Table of ContentsQuestion 1............................................................................................................. 2Question 3 A.......................................................................................................... 7Question 3 B........................................................................................................ 10Bibliography......................................................................................................... 13Case Law.......................................................................................................... 13Text Books........................................................................................................ 1!nternet "our#es............................................................................................... 1Question 1A. The primarydutyof the landlordor lessor istodeliver theuseandoccupationorenjoyment ofthepropertylet tothelesseeinaccordancewiththetermsoftheiragreement, as was stated in the case of Heynes Matthew Ltd v Gibson NO 1950 1 SA1 !"#. $urther, the lessor or landlord must deliver the property with all accessoriesessential tothetenant for theproper useandenjoyment of theproperty, aswasdecided %y the cases ofMcNeil v Eaton!190# &0 S"50' andPretorius vAbrahamson 190( TS )(.The landlord or lessor also has the duty to give the tenantor lessee free and undistur%ed possession not in contest when delivered, aspropounded%y*i%sonet al!&00+1'(#. Accordingto$ouch,et al!&00(+ 1)5#,delivery must ta-e place on the date agreed upon %y the parties, or where a fi.ed dateis not agreed upon, within reasona%le time after the lessee demands delivery. /ithregardstotheconditionofthepropertyto%eleased, thefollowingpositionprevailed in the case of Harlin Properties (Pty) Ltd v Los Aneles Hotel 19)& !# SA1( !A# at 150, the learned judge 0uoting the preceding case of Poynton v !ran1910A1 &05 at &&1+2The principle is that the tenant is entitled to the due use of the thing which he hasleased, and he cannot enjoy that use unless the property is delivered3in a state ofrepair which is reasona%le under the circumstances4$ouch,et almaintainthat wherethelessor has guaranteedcertainattri%utes or0ualities or has warranted against defects in the property, he has a duty to deliver theproperty with the attri%utes or without the defects !&00(+1))#. The landlord5s failure to deliver the property and thus interfering with the tenant5sright to the use and enjoyment of the property e0uates to a %reach of the contract. Thelessee is therefore entitled to claim damages, as was held in the case of "u Plessis v#iner 191 "61 105./herethelandlordfailstodeliverthepropertyinthere0uiredcondition, healsocommitsa%reachofcontract, asstated%y$ouch,et al!&00(+1))#. 7nthecaseofMaraisv !loete19(5819 &:it wasdecidedthatthe lesseecannotclaim specificperformance %ut he can, however, affect the necessary repairs himself. These repairscan only %e done where the landlord is made aware of the repairs made %y the lesseeand the cost of repairs can either %e deducted from the amount of rent or the cost may%e claimed from the landlord.;oe ing>ongorhecandemandthat thecostsincurredinsuchpainting %e deducted from the amount in rent, as was held in the case ofongwasawareorshouldhavereasona%ly%eenawareofthestructural defects in the property. $urther, %ecause the damage to his television set wasa direct result of the defect, he can claim damages from >ing >ong.$. The primary duty of the landlord is to deliver to the lessee the use and enjoyment oroccupationoftheleasedpropertyinaccordancewiththetermsoftheiragreement!*i%son et al !