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[2008] ZAWCHC 290
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Communicare v Missions Outreach (3530/2007) [2008] ZAWCHC 290 (10 November 2008)
IN
THE HIGH COURT OF SOUTH AFRICA
(CAPE
OF GOOD HOPE PROVINCIAL DIVISiON)
CASE
NO:
3530/2007
DATE:
10
NOVEMBER 2008
In
the matter between:
COMMUNICARE
APPLICANT
versus
MISSIONS
OUTREACH RESPONDENT
JUDGMENT
TRAVERSO,
DJP
:
1.
This is an application in which the applicant asks for the
following relief:
1.1
That the respondent and all those occupying the property known as a
portion of the farm Morning Star, situated at Koeberg
in the
division of the Cape, held under deed of transfer No 21416/1948, and
which was leased by the applicant to the respondent
in terms of an
agreement of lease dated 15 July 2000
r
be ordered to vacate the property on a date to be determined by the
Court.
1.2
That failing compliance with paragraph 1 above, the respondent and
those in lawful occupation on the property under it be
evicted from
the property and
1.3
Further an order is sought for the destruction and the removal of
the structures erected by the respondent on the property
as listed
on a schedule which is attached to the notice of motion.
Both
the applicant and the respondent are section 21 companies who do
outreach and community work. It is most unfortunate that
this matter
had to find its way into the courts. Be that as it may, the
applicant relies on an agreement of lease for the relief
that it is
claiming, which contains inter alia, the following clause:-
"Duration
The
lease shall be for a fixed period of nine years and 11 months,
commencing on 1 July 2000, with the option of extension on
terms to
be negotiated as and when appropriate, and further subject to three
months written notice of termination to be given
by either party to
the other."
There
is also a breach clause, which is clause 11, and which provides
that:-
"If
the lessee should fail to pay rent or any other monies due under the
lease punctually, or commit or permit any breach
of the conditions
of the lease and remain in breach for 14 days after the receipt of
written notice of the breach from the lessor,
the lessor would have
the right to terminate the lease without further notice and to
re-take possession of the property."
On
behalf of the applicant it was argued that the lease, properly
interpreted, permits of three months notice of termination during
the initial fixed period. This of course is over and above the
rights of cancellation provided for in clause 11, to which I have
referred and which gives the lessor the right to terminate the lease
in the case of breach.
The
legal principles relevant to the interpretation of agreements are
weM-established. In the limited time availabfe to me, I
do not think
that an extensive discussion of the relevant authorities will be
appropriate.
I
return to the matter under consideration. Clause 4.1 of the
lease, under "Use of Property" reads as foElows:-
"The
lessee shall be entitled to use the property for agricultural
purposes and for the erection and operation of a rehabilitation
and
counselling centre, including the provision of safe accommodation
for persons partaking in any programme, subject always
to the
permission and conditions imposed from time to time by the focal
authority or any other statutory body."
The
respondent took occupation of the premises and conducted its
business on the premises. It becomes apparent from the papers
that
there was a time when the applicant no longer wanted the respondent
to occupy the premises. This led to the applicant, on
14 March 2006,
notifying the respondent that it was conducting a drug
rehabilitation centre in conflict with the Prevention and
Treatment
of Drug Dependency Act No 20 of 1992 insofar as the centre had not
been registered. The applicant put the respondent
on notice to
rectify the breach, failing which it threatened to cancel the
agreement within 14 days. In order to comply with
the provisions of
the Act, the respondent ceased operating the drug rehabilitation
centre. Thereupon, on 29 June 2006, the applicant
notified the
respondent that the property was not being used for the purposes for
which it was let and purported to give the
respondent three months
of notice of cancellation in terms of the duration clause On 13 July
the applicant purported to cancel
the lease based on two grounds
which are set out in a letter dated 29 June 2006, namely the right
to give three months notice
and the alleged breach of the lease
relating to the use of the property.
On
behalf of the respondent it was argued that the duration clause does
not provide either of the parties with the option to cancel
prior to
the expiration of the fixed period of nine years and 11 months. It
was argued that the second comma in the paragraph
to which I have
referred to creates a clear division between the first part of the
clause, namely the lease shall be for a fixed
period of nine years
and 11 months commencing 1 July 2000, and the second part of the
clause which deals with the option to extend
the period of the lease
and that the lease may be terminated on three months written notice.
It was argued that on a proper interpretation
provision which deals
with the termination of the agreement on 3 months written notice
only finds application in respect of the
extended period of the
lease.
It
was further argued that if the Court cannot in tell i gen tf y
interpret the lease, it must have regarded to the
contra
preferentem
rule.
In my view this rule can find no application in the matter under
consideration.
The
meaning of clause 3 is in my view clear The three months notice
period can not conceivably apply only to a future possible
extension
of the lease which may or may not be agreed to between the parties.
The agreement provides that the terms of the extension
of the lease
would still have to be negotiated by the parties. It is thereafter
illogical to suggest that parties could have
intended at the time of
entering into the agreement that, in anticipation of a possible
contract to be concluded in the future,
that contract would be
subject to termination on three months notice. Particularly where
the other terms of that agreement are
still subject to negotiation.
Such an interpretation is untenable, and in any event does not
accord with the ordinary grammatical
meaning of the agreement.
Clause
11 of the agreement specifically provides that the lessor may
terminate the agreement if the lessee is in breach of the
provisions
of the tease. In the circumstances I find that the applicant was, on
a proper interpretation of the lease agreement,
entitled to cancel
the agreement on three months notice.
In
the circumstances 1 make the following order:-
1.
The respondent and all those occupying the property as portion A of
the farm Morning Star, situated at Koeberg in the division
of the
Cape, held under title deed of transfer No 21416/1948, and which was
leased by the applicant to the respondent in terms
of an agreement
of lease dated 15 July 2000, are
ORDERED
TO VACATE THE PROPERTY
on or before 28 February 2009.
Failing
their compliance with the terms of paragraph 1, the respondent and
those in lawful occupation of the property are
EVICTED
FROM THE PROPERTY
.
The
respondent is to deliver the property to the lessor in the same
good order and condition in which it was received at the
commencement of the lease.
4.
The respondent is ordered to
PAY
THE COSTS OF THE
APPLICATION.
TRAVERSO,
DJP