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2009
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[2009] ZAKZPHC 23
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Stand 2436 PMB (Pty) Ltd v Takor (8684/08) [2009] ZAKZPHC 23 (1 June 2009)
IN THE HIGH
COURT OF SOUTH AFRICA
KWAZULU-NATAL,
PIETERMARITZBURG
CASE NO. 8684/08
In the matter between :
STAND 2436 PMB (PTY)
LTD
Applicant
and
ISAAC KWESI
TAKOR
Respondent
J U D G M E N T
Delivered on
1 June
2009
SISHI, J.
:
[1]
The Applicant is the owner of an immovable property known as Selgro
Shopping Centre,
situated at 361 Church Street, Pietermaritzburg (the
Selgro Centre). The Respondent is a businessman who operates
his businesses
from Shop 42, 44 and Shop 5 of Selgro Shopping Centre,
Church Street, Pietermaritzburg. At all relevant times Colliers
International
(Pty) Ltd was acting as an agent and property manager
of the Applicant in respect of the Selgro Centre. During
February 2003
the Respondent personally and the Applicant duly
represented by Mr. William Wayne Barnes in his capacity as a Director
of Colliers
International (Pty) Ltd entered into a lease agreement in
respect of Shop No. 5, Selgro Centre. In terms of the lease
agreement
the lease was for a period of five years from 1 February
2003 to 31 January 2008.
[2]
The Applicant has approached this Court wherein it seeks an order in
the following
terms :
(a)
That it be declared that the Agreement of Lease entered into by the
Applicant and Respondent
during or about February 2003 expired on 31
January 2008;
(b)
An order evicting Respondent from the premises at Shop 5, Selgro
Shopping Centre, 362 Church
Street, Pietermaritzburg.
(c)
Costs of suit.
[3]
This application is opposed by the Respondent. In terms of the
order of this
court dated 25 March 2009 this matter was referred for
the hearing of oral evidence on the question of whether the
Respondent gave
timeous and proper notice to the Applicant of his
intention to renew the lease.
[4]
It is undisputed that the parties entered into the lease agreement
for a period of
five years. The lease provides for an option to
extend it for a further period of five years, the lease would have
expired
on the 31 January 2008. The option which would have
been exercised the 31 July 2007. If the option was exercised
the
agreement makes provision for a 12% escalation in rental.
The lease agreement further provides that that option should be
exercised in writing.
[5]
It is the Respondent’s case that he did indicate in writing to
the Applicant’s
agent that he desired to renew the lease not
only of the premises in question, i.e. shop no. 5, but also to the
other shops 42
and 44 of which he was also the lessee, and that one
single letter was written covering all three shops, shop 5, shop 42
and shop
44. The letter was sent to the physical address of
applicant’s agent which address was taken off its rental
statements.
It is the Applicant’s case that no such
notice was ever received.
[6]
It is common cause between the parties that should the court find
that the Respondent
did not give timeous and proper notice to the
Applicant of his intention to renew the lease, the application should
succeed and
the relief claimed in paragraphs 1, 2 and 3 of the Notice
of Motion ought to be granted. On the other hand should the
court
find that Respondent did indeed give timeous and proper notice
to the applicant of his intention to renew the lease, then the
application
ought to be dismissed.
[7]
The Respondent’s testimony is that he read and understood the
terms of the lease
agreement. He specifically referred to
Clause 3 of the Lease Agreement, Annexure “A” to the
papers dealing with
renewal. His evidence was that he knew when
and how to renew the lease agreement. Clause 3.3 of the lease
agreement
states that the tenant shall give the landlord written
notice of his intention to exercise this option of renewal by not
later
than six calendar months prior to the expiry of the initial
period of lease. If the tenant does not give notice by then
this
option of renewal shall lapse. He testified that in order
to exercise his option to renew the lease, he had to write to the
landlord a letter of renewal. Since the lease was ending in
January 2008 he had to send them a letter before July 2007.