&00+ 1'(##. According to www.nolo.com, landlords have some degreeoflegalresponsi%ilitytoprovidesecurehousingfortenants.Theseresponsi%ilitiesincludeta-ingreasona%lestepstoshieldtenantsfromthecriminal actsoffellowtenants, which in current case are the drugdealing activities. !www.nolo.com#.According to www.landlords.a%out.com one of the responsi%ilities of a landlordisto provide and maintain a safe environment for the tenants. The tenant must feel safein the property. This duty includes the assurance of loc-a%le windows and door aswell asanenvironment freefromillegal activitywww.landlords.a%out.com .Thewe%site further states that the %est manner in which to ensure that no criminal activityoccurs on the property is to screen all tenants prior to their occupation of the property.This would include chec-ing criminal records and contacting former landlords. After e.tensive and e.hausting research the author could find no case law concerningthis specific se0uence of events, however in the case of Gien v Gien 19'9 & SA 111T the %rief facts of the case were as follows+ The applicant and respondent were %rothers living on neigh%ouring livestoc- farms inthe former /estern Transvaal. They used to farm in partnership %ut fell out over theirmother@s will and now detested each other. The respondent -ept a vegeta%le garden,%ut hadapro%lemwith%a%oonsraidingit. =e%ought andinstalledanapparatuswhich emitted gas e.plosions every two minutes day and night. The applicant appliedfor an interdict restraining the respondent from using the apparatus in such a way as tocause a nuisance. =e alleged that the e.plosions distur%ed his daily peace of mind andhis sleep, as well as his family and wor-ers. 8veryone on the farm had %ecome shortAtempered and easily irritated. Bne of his horses %ecame so volatile as a result of thenoise that it threw its rider and had to %e ta-en off the farm in order to calm it. Thecattlewererestlessandresisteddipping. *enerally,theeffect ofthenoisewastodisrupt his farming activities.The 0uestion%efore the "ourt was whether the respondent actedunlawfully%yinfringing on his %rother5s right to peace and 0uiet as per the legal convictions of thecommunity in the area of neigh%our law. 7t was found here that he did, and thereforethat he acted unlawfully. The "ourt held+CThe interests the respondent wished to protect were of such a restricted scope and thenature of the steps he too- to protect them were so drastic in relation to his goal and tothe particular environment that he e.ceeded his powers to protect those interestsgranted to him %y the law of property. As a result he unlawfully interfered withapplicant@s rights as owner of the neigh%ouring property. Dnder these circumstances,the applicant is entitled to an interdict5.;oe o- !19:9+::##.7n this conte.t, a distinction must %e drawn %etween the appointment of a su%Aagentand the su%stitution of an agent. /here a su%Aagent is appointed, he is in a contractualrelationship with the agent and the original agent remains %ound to the principal forthe e.ecution of his duties !$ouch, et al!&00(+ &:##. The performance of the su%Aagent thus %ecomes the responsi%ility of the original agent, meaning the original agent%ecomes lia%le for any negligent or unauthorised conduct %y the su% agent !1u 6lessisG >o- !19:9+:9##.The su%stitution of an agent occurs when he transfers all or some of his rights, powersandEor duties to the other person. The result is that the other person !the su%stitute#nowstandsinacontractual relationshipwiththeprincipal intermsofwhichthesu%stitute functions as the agent of the principal, as was held in the case of .atson v#achs199( !# SA )55 !A#. This means that the contract !or relevant part thereof#%etween the original agent and the principal terminates. !*i%son et al!&00+ .The original agent remains, however, lia%le for negligence in selecting the su%stitute,or in conveying the terms of his authority to him, as was held in #imon NO - Othersv Mitsui - !o Ltd - Others 199' !SA ('5 !/#.The effect of agency is that the agent concludes a juristic act, from which o%ligationsarise. These o%ligations, however are not %inding on the agent, %ut on the principal onwhose%ehalf andwithwhoseauthorityheacts andathirdparty!$ouch,et al!&00(+&(0#. 7n the fulfilment of his duties, the agent must act for and in the name ofthe principal. $urther, the agent and the third party must intend that legal o%ligationsare created %etween the principal and the third party. !$ouch, et al !&00(+&(0##According to *i%son et al, there is an e.ception to this rule, in the doctrine of theundisclosed principal. /here the agent acts on %ehalf of the principal withoutdisclosing the fact, the principal can reveal himself later and institute action againstthe third party %ased on the contract concluded on his %ehalf!