Protea Assurance Company Ltd. v Presauer Developments (Pty) Ltd. (113/83) [1984] ZASCA 144 (28 November 1984)

Protea Assurance Company Ltd. v Presauer Developments (Pty) Ltd. (113/83) [1984] ZASCA 144 (28 November 1984)

The court found that the demountable partitioning installed by the appellant on the 11th floor was not permanent, did not alter the structure or form of the building, and could be easily removed without damage. Clause 31 of the lease acknowledged that the partitions did not belong to the lessor and expressly authorised the appellant to remove and install partitioning as necessary. The changes effected did not constitute 'alterations or additions' within the meaning of clause 11, and the appellant did not breach the lease. The respondent was therefore not entitled to cancel the lease or obtain an ejectment order.

Citation
[1984] ZASCA 144
Parties
Appellant: Protea Assurance Company Limited; Respondent: Presauer Developments (Proprietary) Limited
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
28 November 1984
Case Number
113/83
Procedural Posture
Civil Appeal / Appeal From Witwatersrand Local Division; Cross Appeal by Respondent
Outcome
Cross-appeal dismissed with costs; ejectment order refused.
Judges
Kotzé, Miller, Galgut, Eloff, Vivier
Legal Topics
Lease Interpretation, Alterations and Additions, Ejectment, Contract Cancellation
Land and Property Commercial and Corporate Lease Interpretation Alterations and Additions Ejectment Contract Cancellation

Case Brief

Summary, issues, holding and outcome

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Parties

Protea Assurance Company Limited

Appellant

Presauer Developments (Proprietary) Limited

Respondent

Procedural Posture

Civil Appeal / Appeal From Witwatersrand Local Division; Cross Appeal by Respondent

Legal Issues

  1. 1 Whether the defendant breached clause 11 of the lease by effecting alterations or additions to the premises without the lessor's written consent.
  2. 2 Whether the changes made by the defendant constituted 'alterations or additions' within the meaning of the lease.
  3. 3 Whether the plaintiff was entitled to cancel the lease and obtain an ejectment order.

Ratio Decidendi

The court found that the demountable partitioning installed by the appellant on the 11th floor was not permanent, did not alter the structure or form of the building, and could be easily removed without damage. Clause 31 of the lease acknowledged that the partitions did not belong to the lessor and expressly authorised the appellant to remove and install partitioning as necessary. The changes effected did not constitute 'alterations or additions' within the meaning of clause 11, and the appellant did not breach the lease. The respondent was therefore not entitled to cancel the lease or obtain an ejectment order.

Court Disposition

Cross-appeal dismissed with costs; ejectment order refused.

Orders

  • The cross-appeal is dismissed with costs.
  • The ejectment order sought in respect of the 10th and 11th floors is refused.