As
it was his intention to continue trading, he stated that prior to the
31 July 2007 he addressed a letter to the landlord’s
agents
Collier International in which he confirmed his intention to renew
the lease for the further period of five years and requested
that
such renewal be effected. It was his testimony that he operated
three shops in this shopping centre Shop Nos. 5, 42
and 44. Two
of the shops are operated as hair salons and one as an internet
café. He drafted this letter of
renewal in handwriting
and gave it to Raymond Manful his internet café manager to
type it and send it to the address which
was on the rental statement.
Raymond Manful was instructed to send this letter to the address 2
Derby Place, Derby Downs Office
Park, Westville,3630. Raymond
Manful carried out this instruction and he also testified and
confirmed that he was given instruction
to type such a letter and
send it to the address shown in the rental statement.
[8]
According to the evidence of Mr. Manful he did type the letter and
saved it on the
hard drive. He did not retain a copy of the
letter nor did he give it to the Respondent. Mr. Manful used
one of the
six computers in the internet café to type the said
letter, however, when he was asked to retrieve the said letter by the
Respondent, he could not find it on the hard drive of the computer.
The explanation therefor was that the computers are also
used in the
internet café by the members of the public and when the hard
drive is full the information thereon is erased
and if they want to
get rid of the virus they have to empty the hard drive of the
computer. You format the whole thing to
start afresh. By
this one destroys all the documents that have been previously saved
on the hard drive.
[9]
Wayne William Barnes the director of Colliers Property and Facilities
Management (Pty)
Ltd testified on behalf of the Applicant. He
confirmed the current address wherein they operate in Durban as 2
Derby Place,
Derby Downs Office Park, Westville. The Applicant
in this matter is the landlord and they manage the property on behalf
of
the client. The Applicant is the owner of the property
Selgro Centre. He confirmed that there was a lease agreement
concluded between the Applicant and the Respondent in respect of Shop
no. 5 in Selgro Centre which was concluded in 2003.
He is also
aware that there is an option built into the agreement in terms of
which the Respondent could exercise the option for
renewal for
another five years.
[10]
He did not receive any notification of an intention to exercise the
option of renewal of the
lease. The option should have been
exercised before 31 July 2007. He explained that the 2003 lease
refers to 7 Derby
Place and the present address is no. 2 Derby
Place. The reason therefor was that they relocated from 7 Derby
Place to 2 Derby
Place on the 1 September 2006. His evidence
was that if that letter was received it would have come to his
attention.
He testified that he did a thorough search after
receiving the Answering Affidavit of the Respondent and again went
through the
records to see whether any such letter came. Such
letter could not be traced. He receives mail delivered to
physical
address as well as the postal address.
[11]
He testified that the negotiation meetings which were held after the
31 July 2007 were held because
Mr. Takor the Respondent was
complaining about the trading hours within the centre more especially
Shop no. 5. He could not
get access out of the trading hours
and he wanted the landlord to extend the centre trading hours
accordingly. That was discussed
and he was informed it was not
possible to extend the trading hours for one specific tenant.
It came about after numerous
discussions after July 2007 that they
would not renew that lease agreement due to the required trading
hours within the centre.
The landlord after discussion declined
to keep the centre open specifically for one tenant. When he
was asked if that was
the reason for the non-renewal of the lease, he
stated that there was no option they did not receive a written option
or written
intention that the tenant would like to exercise the
option to renew the lease. The tenant at no stage prior to the 31
July 2007
gave an indication that he wanted to renew the lease.
At no stage prior to 31 July 2008 did Applicant indicate to the
Respondent
that they were not going to renew the lease because of
this issue regarding trading hours. There were more then one
meetings
of such nature and that at such meetings the Respondent at
no stage indicated that he wanted to exercise his option, the option
to renew the lease. He was advised verbally that the lease
would not be renewed. When he was advised that the lease
would
not be renewed they suggested that he actually look for alternative
premises. They actually offered him alternative
premises within
the centre in Pietermaritz Street, in order for him to trade longer
hours but he declined. This offer was
made to the Respondent
during the latter part of 2007. He requested longer hours only
in respect of shop no. 5.
