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[1992] ZASCA 109
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Rustenburg and Another v Gordon (457/90) [1992] ZASCA 109 (1 June 1992)
/CCC
CASE
NO 457/90
IN THE
SUPREME COURT OF SOUTH AFRICA
(APPELLATE DIVISION)
In the
matter between:
JANET
MAY RUSTEBURG
FIRST
APPELLANT
MARILYN
HOMAN
SECOND APPELLANT
and
PETER
RONALD LORIMER GORDON
RESPONDENT
CORAM
:
BOTHA, NESTADT JJA et VAN COLDER AJA
DATE HEARD
: 14 MAY 1992
DATE DELIVERED
: 1 JUNE 1992
JUDGMENT
NESTADT, JA
:
I feel
bound to express my regret that the litigation between the parties
has reached the stage of
2
an appeal
to this Court. There existed between them a cordial relationship of
long standing. The matter concerns a capital amount
of only R3 000.
And in issue is purely a question of fact. One would have hoped that
in these circumstances a compromise could at
an early stage have been
reached.
I do not
propose to set out the factual background to the dispute or the
course that it has taken. Nor will I detail the evidence
of the
witnesses. It would be idle to do so. These matters appear from the
magistrate's judgment as well as from the judgment of
the court a
quo
. I think it can be safely assumed that the limited number
of persons interested in the outcome of this appeal are familiar with
them.
For the same reason I shall not list the various arguments that
were respectively advanced by counsel before us.
3
Basically and broadly these may be
summarised by saying that Mr
Quinn
on behalf of the appellants
adopted the reasoning of the magistrate whilst Mr
Lang
for the
respondent supported the court a
quo's
approach. In the
circumstances I proceed immediately to a consideration of the merits
of the appeal.
The narrow but crucial issue that
the magistrate had to decide was whether at the November 1987 meeting
it was agreed that the duration
of the lease be for a year, ie until
31 October 1988. In this regard he had before him two mutually
destructive versions. The problem
which he faced was therefore one of
credibility. In resolving it he did not rely on the demeanour of any
of the four witnesses. This
was because "there (was) nothing to
choose between them" in this regard. His decision was based
rather on the
4
probabilities. These he found to
be in favour of the appellants. Hence the grant of judgment in their
favour. Our task is to re-assess
the correctness of the trial court's
conclusion.
I deal firstly with certain
factors which despite argument to the contrary were in my opinion
either not established or in any event
do not advance either side's
case and which are therefore neutral.
(i) I cannot agree with Mr
Quinn
that it should have been inferred, contrary to the respondent's
denial, that he received the written lease which Mr Abdo had
allegedly
caused to be posted to him. Despite some confusion in his
evidence as to when a copy later came into his possession, there is
no
warrant for rejecting what he stated on this
5
issue. And
the magistrate did not do so.
(ii) The
court a
quo
held that Mr Abdo's evidence was "strong
support...that there was no lease and it is in direct contradiction
of...the existence
of an oral lease for one year". This is not
so. His evidence is equivocal. He conceded that he could not recall
what his "exact
conversation" was with Mr Rusteburg. Nor
does either of his two letters assist the respondent. The reference
in the one dated
24 November 1987 (exhibit A) to "if the
agreement is acceptable" is no indication, at least of any
significance, of there
having been no agreement (to a years'
tenancy). There were a number of terms in the written lease that had
not been discussed at
the
6
meeting and which the respondent
would have had to agree to. And Mr Abdo does not in his evidence
confirm the statement in his letter
dated 23 May 1988 (exhibit B)
that he had explained to the appellants that "no oral agreement
had been arrived at". In
any event his advice may have been
wrong. Moreover Mr Rusteburg denied that he was so informed by Mr
Abdo. (iii) Mr
Lang
argued that the terms of exhibit G, being
a letter dated 8 March 1988 written by the appellants' attorneys to
the respondent were
inconsistent with and detracted from the veracity
of the appellants' version. I do not think so. If there is a slight
inconsistency,
it is not of any moment.
7
(iv) The respondent on his version
was only obliged to give the appellants one month's notice
terminating the lease. He and his wife
satisfactorily explained why
two month's notice was given.