&00+&0A1#. Should thethirdparty%ecomeawareofthee.istenceoftheundisclosedprincipal %eforethelatter reveals himself, the third party can choose whether he wishes to claimperformance from the agent or from the principal, as was ruled in the case ofNatal1radin -Millin !o4 v 5nlis19&5 T61'&(4/here a third party o%tainedjudgement againstanagentactingon%ehalfofanundisclosedprincipal, thethirdparty is not allowed to claim from the undisclosed principal as was decided in the caseof!ullinan v Noords)aaplandseAartapel)ernmoer)we)ers+o6op $p)19'& 1 SA ')1!A#. 7n thecase of1allachi- Another v 1he Master -Others199' 1 SA '0& !T#,theapplicants had o%tained cession of claims for payment from creditors who had soldgoods to 9itesell 1istri%utors. 7t transpired that 9itesell had acted as an agent for 9iteIagic and the applicants were invited to prove their claims against 9ite Iagic. Theydeclined%ecause9iteIagichad%eenli0uidatedando%tainedjudgement against9itesell, who was una%le to meet the judgement against it. The applicants then lodgeda claim against 9ite Iagic. The claim was rejected %y 9ite Iagic5s li0uidators.ii4 *i%son et al list the four duties of an agent as+a4 To perform his mandate according to the instructions of the principal.b4 To act honestly and in good faith.c4 To display care, s-ill and diligence in the e.ecution of his mandateH andd4 To account to his principal.7n present case, the duty %reached %y Ir. Solar 6anel is that of acting honestly andin good faith, which will %e further analysed %elow. "ase law will also %e reliedupon to illustrate the court5s position on the duty to act honestly and in good faith.According to the case of,obinsonv ,and3ontein EstatesGold Minin !oLtd19&1 A1 1):, agency creates a fiduciary relationship %etween the parties, namelythe principal and the agent. This sentiment was echoed and clarified in the case of, v Milne -Erleih1951 1 SA '91 !A#, when the court opined that agents mustconduct the affairs of the principal in the interests of the principal and not for theirown %enefit.An agent %reaches his fiduciary duty if he ma-es any secret profits, if there is aconflict of interests, if he a%uses confidential information and if he delegates theauthority granted to him without authorisation, as propounded %y =awthorne and9otJ!&00'+199#. 7npresent case, Ir. Solar 6anel committedthree%reaches,namelyaccruingsecret profits, hehadaconflict ofinterest withtheprincipal!Fic-y# andhea%usedconfidential informationtohis %enefit. /ewill nowanalyse these duties separately. #ecret Pro3itsAn agent may not, generally ac0uire and retain any secret profits as a result ofactions within the scope of his agency. The most common e.ception to this rule iswhere the profit is made to the -nowledge of the principal after all material factsare disclosed to the principal. !=awthorne G9otJ !&00'+199#. As was held in thecase of ,obinson v ,and3ontein Estates Gold Minin !o Ltd 19&1 A1 1):, if anagent does ma-e secret profits from any transaction concluded for the %enefit ofhis principal, all profits made from the transaction are paya%le to the principal onhis insistence. The court further held that the agent is onlyentitled to thecommission agreed upon %y the parties. 7n this case Ir. Solar 6anel made a secretprofit %y not procuring the solar panels for Fic-y at ?K &0 000 as opposed to the?K 0 000 he charged her for the panels he sold her.!on3lict o3 interestAccording to *i%son et al !&00+&&0#, no agent may place in any position wherehis interests are in conflict with those of his principalH these interests include thoseof a financial or personal nature. A personal interest would %e where the agentwishes to %uy an o%ject which is made availa%le for purchase %y the principal.7nthe case of Harreaves v Anderson 1915 A1 519, = was authorised %y A to sell acertain hotel for a nominal amount to L %ut the purchase was in reality on %ehalfof a partnership in which = had an e0ual share with L. the court ruled that anagent employed to sell a property, who purchases it himself, cannot with one handclaimthepropertyaspurchaser,andwiththeotherhandclaimcommissionasagent of the principal. 