[12]
He then identified two documents in Bundle “B” referring
to shops 42 and 44 and stated
that these documents are offers to
lease which are presented to respective tenants when they sign these
offers then they are presented
to the landlord and should the terms
and conditions be acceptable then they would actually be instructed
by the landlord to send
acceptance letters. Once one gets an
acceptance then they have got a binding agreement. Thereafter
the lease agreements
will be sent to the respective tenants. As
the lease agreements for shops no. 42 and shop no. 44 expired in
January 2008
these were basically documents for the new terms and
conditions of the proposed lease agreements in order to present to
the landlords
for acceptance.
[13]
He disputed the Respondent’s evidence that he exercised the
option and as a consequence
of exercising the option these documents
were sent to him. If he had received a document to exercise an
option they would
basically forward a document thereafter and if the
Respondent had exercised the option within the duration of six months
as the
lease provided, these documents would not have been sent to
him. This was only sent to him on the 25 January 2008 whereby
the lease expired at the end of January 2008. If the respondent
had exercised his option timeously they would send him a
letter
advising him that he had exercised his option and all the terms and
conditions are within the lease agreement. The
landlord advised
them to give them a three years lease in terms of the documents
referred to above. If the two documents
referring to shop nos.
42 and 44 were sent to the respondent as a consequence of him
exercising his option as he testified, those
documents would not have
referred to a lease period of three years instead it would have been
a five year period because of the
option period of five years in the
original lease.
[14]
The Respondent’s testimony was that he was very surprised when
he received these documents
in respect of shops nos. 42 and 44 and
not in respect of shop no. 5. He testified that at their
meetings during the latter
part of 2007 they advised the respondent
that the lease agreement in respect of shop no. 5 would not be
renewed. They actually
sent him a letter advising him that only
the other shops would be renewed and not shop no. 5. That is
the reason why he did
not receive any document in respect of shop no.
5.
[15]
He then referred to the letter in Bundle “B” dated 15
October 2007 which reads as
follows :
“
LEASE AGREEMENT -
SHOP 5, SELGRO CENTRE
We refer to our previous
discussions and hereby confirm that we will not be renewing the lease
agreement for the abovementioned
premises, which expires on 31
January 2008.
Please note that the Landlords
are prepared to renew the lease agreements for shop numbers 42 and
44, subject to upgrading your
stores.
”
He
then referred to a letter dated 17 October 2007 from the Respondent’s
attorneys wherein they require to be furnished with
reasons for not
renewing the lease agreement.
He
then testified that this letter was responded to by a letter dated 29
October 2007 from Colliers International addressed to the
Respondent’s attorneys and this letter reads as follows :
“
SHOP NO. 5 SELGRO CENTRE
: I.K. TAKOR
Your fax dated 17 October 2007
refers.
We have had numerous meetings with
Mr. Takor and have advised him of the reasons why the Landlords will
not renew the lease agreement.
To reiterate, the rationale behind
the decision was due to Mr. Takor’s requests for the Centre to
alter the trading hours.
The Landlords were not prepared to
entertain such requests and decided not to renew the lease.”
He
then testified that the respondent actually ignored their letter and
made no attempt to vacate the premises. They then
extended the
notice by two calendar months to the 31 March 2008 failing which they
would have to apply to a High Court for an eviction
order.
[16]
He then referred to one of the documents dated 2 June 2008 which is
similar to the two documents
relating to shop nos 42 and 44 but the
terms thereof are different to those relating to shop number 42 and
44 and this document
relates to shop number 5. According to Mr.
Barnes this was a new lease agreement because there was no option to
renew.
This document was sent to the Respondent as he
approached him and stated that he wanted to resolve all the matters
and he was prepared
to adhere to the management’s rules of the
shopping centre and to try and resolve matters as opposed to going to
the High
Court for eviction. The new lease agreement was
subject to certain terms and conditions which are outlined on page 3
of the
same document. Amongst these were the payment by tenant
of the high court costs of litigation expended thus far. At
that stage fresh instructions were given to attorneys to proceed with
the eviction.
[17]
The Respondent’s evidence regarding the new lease for shop no.
