JORDAAN NO AND ANOTHER v VERWEY 2002 (1) SA 643 (E) 2002 (1) SA p643. Citation 2002 (1) SA 643 (E) Case No CA 271/2000. Court Eastern Cape Division

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1 JORDAAN NO AND ANOTHER v VERWEY 2002 (1) SA 643 (E) 2002 (1) SA p643 Citation 2002 (1) SA 643 (E) Case No CA 271/2000 Court Eastern Cape Division Judge Erasmus J and Sandi AJ Heard March 26, 2001 Judgment April 12, 2001 Counsel A Beyleveld for the appellants. B Pretorius for the respondent. Annotations Link to Case Annotations G [zfnz]flynote : Sleutelwoorde Landlord and tenant - Lease - Whether agreement a lease or some other H agreement - Rule that rent to be in form of money or fruits only - Whether still operative - Practical considerations decisive - Rule serving to distinguish between lease agreements and other agreements relating to use and enjoyment of immovable property, incidents of which differ considerably - No ground for holding that differences no longer regarded as part of law - Rule operative until law changed by Act of I Parliament. [zhnz]headnote : Kopnota The issue in the instant case was whether the common-law rule that rent cannot consist of anything other than money or a certain quantity of the fruits of the property was still operative. The Court held that practical considerations J 2002 (1) SA p644 were decisive and that the essential difference between the elements of lease agreements and other A agreements relating to use and enjoyment of immovable property (the so-called innominate contracts) resided in the said rule. Though the distinction could be said to be archaic and lacking relevance, the incidents attaching to the two classes of contracts (which were well known and well defined) differed

2 significantly, and there was no reason to believe that they were no longer regarded as part of the law. It was B not in accordance with public policy that persons concluding such agreements should find themselves in a position different from that which they thought they had agreed to. The investigation of the effects of the rule and the need for change in the law was a matter more properly for the South African Law Commission, for action by Parliament if necessary. Accordingly, the rule had to be regarded as being operative. (At 645E - G and 646H - 647B.) C [zcaz]cases Considered Annotations Reported cases Black v Scheepers 1972 (1) SA 268 (E): applied Partridge v Adams 1904 TS 472: dictum at 476 applied Proud Investments (Pty) Ltd v Lanchem International (Pty) Ltd 1991 (3) SA 738 (A): dictum at 748C applied D Rosen v Rand Townships Registrar 1939 WLD 5: dictum at 9-10 applied Rubin v Botha 1911 WLD 99: referred to Rubin v Botha 1911 AD 568: referred to Stevens v Van Rensburg 1948 (4) SA 779 (T): dictum at 783 applied. E [zciz]case Information Appeal from a decision in a magistrate's court. The facts appear from the reasons for judgment. A Beyleveld for the appellants. B Pretorius for the respondent. F Cur adv vult. Postea (April 12). [zjdz]judgment Erasmus J: Section 31 of the Magistrates' Courts Act 32 of 1944 provides as follows: G 'Automatic rent interdict (1) When a summons is issued in which is claimed the rent of any premises, the plaintiff may include in such summons a notice prohibiting any person from removing any of the furniture or

3 other effects thereon which are subject to the plaintiff's hypothec for rent until an order relative thereto has been made by the court. H (2)... (3) Such notice shall operate to interdict any person having knowledge thereof from removing any such furniture or effects. (4) Any person affected by such notice may apply to the court to have the same set aside.' I Appellants issued summons in the magistrate's court for an order enforcing performance by defendant of his obligations under the agreement in terms whereof he was entitled 'to utilise' five orchards on a farm. The summons included a prayer for an order interdicting the defendant from removing certain articles from 'the leased premises'. The interdict J 2002 (1) SA p645 ERASMUS J was duly issued in terms of ss (1) of s 31 supra but subsequently set aside on order of the magistrate A in terms of ss (4). That order is the subject of this appeal. The single jurisdictional fact for the issue of an automatic rent interdict is the requirement in 31(1) that the issued summons contains a claim for rent of premises. Rent and lease are of course inseparable concepts in that rent is payable only in terms of a lease, and only a lease payable in rent. This means that an averment that plaintiff sues B in terms of a lease could satisfy the requirements of the section. In such regard, it is alleged in the particulars of claim that the parties entered into a 'verbal agreement of lease'. However, it is then averred that '(a)s consideration for the rights granted to the defendant in terms of the agreement of lease, the defendant was, as rental for C the... period of the lease... obliged to install and commission a micro-jetting system in that orchard of the leased premises known as ''Girlsland''...'. Counsel for respondent contends that the fact that the summons alleges the existence of an agreement of lease, is not decisive of the issue. He submits that the Court shall have regard to the actual terms D of the alleged agreement in determining its true nature. The argument is valid, for the nature of an agreement depends upon its contents rather than the label put thereon. Mr Pretorius further submits that the agreement alleged in the summons cannot be a lease because the consideration stipulated E therein is something other than the payment of rent. He refers for support to J C de Wet and A H van Wyk Die Suid-Afrikaanse Kontraktereg en Handelsreg 5th ed at 356: 'Die huurprys moet in geld betaalbaar wees. Waar die teenprestasie uit iets anders bestaan, het mens nie met huur te doen F nie. Op die reël dat die huurprys in geld betaalbaar moet wees, bestaan daar hierdie uitsondering, nl dat die huurprys kan bestaan uit 'n bepaalde hoeveelheid van die opbrengs van die goed self.'

