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[1985] ZASCA 119
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Pro Nobis Landgoed (Edms) Bpk. v Amavuba (Pty) Ltd. (231/1984) [1985] ZASCA 119 (19 November 1985)
LL
Case No 231/1984
IN THE SUPREME COURT OF SOUTH AFRICA
APPELLATE DIVISION
In the matter between:
PRO NOBIS LANDGOED (EDMS) BEPERK
Appellant
and
AMAVUBA (PTY)
LIMITED
Respondent
CORAM
: RABIE, CJ, JANSEN, VAN HEERDEN, GROSSKOPF,
JJA, et CILLIé, AJA
HEARD
: 4 NOVEMBER
1985
DELIVERED
: 19 NOVEMBER 1985
JUDGMENT
/
VAN HEERDEN, JA
...
2.
VAN HEERDEN, JA
:
The respondent is the owner of 17 immovable properties situated in the County
of Zululand. During 1983 it instituted motion proceedings
in the Natal
Provincial Division against the appellant (as first respondent) and three other
respondents (hereinafter referred to
as the Meintjes brothers). The main relief
sought by the present respondent was an order directing the appellant and the
Meintjes
brothers to vacate the said properties.
In the founding affidavit, deposed to by one Griffith, a director of the
respondent, it was alleged that the appellant, through its
directors and
employees (the Meintjes brothers), was in unlawful occupation of portions of the
respondent's properties, collectively
known as the game farm. It was further
alleged that the appellant had been the lessee of the game farm by virtue of an
oral or implied
lease which had terminated
/on ...
3.
on 31 December 1982..
Only the appellant opposed the application (the Meintjes brothers abiding the
decision of the court). The appellant's main defence
was that in terms of an
oral agreement concluded in 1980 it remained entitled to occupy the game farm.
Further, and presumably in
the alternative, the appellant relied on a right of
retention in regard to improvements effected by it on the property. The
appellant
also made a counter-application which is not relevant for the purposes
of this appeal.
It appears that in February 1980 the respondent, then registered as Meintjes
Broers (Edms) Bpk, was provisionally wound up. On 26
July 1980 Jeremy Timbers
(Pty) Ltd ("Jeremy Timbers") in terms of s 311 of the Companies Act (61 of 1973)
made an offer of compromise
to the creditors and members of the respondent. That
offer was later duly accepted and sanctioned by the
/court ...
4.
court. In the result the provisional winding-up order was
discharged and Jeremy Timbers became the beneficial owner of all the shares
in
the respondent.
Prior to the acceptance of the offer of compromise
certain negotiations took place between two attorneys,
James and
Thunstrom. According to affidavits filed
on behalf of the appellant the
object of the negotiations
was to secure the support of the appellant and the
Meintjes
brothers for the offer. (It is not clear what the
interest of the
appellant was, but the Meintjes brothers
were then the holders of all or most
of the shares in
the respondent.) Thunstrom deposed that on 20 August
1980
he and James, acting on behalf of their respective
principals, in the course
of a telephone conversation
concluded an agreement to the effect that:
"7.1 the first respondent [i e, the present appellant] was to have the right
to lease the game farm for a two year period at a nominal
rental;
7.2 on the expiration of the two year period,[if]
/the ...
5.
the owner decided to sell the game farm, the first respondent
would have a right
of first refusal in respect thereof;
7.3 in the event of the owner deciding not to sell the game farm, and being
satisfied with the manner in which the first respondent
had managed the game
farm, it would have a right to continue to lease the game farm at a reasonable
rental."
Thunstrom said that he knew that James represented Jeremy Timbers but that he
strongly suspected that it was an intermediary for Anglo
American Corporation of
South Africa Ltd ("Anglo American") as undisclosed principal. Hence, Thunstrom
concluded, James bound his
principal which was either the respondent, Jeremy
Timbers or Anglo American,"whichever is the 'lessor'."
In the appellant's main opposing affidavit, deposed to by one of the Meintjes
brothers, reference was made to an application instituted
by the appellant
against Anglo American. The relief sought in that application was an order
declaring that an agreement of lease
at a rental of R22 140,00 per annum
(allegedly a reasonable
/rental ...
