Table of Contents

Question 1............................................................................................................. 2
Question 3 A.......................................................................................................... 7
Question 3 B........................................................................................................ 10
Bibliography......................................................................................................... 13
Case Law.......................................................................................................... 13
Text Books........................................................................................................ 14
Internet Sources............................................................................................... 14

Question 1
A. The primary duty of the landlord or lessor is to deliver the use and occupation or
enjoyment of the property let to the lessee in accordance with the terms of their
agreement, as was stated in the case of Heynes Matthew Ltd v Gibson NO 1950 1 SA
13 (C). Further, the lessor or landlord must deliver the property with all accessories
essential to the tenant for the proper use and enjoyment of the property, as was
decided by the cases of McNeil v Eaton (1903) 20 SC 507 and Pretorius v
Abrahamson 1904 TS 643. The landlord or lessor also has the duty to give the tenant
or lessee free and undisturbed possession not in contest when delivered, as
propounded by Gibson et al (2003:174). According to Fouch et al (2004: 165),
delivery must take place on the date agreed upon by the parties, or where a fixed date
is not agreed upon, within reasonable time after the lessee demands delivery.
With regards to the condition of the property to be leased, the following position
prevailed in the case of Harlin Properties (Pty) Ltd v Los Angeles Hotel 1962 (3) SA
143 (A) at 150, the learned judge quoting the preceding case of Poynton v Cran1910
AD 205 at 221:
The principle is that the tenant is entitled to the due use of the thing which he has
leased, and he cannot enjoy that use unless the property is deliveredin a state of
repair which is reasonable under the circumstances
Fouch et al maintain that where the lessor has guaranteed certain attributes or
qualities or has warranted against defects in the property, he has a duty to deliver the
property with the attributes or without the defects (2004:166).
The landlords failure to deliver the property and thus interfering with the tenants
right to the use and enjoyment of the property equates to a breach of the contract. The
lessee is therefore entitled to claim damages, as was held in the case of Du Plessis v
Singer 1931 CPD 105.
Where the landlord fails to deliver the property in the required condition, he also
commits a breach of contract, as stated by Fouchet al (2004:166). In the case of
Marais v Cloete1945 EDL 238it was decided that the lessee cannot claim specific

performance but he can, however, affect the necessary repairs himself. These repairs
can only be done where the landlord is made aware of the repairs made by the lessee
and the cost of repairs can either be deducted from the amount of rent or the cost may
be claimed from the landlord.
Joe Boy can therefore claim specific performance for the landlord to evict the person
occupying the property. He cannot, however, claim specific performance for the
painting of the flat. He can, however, paint the flat at his own cost and claim the
amount spent from King Kong or he can demand that the costs incurred in such
painting be deducted from the amount in rent, as was held in the case of
B. The case of Bartman v Leonard 1952 2 SA 582 (C) is very clear on the point of the
state in which the property must be returned to the lessor. The case states that upon
termination of the lease, the lessee must return the property undamaged, taking
normal wear and tear into account.
Further, in the case of Uitenhage Divisional Council v Port Elizabeth Municipality
1944 EDL 7, it was decided that the property must be returned in the condition it was
at the commencement of the lease. The lessee does not incur liability, however, where
the damage is a direct consequence of factors beyond his control, for example theft or
an act of God, known in legal terms as a vis maior, as was held in the prominent case
of Frenkel v Ohlssons Cape Breweries Ltd 1909 TS 957. Where the property has been
damaged, however, and the lessee repairs it, the onus is on him to show that the
damage was not caused by him, or by persons for whom he is responsible, as was
decided in Brand v Kotze 1948 3 SA 769 (C).
Thus applying the theory to the facts of this case, it is clear that Joe Boy has failed to
return the property to King Kong in the condition it was given to him, as the broken
door clearly indicates. This cannot possibly be accepted to be normal wear and tear,
as the damage was inflicted during a violent altercation. The damage to the door can
also not be considered as a vis maior or beyond the control of Joe Boy, as the person
who damaged the door was on the property by his invitation and with his permission.
The failure of Joe Boy to repair the property by the end of the lease is also indicative
of his liability and failure to return the property in good condition. Joe Boy is thus
liable for damages to be paid to King Kong as was held in the case of SAR & H v Wm
Anderson & Co 1917 CPD 121.

