Seiti v Berlein and Another (AR 151/2009) [2009] ZAKZPHC 24 (5 June 2009)

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[2009] ZAKZPHC 24
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Seiti v Berlein and Another (AR 151/2009) [2009] ZAKZPHC 24 (5 June 2009)

13
NOT REPORTABLE
IN THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL, PIETERMARITZBURG
APPEAL NO. AR 151/2009
In the matter between:
STANLEY SEITI Appellant
and
BRIAN BERLEIN First Respondent
VEENA BERLEIN Second Respondent
____________________________________________________________________
JUDGMENT
____________________________________________________________________
GORVEN J
On 15 October 2008 two applications were set down for hearing by the
magistrate, Pinetown. The first was an application for the
eviction
of the appellant from the premises at 7 Heaton Nicholls Road, Kloof.
This had been preceded by an
ex parte
application brought in
terms of section 4 (2) of the Prevention of Illegal Eviction from
and Occupation of Land Act No 19 of
1998 (“PIE”). It is common
cause that the relevant notices were served on the appellant and the
municipality concerned.
The second application was one brought by
the appellant to discharge the order granted
ex parte
. The
magistrate granted the eviction pursuant to the eviction application
and did not deal with the application to set aside
the order granted
ex parte
. This is an appeal against the eviction order and
the failure to grant the application to set aside the order granted
ex parte
.
The respondents launched an application for condonation for the late
noting of the appeal and for the late filing of their heads
of
argument. The appellant initially opposed this application and put
up a lengthy affidavit and annexures. The notice of opposition
was
considerably out of time but the heads of argument were served on
the appellant timeously. They were, however, only filed
with the
registrar one day late. The attorney for the respondents has put up
an affidavit. This explains that her office has
a record in the
petty cash register of a registered item, presumably containing the
notice of opposition, being sent to the appellant
on 27 February
2009 but that she cannot locate the registered slip which proves
that the notice of opposition was in fact sent.
As pointed out, the
respondents’ heads of argument were served on the appellant in
time and no prejudice to him can ensue.
The reason for the late
filing of the heads of argument at court is likewise explained. The
affidavit of the appellant opposing
condonation mentioned that he
will be prejudiced since he has not seen the notice of opposition
and cross appeal. There was no
cross appeal and the notice of
opposition simply notified that the respondents opposed the appeal.
Faced with this information
the appellant, at the hearing of the
appeal, withdrew his opposition to the application for condonation.
A case was made out
for condonation and the application for
condonation was therefore granted.
The respondents instituted action against the applicant in the
Magistrate’s Court, Pinetown, by way of a summons bearing the
date
31 January 2008. In the particulars of claim delivered in support of
the summons, the respondents made the following material
averments:
4. On or about the 4 September 2004 and at DRUMMOND,
within the jurisdiction of this honourable court, the parties entered
into
an Agreement of Lease. A copy of the agreement is attached
hereto marked “A”.
The material terms of the Agreement were as follows:
‘
4a The rent for the fixed period is R5 500 … per
month payable monthly in advance on the first day of each month,
without any
deduction whatever, to be paid to the Lessor at Standard
Bank, Hillcrest Acc No 253725550 or to such other place as the Lessor
in writing from time to time directs.
6 a Pay all charges for electricity and water supplied
to the property.
b Pay all amounts due in terms of this lease free of
exchange.
f Keep the property clean, habitable and tidy and care
for and maintain the garden and swimming pool.’
6. On or about 25 July 2007, the parties entered an
Agreement to Extend the lease whereby the monthly rental payable by
the Lessee
increased to R6200.00 and the terms and conditions of the
original Lease were deemed to apply. A copy of the Agreement is
annexed
hereto marked “B”.
7. The Defendant has failed to pay the rental for the
months of October, November, December 2007 and January 2008.
8. The Defendant has failed to pay the full monthly
rental for the month of September 2007 in an amount of R100.00,
failed to pay
the full monthly rental for four months during 2006 in
the sum of R800.00, failed to increase the deposit in July 2007 in
the sum
of R1000.00 and withheld the sum of R1 000.00 during July
2005 for repairs to the gate which in terms of the lease agreement,
is
his responsibility.
9. The Defendant is in arrears with his rental in the
sum of R27 700.00.
10. Despite demand, the Defendant has failed, refused
and/or neglected to pay the aforesaid sum or any portion thereof to
the First
and Second Plaintiffs.
The prayer to the particulars of claim was for payment of the total
amount which the respondents claimed was in arrears and costs.
The
summons was in the form of a rent interdict summons provided for in
section 31 (1) of the Magistrates’ Court Act, No 32
of 1944. This
section allows for an interdict to prevent removal of furniture or
other effects subject to a landlord’s hypothec
for rent where a
summons is issued claiming the rent for any premises. It therefore
protects such a hypothec which would be lost
if goods subject to it
were removed from the leased premises.
The action was defended and a plea put up. In it the appellant
denied being in arrears with rental payments but admitted having

