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[2014] ZAGPPHC 56
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Malewa Communal Property Associaton and Others v Khombindlela Trading 1 CC (7392/13) [2014] ZAGPPHC 56 (28 February 2014)
IN THE HIGH COURT
OF SOUTH AFRICA
(NORTH GAUTENG,
PRETORIA)
CASE
NO: 7392/13
DATE:
28/2/2014
In the matter
between:
MALEWA COMMUNAL
PROPERTY ASSOCIATION
.....................................
1st
APPLICANT
MINISTER OF RURAL
DEVELOPMENT
& LAND
REFORM
...........................................................................................
2ND
APPLICANT
COMMISSION ON
RESTITUTION OF
LAND
RIGHTS
..................................................................................................
3RD
APPLICANT
And
KHOMBINDLEA
TRADING 1
CC
....................................................................
RESPONDENT
JUDGMENT
KGANYAGO AJ
[1] In this
application the applicants seek the following relief:
1.1. That the lease
agreement concluded between the second applicant and the respondent
on 01 November 2011 (annexure “MW
3”) be and is hereby
cancelled;
1.2. That the
respondent be and is hereby ordered to vacate the farm being portion
8 of the farm Mooifontein 292 JT, situated in
Nelspruit Mpumalanga
within thirty (30) days of receipt of this order;
1.3. That the
respondent be ordered to pay the costs of this application;
1.4. That the
applicants be granted such further and/or alternative relief as to
the above Honourable Court may deem meet.
[2] The respondent
has filed and served his answering affidavit out of time. They have
applied for condonation of late filing of
their papers. I am
satisfied with their explanation and condonation for late filing of
their papers is accordingly granted.
[3] On the 1st
November 2010, the respondent and the second applicant entered into
a written lease agreement. In terms of the said
lease agreement, the
respondent leased portion 8 of the farm Mooifontein 292 (“the
leased property”) for a period of
five years which is back
dated from the 02 July 2010 until the 01 July 2015.
[4] It was a
material term of the agreement that the rental in the sum of R30 000.
00 per annum shall be payable in areas on or
before the 7th day of
each year. It was also the material term of the agreement that
interest will be charged should the respondent
fail to pay the rental
on time. The accounting officer of the lessor shall prepare a
certificate which will be prima facie proof
of the outstanding
interest.
[5] The first
applicant has lodged a land claim on the leased property. The land
claim was successful and the property which included
the leased
property was transferred into the names of the first applicant after
the second respondent has entered into a lease
agreement with the
respondent.
[6] At some point in
time the respondent was in arrears with his rental payments. The
second applicant wrote a letter to the respondent
requesting them to
rectify the situation. The respondent paid the capital amount, but
refused to pay the interest which the applicant
has calculated to
amount of R8 268, 75.
[7] The respondent
requested a breakdown of how the applicants arrived at the amount of
R8 268, 75. The respondent paid that amount
into the trust account of
his attorney and insisted on being issued with a certificate of
interest. Instead of furnishing the respondent
with the certificate
of interest, the applicants launched the present application.
[8] The applicants
are contending that the respondent is in breach of their lease
agreement, and that they are therefore, entitled
to cancel the
agreement and evict the respondent.
[9] On the 3rd
September 2012, the second applicant wrote a letter to the respondent
informing it that the lease agreement has been
cancelled and that it
must vacate the property immediately.
[10] Counsel for the
applicants have also relied on
Section 11
(7) of the
Restitution of
Land Rights Act no. 22 of 1994
.
[11] The respondent
denies that it is in breach of the lease agreement. It is the
contention of the respondent that it is entitled
to ask for a
breakdown of how the applicant arrived at the amount of R8 268,75
which was the alleged outstanding interest on the
arrear rentals.
[12] The applicant
will be entitled to cancel the lease agreement if the respondent was
in breach of terms of the lease agreement.
Clause 18 of the lease
agreement contains the procedure which the lessor should follow
before the lease agreement is cancelled.
The lessee must be given 14
days’ notice to rectify the breach.
[13] The first
letter informing the respondent that the lease agreement had been
cancelled was written on the 03 September 2012.
Clause 3 of the
letter reads as follows:
“We record
that Malewu CPA who are the Restitution beneficiaries of the property
which was acquired under the Restitution
Act 1994 had clearly stated
that they do not want a lease agreement against their property and
had wanted immediate occupation
of the land.”