C. The case of Poynton v Cran1910 AD 205 it was decided that, in addition to his
obligation to deliver the property in the proper state of repair, the lessor is also
required to maintain the property in good and tenable repair and condition. The
lessor must thus maintain it in the condition it was in upon delivery, considering
normal wear and tear, the condition agreed upon or in a condition reasonably fit for
the purpose, for which it was let, that is, he must rectify the flaws which unreasonably
interfere with the use of the property (Fouch et al (2004:165)). The only exception of
this is where the damage is caused by the lessee or for anyone for whom he is
responsible (Kealey v Landsberg 1953 4 SA 605 (C)).
If a lessee concludes a contract well aware of any defect in the property, he has no
remedy, unless, of course, the lessor has undertaken to repair it and fails to do so.
(Fouch et al (2004:166)). In the case of Viljoen v Clever 1945 NPD 336, it was stated
that a lessee waives his right to claim for repairs if he, after discovering a defect,
accepts it and his conduct clearly indicates that he is prepared to accept the property
with its defects.
Where the parties fail to agree on the condition of the property, the lessor must deliver
it in the condition it was in at the time of concluding the contract (Fouch et al
(2004:165)). Where the landlord has guaranteed certain attributes or qualities or the
absence of defects, he must deliver the property with those attributes or without those
defects (Fouch et al (2004:165)).
In the case of Transvaal Cold Storage Co v SA Meat Export Co Ltd 1917 TPD 413 it
was held that if the lessor delivers a defective property and the defective or
unsatisfactory to the extent that the lessee cannot be reasonably expected to accept it,
thus the lessee may resile from the contract.
The lessor is liable for damages suffered by the lessee as a result of the defect in the
property. This liability seems restricted to the cases where the lessor was aware, or
should reasonably be aware of the defects in the property, as was held in the case of
Salmon v Dedlow 1912 TPD 971.
In applying the law to the facts, Joe Boy has a right to cancel the contract if he is able
to prove that King Kong was aware or should have reasonably been aware of the
structural defects in the property. Further, because the damage to his television set was
a direct result of the defect, he can claim damages from King Kong.
D. The primary duty of the landlord is to deliver to the lessee the use and enjoyment or
occupation of the leased property in accordance with the terms of their agreement
(Gibson et al (2003: 174)). According to www.nolo.com, landlords have some degree
of legal responsibility to provide secure housing for tenants. These responsibilities

include taking reasonable steps to shield tenants from the criminal acts of fellow
tenants, which in current case are the drug dealing activities. (www.nolo.com).
According to www.landlords.about.com one of the responsibilities of a landlord

is

to provide and maintain a safe environment for the tenants. The tenant must feel safe
in the property. This duty includes the assurance of lockable windows and door as
well as an environment free from illegal activity www.landlords.about.com. The
website further states that the best manner in which to ensure that no criminal activity
occurs on the property is to screen all tenants prior to their occupation of the property.
This would include checking criminal records and contacting former landlords.
After extensive and exhausting research the author could find no case law concerning
this specific sequence of events, however in the case of Gien v Gien 1979 2 SA 1113
T the brief facts of the case were as follows:
The applicant and respondent were brothers living on neighbouring livestock farms in
the former Western Transvaal. They used to farm in partnership but fell out over their
mother's will and now detested each other. The respondent kept a vegetable garden,
but had a problem with baboons raiding it. He bought and installed an apparatus
which emitted gas explosions every two minutes day and night. The applicant applied
for an interdict restraining the respondent from using the apparatus in such a way as to
cause a nuisance. He alleged that the explosions disturbed his daily peace of mind and
his sleep, as well as his family and workers. Everyone on the farm had become shorttempered and easily irritated. One of his horses became so volatile as a result of the
noise that it threw its rider and had to be taken off the farm in order to calm it. The
cattle were restless and resisted dipping. Generally, the effect of the noise was to
disrupt his farming activities.
The question before the Court was whether the respondent acted unlawfully by
infringing on his brothers right to peace and quiet as per the legal convictions of the
community in the area of neighbour law. It was found here that he did, and therefore
that he acted unlawfully. The Court held:
The interests the respondent wished to protect were of such a restricted scope and the
nature of the steps he took to protect them were so drastic in relation to his goal and to
the particular environment that he exceeded his powers to protect those interests
granted to him by the law of property. As a result he unlawfully interfered with
applicant's rights as owner of the neighbouring property. Under these circumstances,
the applicant is entitled to an interdict.