5 was that the landlord
had taken the 9cm out of the shop for another
tenant. After that he was asking for R23 000.00 instead of R15
000.00 rental.
He told him that that was too much. It was
almost 100% increment on rental. He told him that the rent was
R13 605.00
in respect of the old lease. It was now R23000.00
almost twice the normal rent he was paying. The normal
escalation
in terms of the previous lease was 12%. The
Respondent was not happy with the lease. He testified that all
of a sudden
they raised the issue of not receiving a letter of
renewal of lease whilst they did not tell his attorney about this
issue.
[18]
Mr. Barnes testified that at that stage instructions were given to
their attorneys to proceed
with the eviction. Mr. Barnes then
testified that the documents in respect of shop no 5, the new lease
agreement, and those
in respect of shop nos 44 and 42 were never
returned to him. The present position as far as occupation of
the two shops,
shops 42 and 44 is that his rental is up to date and
the terms of his occupation and that he is on a month to month
tenancy.
There is no written agreement in respect of both shops
nos 42 and 44. There is also no agreement at all in respect of
shop
no. 5 that is why they have applied for eviction. He then
testified that in respect of shop no. 5 there is a substantial amount
of arrears to the tune of R160 000.00. However in his affidavit
deposed to on the 18 June 2008 he alleged that there is currently
an
amount of R6 673.16 in rentals due to the Applicant in respect of
shop number 5 which the respondent refuses to pay and he has
annexed
a statement marked “D” in support thereof. The
Respondent’s evidence on the other hand is that
even though the
applicant stopped sending him statements in respect of shop no. 5 he
continued paying rental using the old statements.
[19]
Mr. Pretorius for the Applicant submitted that it is trite law that
in respect of the issues
before Court, the Respondent carries the
onus and he referred to the following cases :
Pillay
v Krishna & Another
1946
AD 946
; Rhoodie v
Curitz
1983(2) 431 CPD at
435 G; and
Cash-In CC
v OK Bazaars (1929) LTD
1991(3)
SA 353 at 362 A.
He
submitted that in
Rhoodie v Curitz
,
supra
, the Court
stated the following :
“
The onus of establishing
that notice of renewal was communicated by the Respondent, to the
Applicant, or that the Respondent exercised
his option to renew,
effectively rests on him the respondent”.
He
then referred to the case of
Cash CC v OK Bazaars (1929) Ltd
supra
at 362 A – B wherein SCOTT J. held that his construction of
clause 3, the Defendant was obliged in order to be entitled to
renew
the lease, to establish:
“
(i) that
notice had been given in terms of clause 3.2; and
(ii)
that it was not in
default of any of the provisions of the lease upon its expiry; and
(iii)
that it had complied with all the terms and conditions of the lease
…”
He
then referred to the book by Cooper : Landlord and Tenant 2nd Edition
at page 347 where he says :
“
A Lessee who wishes to exercise his option
to renew must communicate to the Lessor his acceptance of the
latter’s offer
”
.
He
submits that it is also clear from Cooper’s work that if he
does not do so or if he does not exercise or communicate within
the
period open for such then it lapses.
Mr. Pretorius submits that the
Respondent has not satisfied this onus.
[20]
Mr. Blomkamp for the Respondent submitted that he is not so sure that
the onus is on the Respondent
in this case. He submitted that
the Applicant did not simply say in his application “I am the
owner of the premises,
the Respondent is in occupation unlawfully and
I want him ejected”. He submits that in that situation,
the onus would
have been on the Respondent to establish that he had
some basis for occupation, some lawful basis for occupation and it is
not
what occurred in this case. The Applicant goes considerably
further and states that he had a lease. If he wanted to
renew
the lease he had to exercise his option to renew the lease in
writing. He did not do so. The Respondent on the
other
hand says that he exercised the option to renew the lease by writing
a letter which the Applicant must have received.
The Applicant
on the other hand says that he did not receive this letter. In
that situation Mr. Blomkamp submits that the
onus is on the Applicant
and if at the end of the day, the Court finds that it is not possible
to say that the Applicant’s
version is true and that of the
Respondent is false, the onus has not been discharged and the
application must be dismissed.
