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NOT REPORTABLE

IN THE HIGH COURT OF SOUTH AFRICA

(WITWATERSRAND LOCAL DIVISION)

JOHANNESBURG

CASE NO: 2663/02

DATE:2002-08-27

In the matter between

OAK DENE SQUARE PROPERTIES........................................................................... Applicant

and

HOPE THOMAS REID t/a ANIMAL KINGDOM........................................................Respondent

JUDGMENT

WILLIS, J: The plaintiff has taken an exception to the defendant's plea and counterclaim. The grounds of exception are as set out below:

"1. The plaintiff sues in respect of amounts due in terms of a written agreement of lease, the terms of which are annexed to the particulars of claim as "B".

2. The defendant admits that "B" constitutes the terms of the agreement of the lease concluded between the parties (paragraph 3.2.1 of the plea).

3. The defendant invokes as a defence to the plaintiff's claim the allegations contained in paragraphs 2-13 of the defendant's counterclaim.

4. In the defendant's counterclaim the defendant pleads a lease agreement concluded on the same day as the admitted agreement and pleads that a copy of this agreement is "B" to the particulars of claim.

5. In pleading his agreement, the defendant pleads terms that are not expressly contained in "B".

6. In particular the defendant pleads a so-called - "fit to trade" - condition (elaborated in paragraph 2.1.3.2 of the counterclaim), and pleads a breach of this condition by the plaintiff.

7. The express terms of the agreement do not allow for a tacit or implied term such as the "fit to trade" condition, particularly clause 1 4 on page 9 of "B", clause 15 on page 9 of "B", clause 16.2 on page 10of "B" and clause 27 on page 19 of "B".

8. As a result -

8.1 the defendant's plea fails to disclose a defence in the relevant respect;

8.2 the defendant's counterclaim fails to disclose a cause of action in the relevant respect; alternatively

8.3 the plea in the counterclaim are rendered vague and embarrassing as a result." On 18 June 2002 the plaintiff sent a "notice to remove cause of complaint" to the defendant. It reads as follows:

"Be pleased to take notice that the plaintiff intends to take exception to the plaintiff's plea and counterclaim on the basis inter alia that these are vague and embarrassing on the grounds set out below and should the cause of complaint not be removed within 15 days of receipt of this notice, the plaintiff will deliver its exception.

1.The plaintiff sues in respect of the amounts due in terms of the written agreement of lease, the terms of which are annexed to the particulars of claim as 'B'.

2. The defendant admits that 'B' constitutes the terms of the agreement of lease concluded between the parties (paragraph 3.2.1 of the plea).

3. The defendant invokes as a defence to the plaintiff's claim the allegations contained in paragraphs 1 -1 3 of the defendant's counterclaim.

4. In the defendant's counterclaim the defendant pleads a lease agreement concluded on the same day as the admitted agreement and pleads that a copy of this agreement is 'B' to the plaintiff's particulars of claim.

5. In pleading this agreement the defendant pleads terms that are not expressly contained in 'B'

6. In particular, the defendant pleads a so-called 'fit to trade' condition (elaborated in paragraph 2.1.3.2 of the counterclaim and pleads a breach of this condition by the plaintiff.

7. The express terms of the agreement do not allow for a tacit or implied term such as the 'fit to trade' condition, particularly clause 14 on page 9 of 'B', clause 1 5 on page 9 of 'B', clause 16.2 on page 10 of 'B' and clause 27 on page 19 of 'B'.

8. As a result -

8.1 the defendant's plea fails to disclose a defence in the relevant respects;

8.2 the defendant's counterclaim fails to disclose a cause of action in the relevant respect; alternatively

8.3 the plea in the counterclaim are rendered vague and embarrassing as a result."

It is indeed common cause that Annexure "B" is the relevant agreement that was concluded between the parties. Clause 14 thereof is headed "Suitability of the premises". The first sentence in respect thereof reads as follows:

"The landlord does not warrant or represent to the tenant that the premises are fit for the purpose for which they will be occupied or that the tenant will obtain licences required for the carrying of the business referred to in 126."

Clause 15 is headed "Condition of premises" and the first sentence thereof reads as follows:

"The tenant shall be deemed to have accepted the premises and all the appurtenances as being complete and without defect and in good order and repair unless within three days after the tenant has taken occupation of the premises it shall give to the landlord written notice of any defects in the premises with full particulars of any appurtenances which are defective or missing."

The first sentence of clause 16.2 reads as follows:

"For the purposes of this 'lettable condition' shall mean good order and condition without reference to the condition of the premises on the commencement date and shall, unless otherwise agreed by the landlord in writing, be construed as meaning free of any fixtures, fittings, partitions, modifications, additions, alterations, renovations and improvements of whatsoever nature. All carpeting or flooring shall be clean and in good order and repair. All interior walls shall be painted within seven days proceeding the termination or expiry of this lease with two coats of paint approved by the landlord. Any marks or holes in the interior or exterior walls of the premises shall be repaired. The shop front shall be clean and in good order. All appurtenances shall be in good condition save for defective or missing appurtenances which were noted by the landlord in terms of 15 and such matters were not remedied by the landlord. And all electrical fittings shall be in good order and condition."

