CIV\A\16\91

IN THE
HIGH COURT OF LESOTHO

In the
matter between:

WYCLIFFE
MLUNGISI TSOTSI Appellant

and

CLIFFORD
TRADING (PTY) LTD Respondent

JUDGMENT

Delivered
by the Honourable Mr. Justice J.L. Kheola on the 19th day of March.
1993

On the
8th November, 1990 respondent sued the appellant for ejectment and
arrear rental in the sum of M3,658-24. Appellant filed
a Notice of
Intention Co defend Che action.

On the
24th November, 1990 the respondent applied for summary judgment
against the appellant. The application was granted on the
4th
February, 1991 on the grounds of breach of contract by the appellant.
Judgment was not granted for arrear rent.

The
appellant noted an appeal against the granting of summary judgment.

According
to the sub-lease agreement between the parties the

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rental
was payable monthly in advance and the following two clauses of the
sub-lease are relevant in regard to this appeal:

"13. In the event of non-payment of rental or any part thereof
on its due date, or in the event of the breach by the Sub-lessee
of
any of the other conditions of this present agreement, the Sub-lessor
will be entitled to cancel this contract and take possession
of the
Premises without prejudice to any claim which it might have against
the Sub-Lessee for the payment of arrear rental and\or
damages
arising from breach of contract.

Subject to the proviso, however, that where the Sub-Lessee faithfully
and persistently abides by the terms and conditions of this
Sub-Lease
the Sub-Lessee will not be considered to be in default until after
the expiration of ONE (1) month's written notice calling
for payment
of outstanding rental and\or for the remedy of any other breach of
the conditions of this present agreement.

14. No
    extension of time or indulgence granted by any party to the other
    shall be deemed in any way to affect, prejudice or derogate
    from the
    rights of such party in any respect nor shall it in any way be
    regarded as a waiver of any rights hereunder or a novation
    of this
    agreement,"

    
    

In breach
of the provisions of the sub-lease, the appellant did not pay rentals
on due dates and as at 1st April, 1990 he was in
arrears with such
rentals in the amount of M9,069-36.

On the
19th April, 1990 the respondent's attorney addressed a letter to the
appellant and demanded payment of arrear rental

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within a
period of thirty days after receipt of the demand, failing which it
would exercise its rights to cancel the agreement and
claim
possession of the premises.

On the
27th April, 1990 the appellant paid the sum of M4,569-86 as part
payment of the account. Then followed the institution of
legal
proceedings to which I have referred above.

At the
hearing of this appeal the appellant proposed to ague grounds 3, 4
and 5 of the Notice of Appeal. Ground 3 reads as follows:

"The Court a quo should have found that upon accrual of its
right to cancel the contract the respondent had elected not to

enforce it or had waived it and by accepting late payment of rent had
in fact affirmed the agreement,"

The
appellant submitted that the question for consideration is whether
the admitted breach by appellant of the terms of the agreement

through failure to pay rental on due date was followed by the
exercise by the respondent of its right to cancel the contract. There

is nothing in the evidence that explicitly proves the cancellation.
He submitted that the respondent's attorney's letter of the
19th
April, 1990 records that failure

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to pay
M9,069-86 will result in the respondent exercising its right to
cancel the agreement and claim possession of the premises,
but there
is no following letter recording the cancellation of the agreement.

In Thelma
Court Flats (Pty) Ltd v. Mc Swigin 1954 (3) S.A.. 457 it was held
that the filing and service of a notice of motion by
a lessor
claiming the ejectment of a lessee from the leased premises is a
sufficient notice of the intention of the lessor to cancel
the lease.

The
appellant submitted that it may therefore be accepted that the
respondent (as lessor), whatever may have been its attitude prior
to
the issue of the application for summary judgment, but the issue of
such application made its election to cancel the agreement.
The
question therefore is whether at the date of the issue of the
application for summary judgment, the respondent had the right
to
cancel the agreement.

He
submitted that the respondent had no such right at the time, because
the last paragraph of clause 13 of the sub-lease provides
that the
sub-lessee will not be considered to be in default until after the
expiration of one (1) month's written notice calling
for payment of
outstanding rental.

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It is
common cause that on the 19th April, 1990 when the respondent's
attorneys wrote the letter (Annexure "SN3") the
appellant
was in arrears in the payment of the rent. A fairly large amount of
M9,069-86 was outstanding. The appellant made a part
payment and
promised to settle the outstanding amount by May, 1990. That did not
happen and in fact he made no payment at all in
May, 1990. It was
only on the 6th July, 1990 that he paid all the outstanding amount.
The rent for August, September and October
was also not paid monthly
in advance in terms of the provision of the sub-lease agreement. In
August it was paid on the 7th August,
in September it was paid on the
7th September and in October it was paid on the 12th October, 1990.

I am of
the view that the respondent acquired the right to exercise its right
to cancel the agreement and claim possession of the
premises thirty
days after the appellant received the letter of demand. If my
calculation is correct it was on the 19th May, 1990.
On that date the
outstanding amount of rent had not been fully paid. It was only in
July, 1990 that the full amount was paid and
by then the right to
cancel the agreement and claim possession of the leased premises had
already accrued to the respondent. That
right did not cease to
operate. The appellant failed to stop the coming into operation of
that right because he failed to pay the
outstanding amount within
thirty days in terms of the letter of demand.

