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[2013] ZAFSHC 203
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Rhys v Van Der Walt and Another (1175/2013) [2013] ZAFSHC 203 (21 November 2013)
IN THE HIGH COURT OF
SOUTH AFRICA
FREE STATE DIVISION,
BLOEMFONTEIN
.......................................................................................................................................................................................
Case number: 1175/2013
In the matter
between:-
RHYS JUSTIN JONES
.................................................................
Applicant
and
PHILLIPUS ARNOLDUS VAN
DER WALT
........... ......
First
Respondent
NKETOANA MUNICIPALITY
..................................
Second
Respondent
JUDGMENT BY: RAMPAI,
AJP
HEARD ON: 15 AUGUST
2013
DELIVERED ON: 21
NOVEMBER 2013
[1] These are motion
proceedings. The applicant applied for an eviction order against the
first respondent. The first respondent
was in occupation of five
farms in terms of the lease agreement he had concluded with the
applicant. The applicant alleged that
the first respondent had
breached the terms and conditions of the lease agreement. He added
that due to such breach he had cancelled
the lease agreement and
reclaimed possession of the farms. Notwithstanding the alleged lawful
cancellation of the lease agreement,
the first respondent refused to
vacate the farms.
[2] The first respondent
opposed the application. The crux of his defence was that the
applicant had prematurely purported to cancel
the lease agreement
since the applicant had not properly cancelled the lease agreement.
He maintained that he was legally still
entitled to occupy the five
farms in terms of the lease agreement. He denied that he had breached
the terms and conditions of the
lease agreement, as alleged. The
second respondent did not enter the fray.
[3] In his founding
affidavit the applicant alleged that he was the owner of the
following landed properties:
3.1.
Portion 1 Rugby Farm 642 district Reitz Free State
Province;
3.2. Portion 2 Rugby Farm
642 district Reitz Free State Province;
3.3. Remainder of Rugby
Farm 642 district Reitz Free State Province;
3.4. Beaupark Farm 80
district Reitz Free State Province; and
3.5. Portion 1 Beaupark
Farm 80 district Reitz Free State Province.
[4] The applicant also
alleged that he leased the aforesaid farms to the first respondent.
The lease agreement was evidenced by
a written contract (anx “e”)
last signed at Reitz on 4 October 2004 by the applicant.
[5] It was the
applicant’s case that the first respondent had failed to comply
with the terms and conditions of the contract.
The essence of the
complaint was that he had not strictly and fully paid the agreed
rental. He was thus in arrears. He alleged
that he duly gave the
first respondent proper notice in terms of the contract to remedy the
breach. Notwithstanding such notice,
he alleged further, the first
respondent still refused to comply. Instead the first respondent
unambiguously notified him in no
uncertain terms that he was not
prepared to comply unless the applicant first met certain demands.
[6] On account of the
first respondent’s alleged conduct, the applicant revoked the
lease agreement on 5 February 2013. Pursuant
to such cancellation of
the lease agreement, the applicant also called upon the first
respondent to vacate the leased farms and
to restore possession
thereof to him. Such cancellation notwithstanding, the first
respondent refused to vacate the farms. He had
persisted with such
stance for a period of six months immediately preceding the
initiation of the current proceedings.
[7] In his answering
affidavit the first respondent raised
in limine
the
preliminary points that the applicant had no
locus standi in
iudicio
to institute these proceedings. That was the first point
he took. He contended that the applicant was not entitled to evict
him.
The second point taken
in limine
by the first respondent
was that there existed a dispute as to whether the applicant’s
cancellation of the lease agreement
was sound in law or not. He
contended that, first and foremost, such dispute must be separately
arbitrated or adjudicated before
this eviction application could be
entertained.
[8] The first respondent
put up the defence. He countered that some of the farms were not
properly and securely fenced. That was
the one dimension of his
defence.
The second dimension of
his defence was that although the applicant was charging him 14%
value-added tax, the applicant was not
paying such tax over to the
South African Revenue Service.
The applicant, so alleged
the first respondent, frustrated his efforts to have those thorny
matters candidly discussed and amicably
resolved. As a result of the
applicant’s indifference, he decided to make certain deductions
from the agreed rental due by
him to the applicant. He maintained
that he was entitled to withhold the money in view of those and other
contractual wrongs committed
by the applicant.
[9] He denied the
applicant’s allegations: that he was in breach of the lease
agreement; that he was in arrears; that the
lease agreement had been
lawfully terminated; that he was in unlawful occupation of the farms;
and that he, therefore, had to vacate
the farms. Therefore, he
asserted that he would remain on the farms since his continued
occupation of those farms was perfectly
lawful.
[10] In his replying
affidavit the applicant replied that the two points raised
in
limine
were not genuine. He asserted that it was ridiculous to
contend, as the first respondent did, that these proceedings were
premature.
Since there was no genuine dispute concerning the
cancellation, as the first respondent would have it, there was no
need for a
separate preliminary inquiry to be held in order to
adjudicate any dispute before these proceedings could be entertained.
He also
dismissed as baseless, the respondent’s further
preliminary point that the applicant did not have
locus standi
to initiate these eviction proceedings.
[11] As regards the
substantive merits, the applicant replied that the first respondent
had breached the lease agreement; that the
first respondent had, by
categorically informing the applicant that he was not prepared to
remedy such breach, effectively repudiated
the lease agreement; that
the applicant was thus entitled to cancel the lease agreement, as he
in fact did; that the first respondent
was, in the circumstances,
legally bound to restore undisturbed possession of the farms to the
applicant; that his refusal to do
so entitled the applicant to have
the first respondent evicted from the leased farms; and that no
genuine dispute existed to justify
a stay of these proceedings.
[12] The crucial question
in the application was whether the lease agreement was properly or
validly cancelled prior to the institution
of the current application
or not.
