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[2013] ZAFSHC 230
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Nel N.O. and Others v Steyl N.O. and Others (3496/2013) [2013] ZAFSHC 230 (29 November 2013)
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IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
No.: 3496/2013
In
the matter between:
NEL JACOBUS
FREDERICK LOMBARD N.O. &
2
OTHER
…......................................................................................................................
Applicant
and
STEYL
MARTINUS PHILIPPUS N.O. & 2 OTHER
…..............................................
Respondent
CORAM:
MOLOI, J
HEARD
ON:
14 NOVEMBER 2013
DELIVERED
ON:
29 NOVEMBER 2013
MOLOI,
J
[1]
In this matter the applicant sought an order summarily evicting the
respondent from a rental portion of the remainder of the
farm D[…]
No […], district W[…], Free State Province and related
remedies and costs. The actual litigants
in this matter are the
first applicant and the first respondent.
[2]
There was a dispute regarding the existence or not of a lease
agreement between the parties. This dispute was, however,
settled by the court declaring that the pre-drafted but unsigned
agreement constituted a valid and binding agreement between the
parties. This ruling was made on 31 January 2013 the date on
which the applicant signed the agreement. The respondent
only
signed the said agreement on 18 February 2013. In terms of the
agreement it came into operation on 1 June 2012 dispite
the dates of
the signing thereof.
[3]
The lease agreement provided for two aspects that are foundational to
this application viz firstly, that the rented portion
of land within
the 2000 hectare farm be fenced off by the respondent at his expense
and, secondly, determined rental amount be
payable half-yearly in
advance for the duration of the agreement. The agreement also
provided that failure to comply with
any term of the agreement would
entitle the applicant to cancel the agreement.
[4]
Eviction is an extra-ordinary relief which the court will only grant
upon proof of certain requirements:
Buffalo
Freight Systems Ltd v Crestleigh Trading (Pty) Ltd and Another
,
2011 (1) SA 8
(SCA). In this case the applicant must prove that
a legal cause for the rental existed. This had already been
proven
by the court order granted on 31 January 2013 at the instance
of the respondent. Evidence showed that a draft written lease
agreement between the parties existed, but remained unsigned.
At the instance of the respondent the court ruled that the
unsigned
agreement was valid and binding upon the parties who subsequently
signed it as stated above. The applicant had further
to prove
that a material term of the agreement was breached. According
to the applicant two material terms of the lease agreement
were
breached by the respondent.
[5]
The first was that contrary to the express provision of the said
agreement the leased portion remained un-fenced off (un-enclosed)
as
was required. The fencing off (enclosure) of the leased portion
was to be effected by the respondent at his own cost.
This
failure, according to the applicant, was material and entitled him to
cancel the agreement if not complied with. It
is common cause
that to date the leased portion remains un-enclosed (not fenced
off). Due notice of the cancellation of the
agreement was made
by a letter of the applicant’s attorneys sent to the
respondent’s attorneys dated 18 June 2013.
Secondly, the
respondent had not paid the rental amount for the period 1 June 2013
which was, according to the agreement, payable
half-yearly in
advance, despite reminders and demands in writing to do so. The
applicant had consequently complied with the
requirements necessary
to seek an order of eviction:
South
Coast Furnitures CC v Zecprop 30 Investments (Pty) Ltd
2012 (3) SA 431
(KZP).
[6]
The respondent, on the other hand, stated that the alleged
cancellation of the agreement by the applicant was putative and of
no
consequence. This was so because the requirement of fencing off
the leased portion in the agreement did not specify the
time-frame
within which such fencing off should be made. The respondent
contended further that in the absence of a specified
time-frame for
the fencing-off the rented portion, a reasonable time should be
allowed and that such reasonable time had not elapsed.
According to the respondent, the alleged cancellation was
consequently invalid and not enforceable. The respondent held
this view on the fact that clarity as to the terms of the lease
agreement was only settled on 18 February 2013 when he signed the
agreement after the court ruled on its validity on 31 January 2013.
The period before then was not to be counted as reasonable
time as
the agreement became an agreement only after he signed it on 18
February 2013. Over and above that, the respondent
had
engaged in settlement negotiations in an endeavour to avoid spending
exhorbitant amounts on the fencing off the property and
that this
period of negotiations should be taken into account in determining a
reasonable time. It was also contended that
the applicant did
not place the respondent
in mora
by not allowing a reasonable time bearing in mind all the
circumstances of the said agreement.
[7]
It must be noted that the draft agreement was in place from June
2012, that the applicant refused to recognise its validity
and that
the respondent, in order to enforce it, approached the court to have
it declared it valid. The provision to fence-off
the rented
portion of the farm was already in that agreement which was
eventually signed by the respondent on 18 February 2013.