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I have a
doubt whether the appellant has any right to claim protection under
the proviso to clause 13 of the sub-lease agreement
which reads as
follows:

"Subject to the proviso, however, that where the sub­lessee
faithfully and persistently abides by the terms and conditions
of
this sub-lease the sub-lessee will not be considered to be in default
until after the expiration of one (1) month's written
notice calling
for payment of outstanding rental and\or for the remedy of any other
breach of the conditions of this present agreement."

It seems
to me that the appellant did not faithfully and persistently abide by
the terms and conditions of the sub-lease. For a
full year prior to
the 19th April, 1990 when the letter of demand was written, he had
not been paying the rent at all. Under the
circumstances it cannot be
said that was faithful and persistent in abiding by the terms and
conditions of the sub­lease. I
am of the view that he was not
entitled to the thirty days' written notice calling for payment of
outstanding rental and\or for
the remedy of any other breach of the
conditions of the sub-lease.

I am of
the view that in July, 1990 when the appellant paid

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the
outstanding amount of rent the respondent had already acquired the
right to cancel the contract and to take possession of the
leased
premises. The appellant submitted that since all arrears were paid as
at the 6th July, 1990, the thirty days' notice period
did not operate
in regard to such arrears, and since no thirty days' notice was given
in regard to August, September and October
rentals, no basis for
cancelling the agreement because of late payment of these rentals was
established.

I do not
agree with this submission because I have repeated several times
above that by failing to pay the outstanding rental by
the 19th May,
1990 the appellant committed a breach of the contract entitling the
respondent to cancel the contract and take possession
of the leased
premises. The respondent was not under any obligation to issue
another thirty days' notice when the appellant made
other late
payments. It seems to me that even if Che appellant made subsequent
payments timeously, the respondent could still cancel
the contract on
the basis of the breach made after the thirty days' notice was given.

The
headnote in Sotiriadis v. Patel, 1960 (2) S.A. 812 (S.R.) reads as
follows:

"An agreement of lease entered into in 1954 provided that the
rent had to be paid at the lessor's residence

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or at such other place as she might direct in, writing. Clause 12
provided that the lessor had the right to cancel the lease without

notice in the event of the rent being unpaid within 7 days of the due
date. Clause 13 provided that notwithstanding any express
or implied
provisions of the agreement to the contrary, any latitude or
extension of time which might be allowed by the lessor
in respect of
payments or rent or any relaxation of any provision of the lease
should not under any circumstances be deemed to
be a waiver of the
lessor's rights under - "these presents." The lessee having
failed to pay the rent within 7 days the
lessor cancelled the lease
and sued for ejectment of the lessor. In his plea the lessee pleaded
as follows" "Defendant
says that since 1956, plaintiff, to
suit her own convenience, has always called personally on defendant
to collect the rent. She
has made these calls at irregular intervals
always, on occasions 3 months apart. In the premises, defendant says
that she has waived
her right to claim cancellation of the said lease
or, alternatively, is not now entitled to rely upon the provisions of
paragraphs
12 and 13 of the said lease." The plaintiff excepted
to the plea as being bad in law and not disclosing a defence.

Held, that clause 13 was a valid and effective provision.

Held, further, as the conduct of the plaintiff alleged in the plea
fell within the provisions of clause 13 that the plea did not

disclose a defence."

In the
present case I am of the view that clause 14 is very clear that
extension of time or indulgence granted by the respondent
to the
appellant by accepting late payments of rent shall not 'affect,
prejudice or derogate from the rights of such party in any
respect
nor shall it in any way be regarded as a waiver of any rights
hereunder or a novation of this agreement.' In April, 1990
the
respondent decided to exercise its rights under the provisions of the
agreement especially clauses 13 and

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14. I
    think it was justified in law.

    
    

In
Mahabeer v. Sharma N.O. and another 1985 (3) S.A. 729 (A) Refer, J.A.
at p. 736 refers to Pollock's Principles of Contract, 8th
edition at
629, where it is said that the contract must be rescinded within a
reasonable time, that is, before the lapse of a time
after the true
state of things is known, so long that under the circumstances of the
particular case the other party may fairly
infer that right of
decision is waived. The learned judge then says:

"Depending on the circumstances, such a failure may, e.g.
justify an inference that the right was waived or, stated
differently,
that the party entitled to cancel has elected not to do
so.... or it may open the door to some other defence. In such cases
the
lapse of an unreasonably long time forms part of the material
which is taken into account in order to decide whether the party
entitled to cancel should or should not be permitted to assert his
right. But per se it cannot bring about the loss of the right."

In the
instant case there was no lapse of unreasonably long time before the
respondent decided to cancel the contract. The lapse
of about seven
months after the notice was given does not

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seem to
be an unreasonably long time. In any case as the learned Justice of
Appeal pointed out the fact that there was a lapse of
unreasonably
long time before the cancellation of the contract was made cannot per
se bring about the loss of the right. It only
forms part of the
material which is taken into account when the right to cancel the
contract is considered.

In the
result the appeal is dismissed with costs.

J.L.
KHEOLA

JUDGE

19th
March, 1993.

For
Appellant - Dr. Tsotsi

For
Respondent - Mr. Mpobole