withheld rent for repairing the electric gates on the property. He
set up alternative defences in the event of the court finding
that
he had failed to pay rent on the basis that he was entitled to an
abatement of rent on various grounds.
The respondents thereafter launched what was referred to as an
ex
parte
application. This document appears in the record along
with a document headed Notice of Application, one headed “Notice
of
Proceedings in terms of Section 4 (2) of the Prevention of
Illegal Eviction from and Occupation of Land Act No 19 of 1998”

(“PIE”), an affidavit, a Draft Order Prayed and an Order Prayed.
The
ex parte
application sought an order in terms of section
4 (2) of PIE. This was correctly granted and, for some reason,
adjourned to 15
October 2008 when no such adjournment was necessary.
This is because it is an outright order to issue and serve the
relevant
notice alerting the appellant and the municipality that an
application for the appellant’s eviction would be sought on the

specified date. This was in accordance with the approach set out by
the Supreme Court of Appeal
1
.
The Notice of Application indicated that it would be heard on 15
October 2008 and sought the eviction of the appellant and allied

relief. It is pursuant to this application that the magistrate
granted the order. The affidavit appears to have been delivered
in
support of both the applications.
At the hearing on 15 October 2008 the appellant launched an
application termed an Application to Discharge. In it he sought a

“discharge of the Order granted
ex parte
herein”.
Although some debate took place as to the purpose of this
application between the magistrate and the appellant, this

application was not separately argued and the magistrate made no
order on it. In argument the appellant indicated that he did
not
persist with this aspect of the appeal. Accordingly, nothing further
needs to be said about it.
The application for eviction was vindicatory in nature. The
respondents asserted ownership of the property concerned. In order

to succeed in a vindicatory application, only ownership and the
possession by someone other than the owner need be asserted.
Our
law is to the effect that “
Prima facie
, therefore, proof
that the appellant is owner and that respondent is in possession
entitles the appellant to an order giving
him possession…”
2
This is because one of the rights arising from ownership is the
right to possession. However, where it is conceded that a right
of
occupation was given to the person in possession, the owner attracts
an
onus
to prove the lawful termination of that right of
occupation. If, in other words, the owner does not “concede an
existing right
to hold, but, nevertheless, says that a right to hold
now would have existed but for a termination which has taken place,
then
ex facie
the statement of claim he must at least prove
the termination, which might, in the case of a contract, also entail
proof of the
terms of the contract.”
3
This is the situation which confronted the magistrate in the court
a
quo
. The respondents relied upon their ownership. They further
conceded that the appellant had been given occupation pursuant to

the lease and the amendment to it. It was therefore necessary for
them to prove a lawful termination of the lease as amended. The

first respondent deposed to the affidavit in support of the
application. In it he did not deal at all with the position of the

second respondent or what interest she had in the application,
testifying that he was the owner of the property in question and

then went on to say:
5. Respondent is presently in unlawful occupation of the
property. The Respondent has no legal right to occupy the property.
6. Despite negotiations between myself and the
Respondent, and requests and demands by myself that Respondent vacate
the
property, the Respondent has refused and/or failed to do so.
……
8. The Respondent … gained occupation of the property
pursuant to an agreement of lease entered into between myself and the
Respondent
during or about 4 September 2004.
9. The Respondent has failed to pay rental due in terms
of the said lease, and as such, the Applicant has, in terms of
summons and
particulars of claim dated 31 January 2008, cancelled the
agreement of lease and reclaimed possession of the leased premises. A