Joe Boy thus has a right to ask his landlord to approach a Court for an interdict to stop
his neighbour from continuing illegal/criminal activities as he is entitled to a safe
environment.
E. The definition of harassment provided in the Combating of Domestic Violence Act
No. 4 of 2003 defines harassment as repeatedly following, pursuing or accosting the
complainant, family member or dependant of the complainant or making persistent
unwelcome communications. The painting of offensive language on Joe Boys
apartment door falls outside the domestic relationship prescribed in the act, however,
Cinderella can still be charged with the criminal act of crimen injuria, which is the
unlawful, intentional and serious violation of the dignity or privacy of another person
(www.lac.org.na).
In the case of Ciliza v Minister of Police 1976 (4) SA 243 (N) the defendant addressed
the plaintiff as kaffir. The plaintiff then instituted a civil action for damages. The
judge in this case held that free speech was limited, especially since the word in
question amounts to the person being insulted as being ...uncivilised, uncouth, and
coarse.... The defendant was thus found guilty of crimen injuria as the defendants
dignity had been impaired by the language used.
The landlord cannot warrant that the tenant will not be disturbed by a third party who
has no legal right to the property as was held in Fourie NO v Pottgietersusse
Staadsraad 1987 (2) SA 921 (A).
In light of the above, then, Joe Boy has no action against the landlord, however he can
institute civil proceeding against Cinderella and even has the right to open a criminal
case against her. If his civil charge is upheld he may claim damages and if she is
found guilty in a criminal court she may be convicted and sentenced accordingly.

Question 3 A
i.

The relationship between a principal and agent gives rise to various duties and is
based on the doctrine of good faith, as indicted by Du Plessis & Kok (1989: 88).
Agents usually perform their duties personally; however in some instances it is
possible to delegate his powers and duties to another (Du Plessis & Kok (1989:88)).

In this context, a distinction must be drawn between the appointment of a sub-agent

and the substitution of an agent. Where a sub-agent is appointed, he is in a contractual
relationship with the agent and the original agent remains bound to the principal for
the execution of his duties (Fouch et al (2004: 238)). The performance of the subagent thus becomes the responsibility of the original agent, meaning the original agent
becomes liable for any negligent or unauthorised conduct by the sub agent (Du Plessis
& Kok (1989:89)).
The substitution of an agent occurs when he transfers all or some of his rights, powers
and/or duties to the other person. The result is that the other person (the substitute)
now stands in a contractual relationship with the principal in terms of which the
substitute functions as the agent of the principal, as was held in the case of Watson v
Sachs 1994 (3) SA 655 (A). This means that the contract (or relevant part thereof)
between the original agent and the principal terminates. (Gibson et al (2003: 223)).
The original agent remains, however, liable for negligence in selecting the substitute,
or in conveying the terms of his authority to him, as was held in Simon NO & Others
v Mitsui & Co Ltd & Others 1997 (2) SA 475 (W).
The effect of agency is that the agent concludes a juristic act, from which obligations
arise. These obligations, however are not binding on the agent, but on the principal on
whose behalf and with whose authority he acts and a third party (Fouch et al
(2004:240). In the fulfilment of his duties, the agent must act for and in the name of
the principal. Further, the agent and the third party must intend that legal obligations
are created between the principal and the third party. (Fouch et al (2004:240))
According to Gibson et al, there is an exception to this rule, in the doctrine of the
undisclosed principal. Where the agent acts on behalf of the principal without
disclosing the fact, the principal can reveal himself later and institute action against
the third party based on the contract concluded on his behalf(2003:230-1). Should the
third party become aware of the existence of the undisclosed principal before the
latter reveals himself, the third party can choose whether he wishes to claim
performance from the agent or from the principal, as was ruled in the case of Natal
Trading & Milling Co. v Inglis1925 TPD 724. Where a third party obtained
judgement against an agent acting on behalf of an undisclosed principal, the third
party is not allowed to claim from the undisclosed principal as was decided in the case

