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.
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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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