copy of the said summons is annexed hereto marked “A”.
10. The Respondent and all those claiming occupation
under him have been in unlawful occupation of the property since the
said lease
was cancelled by myself as abovementioned.
The summons and particulars of claim annexed are those to which I
have referred above.
The appellant put up an answering affidavit in which he denied that
he was in unlawful occupation, denied that he had failed
to pay
rent, claimed that the respondents failed to comply with their
obligations which excused his compliance and stated that
the
affidavit contradicted the summons referred to since the summons did
not in fact allege cancellation or claim eviction.
No replying affidavit was delivered by the respondents.
It can therefore be seen that the respondents attracted an onus to
prove the termination of the appellant’s right to occupy
which had
admittedly been granted to him pursuant to the lease as amended. It
was necessary, accordingly, for them to prove that
the lease had
been lawfully cancelled. In her main heads of argument, Ms Lange
submitted that a number of matters were common
cause by referring to
the transcript of the argument. The argument should not have formed
part of the record. The reason for
this is that argument is not
evidence since the evidence is contained in the affidavits and their
annexures in the application
papers. This transcript must therefore
be ignored in dealing with the appeal and should have been ignored
by the magistrate.
Ms Lange, correctly in my view, conceded this
point in argument. However, she submitted that the magistrate
correctly held that
the appellant was not entitled to abate rent.
There is nothing in the agreement which precludes the abatement of
rent if a case
is made out. The common law position is that, unless
a lease agreement provides otherwise, a tenant is entitled to a
remission
of rent.
4
The appellant claimed in his plea to base this on clause 8 of the
lease and referred to this in his answering affidavit. The
evidence
at the trial may reveal partial destruction of the property and thus
entitle the appellant to invoke the provisions
of clause 8 rather
than the common law. It is correct, as Ms Lange submitted, that a
more appropriate place to resolve this issue
would be in the pending
action. However, since it was raised as a defence to the claim by
the respondents that the agreement
has been cancelled, it had to be
dealt with in the application.
Ms Lange submitted in her supplementary heads of argument that the
lease provides a basis for cancellation if the appellant remains
in
breach seven days after receiving notice requiring payment of the
rent. This is correct and appears from clause 9 of the lease.
She
went on to submit that the lease does not specify the form in which
the notice must be given and that the arrears rental
summons
suffices as notice demanding payment. This is also correct.
5
It is, however, important to distinguish
Noble v Laubscher
from the present matter. In that case, the clause in question
provided that, if the tenant had breached the agreement, the

landlord “should immediately have the right to declare the lease
cancelled…”
6
No notice to remedy the breach was required prior to cancellation.
Accordingly, the service of summons alleging a breach and

cancellation was held to have amounted to communication that the
landlord had elected to cancel the lease. In the present matter,
the
clause provides that should the appellant fail to pay rent “and
remain in default for seven days after receipt of notice…requiring

payment of the rent…the LESSOR shall have the right forthwith to
cancel this lease…” In other words, the present lease
provides
for a notice requiring payment of the rent. Should the appellant not
pay within seven days of receipt thereof, a right
to cancel accrues.
The respondents must then exercise this right and cancel the
agreement.
Ms Lange went on to submit that it was not in dispute that the
appellant remained in breach after receiving the summons. This
is
not so. It was not disputed that the appellant made no further
rental payments after receipt of the summons but it is in dispute

that he was ever in breach. She further submitted that, as soon as
the seven day period elapsed without payment of the arrears,
“the
lessee became an illegal occupier, and the lessor became entitled to
cancel, forthwith”. Even assuming that the appellant
was in breach
and, seven days after receipt of the summons remained in breach, the
occupation by the lessee under the lease can
only become illegal
once the lease has been cancelled. A mere entitlement to cancel on
the part of the respondents did not render
the appellant an illegal
occupier. What was required to do so was the act of cancellation.
This is because cancellation only
takes effect when it is
communicated to the other party to the contract unless the contract
in question provides otherwise.
7
No provision is made in the lease as amended that cancellation can
take place without communication. There was therefore a need
for the
respondents to communicate their election to cancel to the appellant
before cancellation can be said to have taken place.
The basis for cancellation of the lease made out in the application
for eviction is contained in paragraph 9 of the first respondent’s

affidavit. In it he alleged, “the Applicant has, in terms of
summons and particulars of claim dated 31 January 2008, cancelled…”