That
means that from June 2012 the respondent knew about the requirements
to fence-off the rented portion of land. The reasonableness
of
the time frame within which the fencing off of the leased portion
should also be measured with regard to the purpose for which
it was
meant:
The Principles of Law of Contract
by AJ Kerr,
Lexis Nexis 2002 at p 608. The property in question was leased
for the purpose of keeping lions for farming purposes
by the
respondent. By nature, lions are wild animals and are dangerous
to men and other domesticated or wild animals and
as such they must
be enclosed in specially fenced-off areas to restrict their freedom
of movement. They cannot be allowed
to roam about freely.
The need to fence-off their habitat becomes urgent and reasonable
time is expedited by the fact that,
if not properly confined, a
dangerous situation is created:
Broderick Properties Ltd v Rood
1962 (4) SA 447
T. The negotiations alleged by the respondent
dealt largely with who must pay for the fencing off (enclosure) and
whether
the costs must be shared, despite the clear wording of the
contract viz that the respondent was liable to fence-off the portion
leased at his own expense. The alleged negotiations were simply
delaying tactic.
[8]
The second basis of the breach by the respondent was failure to pay
the agreed rental amount when it was due. To this
the
respondent contended that he was frustrated by the applicant’s
failure to provide him with tax invoices. He further
contended
that “Huurgeld is tog immers betaalbaar teen lewering van die
BTW faktuur”. It is trite that rental
is payable when due
and is not dependent on any other incident especially when there was
no agreement making payment dependent
on a tax invoice being
supplied. It may be feasible that a lessee be provided with a
tax invoice in order to effect payment
but failure to do so cannot be
a legal cause to withhold payment of rental that is due and payable.
This particularly so
where the requirement of a tax invoice is not
forming part of the agreement but failure to pay constitutes a
breach. The
agreement provided for how rental is calculated and
when it is payable. A tax invoice serves a different purpose
which is
not linked to actual payment of rental. The lease
agreement provided as follows:
“
KONTRAKBREUK
Indien die
HUURDER
sou versuim om enige van sy verpligtinge kragtens hierdie Ooreenkoms
stiptelik na te kom en steeds in versuim is 10 (TIEN) dae
na
skriftelike kennisgewing deur die
VERHUURDER
aan die
HUURDER
waarin die betrokke partye se versuim en regstelling daarvan geëis
word; of indien die
HUURDER
versuim om enige betaling
verskuldig ingevolge hierdie Ooreenkoms stiptelik te maak, dan sal
die
VERHUURDER
, benewens enige ander regte wat hy mag hê
ingevolge die Gemenereg, geregtig wees om:
7.1
Hierdie Ooreenkoms te kanselleer, herbesit van die Eiendom te verkry
en om alle agterstallige huurgeld en skade te vorder.”
Nothing
in this clause makes payment of rental subject to a tax invoice.
What is clear is that the respondent must be given
ten (10) days to
pay which was done but he persisted in his refusal so to pay. I
find that the respondent’s version
is inconsistent and
far-fetched and cannot be upheld:
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623.
[9]
It was submitted on behalf of the respondent that should the court
find that the respondent failed to enclose or fence-off the
leased
portion within a reasonable time, that his failure to pay the agreed
rental was unlawful and that the termination of the
lease agreement
was consequently valid and that the respondent ought to be evicted
from the leased portion, the respondent be given
sufficient time to
vacate the leased portion, say approximately six (6) months.
The motivation for this request was that
it required a lot of
preparation including obtaining of permits to move lions. I
cannot agree with that request. The
respondent knew, and had
apparently being preparing to vacate the leased property since he
failed to enclose or fence-off the leased
portion and failed to pay
his agreed rental. He was moreover served with notice of
cancellation of the lease agreement way
back on 18 June 2013 and had
enough time to make the necessary arrangements. His insistence
that certain negotiations were
taking place was clearly a ploy to
delay the inevitable.
ORDER:
[10]
In the premises I make the following orders:
1.
That the respondent is ordered to vacate the farm known as “Restant
van die plaas D[…] No […], distrik W[…],
Vrystaat Provinsie not later than
27
December 2013 at 17H00
.
2.
That should the respondent fail so to vacate the said farm, the
Sheriff of this court is hereby authorised to evict the respondent
from the said farm together with all his moveable property.
3. That the
respondent is ordered to pay the costs of this application.
_____________
K. J. MOLOI, J
On
behalf of the applicants: Adv. W. J. Edeling
Instructed
by:
Eugene
Attorneys
BLOEMFONTEIN
On
behalf of respondents: Adv. N. Snelleburg
Instructed
by:
Webbers
BLOEMFONTEIN