6. rental), in terms of which the appellant was entitled to
occupy the game farm, existed between "the applicant" and Anglo American,
alternatively Jeremy Timbers, and an order directing Anglo American,
alternatively Jeremy Timbers, "to do all things necessary to
require ... (the
respondent) ... to withdraw its application" against the appellant and the
Meintjes brothers. (It is tolerably clear
that when formulating the first prayer
the deponent inadvertently used the words "the applicant" instead of "the first
respondent",
i e, the present appellant. I say so because the opposing affidavit
is devoid of an allegation, or even a suggestion, that any agreement
existed
between Anglo American, or Jeremy Timbers, and the present respondent, which was
the applicant in the court a
quo
.)
The opposing affidavit in the present proceedings concluded with a prayer for
an order directing that the respondent's application
and the appellant's
counter-application be stayed pending the determination of the
/appellant's ...
7.
appellant's application against Anglo American.
In affidavits filed in reply it was denied that an agreement had been reached
by James and Thunstrom in regard to the use and occupation
of the game farm
after the end of 1982. James's instructions emanated from Griffith and both he
and James also denied that the former
had been authorised to conclude an
agreement in terms of which the appellant would be entitled to continue leasing
the property after
the expiration of a period of two years. It was furthermore
made clear that although Jeremy Timbers was controlled by a company which
was in
turn controlled by Anglo American, all negotiations relating to the offer of
compromise had been conducted by James on behalf
of Jeremy Timbers (represented
by Griffith) and that Anglo American had not been a party thereto.
Whilst denying that the appellant enjoyed a lien over the game farm, the
respondent tendered to furnish
/security ...
8.
security for payment of such sum as might be due to the
appellant in respect of improvements effected by it. And during the course
of
argument in the court a
quo
it was agreed that security for payment of an
amount of R6 300 would suffice.
On the authority of the decision of the Full Bench of the Natal Provincial
Division in
Trook t/a Trook's Tea Room v Shaik and Another
1983 (3) SA
935
(N), the court a
quo
held that a stipulation in a "lease" to pay a
reasonable rental is void for vagueness. Hence, in the court's view, no valid
agreement
of lease in regard to a period subsequent to the end of 1982 would
have been concluded between James and Thunstrom even if the letter's
version of
their agreement were to be accepted. Despite the conflict of fact raised by the
affidavits the court accordingly granted
an order directing the appellant and
the Meintjes brothers to vacate the game farm. That order was, however, not to
be of any effect
until such
/time ...
9.
time as the appellant lodged security to the satisfaction of
the Registrar in the aforesaid amount of R6 300. The issues raised by
the
counter-application were referred for oral evidence and the appellant was
ordered to pay the costs of the application, excluding
the costs of the
counter-application which were reserved for decision by the court adjudicating
upon it.
On appeal, with the leave of the court a
quo
, the only question
debated in counsel's heads of argument was whether a valid lease or innominate
contract is concluded if the "lessee"
undertakes to pay a reasonable rental. For
the reasons set out hereunder I find it unnecessary, however, to consider that
question.
At the hearing of the appeal we were informed that the appellant's
application against Anglo American was dismissed on the same day
as the
ejectment order against the appellant and the Meintjes brothers was granted.
(All that can be gleaned from a copy of the
/judgment ...
10.
judgment made available to this Court, is that the application was brought
against both Anglo American and Jeremy Timbers and that
no argument in support
of the application was addressed to the court.) Counsel for the appellant
accordingly disavowed the prayer
in the opposing affidavit and submitted that
the appellant's defence to the application for ejectment should be approached on
the
basis that James represented and bound the respondent (and not Anglo
American or Jeremy Timbers).
The only relevant paragraphs in Thunstrom's affidavit read as follows:
"5.1 In representing the respondents [i e,
the appellant and the Meintjes brothers] in their negotiations and in
concluding the agreement referred to in paragraph 7 hereof,
I dealt with the
said JAMES, and at no stage did I have any discussions with the deponent to the
applicant's [i e, the appellant's]
affidavit, the said GRIFFITH.
5.2 I knew that JAMES represented JEREMY TIMBERS (PROPRIETARY) LIMITED, but
I
/strongly ...
