Value of a written contract

Ex-QDMS

Dr Sayed Iqbal Mohamed

When a tenant moves out of the dwelling before the lease period is over, the lease is deemed to have ended.

The tenant is in breach of the terms of the lease agreement, since he or she moved out before the lease period ended or without a proper notice to the landlord.

The landlord can approach the court for the tenant’s breach to claim rental damages and other relevant costs resulting from the premature cancellation.

Can a landlord or owner (seller) sue a tenant or a purchaser, alleging terms of an agreement that cannot be shown to the court?

The party who goes to court must show that it has a cause of action. In other words, what law was broken, the facts to support that this happened, and the damages suffered.

In the case of a residential lease contract, the cause of action emanates from the contract (written or oral lease) and relevant provisions of the Rental Housing Act.

Where the seller alleges that the property sold was conditional, such as the new owner having to build on the land within a specified time, the original contract must be produced to prove the agreed terms.

The court will not accept what was supposedly the agreed terms without written proof.

The sale of a property must be in writing, unlike a lease contract. Any cancellation for a breach – lease or sale – must be based on the contractual terms.

In eThekwini Municipality v Phyllis and Others (7081/2012) [2012] ZAKZDHC 74 (November 12, 2012), Durban High Court Acting Judge Maurice Pillemer refused to grant judgment in favour of the eThekwini Municipality.

Phyllis and 24 others bought residential sites in their names in the Township of Luganda from the then Town Council of the Borough of Pinetown.

Each person received ownership rights from the Registrar of Deeds.

According to a sworn affidavit of the conveyancing manager of eThekwini municipality, Phyllis and the 24 others failed to collect their certificates and failed to put up structures on the sites, as was expected of them when the sites were allocated to them.

Breach

This was a breach and the municipality claimed that in the interest of everybody it sought the court’s help to have an order cancelling the title deeds so that the sites could be allocated to those who were in need of housing.

The municipality, however, failed to cite the Registrar of Deeds as an interested party who had to be informed by being given the requisite seven days’ notice.

A Mr Mhlongo, a principal professional municipal officer, confirmed references made to him in the main affidavit of the municipality, even though he was not mentioned at all.

Acting Judge Pillemer held that his affidavit was completely pointless and took the matter no further.

As for the alleged breach, the municipality failed to prove the terms of the agreement relating to the land allocated to Phyllis and others, and the terms breached by them that allowed the municipality to take the land back.

“According to the judge, the “[a]pplicant failed to do this, making no mention of the contracts in the papers, and I was informed from the Bar that it is having difficulty locating the agreements that were signed at the time. In the absence of an enforceable contractual term that would confer such a right, short of expropriation there is no immediately apparent basis in law to cancel the respondents’ ownership and give their land to someone else.”

The municipality failed to disclose a “cause of action” before it could come to court to deprive the respondents of their ownership of the land.

The judge denied the municipality an adjournment to supplement the papers since the present papers were fatally defective.

The municipality’s application to take possession of the residential sites was dismissed.

* Dr Sayed Iqbal Mohamed, is the chairperson, Organisation of Civic Rights.

For advice on tenants’ rights, call Loshni Naidoo or Pretty Gumede at 031 304 6451.