advisorymemo

Advise memorandum to Baloyi, Mmutle and Sterk Attorneys
In re: Green Landlord (PTY) (LTD) // Acidic Batteries (PTY) (LTD)
Re: Advice on the nature of evidence required to prove quantum of damages against Acidic
Batteries (PTY) (LTD) based on breach of agreement.
ADVISORY MEMORANDUM
INTRODUCTION
1. The consultant is Green Landlord (PTY) (LTD). The company entered into an oral agreement
with Acidic Batteries (PTY) (LTD) for the leasing of a warehouse owned by GL to AB for a
period of 5 years based on terms which were reduced to a letter. AB breached the
agreement and the question is the nature of evidence which is required in order to prove
quantum claimed by GL for damages which resulted of the breach of agreement by AB.
FACTUAL BACKROUND
2. On or about July 2000 at or near Kempton Park, Acidic Haven Michael Money representing
the plaintiff as managing Director of GL entered into an agreement with Barry Battery
representing the AB. The agreement was oral and to the effect that the GL will let AB
warehouse owned by the plaintiff situated at 18 Skietlood street, Acidic Haven, Kempton
Park.
3. The Lease agreement was on the basis terms which were recorded in a letter dated 07 July
2000. The terms included the following :

4.1 The lessor will let the warehouse to the lessee for a period of 5 years commencing
on the 1st August 200.
4.2 The lessee will pay rental due to the plaintiff.
4.3 Upon expiry of lease agreement the defendant is to vacate the warehouse in the
same condition as it was when the defendant took occupation.
4.4 In the event of a breach by any of the parties, the required notice in writing shall be
served on the defaulting party ordering him to remedy the breach.
4.6 In the event that the defaulting party does not remedy the breach, the aggrieved
party is entitled to approach the court for cancellation of the agreement and claim
relief for breach.
Copy of the letter attached hereto as annexure “1A”
4. During the period of the lease the AB manufactured lead batteries in the warehouse and GL
was aware of this, however during the process acidic spillage occurred without GL knowing
or being notified of it. The spillage had very serious consequences for the warehouse,
namely chemical attack by the sulphuric acid on the structure of the warehouse,
contamination of the soil and decay of the window frames, roller shutter doors and water
pipes.
5. On the 31st day of December 2005 AB vacated the building, having paid all rentals due to GL.
6. As a result of the strong acidic smell and which remained in the premises and the corrosion
of the structure caused by the negligence of the AB the GL was unable to lease the premises
from January 2006 to July 2006 after remedial work on the warehouse was completed which
costs the total of R392 000.00. GL is also claiming for loss of income which occurred during
the time where the warehouse could not be re-let as it was undergoing renovations.
7. GL has as result from AB claimed for damages and AB has acknowledged the existence of the
agreement between the parties , however denies the damage to the premises and the
quantum thereof.
ANALYSIS OF ISSUES
8.1 COMMON COURSE:
 There is an oral agreement of lease between the parties.
 The terms of the agreement are not disputed.
8.2 DISPUTED ISSUES
 The damages to the warehouse as a result of breach of agreement.
 The quantum claimed by GL is placed at issue.
THE LEGAL POSITION
8. A party that has incurred damages as a result of a breach of a contract. The law and the
terms of contract in this case are settled that the aggrieved party, in this instance GL, has a
legal remedy in terms of common law, being the recovery of the damages suffered.
9. The case of Solgas (PTY)(LTD) v Tang Delta Properties CC 2016 ZAGPJHC 158 it was confirmed
that a lessee was obliged to repair any damages and restore the premises to the satisfaction
of the lessor on or before the termination of the lease agreement, failing which the lessor
reserved the right to hold the lessee liable for payment of the monthly rental up to the last
day following of the month which restoration work was completed and premises able to re-
let the premises. Following the judgement in Solgas case GL is entitled to damages for the
costs incurred as a result of the renovations and for rental money during the period of
renovation
10. EVIDENCE
10.1 Discovery of receipts of the renovation, photographs of before and after the
renovations of the premises should be used to prove the quantum sought. The receipts
and photographs should be discovered, produced and inspected to AB in terms of Rule
35 of the uniform rules of Court.
10.2 In order to proof that authenticity of the photographs notice must be given to the
effect that the photographer as an expert witness will be called to court in terms of Rule
36 of the uniform rules of the court. A property evaluator may also be called as expert to
quantify the value of the premises and before and after the renovations. A notice in
terms of rule 36 of the uniform rules of the court be given .
11. In terms of Rule 37 of uniform Rules of the court GL may in terms of notice appoint a date
and place of pre-trial conference, where both parties will hold a pre-trial conference in
preparation for trial.
CONCLUSION
12. Based on the documentary evidence and the availability of the expert evidence to support
and confirm the evidence at the disposal of GL, The damages which are sought are be likely
to be awarded to GL.
13. The instructing attorney and/or GL are at liberty to discuss with me any matter arising from
this memorandum.
_______________________
M KHOSA
Polokwane Chambers
44 Schoeman Street
15 March 2018

advisorymemo

Uploaded by

Copyright:

Available Formats

advisorymemo

Uploaded by

Document Information

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

advisorymemo

Uploaded by

Copyright:

Available Formats

Advise memorandum to Baloyi, Mmutle and Sterk Attorneys

In re: Green Landlord (PTY) (LTD) // Acidic Batteries (PTY) (LTD)

Batteries (PTY) (LTD) based on breach of agreement.

2000. The terms included the following :

on the 1st August 200.

4.2 The lessee will pay rental due to the plaintiff.

same condition as it was when the defendant took occupation.

served on the defaulting party ordering him to remedy the breach.

relief for breach.

Copy of the letter attached hereto as annexure “1A”

8.1 COMMON COURSE:

 There is an oral agreement of lease between the parties.

 The terms of the agreement are not disputed.

8.2 DISPUTED ISSUES

 The damages to the warehouse as a result of breach of agreement.

 The quantum claimed by GL is placed at issue.

THE LEGAL POSITION

and photographs should be discovered, produced and inspected to AB in terms of Rule

35 of the uniform rules of Court.

terms of rule 36 of the uniform rules of the court be given .

preparation for trial.

You might also like