Pareto Limited & Momentum Metropolitan Life Limited v Rikus Dirk Jansen Kotze
[2025] ZAWCHC ___ (8 August 2025) – High Court of South Africa, Western Cape Division, Cape Town
This judgment is reportable because it clarifies the interaction between Uniform Rule 32 (summary judgment) and Rule 27 (condonation) after the 2019 amendments that shifted summary-judgment applications to the post-plea stage. It also affirms that summary judgment is no longer viewed as a “drastic” remedy per se, adopting the Supreme Court of Appeal’s approach in Joob Joob Investments (Pty) Ltd v Stocks Mavundla Zek Joint Venture. The decision provides practical guidance on how plaintiffs may proceed when a defendant has filed and then withdrawn a counterclaim, and it underlines that technical objections should not thwart the expeditious resolution of claims where no genuine defence exists.
Pareto Limited and Another v Theron and Another [2024] ZAWCHC 249 (6 September 2024)
Joob Joob Investments (Pty) Ltd v Stocks Mavundla Zek Joint Venture 2009 (5) SA 1 (SCA)
No specific statutory provisions were determinative in this judgment.
Uniform Rule 24(1)
Uniform Rule 27(1) and 27(2)
Uniform Rule 32(2)(a)
The joint owners of Tyger Valley Centre sought summary judgment against the defendant, who had bound himself as surety and co-principal debtor for Thumbnail Advertising (Pty) Ltd under a 2017 commercial lease. Thumbnail defaulted on rent, was liquidated, and vacated the premises in February 2023. The plaintiffs claimed R 2 865 335.56 plus interest and costs. After the defendant filed a plea and counterclaim (later withdrawn), the plaintiffs applied for summary judgment outside the 15-day period in Rule 32(2)(a) and sought condonation under Rule 27. Cloete J granted condonation, dismissed the defendant’s opposition, and entered summary judgment for the full amount with attorney-and-client costs.
Whether a plaintiff may obtain condonation for filing a summary-judgment application outside the period prescribed in Rule 32(2)(a).
Whether the existence and later withdrawal of a counterclaim justify such condonation.
Whether the defendant’s plea raised a triable defence on the merits of the suretyship claim.
Condonation was granted because the plaintiffs’ delay was attributable to a counterclaim closely intertwined with the main claim; refusing condonation would allow defendants to sidestep summary judgment by launching and withdrawing spurious counterclaims. Summary judgment was therefore competent. The defendant failed to disclose a bona fide defence to liability as surety, and judgment was entered for the plaintiffs with attorney-and-client costs.
Thumbnail Advertising (Pty) Ltd leased Shop LL019 in the Tyger Valley Centre from 1 May 2017 for five years, with annual escalations and force-majeure provisions. The defendant, Mr Rikus Dirk Jansen Kotze, signed a written suretyship on 12 January 2017, binding himself as co-principal debtor for Thumbnail’s obligations.
When the COVID-19 pandemic struck, government lockdowns restricted trading. Despite a force-majeure clause permitting suspension of trading obligations, the landlords voluntarily granted substantial rental relief: 100 % for April–May 2020, 85 % for June–July 2020, and 50 % for August 2020. Thereafter, Thumbnail was expected to resume full rental payments.
Thumbnail continued to fall into arrears and eventually vacated the premises on about 28 February 2023. It was finally liquidated on 28 November 2023. After deducting the lease deposit, the landlords calculated outstanding rental and charges of R 2 865 335.56 for the period 1 August 2020 to 28 February 2023 and sued the defendant under the suretyship.
The court had to decide, first, whether the late summary-judgment application could be condoned under Rule 27 given the intervening counterclaim and its subsequent withdrawal. Second, it had to assess whether the defendant’s plea disclosed any bona fide defence that would warrant a trial, particularly in light of the suretyship’s terms and the rental-relief concessions.
Cloete J rejected the defendant’s reliance on Pareto v Theron, distinguishing that decision and emphasising that Rule 27 explicitly empowers courts to grant condonation for non-compliance with any rule “on good cause shown”. The judge reasoned that allowing a defendant to avoid summary judgment merely by filing and then abandoning a counterclaim would undermine the rule’s objective of swift justice.
The court drew on the Supreme Court of Appeal’s pronouncement in Joob Joob that summary judgment is not an “extraordinary” or “drastic” remedy. Instead, it is a procedural mechanism to prevent delays where a defendant has no real defence. Against that backdrop, strict, inflexible adherence to the 15-day period in Rule 32(2)(a) would be inimical to the efficient resolution of commercial disputes.
Turning to the merits, the judge examined the plea and found no triable defence. The defendant did not deny signing the suretyship or the accuracy of the landlord’s statement of account. His reliance on further COVID-19 rental relief was foreclosed by the lease’s non-variation clause, which demanded any amendments to be in writing and signed. No such written variation existed, and the earlier concessions were unilateral acts of grace that did not extinguish future liabilities. Consequently, the requirements for summary judgment were satisfied.
Condonation for the late filing of the summary-judgment application was granted. Judgment was entered against the defendant for R 2 865 335.56 plus interest at the legal rate a tempore morae from 1 August 2020 until payment, together with costs on the scale as between attorney and client.
Summary judgment, post-2019, is a routine mechanism aimed at eliminating unmeritorious defences; it should not be obstructed by procedural gamesmanship.
A court retains a flexible discretion under Rule 27 to condone non-compliance with any rule, including Rule 32, when good cause is shown and no prejudice ensues.
Unilateral rental concessions do not vary a lease governed by a strict no-variation clause; without a written, signed amendment, the tenant and surety remain liable for the full contractual rental once the concession period lapses.