This brings me to those matters
which are of significance. In the forefront here is what I conceive
to be the pith of the magistrate'
s reasoning. It was that both
parties wanted security of tenure; this was especially so in the case
of the respondent; he had no
alternative premises to go to; indeed he
did not wish to move; a monthly tenancy would therefore not have
suited him; and this being
so it was improbable that the duration of
the lease would not have been discussed and agreed upon. This
approach would have considerable
force - if it had a sound factual
8
foundation. But I do not think it
has. As the court a
quo
found, it overlooks the true import of the
respondent's evidence. And it is,
of course, against
such evidence that the
probabilities must be tested. It
is true that the respondent wanted
security of tenure.
Such security was however not qua
tenant. On a proper
interpretation of his evidence he
had no qualms about
the short term. It was not then in
his mind that his
tenancy was a monthly one. That
realisation only came
later. He and the appellants were
on good terms. He
had been their tenant for a number
of years. So he did
not think that the appellants
would terminate the lease
on short notice. Consider the
following extract from
the respondent's evidence. Dealing
with what happened
at the end of the meeting he says:
"And then what was said after
that? Then I
think I said well what happens to
us, what do I do. So she said that she was quite happy that we stay
9
where we were, that a new lease
would be drawn up by her lawyers and that the ability to buy the
building would be deleted from the
new lease. No time period at this
time was mentioned at all because we had already dealt with two other
time periods in previous
leases."
What the respondent was concerned
about was having the
premises as his permanent place of
business. In other
words the security he was seeking
was tied to his desire
to purchase the property. That he
wished to do so is,
for the reasons given by the court
a
quo
, plain. It is a
recurring theme throughout his
evidence. But at the
meeting he was told in effect that
he could not
purchase; that the property was
not for sale. In
these circumstances the argument
that the respondent
would not have left the meeting
without getting an
undertaking from the respondent
concerning the duration
of the lease, loses much of its
cogency. There was no
need for him to raise the issue.
Indeed, being
10
committed
to an unqualified years' tenancy might have caused him problems in
the event of him during the following year finding another
(more
permanent) home for his practice. This is what he had in mind doing.
Hence his evidence about a "two month escape clause".
What has
been stated does not quite dispose of the point under consideration.
The magistrate also relied on certain other factors
which in his view
militated against the acceptance of the respondent's evidence. One
was the respondent's statement that he hoped
or expected that the
written lease would provide for a years' tenancy. It would seem that
the magistrate regarded this as inconsistent
with the respondent's
version. Another was the appellants' evidence that they too required
a secure tenancy (in the form of a committed
tenant) so as to finance
a second
11
property
which they intended to and did buy. A third
was what
the magistrate regarded as the respondent's inability to explain why,
when he did not receive the written lease, he failed
to communicate
with the Rusteburgs. These matters were raised before and dealt with
by the court a
quo
. It was found that they did not
significantly advance the appellants' case. Suffice it to say that
for the reasons given by JONES
J, I respectfully agree with this
conclusion.
There are
other criticisms of the magistrate's reasoning. To begin with I agree
with the court a
quo
that he was not entitled (as he did) to
regard the appellants' instructions to Mr Abdo to draw up a lease
containing a term that it
be for a year as supporting their version.
Mr Rusteburg may have been under the mistaken impression that this
had been agreed to.
Or he may simply have wanted such a term to be
inserted without there having been agreement on the point.
12
Secondly,
the trial court was not in my opinion justified in finding that the
first appellant "remained unshaken...on the fact
that it was
agreed that the lease was to be for twelve months". On the
contrary, her evidence on this point is somewhat confused
and indeed
contradictory. She initially stated that she told the Gordons that
"they could stay and rent the place for another
year and they
seemed quite happy...(T)hey agreed to that". Under
cross-examination however her evidence changes. The following
passage
exemplifies this.
"What
did you actually say to them then? I
said we
would carry on as before with the same
lease for
the same period.
Did you
say for the same period or for one year?
For one
year, well I said I would not sell the
house for
one year.
I'm sorry
to be so persistent but the thing is the whole case turns around what
was said on that occasion by yourself. Now you've
said to us that you
said stay where you are as before at the same rental. Then you say
that it was stay where you are before at the
same rental for one year
or for the same period or as previous leases. Now what
13
exactly
(intervention) As the previous leases,
that's
what I meant, as previous leases."