The
case in point on this issue is
Chetty
v Naidoo
1974(3)
SA AD 21 AT 20 A – E.
This
case mainly dealt with the incidence of proof in ejectment
proceedings. The court found that where in ejectment
proceedings
the owner admits that the defendant was a monthly tenant
but averring that tenancy terminated the onus in such circumstances
is
on the defendant to establish the right of occupation. (See
also
de Villiers v Potgieter and Others NNO
2007(2) SA 311 at
316 para 12)
.
[21]
The authorities referred to above by Mr. Pretorius on the issue of
onus are clear on this point.
Cooper in his work referred to
above also refers to the cases of
Rhoodie v Curitz
supra
and
Cash-In CC v OK Bazaars
in support of the principle that
the onus is on the Lessee who claims he duly exercised his option to
renew the lease. In
the light of these authorities the
submission by Mr. Blomkamp that the Applicant bears the onus of proof
in this matter cannot
be correct. I therefore find that the
Respondent bears the onus to prove on a balance of probabilities that
he duly exercised
his options to renew the lease and that it was
communicated to the Applicant.
[22]
It is clear from the Respondent’s evidence that he knew that he
had to exercise his right,
the option to renew the lease prior to 31
July 2007. It is clear that he understood the terms of the
lease. He read
it, he knew exactly what he had to do and what
his rights and obligations were. His evidence was that he had
sent such a
notice by ordinary mail prior to 31 July 2007. He
did not keep a copy of this letter. The notice of renewal was
in
respect of all three shops and this was only saved on the hard
drive of the computer. One of the computers used by the members
of the public to write letters in the internet café. He
also did not make a follow up if this notice was communicated
to the
applicant. He and his witness Mr. Manful could not remember
when this notice was sent to the applicant. One
would expect a
prudent businessman to keep a copy of such a letter and even to make
a follow up to ensure that the notice was communicated
to the
Applicant. The Respondent had a responsibility to ensure that
the notice of renewal was communicated to the Lessor.
The
Respondent failed in this regard.
[23]
Mr. Pretorius submitted that if one looks at the explanation tendered
by the Respondent as to
why he says that notification must have been
received by the Applicant he says that he received the documents on
pages 15 –
20 of Bundle “B”. Those documents
are an offer by the Respondent to the Applicant indicating that he
would like
to rent the two shops 42 and 44. The offer was open
for a period of six days until 31 January 2008 and then the landlord
had to accept that and then further paperwork would be put in place.
The Respondent says that he received those documents
and those
documents must have been sent by the Applicant as a consequence of
him having exercised his option i.e. some six months
later. He
was not concerned about the fact that he did not hear anything from
then until less than a week before the leases
would have expired and
then he got those documents. He did not get such documents in
respect of shop no. 5, this shop was
important, his evidence was that
it was his main shop because it was the biggest of the three shops.
He says that he was
surprised but he did not do anything about it.
Mr. Pretorius then referred to
Cooper : Landlord and Tenant
where it is stated that an option that has been given and that has
been exercised the terms should be the same as the main lease
unless
specific terms are specified for the main lease. In the instant
case the lease says it shall be on the same terms
and conditions
except for the escalation which has also been provided for and it
shall be for 5 years. In these documents
there is an offer to
lease for three years. Mr. Pretorius submitted correctly in my
view that it can clearly not be the same
document. It is
therefore clear that the Respondent’s evidence that these
documents were sent to him as a consequence
of his election to
exercise the option, should be rejected as false outright.
[24]
There is a further letter by the Applicant sent in October 2007
saying:
“
The Landlord is willing to
give you a lease in respect of shop number 42 and 44 but not 5
because of the trading hours.”
Mr.