7f the agent wants his commission, he must forgo any ideaof his %ecoming the purchaser. 7n Mallison v 1anner19(' ( SA ):1 !T#, however,the court held that if the agent discloses his interests to the principal, no %reach ofthe fiduciary duty occurs. o- !19:9+10)##. ol%eIotors with its products. At the end of 19', $iat oneAsidedly terminated thecontract. >ol%e claimed that it was entitled to one year of notice %efore suchtermination could %e effected. $iat disputed this claim, citing that the contractwas not renewed in writing at the end of 19'&. The "ourt ruled in favour of>ol%e, stating that the parties entered into a tacit agreement and that one couldconclude that they included the provisions of the original contract in the newtacitly concluded contract.c. Thethirdinstanceinwhichagencyisterminatedisthedeathofeithertheagent or the principal.d. The fourth instance in which the relationship is terminated is the renunciation%y the agent, as stated %y *i%son et al!&00+&)#. The agent may renouncehis authority at any point in time, provided that he has just cause to do so. Foetstates, that the just cause must fall within the scope of 2deadly enmities, %adhealth a%sence in the interests of the commonwealth and other li-e reasons4.!1'.1.1'#. 7n the a%sence of such good cause, the agent is lia%le to the principalin the damages as the principal can prove on the ordinary rules of contract, asstated %y *i%son et al !&00:+ &)#.e. The fifth and final instance in which the relationship %etween the principal andagent may %e terminated, according to $ouch, et al !&00(+&( is %yrevocation%ytheprincipal. 7nthecaseofPrice$rothers-$arnesLtdv#nyman19)T61&, it waso%servedthat, generally,aprincipal hasthepower and the right to revo-e the agency without incurring lia%ilityindamages to the agent, unless there is an e.press or implied term entitling theagent to damages. 7n the case of !lar)e v "urban - !oast #P!A 1959 !(# SA!?# the"ourt statedthat uponrevocation, theagent must returnanyproperty in his possession entrusted to him %y the principal in connection withthe mandate.Bibliography Case Law1# $artman v Leonard 195& & SA 5:& !"# !lar)e v "urban - !oast #P!A 1959 !(# SA!?## !ullinan v Noords)aaplandseAartapel)ernmoer)we)ers+o6op $p)19'& 1 SA')1 !A#(# "u Plessis v #iner 191 "61 1055# (iat #A v +olbe Motors 19'5 & SA 1&9 !B#)# (ren)el v Ohlsson*s !ape $reweries Ltd 1909 TS 95'.'# Gien v Gien 19'9 & SA 111:# Harreaves v Anderson 1915 A1 5199# Harlin Properties (Pty) Ltd v Los Aneles Hotel 19)& !# SA 1( !A#10# Heynes Matthew Ltd v Gibson NO 1950 1 SA 1 !"#11# +ealey v Landsber 195 ( SA )05 !"#1 Mallison v 1anner19(' ( SA ):1 !T#1# Marais v !loete19(5 819 &:1(# McNeil v Eaton !190# &0 S" 50' 15# Natal 1radin - Millin !o4 v 5nlis19&5 T61 '&(1)# Poynton v !ran1910 A1 &051'# (ourie NO v Pottietersusse #taadsraad 19:' ! SA 9&1 !A#.1:# Pretorius v Abrahamson 190( TS )(19# Price $rothers - $arnes Ltd v #nyman19) T61 &&0# ,obinson v ,and3ontein Estates Gold Minin !o Ltd 19&1 A1 1):&1# #almon v "edlow 191& T61 9'1& #A, - H v .m Anderson - !o 191' "61 1&1. 1allachi- Another v 1he Master - Others 199' 1 SA '0& !T#&(# 1ransvaal !old #torae !o v #A Meat E2port !o Ltd 191' T61 (1&5# %itenhae "ivisional !ouncil v Port Eli&abeth Municipality 19(( 819 '&)# /il0oen v !lever 19(5 ?61 )&'# .atson v #achs 199( !# SA )55 !A#.&:# #imon NO - Others v Mitsui - !o Ltd - Others 199' !SA ('5 !/#&9# !ili&a v Minister o3 Police 19') !(# SA &( !?#Text Books1# *i%son ;TM, &00,#outh A3rican Mercantile and !ompany Law:thed. "apeTown+ ;uta G "o. =awthorne 9 G 9otJ ;*, 199(,!ontract Law !ase $oo) 3or #tudents"apeTown+ ;uta G "o. # $ouch, IA !ed.#, &00(, Leal Principles o3 !ontracts and !ommercial Law)th ed. 1ur%an + 9e.is?e.is o- 9.19:9,An Elementary 5ntroduction to the #tudy o3#outh A3rican Law' "ape Town+ ;uta G "o.Internet Sources1# http+EEwww.nolo.comElegalAencyclopediaEfreeA%oo-sEsmallAclaimsA%oo-Echapter&0A).html retrieved 10th August &015. 9ast accessed 1&th August&015. http+EEwww.lac.org.naEprojectsEgrapE6dfEmono5harassmentBNB.pdfretrieved9th August &015. 9ast accessed 9th August &0153% http+EElandlords.a%out.comEodE9andlord101EaE9andlordsAMesponsi%ilitiesAToATheirATenants.htm.Metrieved10th August &015. 9ast accessed1&thAugust&015