That was the cancellation relied upon in the application and no
other cancellation. That was the cause of action which the appellant

was invited to meet. However, as pointed out by the appellant in his
answering affidavit, his argument in the court
a quo
and his
heads of argument in this court, no averment of cancellation appears
from the summons and particulars of claim. As appears
from a perusal
of what is set out above, they are limited to a claim for arrear
rental. As such, as pointed out above, they constitute
the requisite
demand to the appellant to pay any arrear rental. Accordingly, even
accepting the version of the first respondent,
no case for
cancellation of the lease as amended on the basis claimed by the
respondents was made out. It was not stated in the
affidavit that,
insofar as the cancellation relied upon “in terms of summons and
particulars of claim” may not have taken
place, the respondents
there and then in the application cancelled the lease as amended. Ms
Lange submitted that the service
of the application itself in which
eviction is claimed should be held to have amounted to communication
of an election to cancel.
But this was not the case of the
respondents on the papers and they are bound by the cause of action
set out in the application.
It has been held that, in application
proceedings, “… an applicant must stand or fall by his petition
and the facts alleged
therein…”
8
This is because the affidavits stand in place of pleadings in
defining the issues. Since no cancellation is disclosed on the
basis
set out in the founding affidavit, the respondents did not discharge
the
onus
to show that the right of the appellant to occupy
had been lawfully terminated. It follows, accordingly, that on their
own version
the respondents were not entitled to the order granted
by the court
a quo
.
The respondents have even greater difficulty when the principles
applying to applications are brought to bear. It is trite that
an
order in an opposed application can only be granted if “the facts
as stated by the respondents together with the admitted
facts in the
applicant’s affidavits justify such an order.”
9
This test is only relaxed if the version put up by the respondent is
so clearly untenable as to warrant rejection on the papers.
10
In the present application the appellant denied that he had failed
to pay rent due. He went on to assert the
exceptio non adimpleti
contractus
as a defence, stating that the respondents had
prevented him from complying with his obligations by failing to
comply with their
obligations.
11
As indicated above, he then mentioned that if this were not
available to him, he claimed an abatement of rent having demanded

that the respondents comply with their obligations to maintain and
repair aspects of the exterior of the premises.
12
As a result, the entitlement of the respondents to give notice to
remedy any breach was disputed. If there had been no breach,
which
is what he said, no right to cancel could arise and the respondents
were not entitled to cancel. This means that on the
tests set out
above relating to opposed applications, even if the respondents are
held to have made out a case on their version,
they could not have
succeeded in the court
a quo
in the light of the factual
disputes raised by the appellant.
In the result, the following order is granted:
The appeal against the grant of the relief to the respondents under
the eviction application is upheld with costs.
The orders of the magistrate are set aside and substituted by the
following order:
“The application by the applicants in the eviction application is
dismissed with costs.”
__________________________
NDLOVU J
__________________________
GORVEN J
Date of Hearing: 29 May 2009
Date of Judgment: 5 June 2009
For the Appellant: Stanley Seiti (In Person)
For the Respondents: Ms N D Lange, instructed by Sarah Pugsley &
Associates
1
Cape Killarney Property Investments (Pty) Ltd v Mahamba and
Others
2001 (4) SA 1222
(SCA) Para [11] at p 1227G-H
2
Graham v Ridley
1931 TPD 476
at 479
3
Chetty v Naidoo
1974 (3) SA 13
(A) at 20 F-G
4
Poynton v Crann
1910 AD 205
5
Noble v Laubscher
1905 TS 125
at 125
6
Loc cit
7
Swart v Vosloo
1965 (1) SA 100
(A) at 105G-H
8
Pountas’ Trustee v Lahanas
1924 WLD 67
at 68, approved in
Director of Hospital Services v Mistry
1979 (1) SA 626
(A) at
635H-636A
9
Stellenbosch Farmers’ Winery Ltd v Stellenvale Winery (Pty) Ltd
1957 (4) SA 234
(C) at 235E-F
10
Plascon Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984
(3) SA 623
(A) at 635C
11
This is a permissible defence to a claim for rent where obligations
are reciprocal as betweem the parties cf
Ntshiqa v Andreas
Supermarket (Pty) Ltd
1997 (3) SA 60
(TkSC) at 67B-J
12
Poynton v Crann
1910 AD 205
at 227