of Cullinan v NoordskaaplandseAartapelkernmoerkwekersKo-op Bpk1972 1 SA 761

(A).
In the case of Tallachi& Another v The Master & Others 1997 1 SA 702 (T), the
applicants had obtained cession of claims for payment from creditors who had sold
goods to Litesell Distributors. It transpired that Litesell had acted as an agent for Lite
Magic and the applicants were invited to prove their claims against Lite Magic. They
declined because Lite Magic had been liquidated and obtained judgement against
Litesell, who was unable to meet the judgement against it. The applicants then lodged
a claim against Lite Magic. The claim was rejected by Lite Magics liquidators.
ii.

Gibson et al list the four duties of an agent as:

a. To perform his mandate according to the instructions of the principal.
b. To act honestly and in good faith.
c. To display care, skill and diligence in the execution of his mandate; and
d. To account to his principal.
In present case, the duty breached by Mr. Solar Panel is that of acting honestly and
in good faith, which will be further analysed below. Case law will also be relied
upon to illustrate the courts position on the duty to act honestly and in good faith.
According to the case of Robinson v Randfontein Estates Gold Mining Co Ltd
1921 AD 168, agency creates a fiduciary relationship between the parties, namely
the principal and the agent. This sentiment was echoed and clarified in the case of
R v Milne &Erleigh1951 1 SA 791 (A), when the court opined that agents must
conduct the affairs of the principal in the interests of the principal and not for their
own benefit.
An agent breaches his fiduciary duty if he makes any secret profits, if there is a
conflict of interests, if he abuses confidential information and if he delegates the
authority granted to him without authorisation, as propounded by Hawthorne and
Lotz (2007:199). In present case, Mr. Solar Panel committed three breaches,
namely accruing secret profits, he had a conflict of interest with the principal
(Vicky) and he abused confidential information to his benefit. We will now
analyse these duties separately.
Secret Profits

An agent may not, generally acquire and retain any secret profits as a result of
actions within the scope of his agency. The most common exception to this rule is
where the profit is made to the knowledge of the principal after all material facts
are disclosed to the principal. (Hawthorne &Lotz (2007:199). As was held in the
case of Robinson v Randfontein Estates Gold Mining Co Ltd 1921 AD 168, if an
agent does make secret profits from any transaction concluded for the benefit of
his principal, all profits made from the transaction are payable to the principal on
his insistence. The court further held that the agent is only entitled to the
commission agreed upon by the parties. In this case Mr. Solar Panel made a secret
profit by not procuring the solar panels for Vicky at N$ 20 000 as opposed to the
N$ 30 000 he charged her for the panels he sold her.

Conflict of interest
According to Gibson et al (2003:220), no agent may place in any position where
his interests are in conflict with those of his principal; these interests include those
of a financial or personal nature. A personal interest would be where the agent
wishes to buy an object which is made available for purchase by the principal. In
the case of Hargreaves v Anderson 1915 AD 519, H was authorised by A to sell a
certain hotel for a nominal amount to X but the purchase was in reality on behalf
of a partnership in which H had an equal share with X. the court ruled that an
agent employed to sell a property, who purchases it himself, cannot with one hand
claim the property as purchaser, and with the other hand claim commission as
agent of the principal. If the agent wants his commission, he must forgo any idea
of his becoming the purchaser. In Mallison v Tanner1947 4 SA 681 (T), however,
the court held that if the agent discloses his interests to the principal, no breach of
the fiduciary duty occurs. By selling his panels to Vicky, Mr. Solar Panel let his
financial interests interfere with his fiduciary duties to his principal, Vicky, who
had no knowledge of his interests.
Abuse of confidential information
According to Gibson et al, an agent may not disclose any information of his
principals affairs, acquired in the course and scope of the agency. The authors

further state that an agent who acts corruptly is guilty of a criminal offence, as is
any third party who is guilty of the same (2003:223).
I would thus advise Vicky to keep the solar panel and demand the profit Mr. Solar
Panel made from her in the pursuance of his own interests, which conflicted with
those of hers, as the principal in the agreement.

