A decision handed down by the KwaZulu-Natal High Court makes it clear that in any correspondence between a tenant and a landlord, the sender of the communication is responsible for seeing that the recipient received it, whether it be a letter, email or telegram, says Tony Clarke, MD of Rawson Properties.

The case has also reaffirmed the importance of keeping records of all such correspondence and, if possible, either hand delivering or sending letters by registered post.

The tenant in this case rented three commercial units owned by the landlord in a shopping centre in Pietermaritzburg. The lease agreements stipulated that at the end of the five year lease period the tenant could renew his lease at a 12% annual increase in the rental – provided he applied to do so in writing six months before the lease expired.

The tenant claimed that the required letter had been written and it then transpired that he had asked the manager of his internet café (operating in one of the rented shops) to type and send the letter. The café manager testified that this was done, but he did not keep a copy or send one to the tenant. It was allegedly saved on the hard drive but then deleted in a virus cleanup operation.

The high court, though admitting that there were many grey areas in the dispute, confirmed the original decision that the lease had expired and the tenant could be evicted.

Clarke says many estate agents have had similar experiences where the intended recipient claimed not to have received the letter. The golden rule is always to post a copy within one week and to check telephonically if there would be a response.

“Previous cases of this kind referred to in the court’s decision have shown that the onus is on the sender to confirm that the communication is received. All too often recipients will claim they have not received letters because it may well suit them to do so,” says Clarke.