Pretorius submits that as far as the Applicant is concerned
everything that Mr. Barnes said tallies up with the correspondence
placed before Court and what the Respondent says is simply improbable
and all that he has is his word and that there is nothing
more to
substantiate what the Respondent says. He then referred to the
evidence of the Respondent’s second witness
Mr. Manful and
stated that in his evidence in chief he was asked to read the address
appearing on the rental statement and he read
it twice as 9 Derby
Place. It was only when it was pointed out to him by the
Respondent’s counsel that it is indeed
no. 2 Derby Place and
not 9 did he correct himself. He also submits that Mr. Manful
indeed typed the letter and indeed mailed
the letter which appears to
be improbable then the possibility exists that he would have either
typed the address incorrectly or
could have written an incorrect
address on the envelope. There was no return address on the
envelope. Mr. Pretorius
submits that even if the Court finds
that such a letter was prepared and was mailed which he submits on
the evidence the Court
should not then there is always a possibility
that an error could have occurred when the witness Manful had to
write the address
on the envelope.
[25]
He then submitted, correctly in my view, that Mr. Barnes for the
Applicant was a good witness,
he was straightforward; he answered
questions directly, and he made concession when he had to make
concessions e.g. when it was
suggested to him that there may
sometimes, or where the tenant did not exercise his lease he may
follow up with him in order to
secure himself, he said Yes and that
does happen but the distinction is very important that if that
happens a new lease is entered
into so it does not have an effect.
[26]
On the other hand Mr.Tako was an evasive witness. He on many
occasions under cross-examination
did not answer questions. It
was even put to him that it was going to be argued at the end that he
was evasive and that he
tried to avoid giving a direct answer.
His evidence simply does not add up.
[27]
A lot was said to Mr. Barnes under cross-examination as “Why
did you Give them a reason
when they asked for a reason in the
letter. Why didn’t you simply say we are not talking to
you. We are not entitled
to be in occupation or your leases
expired”. He said they asked him for an answer and he
gave them an answer.
There was nothing untoward that it is
proper business ethics.
[28]
Mr. Pretorius finally submitted that the version by the Respondent is
improbable and the Court
can safely reject it and the Respondent
carries the onus. The evidence presented on behalf of the
Applicant was probable.
It was good in all material respects
and the Court can safely accept that evidence. The Court should
not have any difficulty
to find that the option was not exercised
timeously in terms of the agreement and there was no notice and in
any event it was never
communicated to the Applicant and therefore
the Applicant should succeed and an order should be granted in terms
of the Notice
of Motion.
[29]
Mr. Blomkamp on the other hand said the version of the Respondent in
this matter is not improbable.
The fact that he did not diarise
the date of the renewal of a lease as a businessman who rented the
premises knew that his lease
should be renewed six months prior to
the expiry of the lease. He wrote a letter asking Mr. Raymond
Manful to type this letter
and he submits that there is nothing
improbable about that. In the case of a lease that expires five
years later it is not
improbable at all that the lessee would make a
mental note. He submits that it is presumably implicit in the
inference because
they did not find such a letter that it could not
have been written. If one looks at the probabilities hereto it
is not unknown
that an organisation, correspondence goes missing or
is misfiled and cannot later be found. He submits that at
macroscopic
level the probabilities are equally balanced in this
case. He submits that one then has to look at the credibility
and refers
to paragraph 154 of the Applicant’s heads which
reads as follows :
“
It is improbable that the
Respondent would recall the time at which the option ought to be
exercised, and this places a serious
question mark over the
credibility when he states, allege, that two years later that he
cannot recall when he actually gave the
notice”.
Mr.
Blomkamp submits that first of all there is nothing improbable about
the fact that he would remember when he had to give the
notice.
The date when the letter is written that is something that he is not
likely to be able to recall.
[30]
He submits that if the Respondent and his witness wanted to lie it
would have been the simplest
thing in the world for them to type out
a letter, give it a date either in July of the year when it was
supposed to have been sent,
print out and say this is the letter
which was sent.
[31]
Mr. Blomkamp submits that the argument by Mr. Pretorius that in terms
of the lease it had to
be sent by registered mail is not correct.