[13] Mr Snellenburg,
counsel for the applicant, argued that the answer to the question has
to be positive. He contended that there
was no genuine dispute about
the cancellation of the lease agreement. He submitted that the
applicant had validly cancelled the
lease agreement as a result of
the first respondent’s breach of his contractual obligations
coupled with his expressly firm
determination not to remedy such
breach. He contended that there was no substance in the first
respondent’s contention that
this eviction application was
prematurely launched. Accordingly counsel urged me to grant the final
relief sought by the applicant.
[14] Mr Knoetze, counsel
for first respondent, differed. He argued that the question had to be
negatively answered in favour of
the first respondent. He contended
that a genuine dispute existed concerning the alleged cancellation of
the lease agreement. He
submitted that the applicant did not properly
cancel the lease agreement. In developing that argument further, he
pointed out that
in his notice of motion, the applicant did not seek
confirmation of the alleged cancellation by the court. He submitted,
therefore,
that the applicant’s eviction application was
prematurely moved. Accordingly counsel urged me to dismiss the
application
with costs.
[15] The test for the
grant of final relief on motion is trite. All the same it will do
nobody any harm to recite it here as was
recently done in
Wightman
t/a J W Construction v Headfour (Pty) Ltd & Another
[2008] ZASCA 6
;
2008
(3) SA 371
(SCA) para [12]:
“
Recognising
that the truth almost always lies beyond mere linguistic
determination the courts have said that an applicant who seeks
final
relief on motion must in the event of conflict, accept the version
set up by his opponent unless the latter’s allegations
are, in
the opinion of the court, not such as to raise a real, genuine or
bona fide dispute of fact or are so far-fetched or clearly
untenable
that the court is justified in rejecting them merely on the papers:
Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty)
Ltd
[1984] ZASCA 51
;
1984 (3) SA
623
(A) at 634E-635C. See also the analysis by Davis J in
Ripoll-Dausa v Middleton NO
[2005] ZAWCHC 6
;
2005 (3) SA 141
(C) at 151A-153C with
which I respectfully agree. (I do not overlook that a reference to
evidence in circumstances discussed in
the authorities may be
appropriate.)”
[16] About the real
dispute which may, in certain circumstances, move the court to form
an opinion favourable to the respondent
and decline to grant a final
relief on motion, the court went on to comment further in
Wightman
supra
[13]:
“
A real,
genuine and bona fide dispute of fact can exist only where the court
is satisfied that the party who purports to raise the
dispute has in
his affidavit seriously and unambiguously addressed the fact said to
be disputed. There will of course be instances
where a bare denial
meets the requirement because there is no other way open to the
disputing party and nothing more can therefore
be expected of him.
But even that may not be sufficient if the fact averred lies purely
within the knowledge of the averring party
and no basis is laid for
disputing the veracity or accuracy of the averment. When the facts
averred are such that the disputing
party must necessarily possess
knowledge of them and be able to provide an answer (or countervailing
evidence) if they be not true
or accurate but, instead of doing so,
rests his case on a bare or ambiguous denial the court will generally
have difficulty in
finding that the test is satisfied. I say
‘generally’ because factual averments seldom stand apart
from a broader matrix
of circumstances all of which needs to be borne
in mind when arriving at a decision. A litigant may not necessarily
recognise or
understand the nuances of a bare or general denial as
against a real attempt to grapple with all relevant factual
allegations made
by the other party. But when he signs the answering
affidavit, he commits himself to its contents, inadequate as they may
be, and
will only in exceptional circumstances be permitted to
disavow them. There is thus a serious duty imposed upon a legal
adviser
who settles an answering affidavit to ascertain and engage
with facts which his client disputes and to reflect such disputes
fully
and accurately in the answering affidavit. If that does not
happen it should come as no surprise that the court takes a robust
view of the matter.”
[17] In
Gemeenskapsontwikkelingsraad v Williams (2)
1977 (3) SA
955
(W) at 957E the court held:
“
The
respondents admitted that Eldorado Park Extension 3 is a Coloured
group area, but said that they had no knowledge of the other
allegations and put the applicant to proof thereof. These are
affidavits and not pleadings. A statement of lack of knowledge
coupled
with a challenge to the applicant to prove part of its case
does not amount to a denial of the averments by the applicant. The
Court having ruled, however, that the applicant's averment that it is
the registered owner of the property is inadmissible, that
part must
be taken as pro non scripto.”
See also
Room Hire
6 (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd
1949 (3) SA
1155
(T) at 1163E.
[18] The non-variation
clause in a written contract prohibits oral amendment of such a
contract. The effect of such a clause is
that no amendment of a
written contract shall have any legal force and effect unless it is
reduced to writing and signed by both
parties. The Shifren principle
was laid down in
SA Sentrale Ko-op Graanmaatskappy Beperk v
Shifren & Andere
1964 (4) SA 760
(A) and re-affirmed in
Afrox Healthcare Bpk v Strydom
2002 (6) SA 21
(SCA) as
well as
Brisley v Drotsky
2002 (4) SA 1
(SCA).
[19] Where a guilty party
repudiates a contract and the innocent party accepts such repudiation
and as a result of such a state
of affairs cancels the contract, the
guilty party is precluded from relying any more on the terms and
conditions of a contract
that he has chosen to repudiate.
[20] Where the written
contract with a non-variation clause, specifically determines that no
representations, warranties or undertakings
other that those
expressly spelt out in the contract were given, evidence concerning
representations, warranties or undertakings
which is in conflict with
the provisions of the contract between the parties constitutes no
real, genuine or
bona fide
dispute. Such evidence becomes
inadmissible
Balar v Afrikaanse Nasionale Afslaers &
Agentskap Maatskappy (Edms) Bpk
1951 (3) SA 371
(A),
Trollip
v Jordaan
1961 (1) SA 238
(A).
[21] In
Chetty v
Naidoo
1974 (3) SA 13
(A) at 20B the court held that once the
lessee’s right to occupy the leased property expires the lessor
is entitled to have
the lessee evicted from the occupied property.