Question 3 B
i.

As explained above, Gibson et al (2003:230-1) state that the doctrine of the

undisclosed principal occurs where an agent has acted on behalf of another person
without disclosing the fact that he is acting for this unnamed person and with his/her
authority. The principal can then later reveal himself and institute action against the
third party based on the contract concluded on his behalf. (Gibson et al (2003:230-1)).
The merits and demerits of being an undisclosed principal will be dependent upon
which point of view one approaches it. In this case I will approach it from the
standpoint of the principal himself.

The rights and duties between the principal and the agent in an
undisclosed principal situation are basically the same as in a disclosed
principal situation. (Fouch et al (2004:240)). The agent is to be
treated as a trustee for the undisclosed principal of any goods or
payments received or any benefit that he derives from the contract with
the third party and is liable to account to the principal for such goods,
payment or benefit, as in the case of the disclosed principal.( Du

Plessis & Kok (1989:106)).

Before the undisclosed principal may enforce any right or be liable for
any obligation under a contract apparently made between the agent and
the third party, two pre-conditions have to be met, according to Gibson
et al (2003:235)
o The agent must have actual authority, whether express or
implied, to enter into the contract in question with the third
party; and

o The agent on entering into the contract with the third party
must have intended to act on behalf of the undisclosed
principal, not for his own benefit.
The rules which govern the rights and obligations arising between
agents and third parties are as follows (extracted from Gibson et al
(2003:236):
o An undisclosed principal has the power to sue and be sued by
the third party under the contract.
o An undisclosed principal remains liable to the third party for
the price of goods sold or services provided under the contract
made in the agents name with the third party. The undisclosed
principals liability will not be discharged even if he has made
payment to the agent wit instruction to the agent pays over the
same to the third party, if the agent fails to pay the third party
as instructed.
o Where the existence and identity of the principal is disclosed
and where the third party is to take action for recovery of any
amount payable to him under the contract, the third party can

elect to sue either the agent or the undisclosed principal.

Where a third party is unaware of the existence of an undisclosed
principal the following rights and obligations arise (sourced from
Gibson et al (2003: 238-239)):
o The agent will be treated as though he were the principal by the
third party. He may thus sue or be sued under the contract as
long as the principal remains concealed.
o When the identity of the principal is revealed, the third party
may choose to either sue the principal or the agent. If the third
party successfully sues either the principal or agent he is
precipitated from suing the other party.
o If the undisclosed principal successfully sues the third party, the

ii.

agent is precipitated from suing the third party.

Agency can be terminated in various ways.
a. According to Fouch et al, the first instance where agency is terminated is
where the mandate has been fulfilled (2004: 240). This means that where the
agent and principal have both discharged with their reciprocal obligations, the
relationship is terminated. (Fouch et al 2004:240)

b. The second instance where agency is terminated is by the passing of time.

Where parties agree to the duration of the relationship, the relationship is
terminated at the arrival of that time. The parties may expressly or impliedly
renew their contract before the expiration of the stipulated time. The case of
Fiat SA v Kolbe Motors 1975 2 SA 129 (O) provides an example of implied
renewal. The facts of the case are: fiat appointed Kolbe Motors in writing as
its agent. The agreement stipulated that Kolbe Motors was authorised to sell
Fiat products for the duration of a year. The contract was renewed until 1972,
after which it was not renewed. Another clause in the agreement stated that the
renewal would be done in writing. Fiat, however, continued to provide Kolbe
Motors with its products. At the end of 1973, Fiat one-sidedly terminated the
contract. Kolbe claimed that it was entitled to one year of notice before such
termination could be effected. Fiat disputed this claim, citing that the contract
was not renewed in writing at the end of 1972. The Court ruled in favour of
Kolbe, stating that the parties entered into a tacit agreement and that one could
conclude that they included the provisions of the original contract in the new
tacitly concluded contract.
c. The third instance in which agency is terminated is the death of either the
agent or the principal.
d. The fourth instance in which the relationship is terminated is the renunciation
by the agent, as stated by Gibson et al (2003:236). The agent may renounce
his authority at any point in time, provided that he has just cause to do so. Voet
states, that the just cause must fall within the scope of deadly enmities, bad
health absence in the interests of the commonwealth and other like reasons.
(17.1.17). In the absence of such good cause, the agent is liable to the principal
in the damages as the principal can prove on the ordinary rules of contract, as
stated by Gibson et al (2008: 236).
e. The fifth and final instance in which the relationship between the principal and
agent may be terminated, according to Fouch et al (2004:242) is by
revocation by the principal. In the case of Price Brothers & Barnes Ltd v
Snyman1936 TPD 332, it was observed that, generally, a principal has the
power and the right to revoke the agency without incurring liability in
damages to the agent, unless there is an express or implied term entitling the
agent to damages. In the case of Clarke v Durban & Coast SPCA 1959 (4) SA
333 (N) the Court stated that upon revocation, the agent must return any

