IN THE HIGH COURT OF LESOTHO
In the matter between:
WYCLIFFE MLUNGISI TSOTSI Appellant
CLIFFORD TRADING (PTY) LTD Respondent
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
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
According to the sub-lease agreement between the parties
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
of any of the other conditions of this present agreement,
the Sub-lessor will be entitled to cancel this contract and take
of the Premises without prejudice to any claim which it
might have against the Sub-Lessee for the payment of arrear rental
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
for payment of outstanding rental and\or for the
remedy of any other breach of the conditions of this present
14. No extension of time or indulgence granted by any
party to the other shall be deemed in any way to affect, prejudice or
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
within a period of thirty days after receipt of the
demand, failing which it would exercise its rights to cancel the
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
"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
is nothing in the evidence that explicitly proves the
cancellation. He submitted that the respondent's attorney's letter of
April, 1990 records that failure
to pay M9,069-86 will result in the respondent
exercising its right to cancel the agreement and claim possession of
but there is no following letter recording the
cancellation of the agreement.
In Thelma Court Flats (Pty) Ltd v. Mc Swigin 1954 (3)
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
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
to the issue of the application for summary judgment,
but the issue of such application made its election to cancel the
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
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.
It is common cause that on the 19th April, 1990 when the
respondent's attorneys wrote the letter (Annexure "SN3")
was in arrears in the payment of the rent. A fairly
large amount of M9,069-86 was outstanding. The appellant made a part
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,
It was only on the 6th July, 1990 that he paid all the
outstanding amount. The rent for August, September and October was
paid monthly in advance in terms of the provision of the
sub-lease agreement. In August it was paid on the 7th August, in
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
premises thirty days after the appellant received the letter of
demand. If my calculation is correct it was on the 19th May, 1990.
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
amount within thirty days in terms of the letter of demand.
I have a doubt whether the appellant has any right to
claim protection under the proviso to clause 13 of the sub-lease
reads as follows:
"Subject to the proviso, however, that where the
sublessee faithfully and persistently abides by the terms and
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
calling for payment of outstanding rental and\or for the
remedy of any other breach of the conditions of this present
It seems to me that the appellant did not faithfully and
persistently abide by the terms and conditions of the sub-lease. For
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
it cannot be said that was faithful and persistent in
abiding by the terms and conditions of the sublease. I am of the
that he was not entitled to the thirty days' written notice
calling for payment of outstanding rental and\or for the remedy of
other breach of the conditions of the sub-lease.
I am of the view that in July, 1990 when the appellant
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
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
of the leased premises. The respondent was not under any
obligation to issue another thirty days' notice when the appellant
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
or at such other place as she might direct in, writing.
Clause 12 provided that the lessor had the right to cancel the lease
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
payments or rent or any relaxation of any provision of the lease
should not under any circumstances be deemed to be a waiver of
lessor's rights under - "these presents." The lessee having
failed to pay the rent within 7 days the lessor cancelled
and sued for ejectment of the lessor. In his plea the lessee pleaded
as follows" "Defendant says that since 1956,
suit her own convenience, has always called personally on defendant
to collect the rent. She has made these calls at
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
Held, further, as the conduct of the plaintiff alleged
in the plea fell within the provisions of clause 13 that the plea did
In the present case I am of the view that clause 14 is
very clear that extension of time or indulgence granted by the
the appellant by accepting late payments of rent shall
not 'affect, prejudice or derogate from the rights of such party in
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
decided to exercise its rights under the provisions of the
agreement especially clauses 13 and
9 14. I think it was justified in law.
In Mahabeer v. Sharma N.O. and another 1985 (3) S.A. 729
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
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
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
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
in order to decide whether the party entitled to cancel
should or should not be permitted to assert his right. But per se it
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
about seven months after the notice was given does not
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
unreasonably long time before the cancellation of the contract was
made cannot per se bring about the loss of the right. It only
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.
JUDGE 19th March, 1993.
For Appellant - Dr. Tsotsi For Respondent - Mr.
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