11.
strongly suspected that JEREMY TIMBERS was an intermediary
and that the ANGLO AMERICAN CORPORATION was in fact his undisclosed principal
in
the negotiations and to the eventual agreement.
5.3 In the premises, in concluding, as I did, a Lease Agreement with JAMES, I
bound the first respondent [i e, the appellant] and
JAMES bound his principal
which is either the applicant, [i e, the respondent] JEREMY TIMBERS
(PROPRIETARY) LIMITED or THE ANGLO
AMERICAN CORPORATION, whichever is the
'lessor'."
It is clear that para 5.3 contains a conclusion and not an independent
statement of fact. There is, however, not a single factual
averment in
Thunstrom's affidavit, or in the main opposing affidavit, from which it can be
inferred that James represented the respondent.
On the contrary, Thunstrom's
allegation that James represented Jeremy Timbers can hardly be reconciled with
the conclusion that the
respondent may have been his principal.
There is in any event a consideration which militates strongly against the
notional possibility that
/James ...
12.
James may have represented the respondent. It was common
cause on the affidavits that the telephone conversation in issue took place
on
20 August 1980. At that stage the respondent was in provisional liquidation and
it is indeed difficult to see on what basis James
could have bound the
respondent. Assuming that it would have been competent for the provisional
liquidator to enter into an agreement
which would become binding upon the
respondent in the event of the liquidation order being discharged, there
certainly is no suggestion
in the appellant's papers that he authorised James to
conclude any agreement on his behalf.
It follows that the appellant failed to show that the respondent was a party
to the agreement reached by James and Thunstrom. Nor
did the appellant make out
a case that subsequent to the respondent's discharge from liquidation it became
a party to that agreement.
And since the
lacuna
in the appellant's
affidavits was not cured by anything said in reply, the agreement deposed
/to.....
13. to by Thunstrom did not present a bar to the claim for ejectment.
Counsel for the appellant relied, however, upon a so-called concession made
by counsel for the respondent in the court a
quo
, and submitted that it
was in effect conceded that the respondent was a party to the agreement
concluded by James and Thunstrom.
The nature of the concession appears from the following extracts from the
judgment of the court a
quo
:
"Mr
Shaw
, who appeared for the applicant [i e, the respondent],
submitted that despite the conflict of fact raised in the affidavits, the
applicant's claim for ejectment could be resolved on the papers. He submitted
that even if first respondent's [i e, the appellant's]
version of the alleged
agreement were proved no valid and binding agreement of lease would have been
concluded by the parties."
And:
"The applicant has elected that the matter be decided on the basis of the
acceptance of first respondent's version of the facts."
It seems clear that in the court below counsel
/for ...
14.
for the respondent conceded no more than that, in so far as
the affidavits raised a conflict of fact, the appellant's version had
to
prevail. Hence I fail to see how it can be said that an implied admission was
made in regard to a hiatus in the appellant's affidavits.
It is true that the
only submission made by counsel for the respondent was that a stipulation in a
"lease" to pay a reasonable rental
is void for vagueness, but his concession did
not preclude him from contending that for another reason the appellant's papers
did
not disclose a valid defence to the claim for ejectment.
There is, however, an additional reason why the appeal cannot succeed. On the
assumption that an undertaking to pay a reasonable rent
may give rise to a valid
contract of lease, the agreement on which the appellant relied is in my view in
any event void for vagueness.
It will be recalled that according to Thunstrom it
was agreed that on the expiration of the
/initial ...
15.
initial two year period the appellant would have a
conditional right "to continue to lease the game farm at a reasonable rental".
On his version not a word was said about the duration of the lease. Nor was
provision made for a periodic payment of rent, e g a
reasonable monthly,
quarterly or yearly rental. It is accordingly impossible to determine whether it
was intended that the lease
should run for a definite period, or until the
occurrence of an event, or from period to period or, conceivably, at the will of
either
the lessor or the lessee.
The appeal is dismissed with costs, including the costs of two counsel.
H.J.O. VAN HEERDEN, JA
RABIE, CJ JANSEN, JA
GROSSKOPF, JA
CONCUR
CILLIé,
AJA