property in his possession entrusted to him by the principal in connection with

the mandate.

Bibliography
Case Law
1) Bartman v Leonard 1952 2 SA 582 (C)
2) Clarke v Durban & Coast SPCA 1959 (4) SA 333 (N)
3) Cullinan v NoordskaaplandseAartapelkernmoerkwekersKo-op Bpk1972 1 SA
761 (A)
4) Du Plessis v Singer 1931 CPD 105
5) Fiat SA v Kolbe Motors 1975 2 SA 129 (O)
6) Frenkel v Ohlssons Cape Breweries Ltd 1909 TS 957.
7) Gien v Gien 1979 2 SA 1113
8) Hargreaves v Anderson 1915 AD 519
9) Harlin Properties (Pty) Ltd v Los Angeles Hotel 1962 (3) SA 143 (A)
10) Heynes Matthew Ltd v Gibson NO 1950 1 SA 13 (C)
11) Kealey v Landsberg 1953 4 SA 605 (C)
12) Mallison v Tanner1947 4 SA 681 (T)
13) Marais v Cloete1945 EDL 238
14) McNeil v Eaton (1903) 20 SC 507
15) Natal Trading & Milling Co. v Inglis1925 TPD 724
16) Poynton v Cran1910 AD 205
17) Fourie NO v Pottgietersusse Staadsraad 1987 (2) SA 921 (A).
18) Pretorius v Abrahamson 1904 TS 643
19) Price Brothers & Barnes Ltd v Snyman1936 TPD 332
20) Robinson v Randfontein Estates Gold Mining Co Ltd 1921 AD 168
21) Salmon v Dedlow 1912 TPD 971
22) SAR & H v Wm Anderson & Co 1917 CPD 121.
23) Tallachi& Another v The Master & Others 1997 1 SA 702 (T)
24) Transvaal Cold Storage Co v SA Meat Export Co Ltd 1917 TPD 413
25) Uitenhage Divisional Council v Port Elizabeth Municipality 1944 EDL 7
26) Viljoen v Clever 1945 NPD 336
27) Watson v Sachs 1994 (3) SA 655 (A).
28) Simon NO & Others v Mitsui & Co Ltd & Others 1997 (2) SA 475 (W)
29) Ciliza v Minister of Police 1976 (4) SA 243 (N)

Text Books
1) Gibson JTR, 2003, South African Mercantile and Company Law 8th ed. Cape
Town: Juta & Co.
2) Hawthorne L & Lotz JG, 1994, Contract Law Case Book for Students Cape
Town: Juta & Co.

3) Fouch MA (ed.), 2004, Legal Principles of Contracts and Commercial Law

6th ed. Durban : LexisNexis Butterworths
4) Du Plessis JR & Kok L. 1989, An Elementary Introduction to the Study of
South African Law, Cape Town: Juta & Co.

Internet Sources
1) http://www.nolo.com/legal-encyclopedia/free-books/small-claimsbook/chapter20-6.html retrieved 10th August 2015. Last accessed 12 th August
2015.
2) http://www.lac.org.na/projects/grap/Pdf/mono5harassmentOYO.pdf retrieved
9th August 2015. Last accessed 9th August 2015
3) http://landlords.about.com/od/Landlord101/a/Landlords-Responsibilities-ToTheir-Tenants.htm. Retrieved 10th August 2015. Last accessed 12th August
2015