South Coast Furnishers CC v Secprop 30 Investments (Pty) Ltd
2012 (3) SA 431
(KZP) 432 [2].
[22] The payment of
rental by first respondent to the applicant is covered in clause 2 of
the lease agreement.
2.3 anx “e”
reads:
“
Huurgeldbetalings
geskied vry van bankkommissie en sonder aftrekkings of
skuldvergelyking aan die VERHUURDER, welke huurgeld in
sy
bankrekening inbetaal sal word met die volgende besonderhede:
RJ Jones
Standard Bank
Rekeningnommer: 042 091 330
Takkode: 055333”
2.4 anx “e”
reads:
“
Die huurgeld
sal eskaleer met 5% (VYF PERSENT) per jaar, welke eskalasie bereken
sal word op die huurgeld wat die voorafgaande jaar
betaal is.
[23] The grievance
procedure was provided for. Clause 3, anx “e” reads:
“
VERBETERINGS
3.1.1 Die HUURDER hou alle
verbeterings en toerusting op die EIENDOM op die HUURDER se eie koste
in ‘n behoorlike toestand
van herstel en versorging, slegs
slytasie weens normale gebruik en skade deur oormag uitgesluit, en
sien in die besonder toe dat
enige windpompe gereeld ge-olie word en
die draadheinings in stand gehou word.
3.1.2 Indien enige verbeterings of
toerusting gedurende die huurtermyn beskadig mag word as van slytasie
weens normale gebruik of
deur oormag, sal die VERHUURDER op sy koste
enige onderdele, goedere of material wat vir die herstel daarvan
nodig mag wees, in
‘n redelike tyd verskaf en die HUURDER sal
op sy koste die nodige herstelwerk laat doen met sy eie arbeid en
toesig hou oor
die herstelwerk.
3.2 Die HUURDER stel die VERHUURDER
binne 14 (VEERTIEN) dae na die AANVANGSDATUM skriftelik in kennis van
enige verbeterings en
toerusting wat nie in ‘n goeie toestand
van herstel is nie en vermeld daarin alle gebreke daaraan en indien
geen sodanige
kennisgewing aan die VERHUURDER gegee word nie, aanvaar
die partye dat die HUURDER die verbeterings en toerusting op die
IEIENDOM
in ‘n goeie toestand van herstel en in werkende orde
ontvang het.
3.3 Die HUURDER mag slegs met die
VERHUURDER se skriftelike toestemming verbeterings, byvoegings,
aanhegtings of veranderings op
die EIENDOM aanbringm en indien die
HUURDER wel enige veranderingsm verbeterings of byvoegings aanbring –
3.3.1 geskied dit op die HUURDER se
eie koste;
3.3.2 is die HUURDER geregtig om dit
binne ‘n redelike tyd na die VERSTRYKINGSDATUM of die vroeë
beëindiging van
die ooreenkoms, na gelang van die geval, te
verwyder indien die VERHUURDER skriftelik magtiging daartoe verleen;
3.3.3 is die HUURDER verplig om dit
binne ‘n redelike tyd na die VERSTRYKINGSDATUM of die vroeë
beëindiging van
die ooreenkoms, na gelang van die geval, te
verwyder indien die VERUURDER aldus gelas;
3.3.4 mag die EIENDOM by die
verwydering daarvan soos hierin bedoel, nie beskadig word nie en moet
die HUURDER die EIENDOM indien
dit wel beskadig word, tot bevrediging
van die VERHUURDER herstel;
3.3.5 sal die VERHUURDER nie verplig
wees om enige vergoeding daarvoor te betaal nie.”
[24] The applicant’s
right in the case of the first respondent’s breach of the lease
agreement is to terminate the lease
agreement; to repossess the
leased farms and to demand immediate payment of all the amounts of
money due by the first respondent
to the applicant. Clause 8, anx “h”
reads:
“
KONTRAKBREUK
Indien die HUURDER –
8.1 versuim om enige bedrag wat die
HUURDER aan die VERHUURDER mag skuld op die betrokke vervaldag
daarvan te betaal; of
8.2 ten opsigte van enige ander
bepaling of voorwaarde van hierdie ooreenkoms kontrakbreuk pleeg en
sou versuim om sodanige kontrakbreuk
te herstel binne 14 (VEERTIEN)
dae nadat die VERHUURDER aan hom kennis gegee het om bedoelde
kontrakbreuk te herstel,
dan in enige van sodanige gevalle is
die VERHUURDER geregtig om, sonder benadeling van enige ander regte
wat die VERHUURDER as gevolg
daarvan mag hê –
8.2.1 hier huurkontrak op te sê
en besit van die EIENDOM te neem; en/of
8.2.2 onmiddellik betaling van alle
bedrae wat deur die HUURDER aan die VERHUURDER geskuld mag word, te
vorder, ongeag daarvan of
die vervaldag vir die betaling van sodanige
bedrag aangebreek het, al dan nie.”
[25] The lease agreement
contains a non-variation clause which limits the scope of the
representations, warranties, provisions,
terms and conditions agreed
upon prior to and upon conclusion of the lease agreement. Clause 12
anx “e” is relevant
to quote. It reads:
“
ALGEMENE
BEPALINGS:
12.1 Hierdie huurkontrak behels die
hele ooreenkoms aangegaan tussen die partye.
12.2 Daar bestaan geen ander
bepalings, voorwaardes en waarborge of voortellings van welke aard
ookal, wat deur die VERHUURDER ooreengekom
of gemaak is nie, behalwe
die wat in hierdie ooreenkoms opgeneem is.
12.3 Geen wysiging of ooreengekome
kansellasie van die huurkontrak is van krag tensy dit op skrif gestel
word en deur die partye
geteken word nie.”
[26] I now proceed to
deal with the merits. I shall revert to the preliminary points later.
