongest indications that the said clause was a material condition
of the lease agreement are firstly the language of the
clause itself;
usage of the word
"must'
in the said clause; secondly
that Webb was not entitled to make any incomplete payments and
thirdly that in the event of Webb failing
to make any payment or
making incomplete payment Mahanjana was entitled to cancel the
agreement. Breach of clause 3 was a condition
on the basis of which
Mahanjana was entitled to cancel the lease agreement.
[30]
Furthermore Webb denied that he and those who occupy the property
through him are in lawful occupation of the property and
that the
lease agreement has been terminated lawfully. He bases this denial by
stating the following, that he conducted the repairs
on the premises
with the authorisation of Mahanjana and that he has engaged with
Mahanjana to authorise the work, secondly, that
there Is a dispute of
fact in respect of authorisation to conduct the improvements on the
property and the arrangement for the
costs of such improvements to be
set-off from the rental of the property. No merit exists in this
contention. This Court has already
made a finding that there was no
communication between Webb and Mahanjana and therefore that the
improvements that he made on the
property were not authorised by
Mahanjana anyway. In his emails to Trafalgar, Webb has failed to
satisfy the Court that he had
obtained any prior authorisation to
effect any alterations to the property. In any event clause 9.3 of
the material Conditions
of the Lease states as follows:
"If any alterations
or additions are made to the premises or its features, whether with
the landlord's consent or without it,
the tenant will not be
compensated for those alterations."
Accordingly,
Webb has waived his right to get compensation for any improvements
that he claims he has made to and on the property.
If the parties had
agreed that Webb should be compensated for the improvements he made
they would at the same time have altered
this clause. The fact that
they have not done so is a clear indication that their intention was
that they should be bound by it.
WEBB'S
SUPPLEMENTARY AFFIDAVIT
[31]
On 3 June 2016 Webb delivered his supplementary affidavit. He
alleges that the said affidavit was filed in order to place
certain
facts before the Court which transpired subsequently to the issuing
of the eviction application and the deposition of the
opposing
affidavit. He approached his current attorneys who advised him that
summons should be issued for alleged damages he has
suffered as a
result of the applicant's conduct.
[32]
It is a well-known rule that three sets of affidavits, founding or
supporting affidavit, answering affidavit and replying affidavits
are
allowed. In terms of Rule 6(5)(e) of the Uniform Rules of Court a
Court may in its discretion permit the filing of further
affidavits.
Leave of the Court to file further affidavits must be sought and
obtained. Such leave may be granted only in the special
circumstances
or where the respondent wishes to answer a new matter contained in
the replying affidavits. The respondent may not
be allowed to make
its case in any other affidavit including supplementary affidavit
other than in his answering affidavit. Firstly,
there is before court
no application by Webb for leave to file further affidavits including
the supplementary affidavits. See Hano
Trading CC v JR209 Investments
pty Ltd and Another
2013 (1) SA 161SCA
at paragraph 1 ("Hano
Trading CC").
"Rule 6(5)(e)
establishes clearly that the filing of further affidavits is only
permitted with the indulgence of the court.
A court, as arbiter, has
the sole discretion whether to allow the affidavits or not. A court
will exercise its discretion in this
regard where there is good
cause."
Secondly,
an application for leave to file further affidavits should set out
reasons why the information sought to be put or introduced
in the
supplementary affidavit or further affidavit was not included in the
answering affidavit. In the Hano Trading CC case the
court cited with
approval the following passage from James Brown & Hammer Ltd
(previously Gilbert Hammer & Co Ltd) v Simmons
1963 4 656 (A),
6600-H:
"It is in the in the
interests of the administration of justice that the well-known and
well established general rules regarding
the number of sets and the
proper sequence of affidavits in motion proceedings should ordinarily
be observed. That is not to say
that those general rules must always
be rigidly applied; some flexibility, controlled by the presiding
Judge exercising his discretion
in relation to the facts of the case
before him, must necessarily also be permitted. Where, as in the
present case, an affidavit
is tendered in motion proceedings both
fate and out of its ordinary sequence, the party tendering it
seeking, not a right, but
an indulgence from the court: he must both
advance his explanation of why the affidavit is out of time and
satisfy the court that,
although the affidavit Is fate, it should,
having regard to all the circumstances of the case, be nevertheless
received. Attempted
definition of the ambit of a discretion is
neither easy nor desirable. In any event, I do not find it necessary
to enter upon any
recital or evaluation of the various considerations
which have guided Provincial Courts in exercising a discretion to
admit or
reject a late tendered affidavit (see e.g. authorities
collated in Zarug v Parvathie, 1962 {3) SA 872( N). it is sufficient
for
the purposes of this appeal to say that, on any approach to the
problem, the adequacy or otherwise of the explanation for the late
tendering of the affidavit will always be an important factor in the
enquiry." The Court will lean towards granting leave
to file
further affidavits to a litigant where such litigant did
not possess the information he seeks to introduce
by way of a further
affidavit at the time he delivered his answering affidavit.
[33]
These are the problems which beset the supplementary affidavit in
question. Webb or his attorneys have not sought leave of
this Court
to file the said supplementary affidavit; secondly, the information
which Webb wishes to introduce in the supplementary
affidavit is not
an attempt by him to address an issue that arose from the replying
affidavit. Thirdly, there is no explanation
by Webb or his attorneys
why the information he wishes to introduce through the supplementary
affidavit was not set forth in his
answering affidavit. Fourthly, he
has not told this Court that he did not have, at the time he
delivered his answering affidavit,
the information that he now seeks
to introduce in his supplementary affidavit. He was at all material
times represented by his
attorneys. Accordingly, the introduction of
the supplementary affidavit is inadmissible.
[34]
In the circumstances the Court is satisfied that the applicant has
made out a good case for the eviction of Webb and for all
those who
occupy Mahanjana's property through him.
[35]
The application Is accordingly granted and the following order is
made:
1.
The first respondent and all other persons
occupying the property through him or with his authority be and are
hereby directed to
vacate the property situated at […] Kent
Road, Meyerspark, Pretoria, Gauteng Province within 30 days of the
granting of
this order.
2.
In
the event of the first respondent and all those who claim through him
or anyone of them failing to comply with the order in (1)
above, the
sheriff of this Court or its deputy is hereby authorised and directed
forthwith to evict the first respondent and all
other persons
occupying the premises through him from the said premises.
3.
The first respondent is hereby ordered to pay the
costs of this application.
________________
P.M.
MABUSE
JUDGE
OF THE HIGH COURT
Appearances:
Counsel
for the applicant:
Adv.
B Monentsa
Instructed
by:
Tshlsevhe Gwina Ratshimbilani Inc.
Counsel
for the first respondent: Adv. U
Lottering
Instructed
by:
Mianda Smitopolos Attorneys
Date
Heard:
9 June 2016
Date
of Judgment:
20 December 2016