4 This view accords with the judgment in Partridge v Adams 1904 TS 472 at 476 where it was held that 'rent must consist either of money or of a certain quantity of the fruits of the property'; which G statement of law, so counsel contends, has been consistently applied by the Courts (Rosen v Rand Townships Registrar 1939 WLD 5 at 9-10; Stevens v Van Rensburg 1948 (4) SA 779 (A) at 783; Black v Scheepers 1972 (1) SA 268 (E); Proud Investments (Pty) Ltd v Lanchem International (Pty) Ltd 1991 (3) SA 738 (A) at 748C). H Mr Pretorius argues that the law recognises certain specific classes of contract, each with its own criteria and consequences. So, for example, the law distinguishes clearly between sale and barter. Certain remedies (such as the aedilitian actions) attach only to the former. He submits that the requirement that rent be payable in money or fruits of the property is as essential to the I nature of a lease agreement as is payment of a purchase price in the form of money in the case of sale. Mr Beyleveld, who appears for the appellant, accepts that the dictum in Partridge v Adams (supra) correctly sets out the rule of Roman-Dutch law as received in this country. He points out, however, that the rule that rent J 2002 (1) SA p646 ERASMUS J cannot be something other than money or fruits has been questioned by certain modern writers (A J Kerr The Law of Sale and A Lease 2nd ed at 243-6; W E Cooper Landlord and Tenant 2nd ed 45-54); see too F P van den Heever The Partiarian Agricultural Lease in South African Law chap 2. Van den Heever argues that the underlying ratio of the rule, which arises from the Roman law classification of certain agreements as belonging to 'specially privileged contracts', has fallen away. Cooper shows that the three main objections to allowing rent to be something B other than money, lack substance. Kerr analyses the judgments of the Court a quo as well as on appeal in Rubin v Botha 1911 WLD 99; 1911 AD 568, where the obligation of the 'lessee' was to erect a dwelling house. The learned author concludes that the case could not have been disposed of in the way that C it was if the contract had not been considered to be a valid lease in all respects. (It is to be noted that the Court of Appeal did not specifically consider the legal point that presents itself here.) On Kerr's view, an agreement such as the present would constitute a lease. He concludes with the comment (at 246): D 'To conclude this section it may be mentioned that, if the above exposition is not accepted and if a particular instance of the type of contract there referred to is held, ''according to the subtlety of the law'', not to be a lease, then the obligations are similar to those in a lease, but neither the rule huur gaat voor koop nor the statute on formalities in leases nor the Dutch statutes limiting compensation payable are applicable.' E Mr Beyleveld's argument in short amounts to the following. The rule of Roman-Dutch law which has been accepted in this country by general judicial and academic agreement, no longer obtains or should no longer be recognised, there being no reason for its continued application in view of the essentially consensual nature of our law of contract. Counsel refers also to the problems that arise in F cases

5 where payment is partly monetary and partly non-monetary. These submissions are clearly not without merit and are supported by leading authors in the field. Mr Pretorius counters that there is no ground for holding that the rule has fallen into disuse or has disappeared in an evolutionary mutation of the law. He submits that parties that wish to incorporate the incidents of lease into a non-lease are free to do so G by agreement. He questions the desirability of and need for change. He challenges the appellants to point to any development which now compels a change of the law. These submissions, too, have obvious merit. To my mind practical considerations are decisive. The essential H difference between the elements of lease agreements and other agreements relating to use and enjoyment of immovable property (the socalled innominate contracts) lies in the rule relating to the nature of the consideration payable. The distinction may be archaic and lacking in relevance, but the incidents attaching to the two classes of contracts differ significantly, as is pointed out by Kerr (loc cit). These differences are well known and well I defined. I have no reason to believe that they are no longer regarded as part of the law whereby persons regulate their business in this country. To my mind it is not in accordance with public policy that they should find themselves in a position different from that which they thought they had agreed to. Juristic certainty is not necessarily J 2002 (1) SA p647 in itself a decisive consideration, but to my mind the court should not A lightly change accepted law. The consequences of such course are not always readily foreseeable, they certainly have not been fully canvassed before us. Investigation of the effects of and the need for changes in the law is a matter more properly for the South African Law Commission, for action by Parliament if necessary. I am not persuaded that there is sufficiently compelling reason for this Court now to take the step advocated by appellants' counsel. B In the result, the appeal is dismissed with costs. Sandi J concurred. Appellants' Attorneys: Netteltons. Respondent's Attorneys: Nel, Mentz Inc. C

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