The current application was precipitated
by the first respondent’s
withholding of the rental. According to clause 2.3 anx “e”
the respondent was contractually
obliged to pay rental without any
deduction whatsoever. He was obliged to do so at all relevant times
and irrespective of any dispute.
He was required to make such payment
directly into the applicant’s chosen bank account. It was an
express term of the lease
agreement that the rental would escalate at
the rate of 5% p.a. – vide clause 2.4 anx “e”.
[27] The undisputed facts
or facts which the first respondent cannot dispute clearly show that
the first respondent wrongfully withheld
the rental (clause 2.3 anx
“e”). By so doing he materially breached the contract
(clause 8.1 anx “e”).
Although he was called upon in
terms of clause 8.2 anx “e” to rectify his default, he
failed to remedy the breach.
On the strength of such material breach,
the applicant was entitled in terms of clause 8.2 anx “e”
to cancel the lease
agreement and to reclaim possession of the leased
farms. It seemed to me, in the light of all these circumstances, that
the lease
agreement was validly cancelled. I could find nothing
irregular about it. In the result I find that the applicant was
entitled
to have the first respondent evicted from the farms.
[28] It was an undisputed
fact that the first respondent withheld the rental primarily because
he reckoned that the applicant had
breached the lease agreement. The
applicant denied the allegation. He maintained that he had fully
complied with all of his contractual
obligations. He contended that
all the farms were properly fenced and secured in accordance with the
lease agreement. Obviously
there was a factual dispute.
[29] Such factual
dispute, however real, genuine and
bona fide
it might have
been, did not assist the first respondent at all. The first
respondent was not remediless if the fencing, farming
equipment or
any improvement was in a state of disrepair. His contractual rights
as regards defects in respect of the leased farms
were contained in
clause 3 anx “e”. The crux of the matter is that the
first respondent never gave the applicant the
requisite notice in
terms of this clause. End of the argument. Even if the applicant was
in breach as the first respondent contended,
the first respondent
would not have been entitled to make any deductions from the rental,
let alone to withhold it in
toto
, by virtue of such breach. He
had to pay first and complain later.
[30] The first
respondent’s breach prompted the applicant to consult his
attorneys. On 1 October 2012 Blignaut & Wessels,
on behalf of the
applicant, sent a letter to Mr P A van der Walt, seemingly the first
respondent’s attorney. They demanded
payment of R13 865,25
being the shortfall in rental instalment which became due and payable
for the next period of six months.
It was made clear in the letter
that unless the first respondent complied, the applicant would
proceed to cancel the lease agreement
and to repossess the farms.
[31] Notwithstanding the
aforegoing demand, the first respondent did not rectify the breach.
Instead he, through his attorney, made
it very clear that the first
respondent would not pay the arrears. His attorney went a step
further. He forewarned the applicant
that the first respondent would
withhold the full rental which would become due and payable on 1
March 2013 until such time as
the applicant would have addressed his
grievances. The letter from Richter van der Watt to Blignaut &
Wessels was dated 13
November 2012 and labelled anx “h”.
In the letter the first respondent complained about various matters
such as defective
fence, defective windmill, water deficiency,
unfulfilled undertaking to build a reservoir and illegal animal
grazing on the leased
farms.
[32] It was apparent from
anx “h” that the first respondent was determined to
withhold rental. He alleged that the applicant
was indebted to him
R32 997,30 as a result of the illegal grazing of his livestock
on the leased farms. Therefore, he reckoned
that he was entitled to
set off the applicant’s rental claim against his own grazing
claim. That he could not do. He was
contractually obliged to pay the
full rental without any deduction or set-off.
[33] Moreover, it was
also abundantly clear from anx “h” that he did not
consider the terms of the lease agreement concerning
the payment of
rental binding on him anymore. Now bearing in mind his unambiguous
notice to abide no more with such material terms
of the lease
agreement, as well as his firm determination to continue
unrepentantly with the contractual breach, coupled with his
equally
serious forewarning that he intended stepping up acts of default in
time to come, there can be no doubt that the first
respondent thereby
repudiated the lease agreement. In my view the lease agreement was
lawfully cancelled on the grounds of the
first respondent’s
continued breach.
[34] On 5 February 2013
the applicant’s attorney wrote at para [7] anx “j”:
“
Dit is ons
instruksies om u hiermee in kennis te stel dat ons kliënt die
huurkontrak hiermee en by wyse van hierdie skrywe
kanselleer, hetsy
op grond van u kliënt versuim om die kontrakbreuk aan te suiwer
nieteenstaande kennisgewing om dit aan te
suiwer, hetsy op grond van
aanvaarding van u kliënt se repudiasie van die huurkontrak.”
A guilty party who has
repudiated a contract cannot turn around and seek to enforce a clause
in a contracted so repudiated. It is
trite.
[35] The first
respondent’s attorney responded on 8 February 2013. He wrote:
“
I/S:
SKIKKINGSVOORSTELLE HUUROOREENKOMS: RJ JONES / PA VAN DER WALT
Ons verwys na die bostaande
aangeleentheid sowel as u skrywe gedateer 5 Februarie 2013 en berig
as volg.
Skrywer se kliënt het nie
klousule 2.3 van die koopkontrak deeglik gelees nie en het dit dan
inderdaad ook nou eers onder skrywer
se aandag gekom, waarvoor ons
dan ons verskoning aanbied
en is die bedrag uitstaande ten
opsigte van die eskalasie vanoggend in u kliënt se rekening
inbetaal. Sien hierby aangeheg
die bewys van betaling.
Verdermeer is dit duidelik dat hier ‘n
aantal dispute tussen die partye is en het dit ontstaan waar die
Suid-Afrikaanse Inkomste
Diens skrywer se kliënt gekontak het
vir BTW wat hy verkeerdelik eis op grondhuur waarvan die eienaar, u
kliënt se broer
nie vir BTW geregistreer is nie. Na verskeie
pogings om met u kliënt kontak te maak het ons kliënt bloot
die eskalasie
bedrag teruggehou sodat u kliënt sy kant van die
ooreenkoms kan honoreer.