I pause
here to mention that if this was what was said,
it creates
a difficulty for the appellants. The second
lease was
for two years whilst the third was for one
year.
Perhaps realising this, she then says that it was
agreed
that "we would continue on the same basis as we'd
done the
year before...as per the previous lease". Even
this
stance was not maintained. Later she reverts to
"old
leases" and eventually to "I said as before".
Allowance
must of course be made for the fact that the
first
appellant was testifying to events that had
occurred
some eighteen months before. It is natural
therefore
that there be an element of uncertainty in her
recollection
of what was said at the meeting. Also Mr
Rusteburg
unhesitatingly says that the agreement was
that the
lease be renewed for one year. Even so, what
14
has been
set out constitutes in my view a criticism of
the first
appellant's evidence which detracts from her reliability. As such it
is a factor which the magistrate wrongly overlooked.
Another
reason for putting a question mark against the acceptability of the
appellants' evidence arises from the following. The Rusteburgs
were
both adamant that at the meeting there was no discussion about the
respondent purchasing the property (at any price). I fully
subscribe
to the court a
quo's
view that the respondent's evidence to
the contrary was far more consistent with the probabilities and that
if the first appellant
and her husband were "wrong on the point
(t)hey could also be wrong about the (duration of the) lease".
This is not to
say that they were untruthful. The magistrate regarded
them as honest. The court a
15
quo
does not disagree with this finding. Nor do I. One can readily see
how the Rusteburgs might
subjectively
have assumed that the respondent had agreed that the duration of the
lease be for a year. The respondent had long been
a tenant of theirs.
They obviously trusted him. They had no reason to fear that he might
want to vacate the premises on short notice.
On the expiry of the
previous lease they were content to let the respondent's tenancy
continue on an informal basis.
When it
comes to the version of the respondent and his wife however the
position is somewhat different. What I mean is that unlike
in the
case of the Rusteburgs, there is less room for them having made a
bona fide
mistake as to what was discussed at the meeting.
Their denial that the duration of the lease was agreed to would more
likely be a
deliberately false
16
one. Yet I
do not understand the trial court to have found them to have been
dishonest. And with good reason. The respondent would
seem to have
genuinely been under the impression that he was entitled in February
1988 to terminate the lease. I cannot agree with
Mr
Quinn
that
he craftily took advantage of the non-arrival of the written
agreement to cancel the lease. A reading of his and Mrs Gordon's
evidence confirms the impression that they were honest. There are a
number of examples of them having made admissions against their
interest when a denial would have been open to them. They might
easily have alleged that at the meeting a monthly tenancy was agreed
upon.
I do not
say that the magistrate was faced with an easy decision. The exercise
of assessing where in a given case the probabilities
lie is often
difficult. This is such a case. What is involved is
17
a
comparison between two opposing contentions. As
Wiqmore
on Evidence
, paragraph 2498, quoting an American
case, puts
it:
"By a
preponderance of evidence
is
meant, simply,
evidence
which is of greater
weight, or
more
convincing,
than that which
is offered
in
opposition to it..."
It is not
to be understood that I consider the evidence
of the
respondent and his wife as being without blemish.
In certain
respect they contradict each other. There
are other
criticisms to which Mr
Quinn
referred. In the
final
analysis however I remain unpersuaded that
appellants'
version carried greater weight or was more
convincing
than that of the respondent. In my opinion
therefore
they failed to discharge the onus of proving
that it
was agreed that the period of the lease entered
into in
November 1988 would be for a year. This is
what the
court a
quo
decided and I agree with it. It
18
follows
that their claim should have been dismissed.
On behalf
of the respondent it was argued in the alternative that the
appellants could have mitigated all their damages by letting
or
selling (and giving occupation of) the property by 1 May 1988. In
view of my conclusion that it was not proved that the respondent
was
in breach of the lease, it is however unnecessary to deal with this
issue.
The appeal
is dismissed with costs.
