IN THE HIGH COURT OF SOUTH AFRICA
(TRANSVAAL PROVINCIAL DIVISION)

								DATE: 21/8/2006
								CASE NO: 40697/2005
UNREPORTABLE

In the matter between:

LESAHJA DANIEL MASEKWAMENG					1st  Applicant

MOLONATJO PAULINA MASEKWAMENG				2nd Applicant

and

ANTON PSEIDL								  Respondent
________________________________________________________________
JUDGEMENT
________________________________________________________________

MURPHY J

1.	This matter concerns an exception taken by the plaintiffs to the 	defendant’s plea.The plaintiffs have instituted action against the defendant 	for an order directing the defendant to vacate certain property, namely 	portion 18 of 	the farm Langbult 580, registration division LT, Limpopo and 	to restore the same to them.  They seek also payment of an amount of 	R116 550 as damages.  The plaintiffs allege that the defendant is in 	unlawful possession of the property.  

2. 	The defendant originally filed a special plea, a plea on the merits and a 	counterclaim. 

3.	The defendant denies in the plea and counterclaim that he is in unlawful 	occupation of the plaintiffs’ property and pleads that he occupies the 	property under a written lease agreement. In the counterclaim, the 	defendant claims damages as a result of the alleged continuous breach of 	the agreement by the plaintiffs relating to the provision of water to the 	property, which functions as a guesthouse.

4.	The special plea filed by the defendant was to the effect that he was an 	“occupier” as defined in the Extension of Security of Tenure Act 62 of 	1997 	and that this court accordingly does not have jurisdiction to 	entertain the 	action, such being reserved to the Land Claims Court. The 	defendant has subsequently abandoned the special plea, effectively 	conceding that the property in question is used for commercial purposes.

5.	The plaintiffs delivered an exception to the special plea, plea and 	counterclaim.  However, given the defendant’s concession with regard to 	the special plea, the plaintiffs persisted only with the exception to the plea 	and the counterclaim.  At the hearing of the exception, Mr Muller, who 	appeared for the plaintiffs indicated that he would persist only with the 	exception to the plea.
6.	As stated, the defendant’s plea is based upon the alleged existence of a 	valid contract of lease.  

7.	The plaintiffs allege that the lease agreement was subject to a suspensive 	condition expressed in writing as follows:

“Validity of contract
The validity of this contract is dependent upon both tenants receiving a working permit and residency permit in South Africa.  The tenant certify (sic) that they will inform the renter as soon as these permits are received (late autumn 2003).”

8.	The defendant has made no allegation in the plea that the suspensive 	condition was fulfilled as a consequence of which he acquired the rights to 	lawful occupation.  In other words, it is submitted that the validity of the 	contract was dependent on the obtaining by the defendant of a valid work 	and residency permit in South Africa and the informing of the plaintiffs 	accordingly. The plaintiffs’ contention is that the failure by the defendant 	to plead that the suspensive condition has been fulfilled renders the plea 	excipiable.

9.	The defendant counters that after pleading the existence of the 	agreement with reference to the written contract of lease, and setting out 	the terms of the agreement in the plea, he specifically pleaded in 	paragraph 6.4 of the plea that he has fulfilled all his obligations under the 	lease agreement and that it has not been validly cancelled.  The 	defendant therefore submits that the pleading as it stands contains a valid 	defence to the plaintiffs’ particulars of claim.

10.	I am satisfied that the clause in question does indeed constitute a 	condition precedent suspending the operation of the obligations flowing 	from the contract until the occurrence of a future and uncertain event, 	namely the defendant’s obtaining a work and residence permit from the 	immigration authorities.  The condition governs the whole contract and  	should it not be fulfilled no obligations would arise in terms of the contract.  	The explicit use of the expression “is dependent upon” is a clear indication 	of an intention for the contract to give rise to no obligations until such time 	as the condition has been 	fulfilled.  It follows that a plea by the defendant 	that he has fulfilled all his obligations under the lease agreement is 	insufficient.  Such is not the same as pleading the fulfilment of a 	suspensive condition.  Pending the fulfilment of the condition precedent, 	the contract was inchoate in nature, and no obligations arose.

11.	I am accordingly of the view that the failure to plead the fulfilment of the 	suspensive condition renders the plea excipiable on the ground that it 	discloses no defence or makes insufficient averments to ground a 	defence.
12. 	Counsel has referred me to Errico v Lotter 1956 (4) SA 139 (N) where the 	court stated that even if a contract contained a condition precedent, the 	allegation in the summons that the amount claimed was due, owing and 	payable would be a sufficient allegation of compliance. The case is 	however distinguishable from the present matter.  Firstly, the learned 	judge clearly limited his remarks to proceedings in the magistrate’s court.  	Secondly, a claim for monies due and payable in terms of a contract is 	qualitatively different to a defence of entitlement to occupation in terms of 	a lease.  A claim that money is payable presupposes that it is payable on 	the basis of certain legal obligations which are implicit.  A defence to 	the effect that the obligations under a contract have been performed 	does not necessarily imply in the same way that the contract has come 	into existence. And thirdly, the learned judge’s observations were clearly 	obiter dicta.  In this instance the entire cause of action is predicated upon 	the claim that occupation is held sine causa.  In such circumstances it is 	incumbent upon the defendant to plead the existence of the causa and it is 	insufficient merely to allege that obligations pursuant to an inchoate 	contract have been fulfilled while 	leaving begging the question of the 	contract’s existence.

13.	In the result, the plaintiff’s exception to the plea falls to be upheld.  I 	accordingly make the following order:

“The defendant’s plea is set aside with costs and the defendant is given leave to file an amended plea within 21 days of this order.”

JR MURPHY
JUDGE OF THE HIGH COURT
TRANSVAAL PROVINCIAL DIVISION

Counsel for the Applicant’s, Adv GC Muller, Pretoria and counsel for the defendant, Adv HS Havenga, Pretoria.

Attorney for the Applicant’s, CF van Rooyen Inc. Tzaneen c/o Melanie Kunzman Attorneys c/o Van Heerden Van Staden & Vennote, Pretoria and Attorney for the defendant, Solomon Nicolson Rein & Verster Inc.