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2011
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[2011] ZAKZDHC 55
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Naidoo and Others v Mohunlal (6281/11) [2011] ZAKZDHC 55 (30 November 2011)
In
the KwaZulu-Natal High Court, Durban
Republic
of South Africa
Case
No 6281/11
In
the matter between :
Deviasagren
Naidoo
…..............................................................................
First
Applicant
Shanoo
Devi Baliraj
…..........................................................................
Second
Applicant
Radhakrishnan
Chetty
…..........................................................................
Third
Applicant
Kogila
Chetty
…......................................................................................
Fourth
Applicant
and
Debipersadh
Mohunlal
…..............................................................................
Respondent
Judgment
Lopes J
[1] The applicants applied for an
order ejecting the respondent from the immovable property situated at
192 Sirdar Road, Clairwood.
The basis upon which the applicants seek
the order may be summarised as follows :-
the first applicant, who was the
erstwhile owner of the property, concluded a lease agreement with
the respondent;
that lease agreement was renewable in
12 month cycles on the 1
st
February of each year;
the rental up until the 1
st
February 2011 had been R4 300 per month. On the 11
th
January 2011 the first applicant gave the respondent notice that the
monthly rental for the third cycle would increase to R4
730 per
month with effect from the 1
st
February 2011;
the second applicant is the current
owner of an undivided half share in the property, and the third and
fourth applicants together
currently own the other half. When the
first applicant sold the property to them, the obligation to ensure
vacant possession
of the property at all times rested with the first
applicant;
the respondent paid the February 2011
rental by way of a cheque for R4 300 to the first applicant.
Allegedly regarding this as
a rejection of the offer for continued
occupation on the basis of the increased rental, the first applicant
alleges that he issued
a notice on the 14
th
February
terminating the occupation by the respondent, and demanding that he
vacate the premises within 30 days;
the respondent failed to vacate the
premises and paid the March rental on the 1
st
March 2011
in the new amount of R4 730;
the first applicant alleges that no
payment was made in respect of the shortfall for February (this is
denied), and no payment
was made for either April or May of 2011
(this is not denied).
[2] Mr
Wallis
who appeared for
the applicants submitted that the letter of the 14
th
February 2011 was a letter of cancellation pursuant to the
repudiation of the lease agreement by the first applicant. That
repudiation
is to be found in the payment of the cheque for R4 300 on
the 1
st
February 2011.
[3] In assessing whether or not the
respondent repudiated the contract, the approach I am to adopt is
whether a reasonable person
in the position of the first applicant
would conclude that proper performance would not be forthcoming. The
emphasis here is not
on the repudiating party’s state of mind,
and the test is essentially an objective one approached from the view
of the innocent
party.
See
Datacolor International (Pty)
Ltd v Intamarket (Pty) Ltd
[2000] ZASCA 82
;
2001 (2) SA 284
(SCA) paragraphs [16]
to [19].
[4] In viewing the reasonableness of
the belief of the first applicant, it is necessary to take into
account the following :-
in paragraph 13 of his founding
affidavit he states that the respondent’s rejection of the
offer was communicated to him
on the 1
st
February 2011
when the cheque of R4 300 was paid; and
the letter written on the 14
th
February 2011 by the first applicant.
[5] In his letter of the 14
th
February 2011 the first applicant states the following :-
‘
I refer to
our lunch meeting on Monday 14
th
February 2011 at my premises.
As discussed, after having advertised
the building you occupy [192 Sirdar Road] in the open market, a
confirmed sale has since resulted.
In view of the above, kindly note,
that you have a 30 day notice in which to find alternate premises.
Due to our cordial relationship I
however will afford you an extra two weeks, therefore kindly ensure
that the premises is cleaned
and available by the 31
st
March 2011.’
[6] In my view that letter is entirely
inconsistent with the first applicant having understood the payment
of the cheque of R4 300
as a rejection of the rental agreement. As
stated by the respondent, the short-payment is much more likely to
have been a mistake.
Had it been accepted as a repudiation, and had
the first applicant understood it as such, he would no doubt have
referred to that
in the lunch meeting on the 14
th
February
2011. His letter written on the same day would unquestionably have
reflected that. Indeed the very tenor of the letter
is that the
contract is terminated because the property has been sold. This is
unquestionably not a letter of cancellation pursuant
to a breach. The
suggestion of an acceptance of a repudiation on the 1
st
February, which is merely confirmed in the letter of the 14
th
February 2011, appears to have been an afterthought. I have no
hesitation in rejecting the unreasonable assumption, by the first
applicant, that the payment of the R4 300 was a repudiation of the
lease agreement.