He submits that in the clause requiring notice to be sent by
registered mail or
hand delivered to the premises is the clause of
the lease that deals with the situation where one party is in breach
and the other
party puts him on terms to remedy the breach. He
submits that in those circumstances the notice has to be sent by
registered
mail. He submits that when it comes to the renewal
of the lease that is dealt with in clause 3 of the lease and clause
3.3
of the lease provides as follows :
“
The tenant shall give the
Landlord written notice of its intention to exercise this option of
renewal by not later than six calendar
months prior to the expiry of
the initial period of this lease. If the tenant does not give
notice by then this option of
renewal shall lapse.”
Mr.
Blomkamp submits that the clause does not say that the notice has to
be sent by registered mail. It does not say that
the notice has
to be sent in accordance with the terms set out in clause 45 and
dealing with notices and domicilia.. Clause
45 provides as
follows :
“
45.
NOTICES AND DOMICILIA
45.1
All notices hereunder by
: -
45.1.1
…
45.1.2
the tenant to the landlord shall be considered to be duly served when
sent by prepaid registered letter post to the landlord or delivered
by hand to the current place of payment of rental, which address
the
landlord nominates and chooses as its domicilium citandi et
executandi,”
Clause
45.1 states that all notices hereunder …. 45.1.2
the tenant to the landlord
…. There is nothing
which stipulates that this clause of the lease deals with the
situation where one party is in
breach and the other party puts him
on terms to remedy the breach. The way in which the section and
sub-sections are worded
should include all notices in terms of the
lease which in my view includes all sections dealing with notices in
terms of the lease.
Mr. Blomkamp
’
s
submission in this regard cannot be correct.
In
any event what the Respondent was required to do in terms of the
lease was to communicate in writing his intention to exercise
the
option to renew the lease.
The main issue in this matter was
whether he did so or not.
[32]
Mr. Blomkamp also submitted that it was not necessary for the
Respondent to have printed and
kept a copy of the letter of renewal
of the lease if it was saved on the computer. Because when it
becomes necessary to refer
to this document they will be able to
print it out from the hard drive of the computer and the document
will be made available.
This argument goes against the evidence
tendered on behalf of both the respondents that if there is a virus
on the computer all
the information on the hard drive is erased.
That is the reason why they should have kept a printed copy of this
document
so as to avoid the situations where when the information on
the hard drive is erased. They were also well aware that this
computer is normally used by members of the public. The information
on the hard drive could be interfered with.
[33]
Mr. Blomkamp also submits that nothing is to be made of the fact that
when the witness Manful
was asked the address at which he sent the
document he stated that it was 9 Derby Place when the exact address
was 2 Derby Place.
That it was accurate that the letter was
sent to the wrong address. He submits that even if that was the
case there is one
Collier International in the area of Westville.
It was addressed to 9 Derby Place instead of 2 Derby Place it would
nevertheless
have reached its destination.
Mr. Blomkamp conceded that if it is
accepted that the Respondent did indeed write and send this letter by
ordinary mail and it was
waylaid in transit that is not the
landlord
’
s concern.
In my view by sending this letter by ordinary mail without a return
address the Respondent was running the very
same risk contemplated
herein.
[34]
I have already indicted above that the Respondent bears the onus to
establish his right to be
in occupation of the property in question.
In dealing with two mutually destructive versions, the correct
approach for deciding
whether the Plaintiff has discharged his onus
is stated in the often quoted dictum of WESSELS J.A. in
National
Employers Mutual General Insurance Assocation v Gani
1931 AD 187
at 199 :
“
Where there are two stories
mutually destructive before, the onus is discharged, the Court must
be satisfied upon adequate grounds
that the story of the litigant
upon whom the onus rests is true and the other is false”.
This
was cited with approval in
Machewana v Road Accident Fund
2005(6) SA 72 at 76 A – F. In the present matter one has
to determine which of the two versions is more probable than
the
other.
[35]
There are a number of facts which indicate some improbabilities in
the version of the Respondent.
There is no explanation
from the Respondent as to why the letter wherein he communication his
intention to exercise his option
of renewal of the lease was not sent
by registered mail or hand delivered to the Respondent. There
is also no reason why
prior to the expiration of the lease or on the
date the lease expired he could have enquired from the Applicant
whether the said
letter was received.