NESTADT,
JA
BOTHA,
JA â CONCURS
IN THE
SUPREME COURT OF SOUTH AFRICA
(
APPELLATE DIVISION
)
CASE NO:
457/90
In the
matter between:
JANET MAY
RUSTEBURG
FIRST APPELLANT
MARYLIN
HOMAN
SECOND APPELLANT
and
PETER
RONALD LORIMER GORDON
RESPONDENT
Coram
:
BOTHA, NESTADT JJA et VAN COLLER AJA
Date
heard: 14 May 1992 Date delivered: 1 June 1992
2 JUDGMENT
VAN
COLLER AJA:
I have had the privilege of
reading the judgment of my brother Nestadt JA. For the reasons which
follow I am unable to agree with
the conclusion to which he has come.
I agree with what has been said by
Nestadt JA with regard to the four neutral factors. I also agree that
to determine where the probabilities
lie in this case is not an easy
task.
3 The main and crucial dispute
between the parties is whether or not the further period of the lease
was agreed upon.
First appellant and her husband
testified that a period of one year was mentioned and accepted.
Respondent and his wife testified
that no period at all was
mentioned. What is of importance is that on neither version did any
argument ensue about the duration of
the proposed lease. There was in
fact no discussion about the duration. What must therefore be
determined on the probabilities is
only whether or not a period of
one year was mentioned at all. If it was mentioned that respondent
could have the premises for another
year, then there is no reason not
to accept the evidence of first appellant and her husband that this
was accepted. I need only to
refer to the evidence of Mr Rusteburg
that when respondent and his wife left, they were very glad "that
you people are prepared
to renew the lease for a year."
According to his evidence they were also glad that the rental was not
increased.
4
It is not in dispute that it was
made clear to respondent
and his wife that first appellant
did not wish to sell the property. Although respondent, on his
version, went to the meeting in order
to purchase the property, he
was informed that appellant was not prepared to sell. One would have
expected that under these circumstances,
the possibility of a further
lease would then have been discussed. This is what in fact happened.
According to first appellant, she
said that the respondent could stay
and rent the place for another year. It was put to first appellant
under cross-examination that
all that was mentioned was that
respondent could stay on at R1000 per month. According to first
appellant's husband they discussed
the renewal of the lease for a
period of one year at a monthly rental of R1000. Respondent's wife
also said in her evidence that
first appellant had said that the rent
would continue at R1000. She was, however, sure that no period was
mentioned. It
5 seems to
me to be highly improbable that no mention was
made of
the period. When respondent's offer to purchase was rejected, his
position was uncertain and it is improbable that he would
have left
the meeting without any certainty about the duration of the lease. It
is also improbable that first appellant, to whom
it was also
important to have a lease, would not have mentioned the period. It
is, of course, possible that because the previous
lease was for a
period of one year, and because first appellant stated that she would
not sell the property for at least one year,
that the fact that the
lease would be for one year was so obvious to first appellant and her
husband that it was never mentioned.
I do not think, however, that
this is probable. According to the evidence of first appellant and
her husband, they, during November
1987, were about to purchase
another property and intended doing so by way of a mortgage bond over
the leased property. The bond
repayments would be paid out of the
6 rent from the leased premises.
This fact militates against the above-mentioned possibility, and it
strengthens appellant's case.
The fact that they did not call for the
written lease cannot be held against them, because on their version
they already had an oral
agreement with a reliable tenant. It is true
that first appellant's evidence is subject to valid criticism as
stated by Nestadt JA,
but he also points out that Mr Rusteburg
unhesitatingly testified that the agreement was that the lease be
renewed for one year.
The trial took place approximately 18 months
after this meeting was held and one cannot blame the witnesses for
not remembering everything,
although it is difficult to accept that
respondent and his wife could be absolutely certain that the period
was not mentioned at
all.
Two other aspects remain to be
mentioned very briefly. There is no acceptable explanation by
respondent why the duration of the lease
was not discussed. As
appears from
7 the
extract from respondent's evidence referred to by
Nestadt
JA, respondent testified that no time period was mentioned at all
"because we had already dealt with two other time periods
in
previous leases". This does not make sense and is not a
plausible explanation.
