Whether the plaintiff's alleged right of pre-emption as per clause 6 of the lease (Annex “A” to the particulars of claim), was capable of being legally extended based on the facts in paragraphs of the particulars of claim?”. This lease shall, notwithstanding the date on which the Landlord and the Tenant sign it, last for the period described in clause 1.6 of the agreement.”. The lease was never renewed in terms of clause 1.14 and the initial lease terminated due to the lapse of time.
It was held that the right of priority in a lease is not related to the relationship of landlord and tenant, but rather the security and enforcement of a. The lease may grant the lessee the option to purchase the lessor's interest in the leased premises. This is usually in the form of an undertaking by the lessor that if the lessee notifies the lessor in writing within a specified period of a certain length of his desire to purchase the rent or other interest of the lessor in the premises, the lessor will hand over the used premises to the lessee upon payment of a certain purchase price and arrears of rent.
Such an option is a collateral for, independent of and not in conflict with the relationship between landlord and tenant. It is therefore not one of the terms that will be included in the terms of an annual lease entered into by the tenant remaining after the expiration of the original lease; and where the parties agree that the lease shall be extended, this shall not be deemed to be one of the terms of the extended lease unless it is clearly shown that they intended the purchase option to continue for the extended period. ". When a rental agreement is extended more easily, all conditions related to the relationship between landlord and tenant are therefore extended.
The learned Judge a quo was not prepared to hear arguments on facts which did not form part of the case stated.
AD PARAGRAPH 18 (INCLUDING SUB-PARAGRAPHS)
AD PARAGRAPHS 19, 19.1 AND 20.1
The first respondent denies that it was his intention that the collateral parts of the lease (which included the right of first refusal) should continue throughout the extended period. The intention was that the right of first refusal would only last for a maximum period of two years (the initial one-year period of the lease and a further . one year in terms of the renewal clause).
AD PARAGRAPH 19.2, 20.2 AND 26
AD PARAGRAPH 21
AD PARAGRAPH 22
AD PARAGRAPH 22.1
In the latter two cases, the express wording of the clauses requiring interpretation included the express words “same terms and conditions”.
AD PARAGRAPH 22.5
AD PARAGRAPHS 22.5.1
AD PARAGRAPH 22.5.2
AD PARAGRAPH 22.5.3
AD PARAGRAPHS 23 AND 23.1
The applicant has not proven any reputation or goodwill with the wine merchant, if any.
AD PARAGRAPHS 23.2 AND 23.3
If the first respondent had never wanted to sell the leased premises during the term of the lease, the applicant would never have been in a position to acquire the property by virtue of its right of first refusal/right of first refusal.
AD PARAGRAPH 23.5
AD PARAGRAPH 23.6
Thus, the applicability, rationale, and persuasiveness of the Sherwood case applies equally to the right of first refusal/right of preemption, which is similarly collateral to the landlord-tenant relationship.
AD PARAGRAPHS 23.6.1 AND 23.6.2
But the grant of a right of first refusal, like the grant of an option, is a contract. Neither type of contract is itself a contract for the sale of land or any interest in land; but each type of contract will result in the conclusion of a contract for the sale of land if the grantee exercises his rights. The only difference between the two types of contracts is that the right of first refusal can only be exercised when a contingent event occurs (namely the grantor's desire, desire, etc. to sell), whereas the recipient of an option is usually free to exercise his option without any such limitation.
The only difference is that the beneficiary of a right of pre-emption cannot exercise his right until the event that triggers it takes place. Once either an option or a right of pre-emption has been exercised, the right will be the conclusion of a contract of sale of land.
AD PARAGRAPHS 23.6.3 AND 23.6.4
It is ironic that the only facts that were recognized and agreed upon were those that the appellant stated in her claim.
AD PARAGRAPH 24
AD PARAGRAPHS 25 AND 25.1 AND 26 (INCLUDING SUB- PARAGRAPHS)
The interpretation of contracts is nothing new to South African jurisprudence and there were certainly no unusual technical challenges in this case. The Applicant has not informed the Respondents or this Honorable Court what the "unusual technical challenge of contractual disputes" was.
AD PARAGRAPH 25.2
APPLICANT’S LIST OF AUTHORITIES
English law in this area, as stated in Halsbury, Laws of England, 2nd ed. 69, has been accepted as part of our law, while American law, as cited on page 2 of the Tubbs case, appears to be exactly the opposite , i.e., be that as it may, the applicant's reliance on the Masstores decision is misplaced as that issue was the SCA.
The specific sections in the founding declaration, which I have not directly answered, are in any case opposed on the basis of the above. THEREFORE, the respondents request that the application for leave to appeal be granted with a claim for costs. SIGNED AND SWORN TO BEFORE ME AT JOHANNESBURG ON THIS DAY OF JUNE 2016, THE DEPONENT HAS ACKNOWLEDGED THAT HE/SHE KNOWS AND UNDERSTANDS THE CONTENTS OF THIS AFFIDAVIT, THEY DO NOT HAVE TO GO THAT PLACE. CONSIDERS THE OATH BINDING ON HIS/HER CONSCIENCE.