Skrywer het sy kliënt
geadviseer dat in terme van klousule 2.3 hy nie geregtig daarop was
nie.
Hoe dit ookal sy is dit vir skrywer se
kliënt menslik onmoontlik en onredelik om u kliënt se plaas
te ontruim voor of
op 8 Februarie 2013 aangesien daar 120 hektaar
mielies op is, sowel as 267 beeste met kalwers waardaar geen ander
heenkome is nie.
Ter skikking stel skrywer die volgende
voor:
Die eskalasie bedrag uitstaande is so
pas inbetaal.
Die onderlinge dispute word verwys
vir arbitrasie soos per klousule 10 van die kontrak vir spoedige
moontlike beregting en eerstens
op ‘n informele wyse voor of
op 1 Maart 2013, alvorens die volgende betaling betaalbaar sal wees.
Sou u kliënt steeds die
kontrak wil kanselleer, is skrywer se kliënt bereid om voor of
op 31 Augustus 2013 die plaas
te ontruim,
aangesien die
mielieoes gestroop sal wees en sy jaarlikse produksie veiling ook in
Augustus afgehandel sal wees waar hy dan die
beeste kan verkoop.
Ons hoop en vertrou u vind dit so in
order, en verneem ons graag so spoedig moontlik van u hierin.”
[36] The first respondent
frankly admitted, after the applicant had duly cancelled the lease
agreement, that he had acted contrary
to the obligatory terms of the
lease agreement by withholding the rental. He, even apologized for
the breach of clause 2.3 anx
“e”. The full arrears were
then immediately but belatedly paid. The horse had already bolted.
The payment could not
have revived the dead contract. That much the
first respondent appreciated. It follows, therefore, that the first
respondent’s
belated and abortive attempts, in his answering
affidavit, to deny the cancellation or to attack the validity thereof
is untenable
and far-fetched –
Wightman
supra
.
[37] Upon the aforesaid
cancellation of the lease agreement, the applicant became entitled to
the restoration of possession of the
farms. Such was the legal effect
of the cancellation. This much the first respondent realised and
correctly accepted as far back
as 8 February 2013. Before these
proceedings were initiated, the parties were
ad idem
with one
thing at least: which was that the cancellation of the lease
agreement was an accomplished fact. It follows from this
reasoning
that the subsequent refusal by the first respondent to vacate the
farms and to restore vacant possession thereof to the
applicant
constituted an unlawful act. The law does not countenance such
conduct.
[38] The first
respondent’s refusal to vacate the farms is based on certain
representations the applicant is alleged to have
made. The
representations include, among others, the allegations that the
applicant represented to the first respondent that there
was ample
water in the camps on the farms; that the windmill was in
functionally good conditions; that the farms were properly
fenced and
that the applicant would erect a reservoir. All of those alleged
undertakings and representations appear nowhere in
the written
contract, anx “e”. They all have their origins outside
the written contract. The contract itself expressly
states that the
only binding representations, warranties and undertakings given are
those exclusively worded in the written contract.
[39] In the light of the
aforegoing the first respondent’s attempts to rely on external
representations, warranties and undertakings
were, for obvious
reasons, were clearly untenable and far-fetched. No written document
signed by the parties, as clause 12.3 anx
“e” requires,
was attached to the answering affidavit. His version concerning such
representations, warranties and
undertakings boiled down to
inadmissible evidence. It is in direct conflict with the specifically
prohibitive clauses of the lease
agreement between the parties. The
principle of the
Shifren
decision
supra
strongly
militates against the first respondent’s case. His defence
constitutes no genuine, real and
bona fide
dispute –
Trollip
supra
.
[40] According to clause
12 anx “e”, the original lease agreement constitutes the
entire agreement between the parties.
There were no other
representations, provisions, conditions or warrantees given save for
those specifically spelt out in the written
contract. The parties
agreed that no amendment, agreement or cancellation of the lease
agreement would be of any binding force
and effect unless it was
written down and signed by the parties. The first respondent failed
to show that the original lease agreement
was subsequently ever
amend.
Clause 12.3 anx “e”
is a pure Shifren-clause. It prohibits oral agreements and variations
of the written main agreement.
Accordingly the first respondent
cannot rely on any other subsequent oral agreement outside the ambit
of the written agreement.
Any evidence in conflict with the express
intention of the parties as evidenced by the written contract is
inadmissible –
Afrox Healthcare
supra
.
[41] I have found that
the first respondent’s version is so farfetched that I am
entitled to reject it merely on the papers
and that the applicant
cannot be expected to accept the version set up by the first
respondent merely because he seeks final relief
on motion. This is so
because I am not satisfied that the first respondent as a party who
purports to raise the dispute has seriously
and unambiguously
addressed, in his answering affidavit, the various external
representations now said to be in dispute. Even if
his version
concerning such representations is found to be reasonably plausible,
upon in-depth scrutiny and consideration it would
still not benefit
the first respondent. The gist of the matter is that the lease
agreement was lawfully cancelled. He never gave
the applicant proper
notice in terms of the lease agreement to enable the applicant to
have such dispute properly adjudicated,
say by arbitration.
[42] The cancellation
brought the right of the first respondent to occupy the farms to an
end. The applicant was no longer interested
to revive the business
relationship he once had with the first respondent. Seeing that his
right to occupy the farms has lapsed,
the applicant is entitled to
evict him –
South Coast Furnishers
,
supra.
His belated payment of the arrears did not cure the fatal repudiation
of the lease agreement by first respondent and its subsequent
cancellation by the applicant.
[43] The first respondent
withheld the rental on the ground that the applicant failed to
provide him with value-added tax invoices.
