Herr v Innomet (Pty) Ltd (394/2015) [2016] ZASCA 82 (31 May 2016) per Saldulker JA (Ponnan, Majiedt, Swain and Zondi JJA concurring):

The Supreme Court of Appeal (SCA) allowed the lessee’s appeal.  The lessee vacated a unit is a sectional title complex before the expiry of the lease after finding out that extensive renovations were going to be done in an adjoining section.  The landlord was legally obliged to object to the planned renovations.  The trustees should have been informed.  The conduct rules of the body corporate prevented an owner from altering a section in a manner likely to ‘impair the stability of the building or the amenity of other sections or the common property’.  The lessee could not invoke the conduct rules and the landlord failed to do so.  The lessee was entitled to a refund of the deposit and was not liable to the landord for vacating the unit before the expiry of the lease.


Legal Principles

[11]      In argument before us it was accepted that the lease agreement imposed reciprocal obligations on the parties. In R H Christie & GB Bradfield Christie’s The Law of Contract in South Africa 6 ed (2011) at 437, the authors state the following:

In BK Tooling (Edms) Bpk v Scope Precision Engineering (Edms) Bpk 1979 1 SA 391 (A) the Appellate Division reviewed in some detail the history and scope of what have come to be known as the principle of reciprocity and the exceptio non adimpleti contractus. The principle of reciprocity recognises the fact that in many contracts the common intention of the parties, expressed or unexpressed, is that there should be an exchange of performances, and the exceptio gives effect to the recognition of this fact by serving as a defence for the defendant who is sued on the contract by a plaintiff who has not yet performed or tendered to perform.’

. . . . .

[15]      Applying the legal principles to the facts it is clear that Innomet cannot succeed in its claim for contractual damages.  As landlord, Innomet was obliged in terms of the lease to provide the Herrs with peaceful and undisturbed occupation.  Innomet failed to respond to the e-mails sent by the lessee on 5 December 2010 and 28 January 2011.  The e-mails gave a graphic account of the effect of the planned construction which would have deprived the Herrs of the use and enjoyment of the premises.  Photographs handed in as exhibits during the hearing depict the magnitude of the construction which, inter alia required the use of a large crane, and a large construction crew would have required direct access to the building on a daily basis.