Clause 27 of "B" contains the standard non-variation clause and provides inter alia that -

"this agreement together with its annexures constitutes the whole agreement between the parties relating to the subject matter thereof and no amendment or consensual cancellation of this agreement or any provision or term thereof or any agreement, bill of exchange or other document issued or executed pursuant to or in terms of this agreement, no settlement of any disputes arising under this agreement and no extension of time, waiver or relaxation or suspension of any of the provisions or terms of the agreement or of any agreement, bill of exchange or other document issued pursuant to or in terms of this agreement shall be binding unless recorded in a written document signed by the parties." In terms of clause 1.8 of the agreement it is provided that the premises shall be made available for the period 1 April 2001 to 31 May 2001 rent free and for the period 1 June 2001 to 31 July they shall be R34 200 being the aggregate of R30 000 plus VAT and then thereafter rentals are provided for the period 1 August 2001 to 31 July 2002 and so on for a considerable period of time.

In the defendant's plea, in paragraph 3.1 thereof, he pleads -"The defendant repeats the contents of paragraph 2-13 of his counterclaim .. (indistinct) that same be regarded as herein set out and contained." In paragraph 2.1.3 of the counterclaim the defendant alleges

that:

"The defendant [sic] would:

2.1.3.1 provide beneficial occupation of the leased premises to the defendant:

2.1.3.1.1 six weeks prior to the commencement of the lease ("the shopfitting period");

2.1.3.1.2 from 15th day of February 2001 ("beneficial occupation");

2.1.3.2 ensure that the leased premises were in such a condition to enable the defendant to trade from the leased premises from 1st April 2001 ("the fit to trade condition").

In paragraph 6 of the defendant's counterclaim he pleads as follows; "6. In breach of the plaintiff's obligations in terms of the lease agreement, the plaintiff failed to -

6.1provide beneficial occupation of the leased premises to the defendant on 15th day of February 2001 and in fact provided the defendant with only a modicum of possession of the leased premises towards the end of May 2001 when amongst others:

6.1.1 the floor consisted of raw cement; and

6.1.2 there was no electricity supply to the leased premises (which was in semi darkness);

6.2 put the leased premises in a fit to trade condition and thereby to render the same tenantable by 1^st April 2001 which condition was only achieved at the end of October 2001:

6.2.1 during which intervening period further construction work was effected

6.2.1.1 on a sporadic basis, with long periods of inactivity;

6.2.1.2 in the form of

6.2.1.2.1 internal brickwork and plastering;

6.2.1.2.2 the reticulation of cabling and the connection of the electricity supply;

6.2.1.2.3 extensive work to repair the leaking roof of the lease premises;

6.2.2.2 Enabling the defendant to commence trading seven months later at the beginning of November 2001 (the plaintiff's breach')." Ms Georgiou, who appears for the defendant, relies very heavily on the case of Pete's Warehousing & Sales CC v Bowsink investments CC 2000 (3) SA 833 (ECG). This is a full bench judgment. She submitted, and this I entirely accept, and it is clear indeed from a number of cases, including Pete's Warehousing Sales CC v Bowsink investments CC (supra) that at common law it is a term implied in every agreement of lease that the premises shall be let in a condition fit for the purpose for which they will be occupied. It is quite clear, in my view, that the first sentence of clause 14, namely "the landlord does not warrant or represent to the tenant that the premises are fit for the purpose for which they will be occupied or whether the tenant will obtain licences for the carrying on of the business referred to in 1.6" expressly excludes this term implied at common law. I have read carefully through the judgment in Pete's Warehousing & Sates CC and would wish to point out that in my view there is a considerable difference between a clause that excludes the common law term that "premises shall be fit for the purpose for which they will be occupied" and the clause that exonerates the lessor from any liability regardless of the condition, regardless of whether the premises are tenantable or habitable. I entirely agree with the spirit of the Pete's Warehousing & Sales case that a court will be most reluctant ever to infer that it was intended to exclude the landlord's liability in respect of a lease regardless of whether the leased premises were habitable or to use another term tenantable.

If one has regard to clause 2.1.3.2, read together with 2.1.3.1, and clauses 6-1 and 6.2 of the counterclaim, then it is not clear on what basis the defendant is mounting his defence to the particulars of claim and instituting his counterclaim. In other words, it is not clear whether the defendant is alleging simply that the premises were not fit to be used for the purposes for which they were let or alleging that the premises were uninhabitable or to use another expression untenantable for any purpose whatsoever. In my view, if the defendant is relying on the former, he is not entitled to do so by reason of the express exclusion in the opening sentence of clause 14. On the other hand, if he is relying on the latter, then in my view he may well have a valid defence to the claim and may well have a valid counterclaim. As was noted by the court in Pete's Warehousing & Sales CC v Bowsink investments CC, supra, in paragraph 14:

"It was also correctly not in dispute that the test applicable in this matter was to be posed as follows: In order to succeed an excipient has a duty to persuade the court that upon every interpretation which the pleading in question and the particular the document on which it is based can reasonably bear no cause of action or defence if disclosed. Failing this the exception ought not to be held."

In my view, the exception has to succeed not on the basis that the defendant has shown no cause of action in the counterclaim and no defence in the plea, but rather that the pleading is vague and embarrassing. In other words, the plaintiff is unsure as to the defence which it has to meet and the counterclaim to which it has to plead. Plaintiff is unsure whether the defendant is alleging simply that the premises were not fit for the purpose for which they would be occupied or whether the defendant is going somewhat further. Accordingly, in my view, the exception is to be upheld on the basis that the plea and the counterclaim are vague and embarrassing.

The following order is made:

1. The exception is upheld.

2. The defendant is given leave to amend his plea and his counterclaim within 20 days of this order.

3. The defendant is to pay the costs of the exception.

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