At para [29] of the
answering affidavit he explained his complaint as follows:
“
Omdat ek nie
‘n BTW faktuur vir die voormelde betaling van Jones ontvang het
nie, kon ek tot op hede nog nie die BTW insetbelasting
wat as deel
van daardie betaling aan Jones gemaak is, naamlik R34 055,00
terugeis nie. Dit beteken dat Jones se versuim om
sy wetlike plig na
te kom, om aan my ‘n BTW faktuur te verskaf, die gevolg het dat
my kontantvloei reeds vir meer as ‘n
jaar met daardie bedrag
negatief beïnvloed is.”
[44] The applicant
pointed out that there was, nothing new in the first respondent’s
complaint about VAT invoicing. The first
respondent had, in the past,
raised the same query in respect of the previous agreement. Nothing
ever came out of that previous
complaint. The previous agreements
came to an end without any further complaint concerning the
invoicing. Subsequently to the termination
of the previous
agreement(s) the parties entered into fresh negotiations. They
decided to renew their business relationship.
[45] They renegotiated
and concluded the current written agreement(s). However, no specific
representation about this particular
complainant was included in the
current lease agreement. Such a glaring omission struck me as odd.
Bearing in mind the first respondent’s
alleged unhappy
experiences occasioned by the applicant’s countless failures to
furnish him with tax invoices, one would
have expected to find a
clause in the new agreement(s) specifically dealing with the
rendering of tax invoices. Seemingly the first
respondent did not
really insist on the inclusion of such a clause. Perhaps he did but
the applicant disagreed. It may well be
that the matter hardly
featured during the fresh business negotiations leading up to the
signing of the new lease agreement.
[46] None of those three
possible omission scenarios outlined above can positively take the
first respondent’s defence any
further. If the invoicing topic
hardly featured as an item on the agenda of the fresh negotiations,
then it can only mean that
it was of no significance to both parties
then. Today it cannot be treated otherwise. If the first respondent
did not then vigorously
insist on the inclusion of such a specific
clause concerning the invoicing, now it is too late. It would mean
that he did not consider
it to be a vital element of his contractual
protection. If the first respondent insisted but the applicant
resisted and prevailed,
then it can only mean the applicant was able
to persuade the first respondent to see things the way he saw them.
About that a court
can do nothing. It is the power of negotiations.
To do otherwise would undermine the principle of freedom to contract.
[47] The applicant
replied that he had always sent the tax invoices to the first
respondent’s chosen postal address at Montapark.
He stated that
at the first respondent’s request he provided copies of such
invoices.
[48] I have adequately
expressed my views about oral and external representations,
guarantees and undertakings in connection with
various other disputes
relating to the reservoir, camp water, fencing and windmill.
Precisely the same consideration which applied
them and there –
apply equally well here and now to the alleged contractual neglect of
the applicant to furnish the first
respondent with tax invoices. In a
nutshell, I could find no real, genuine and
bona fide
dispute
to disqualify the applicant from receiving the final relief sought.
[49] Mr Snellenburg
argued that the version of the first respondent in connection with
the rendering of tax invoices demonstrated
that the first respondent
was literally clutching on the straws in a desperate but futile
attempt to stay alive in order to wreck
the applicant’s strong
boat. At para [36] in applicant’s heads of argument counsel
said:
“
Oorweging
van die Eerste Respondent se weergawe in daardie verband toon egter
dat die Eerste Respondent spreekwoordelik na grashalms
gryp ten einde
te poog om die verrigtinge die hoof te bied.”
The critique was fair.
[50] At para [37] Mr
Snellenburg said the following about the irony inherent in the first
respondent’s version:
“
Wat die
Eerste Respondent aan die Hof voorhou is dat presies dieselfde
problem hulself voorgedoen het tydens ‘n vorige huurkontrak;
dat hy daarna voortgaan om die huurooreenkoms te onderteken sonder om
enigsins die voorstellings waarop hy hom beroep of dan nou
die
problem met die BTW fakture aan te spreek in die kontrak. Dit is
opsigtelik en duidelik onuithoudbaar en ‘n vergesogte
weergawe.”
[51] To round off the
debate concerning the tax invoicing I pause to make a final comment.
Attached to the answering affidavit was
a sworn statement by the
first respondent’s accountant. He stated that the first
respondent was a registered vendor; that
he was legally entitled to
levy value-added tax: that he was legally obliged to pay value-added
tax over to SARS; that he was also
legally entitled to recoup such
tax payments from the SARS and that there were no pending tax queries
or investigations by SARS
against the first respondent.
[52] It can, therefore,
be readily appreciated that the first respondent had a clean tax
slate. The aforesaid undisputed facts substantially
watered down any
argument that there is a real, genuine, or
bona fide
factual
dispute about the rendering of tax invoices. In the circumstances I
am entitled to reject the first respondent’s
version as a whole
merely on the papers before me.
[53] I now turn to the
first respondent’s preliminary argument. In the first place the
first respondent’s contended
that the applicant had no
locus
standi
in iudicio
to move this eviction application. The
contention was grounded on the fact that the farms were registered in
the name of the applicant’s
brother.
[54] The undisputed facts
showed that the parties were not strangers to each other. They were
acquaintances. Prior to their current
business dealings, they have
had previous business dealings. Their current commercial relationship
was preceded by pretty much
the same commercial relationship like the
current mutual relationship. The previous relationship was also
anchored in lease agreements.
[55] The fact of the
matter is that the first respondent was placed in beneficial
occupation of the farms by no-one else but the
applicant. There is no
doubt that the applicant leased the farms to the first respondent;
that, by virtue of such lease agreement,
the applicant became a
substantially interested party in the subject-matter of the lease;
that as the lessor, the applicant was
legally entitled to cancel the
lease agreement and to evict the first respondent, as the lessee,
from the leased farms. It is trite
that a lesser does not have to
hold any title in respect of the property before (s)he can lease such
property –
Boompret Investment (Pty) Ltd & Another v
Paardekraal Concession Store (Pty) Ltd
1990 (1) SA 347
(A) at
351H and
Fryer (Pty) Ltd v Ries
1957 (3) SA 575
(A) at
581E-F.