[14] In my view, the
reasons stated in the letter of 3rd September 2012 have nothing to do
with the alleged breach of the lease
agreement. If that is the reason
for the cancellation, then applicants cannot rely on the breach of
the lease agreement by the
respondent. A different process has to be
followed.
[15] The second
letter was written by the applicant’s attorneys on the 3rd
December 2012 giving the respondent 14 days to
remedy the breach. The
respondent paid the outstanding arrears before the expiry of the 14
days period, but refused to pay the
interest as they wanted the
breakdown of how the interest was calculated. Despite the arrears
having been paid, the applicants
proceeded with their application for
the cancellation of the lease agreement.
[16] The notice of
the 3rd December 2012, was a demand calling upon the respondent to
comply within a specified time, failing which
the contract will be
cancelled. The respondent has paid the outstanding arrears in full
and paid the disputed calculation of interest
into his attorney’s
trust account. That in my view, was an indication that the respondent
was willing to pay and all that
they were requesting was a breakdown
of the interest. In terms of clause 5.2 of the lease agreement, the
lessor was supposed to
furnish the respondent with a certificate of
interest; however, the applicants have failed to do so. In my view,
the request of
the respondent was reasonable taking into
consideration that the big debt was already settled, and the
applicant was unreasonable
in refusing to adhere to the respondent’s
request. In terms of clause 5.2 of the lease agreement, the applicant
was bound
to furnish the respondent with a certificate of interest.
[17] In the case of
Transnet Limited v Tatise Tebeka 7 others (35/12)
[2012] ZASCA 197
at paragraph 23, the court referred to the case of West Rand Estate
Ltd v New Zealand Insurance Co Ltd with approva,l where the
court
said “that we must bear in mind that a defendant cannot be said
to be mora unless he knows the nature of his duty or
obligation, that
is to say when and how much he has to pay”.
[18] The respondent
wanted to have a breakdown of how the applicants have arrived at the
amount of R8 268, 75. The applicants have
failed to furnish the
respondent with that breakdown. Therefore, in my view, the applicant
cannot hold the respondent to be in
breach of the lease agreement
until such time that they have furnished the respondent with the
breakdown of the interest or a certificate
of interest.
[19] The applicants
in the alternative are arguing that the lease agreement was concluded
contrary to the provisions of
Section 11
(7) of the
Restitution of
Land Rights Act 22 of 1994
, and therefore, is illegal and invalid.
Section 11
(7) reads as follows:
“Once a notice
has been published in respect of any land-
(a) no person may in
an improper manner obstruct the passage of the claim;
(aA) no person may
sell, exchange, donate, lease, subdivide, rezone or develop the land
in question without having given the regional
land claims
commissioner one month's written notice of his or her intention to do
so, and, where such notice was not given in respect
of-
(i) any sale,
exchange, donation, lease, subdivision or rezoning of land and the
Court is satisfied that such sale, exchange, donation,
lease,
subdivision or rezoning was not done in good faith, the Court may set
aside such sale, exchange, donation, lease, subdivision
or rezoning
or grant any other order it deems fit;
(ii) any development
of land and the Court is satisfied that such development was not done
in good faith, the court may grant any
order it deems fit;
(b) no claimant who
occupied the land in question at the date of commencement of this Act
may be evicted from the said land without
the written authority of
the Chief Land Claims Commissioner;
(c) no person shall
in any manner whatsoever remove or cause to be removed, destroy or
cause to be destroyed or damage or cause
to be damaged, any
improvements upon the land without the written authority of the Chief
Land Claims Commissioner;
(d) no claimant or
other person may enter upon and occupy the land without the
permission of the owner or lawful occupier.”
[20] The respondent
has occupied the property with the consent of the second applicant
who was the owner of the property at the
time. By entering into the
lease agreement with the respondent, the second applicant wanted to
preserve the value of the property
so that the beneficiaries must
find it still in good condition. That in my view, was done in good
faith.
[21] Under the
circumstances in my view, I don’t find any grounds to terminate
the lease agreement which the respondent has
signed on the 1st
November 2010. Therefore, there is no reason to evict the respondent.
[22] In the result I
make the following order:
22.1 The applicant’s
application is dismissed.
22.2 The applicants
are ordered to pay the costs of the respondent jointly and severally
the one paying the others to be absolved.
M F KGANYAGO
ACTING JUDGE OF
THE HIGH COURT