The second
aspect relates to the question why respondent would have cancelled
the lease if a period of one year had in fact been agreed
upon. The
evidence of respondent in this regard is the following:
"Now
the letter, how did it come about that you
decided to
cancel your lease? I decided to cancel
my lease
because first of all I was told that the Rusteburgs were not prepared
to sell to me, secondly at this stage I had not received
any lease at
all, thirdly I had not been contacted by any party with reference to
the lease, any attorneys or the landladies and
fourthly when these
other people came around to value and they weren't prepared to
divulge what they were valuing for I got rather
concerned, because I
looked at the possibility of my having to leave certainly within the
year."
8 It is clear from this evidence
that respondent could have inferred that appellant was going to act
in breach of the oral agreement
entered into by the parties.
Respondent became concerned and it is quite probable that he,
notwithstanding the oral agreement, then
decided to act in the manner
in which he did.
In my judgment the balance of the
probabilities favours the appellants and the magistrate came to the
correct conclusion.
It remains to deal very briefly
with the alternative argument that the appellants could have
mitigated all their damages by letting
or selling the property by 1
May 1988. Corbett J said the following with regard to the onus in
Everett & Another v Marian Heights (Pty) Ltd
1970 (1) SA
198
(C) at 201 H - 202 A:
9
"Generally, the burden of
proof rests upon the party who asserts that a claimant for damages
failed to take reasonable steps
to mitigate his loss (
Hazis v
Transvaal and Delagoa Bay Investment Co. Ltd
.,
1939 A.D. 372).
Similarly, in my view, the
onus
of proof would also rest upon
the party who asserts that the mode of mitigation employed by the
claimant was not a reasonable one
in that an alternative mode, less
expensive or burdensome, was available (
Shrog v Valentine
1949
(3) SA 1228
(T) at p. 1237). In this regard the Court should not be
too astute to hold that this
onus
has been discharged. As Lord
McMILLAN put it in the well-known case of
Banco de Portugal v
Waterlow & Sons Ltd
.
[1932] UKHL 1
; ,
1932 A.C. 452
at p. 506-
"Where the sufferer from a
breach of contract finds himself in consequence of that breach placed
in a position of embarrassment,
the measures which he may be driven
to adopt in order to extricate himself ought not to be weighed in
nice scales at the instance
of the party whose breach of contract has
occasioned the difficulty. It is often easy after an emergency has
passed to criticise
the steps which have been taken to meet it, but
such criticism does not come well from those who have themselves
created the emergency.
The law is satisfied if the party placed in a
difficult situation by reason of the breach of a duty owed to him has
acted reasonably
in the adoption of remedial measures, and he will
not be held disentitled to recover the cost of such measures merely
because the
party in breach can suggest that other measures less
burdensome to him might have been taken."
10 See also
De Pinto &
Another v Rensea Investments (Pty) Ltd
1977 (2) SA 1000
(A) at
1007 [as inserted in
1977 (4) SA 529]
and
Holmdene Brickworks
(Pty) Ltd v Roberts Construction Co Ltd
1977 (3) SA 670
(A) at
689 D - F.
This is a minority judgment and
consequently I do not propose to deal in detail with the facts and
the reasons for the conclusion
to which I have come on this issue. Mr
Lang, on behalf of respondent, has also not made any oral submissions
on this issue in support
of his written heads of argument.
It appears from the evidence that
at the beginning of May 1988 the property was entrusted to a firm of
estate agents in order to find
a tenant. They could not succeed in
this, and a purchaser was eventually found who bought the property on
30 May 1988. The purchaser
could only take occupation at the
beginning of September 1988. I am not
11
satisfied
that the steps taken by appellant were not
reasonable.
Respondent practised on the premises as a chiropractor. First
appellant's reason why she had not entrusted the property
to an
estate agent even before respondent vacated the premises, was that it
would have been awkward to take prospective tenants through
the
premises while respondent was still conducting his practice there. If
it is assumed that this attitude was unreasonable, then
I am not
satisfied that even if appellant had acted more promptly, a tenant or
buyer would have been found at an earlier stage.
In my
judgment it has not been proved by respondent that appellants could
have mitigated their damages.
I would
allow the appeal with costs, set aside the judgment of the court
a
quo
and substitute an order dismissing the appeal with costs.
12
VAN
COLLER AJA