[56] It is an undeniable
fact that the titleless applicant placed all the five leased farms at
the disposal of the first respondent.
He gave him free undisturbed
possession of the farms. The first respondent beneficially exploited
and enjoyed the farms since 1
September 2011, being the effective
date of the lease agreement (anx “e”). He was still in
beneficial and undisturbed
actual possession or occupation of those
farms on 22 March 2013, when these proceedings were initiated.
[57] Where a lessor
delivers a leased property to a lessee who then uses, exploits and
enjoys such property without first ascertaining
whether such lessor
has a valid title in respect of such property, the law bars such a
lessee from questioning such lessor’s
title later. Such lessor
is bound by the law to perform his contractual obligations in terms
of such lease agreement. He is precluded
from invoking the lessor’s
lack of title as a valid ticket in order to escape from the binding
network of his contractual
obligations.
[58] His lack of
knowledge concerning the applicant’s titlelessness coupled with
his invitational challenge that the applicant
should prove that he
was the lawful holder of a legal title and thus entitled to evict
him, did not constitute a denial of the
applicant’s averment
that he was entitled to evict him –
Williams
supra
.
[59] In
Salisbury
GM Co v Kliprivier Berg Estate GM Co
1893 Hertzog 186
at 190
the court said:
“
[A]ny person
can let to another something which belongs to a third party, and it
is not open to the lessee to raise the defence
that he has discovered
that … the property leased belongs to another person, where,
for instance, he is, during the currency
of lease, sued for payment
of his stipulated rent.”
The principle was applied
in
Ebrahim v Pretoria Stadsraad
1980 (4) SA 10
(T) at
14B-C and the authorities there cited. In the ejectment proceedings,
as in this instance, the law requires the lessor to
prove possessory
right and not proprietary right. In
casu
the first respondent
could not deny the averment that he acquired occupational rights from
the applicant. See also
Clarke v Nourse Mines Ltd
1910
TS 512
at 520 – 521.
[60] The aforesaid
contractual principle was authoritatived approved in
Hillock &
Another v Hilsage Investments (Pty) Ltd
1975 (1) SA 508
(A)
at 516E:
“
It seems to
me that the rule [that the lessee cannot dispute the lessor’s
title] may be based upon one or other of two very
simple grounds. The
first is, that the lessor having performed his part of the contract,
and having placed the lessee in undisturbed
possession of the
property is entitled to claim that the lessee should also perform his
part of the contract and should pay him
the rent which he agreed to
pay for the use and enjoyment of the premises. The second ground is,
that the lessee having had the
undisturbed enjoyment of the premises
under the lease, and having thus had all for which he contracted, it
would be against good
faith for him to set up the case that the
lessor had no right to let him the property.”
[61] It should now be
clear and obvious that there is virtually no substance in the first
respondent’s preliminary point.
In my view the point
in
limine
was not well taken.
[62] In the second place
the first respondent contended that the current eviction proceedings
were prematurely initiated before
some existing dispute between him
and the applicant had been resolved in accordance with the procedure
laid down in the lease agreement.
[63] Mr Knoetze
articulated the contention of the first respondent as follows
concerning the alleged dispute:
“
Van der Walt
het as ‘n punt
in
limine
aangevoer
dat, nog voordat Jones die kontrak na bewering gekanselleer het, en
daarom ook nog voordat die aansoek uitgereik is, daar
‘n geskil
tussen hom en Jones ontstaan het oor die vraag of hy regtens verplig
was om aan Jones BTW te betaal ooreenkomstig
klousule 2.1 van die
kontrak. Voorts voer Van der Walt aan dat Jones uit hoofde van die
bepalings van paragraaf 10.1 van die kontrak
verplig was om daardie
geskil te laat besleg, òf by wyse van arbitrasie, òf
deur ‘n Hof alvorens hy daartoe
kon oorgaan om die kontrak te
kanselleer en die onderhawige aansoek prematuur is en met koste van
die hand gewys behoort te word.”
[64] Counsel for first
respondent devoted a great deal of time to the interpretation of the
lease agreement – anx “e”.
He paid particular
attention to clauses 8, 9 and 10 thereof. He laid emphasis on the two
words “geskil” and “kansellasie”.
[65] I deem it necessary
to quote clause 9 anx “e”:
“
Die
praktiese effek van di twat die partye met paragraaf 9 van die
kontrak bedoel het, is die volgende:
8.1. indien Jones die kontrak in terme
van paragraaf 8 kanselleer en Van der Walt sy reg om dit te doen
betwis, mag Van der Walt
in besit van die plaas bly in afwagting van
die beslissing van daardie geskil;
8.2. indien Van der Walt sy voorneme
reg uitoefen, moet hy aanhou om alle betalings ooreenkomstig die
kontrak te maak, en is Jones
geregtig om daardie betaling te aanvaar
en te verhaal en benadeel sodanige aanvaarding nie Jones se regte
nie;
8.3. indien die geskil ten gunste van
Jones beslis sou word, word die betaling aangemerk as skade vir die
wederregtelike okkupasie
van die plaas. Dit impliseer dat indien die
geskil ten gunste van Van der Walt beslis word, die betaling as
huurgeld aangemerk
sal moet word.”
[66] Mr Knoetze’s
interpretation of clause 9 anx “e” goes like this:
“
Klousule 10
van die kontrak skryf die wyse voor waarop daar met
enige
geskil
tussen die partye oor
enige
aangeleentheid,
insluitend die kansellasie van die kontrak, deur Jones gehandel moet
word. Paragraaf 10.1 bepaal dat Jones die keuse
het of hy sodanige
geskil by wyse van arbitrasie of deur ‘n Hof wil laat bereg.
