The Effects on Leases of Supervening Impossibility of Performance
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with some protection in the event of the insolvency of the seller.
Furthermore, it is a presumption of interpretation that statutes must
be interpreted in the light of, and in conformity with, the common law
(Casserley v Stubbs 1916 TPD 310 at 312 and Dhanabakium v Subramanian
1943 AD 160 at 167). Such protection can, however, be only afforded
when the sale is perfecta.
Although the conclusion reached by the court is correct, it is sub-
mitted with respect that to hold that the contract is not one of sale
and consequently for that reason it does not fall within the ambit of
s 72 is a questionable simplification of the position. It is submitted that
the contract is one of sale but s 72 is applicable only to perfected
contracts.
G E DEVENISH
THE EFFECT ON LEASES OF SUPERVENING IMPOSSIBILITY OF PERFORMANCE
The lease in Greenberg v Meds Veterinary Laboratories (Pty) Ltd 1977
(2) SA 277 (T) was entered into on 30 April 1975 and was to run to
30 April 1980. The lessee paid the rent up to 31 July 1976 but not
thereafter (277G). On 12 October 1976 the lessor obtained a judgment
by default by virtue of which the lease was declared cancelled, eject-
ment of the lessee was ordered, and a request for an order for payment
of rent up to the date of cancellation was postponed sine die (277H-
278B). Thereafter the lessee (a company) applied to have the default
judgment set aside (278B-C) and sought to show that it had a prima
facie defence (278H). Of the two grounds upon which the lessee rested
its case only one is relevant to the topic dealt with in this note. This
was stated by the court at 279E-F as follows:
'(a) That the applicant [the lessee] was excused from paying any rental for the
premises from 1 August 1976 onwards by reason of the facts
(i) that the premises have structural defects of such a nature that they are
unfit for the purposes for which they were leased; and
(ii) that on 1 June 1976 the applicant was informed that it would be prohibited
from utilizing the premises for those purposes unless the defects were
remedied within 90 days, and that as from 1 September 1976, owing to
the refusal by the respondent to remedy them, the applicant was effectively
prevented from utilizing the premises for such purposes.
What was referred to in (a)(ii) above was a requirement by the Depart-
ment of Labour that certain structural repairs or alterations had to be
made if the premises were to continue to be used for the purpose for
which they were let (280E-F).
The court found that the defence put forward was unsound in law
and that the lessor had a valid claim for cancellation of the lease and
payment of arrear rental of R6 000 (286A). In awarding R6 000 the
court allowed the lessor's claim for the full amount of the rent up to](ViewImageLocal?handle=hein.journals/soaf94&div=68&collection=&method=preview&ext=.png&size=3)
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The Effects on Leases of Supervening Impossibility of Performance
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