The
Respondent’s evidence that the documents which were described
as an offer to the landlord to enter into a new lease for
a period of
three years in respect of shop no. 42 and 44 these documents could be
construed as renewal documents as a consequence
of his election to
exercise the option to renew the lease. A similar document was
also sent to him in respect of shop no.
5 and all these documents
referred to a lease for a period of three years and not a lease
period of five years as it is stipulated
in the original lease
agreement. The Respondent’s evidence is that he read and
understood the terms of the lease.
Respondent
’
s
evidence was that he was surprised when he did not receive a renewal
document in respect of shop no 5 at the time he received
the document
in respect of shop no. 42 and 44. It is however surprising that
he did not do anything thereafter.
[36]
Mr. Barnes who gave evidence on behalf of the Applicant was a good
witness. He was clear
and straightforward and answered
questions directly and did not contradict himself. He was a
reliable, good witness.
The Respondent on the other hand was
evasive. In some instances questions had to be repeated to
him. He did not give
direct answers to questions put to him.
The same could be said of his witness Manful. Mr. Barnes’
testimony was
clear and straightforward. His evidence was that
no notice was received by the company. He stated that a search
was
conducted by two staff members of all the files. He himself
was also involved in the search through the three files and the
said
letter could not be found.
The Respondent
’
s
version in this case is beset with inherent improbabilities as
referred to earlier on in this judgment. The version of the
Applicant is far more probable than the version of the Respondent.
In
National Employers General Assurance Company Ltd v Jaggers
1984(4)
SA 437 E at 444 it was held :
“
Where therefore the
probabilities are evenly balanced and where there can be no findings
on the relative credibility of the witnesses
it seems to me that the
only conclusion to which the Court could have come was that the
Respondent (Plaintiff) had failed to discharge
the onus which rested
on him).”
I
have already determined in this case that the probabilities are
certainly not evenly balanced.
I
am satisfied that the version of the Applicant is supported by the
credible evidence of Mr. Barnes and documentary evidence.
I
have no reason to doubt the reliability of his evidence. The version
of the Respondent is inherently improbable and therefore
false.
[37]
Even if I am wrong in this regard if the probabilities are evenly
balanced and the Court is unable
to say which one is more probable
than the other the onus bearing party must fail as Mr. Blomkamp
submitted. It means that
the onus bearing party has not
discharged the onus. In the present case I have already determined
that the Respondent bears the
onus of proof that he has a right to be
on the property. He has certainly not discharged this onus.
[38]
In the circumstances the Court accepts the evidence given by Mr.
Barnes and rejects the evidence
given by the Respondent and Mr.
Manful. I am satisfied on the totality of the evidence that the
Respondent did not give timeous
and proper notice to the Applicant of
his intention to renew the lease.
[39]
In the circumstances the Applicant as the registered owner of the
property in question and having
established that the Respondent’s
lease terminated, that he failed to give timeous and proper notice to
the Applicant of
his intention to renew the lease and that he was in
unlawful occupation of the said property is entitled to the eviction
order
and the other orders referred to in the Notice of Motion
against the Respondent who has not established a right to be on the
property.
There is no reason why the costs
should not follow the result in this matter.
In the result I make the following
order :
1.
It is declared that the agreement of lease entered into by the
Applicant and
the Respondent during or about February 2003 expired on
the 31 January 2008;
2.
An order is granted evicting the Respondent from the premises at shop
no. 5,
Selgro Shopping Centre, 361 Church Street, Pietermaritzburg,
KwaZulu-Natal.
3.
Respondent is ordered to pay the costs of the application.
__________________________
SISHI
J.
Judge of the High Court
KwaZulu-Natal, Pietermaritzburg
Date of hearing
: 5 and
11 May 2009
Date of Judgment
:
1 June
2009
Applicant’s attorneys
:
Mason
Incorporated
251 Church Street
Pietermaritzburg
Applicant
’
s
Counsel
:
Advocate C.J. Pretorius
Respondent’s
Attorneys :
Nasen Naicker
Attorneys
Respondent
’
s
Counsel :
Advocate P.J. Blomkamp