Paragrawe 10.2 en 10.3 bepaal hoe die arbitrasie
moet geskied.”
[67] The right of the
applicant to cancel the lease agreement in the event of the first
respondent’s default is circumscribed
in clause 8. I have
earlier quoted and referred to the clause.
[68] The relevant portion
of clause 10 is sub-clause (1) thereof. The rest of the clause deals
with arbitration forum. Clause 10(1)
stipulates:
“
Indien daar
enige geskille tussen die partye bestaan oor enige aangeleentheid wat
verband hou met hierdie voorwaardes of die kansellasie
daarvan kan
die VERHUURDER in sy uitsluitlike diskresie besluit om sodanige
geskil(le) te laat bereg by wyse van arbitrasie of
deur ‘n Hof
met toepaslike regsbevoegdheid.”
[69] I have already dealt
with the substantive merits of this whole matter. In the course of my
consideration of the merits, I found,
amongst others, that the first
respondent wrongly refused to pay the full amount of the escalated
rental as he was obliged to do;
that he wrongly applied set-off
contrary to the explicit term of the contract and that he wrongly
threatened to withhold the next
bi-annual rental in full. Those were
the material ways in which the first respondent breached the lease
agreement – clause
8 anx “e”.
[70] The applicant
considered that the contractual wrongs committed by the first
respondent were of such a serious magnitude that
they constituted a
clear repudiation. He appreciated the reality that the lease
agreement stood repudiated by the first respondent.
He accepted the
repudiation and rescinded the contract from which the first
respondent had freely resiled for no contractually
sound reasons. He
then accordingly informed the first respondent.
“
Where one
party to a contract, without lawful grounds, indicates to the other
party in words or by conduct a deliberate and unequivocal
intention
no longer to be bound by the contract, he is said to “repudiate”
the contract ... Where that happens, the
other party to the contract
may elect to accept the repudiation and rescind the contract. If he
does so, the contract comes to
an end upon communication of his
acceptance of repudiation and rescission to the party who has
repudiated ...”
(per Corbett JA in Nash v Golden Dumps
(Pty) Ltd
1985 (3) SA 1
(A) at 22D-F).
This is the conventional exposition of
the operation of the doctrine of repudiation leading to rescission
with its emphasis on the
guilty party’s intention and the
innocent party’s acceptance. At the same time this court has
repeatedly stated that
the test for repudiation is not subjective but
objective…”
Datacolor
International (Pty) Limited v
Intamarket
(Pty) Limited
[2000] ZASCA 82
;
2001
(2) SA 284
(SCA) para [16] per Nienaber JA.
[71] In this instant
matter, the first respondent admitted that he intended to resile from
the lease agreement; that he repudiated
such contract; that the
applicant accepted his repudiation and rescinded the lease at the
first respondent’s special instance
and initiative. Moreover,
the first respondent even voluntarily tendered to vacate the leased
farms on a specific date.
“
The emphasis
is not on the repudiating party’s state of mind, on what he
subjectively intended, but on what someone in the
position of the
innocent party would think he intended to do; repudiation is
accordingly not a matter of intention, it is a matter
of perception.
The perception is that of a reasonable person placed in the position
of the aggrieved party.”
Nienaber JA in
Datacolor
supra.
[72] From the outset
there was no doubt on the part of the first respondent as regards the
lease cancellation or its validity. The
first respondent deliberately
and unequivocally expressed his intention no longer to be bound by
the contract. He subjective intended
to walk away from the contract.
The applicant’s objective perception was, therefore, fortified
by the first respondent’s
own subjective intention. He
previously expressed himself so conclusively and candidly outside
court that it makes his current
argument about the alleged dispute
appear ridiculous. He has repudiated the lease agreement and he can
no longer rely on its provisions
to say the eviction application was
prematurely launched before certain disputes had been procedurally
resolved. He is precluded
from invoking his procedural rights now.
[73] I hold the view, and
it is very firm, that there never was a real, genuine or
bona fide
dispute in the matter concerning the cancellation of the contract or
the validity of such cancellation. But even if I am wrong,
the
outcome would nonetheless still be the same. If there was a genuine
dispute between the parties as to the cancellation or otherwise
of
the contract, the applicant would still have had the absolute
discretion to come to this court to have such dispute adjudicated
as
he in fact did. (clause 10.1 anx “e”).
[74] On the facts, the
applicant established that the contract was lawfully cancelled
following its repudiation by the guilty party,
the first respondent.
The author, Christie, is of the opinion that it is preferable to ask
the court to confirm the cancellation
and nothing more. It was not
the author’s opinion that it was peremptory for the innocent
partly to expressly seek such confirmation
in the notice of motion.
The relief sought for the eviction of the first respondent is
premised on the assertion that, in fact,
the contract no longer
exists.
[75] In the light of all
the considerations, I have come to the conclusion that there was
nothing premature about the eviction application.
The second point
in
limine
raised by the first respondent also falls to be dismissed.
[76] At all times
material to this matter, the first respondent was at liberty to
approach this court in order to complain about
the applicant’s
failure to comply with his contractually obligations. He did not. But
even if he did, that would not have
entitled him to withhold the
rental. He would still have been contractual obliged to pay the
agreed rental in full without any
deduction. He breached the lease
agreement. His deliberate and unequivocal refusal to remedy the
default entitled the applicant
to terminally rescind the contract.
Lest it be forgotten, such cancellation process was initially
orchestrated by the first respondent.
I inserted this final comment
ex abudante cautela
.
[77] These then are the
reasons for the order I make
ex tempore
on 15 August 2013.
_________________
M. H. RAMPAI, AJP
On
behalf of appellant: Adv. N. Snellenburg
Instructed
by:
Phatshoane
Henney Inc.
BLOEMFONTEIN
On
behalf of first respondent: Adv. B. Knoetze SC
Instructed
by:
Stander
& Vennote BLOEMFONTEIN
/ebeket