[7] Mr
Wallis
submitted that
the applicants were nonetheless entitled to rely upon the non-payment
of rental by the respondent for the months
of April and May of 2011.
He pointed to the fact that there was no denial of that non-payment.
The answer to the allegations in
the founding affidavit of
non-payment in respect of April and May, is to be found in paragraph
22 of the respondent’s affidavit
where he states :-
‘
... I hasten
to add that the first applicant disconnected electricity and water
supplies to the premises and by virtue thereof being
an obvious
repudiation of the agreement, which repudiation I did not accept, he
was not entitled to further rental payments. That
said I have already
tendered payment of outstanding rentals. I annex a copy of my
attorney’s letter dated 20 May 2011 referring
to the
disconnection of electricity and water supplies ...’
[8] Two letters were written by the
respondent’s attorney to the first applicant’s attorney
on the 20
th
May 2011. The first was sent at 11.59 and the
second at 12.28 some 29 minutes later. The first letter makes no
reference to the
disconnection of the electricity and water, and
refers to the previous sale of the property by the first applicant to
a close corporation
of which the respondent was a member. It records
the tender of payment of the rentals in terms of the lease agreement.
The second
letter refers to the disconnection of the electricity and
water and requests that they be immediately reconnected, failing
which
the respondent would proceed with an application to compel the
first applicant to do so.
[9] In my view those two letters
should be read as one. I agree with Mr
Pillay,
who appeared
for the respondent, that the only interpretation to be placed upon
the contents of paragraph 22 of the answering affidavit
is that the
respondent had not paid the April and May rentals because the
electricity and water had been cut off by the first applicant.
The
first applicant’s reply to that paragraph is significant. He
simply notes what he refers to as the ‘implicit admission’
of the non-payment of rental, and points out that that constitutes a
further ground for eviction. He states that the belated tender
of
rentals is a desperate attempt to avoid the inevitable outcome of the
application.
[10] It is most unfortunate that in
this entire application neither of the parties have seen fit fully to
set out the circumstances
of the lease and the various incidents
which took place between the parties, with reference to a time scale,
which would enable
me properly to assess the matter.
[11] It may well be that the
respondent did not pay the April and May rentals because of the
disconnection of the electricity and
water, but he does not set out
exactly when that happened. This may be relevant inasmuch as the
respondent’s attorney only
wrote the letter complaining of the
disconnection of the electricity and water some 50 days after the
rental for April was due.
But if that was the case I would have
expected the applicants in reply to set out exactly what happened.
This would have been particularly
relevant if the disconnection of
the electricity and water had taken place after the rentals for April
and/or May were due. That
was important, because if that was what
happened, then the respondent would have been in breach of the lease
agreement. A non-payment
of rental for two months without lawful
excuse would have undoubtedly constituted a repudiation of the lease
agreement. In this
regard each of the parties blame the other for not
setting sufficient detail to enable me properly to decide the matter.
[12] I am accordingly left in the
position where a dispute exists. That dispute is whether the
respondent was entitled to withhold
the April and May rental because
of the disconnection of the electricity and water. It is not part of
the applicants’ case
in its founding papers that the
electricity and water of the applicant had only been disconnected
after the dates for payment of
the April and/or May rentals. Nor is
this dealt with in reply. In any event and on the authority of
Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984
(3) SA 623
(AD) at 634 E – 635 C a court should only grant a
final a final order if the facts averred in the applicants’
affidavits
which have been admitted by the respondent, together with
the facts alleged by the respondent, justify such an order. I am also
entitled to disregard denials by the respondent where they do not
appear to raise real, genuine or bona fide disputes of fact.
[13] Neither counsel in their
arguments requested that I refer the matter to the hearing of oral
evidence of this issue. I, however,
raised the matter with the
applicant’s counsel. In my view, however, the applicants face
the difficulty that they are obliged
on their papers to set out their
case in full. The only case they have made out in the founding papers
has been met by the respondent,
creating a material dispute of fact.
The applicants’ reply does not take the matter any further. In
those circumstances,
the dispute of fact having been one which was
reasonably foreseeable by the applicants, the application must fail.
[14] I accordingly dismiss the
application with costs.
Date of hearing :24
th
November 2011
Date of judgment : 30
th
November 2011
Counsel for the Applicants P Wallis
(instructed by Pather & Pather Attorneys)
Counsel for the Respondent : I Pillay
(instructed by Attorney Vinay Yetwaru)