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2012
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[2012] ZAGPJHC 274
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Gumede NO and Others v Denysschen t/a Chelsea Seafood & Grill (2012/29190) [2012] ZAGPJHC 274 (26 October 2012)
IN THE SOUTH GAUTENG HIGH COURT, JOHANNESBURG
(REPUBLIC OF SOUTH AFRICA)
CASE NO:
2012/29190
DATE: 26/10/2012
In the matter between:
GUMEDE, NYANGENI SAUL
N.O.
in his capacity as
trustee of
MERGENCE AFRICA
PROPERTY INVESTMENT TRUST
(IT
11263/2003)
...................................................................................
First
Plaintiff
DE BRUYN, BRIGITTE N.O.
in her capacity as
trustee of
MERGENCE AFRICA
PROPERTY INVESTMENT TRUST
(IT
11263/2003)
...................................................................................
Second
Plaintiff
PETERSEN, ISAK SMOLLY
N.O.
in his capacity as
trustee of
MERGENCE AFRICA
PROPERTY INVESTMENT TRUST
(IT
11263/2003)
...................................................................................
Third
Plaintiff
and
DENYSSCHEN, HERMEN
STEPHEN t/a
CHELSEA
SEAFOOD &
GRILL
....................................................
Defendant
JUDGMENT
This is an application for summary judgment.
The plaintiffs and defendant concluded a written agreement of lease
on 9 February 2011. The period of the lease was from 1 March
2011
to 28 February 2014. It is common cause that the defendant stopped
operating his business on 30 June 2012 and vacated the
premises.
Although the claim is for both arrear rental and,
separately, damages allegedly arising from the early cancellation of
the lease,
only arrear rental is sought in the application for
summary ju
dgment in the amount of
R83,861.36.
The defendant has filed an affidavit opposing
summary judgment, essentially
raising the
following defences –
The deponent to the affidavit in support of the summary judgment
application, Cynthia Ranjapedi, lacks the requisite personal
knowledge to swear positively to the facts verifying the cause of
action and the amount claimed; and
The plaintiff allegedly failed to provide
commodus usus
of
the premises as a result of having allowed a competitor, namely
Jimmy’s Killer Fish and Chips, to lease the premises
next door
to the defendant’s premises.
In the affidavit filed in support of the summary judgment
application, Ms Ranjapedi says the following :
“
In my capacity as
Portfolio Manager for the plaintiffs, the claims of plaintiffs /
applicants against the defendant / respondent
fall under my control
and I have personal knowledge of the records and facts relating
thereto and of the amounts owing by defendant/
respondent to
plaintiffs / applicants. I have in fact studied the records relating
hereto. I am able to and do swear positively
to and verify the
facts, the causes of action and the amounts set out in the
plaintiffs’ / applicants’ summons with
particulars of
claim as well as in this affidavit and confirm such to be both true
and correct.”
The defendant contends that all his dealings in relation to the
matter were with one Susan Swanepoel and she will be the only
person
having the requisite personal knowledge to be able to depose to the
founding affidavit, more particularly because she
would be aware of
the defences sought to be raised by the defendant.
The defendant relies in this regard on the decision of the Western
Cape High Court in
First Rand Bank v Huganel Trust
1
where the following was said:
“
By contrast, there will
be cases where, given the defence raised, some further knowledge is
required beyond an examination of the
documentation. In other words,
knowledge of a personal nature may be required if it is relevant to
the contractual relationship
as alleged by the defendant and, if the
defendant’s version is proved, could constitute an adequate
defence to the claim.”
The defendant’s contentions are not, however, borne out by his
own affidavit. Both Cynthia Ranjapedi and one Nozipho Mgaga
were
included in email correspondence pertaining to the matter which is
attached to his affidavit. In any event, it seems to
me that the
requirement of some knowledge in relation to the factual
circumstances relevant to the defendant’s defence,
assuming
the correctness of the judgment relied on, would only arise where
the defence was one available to the defendant.
That brings me to the defence upon which the defendant seeks to
rely, namely that he was denied
commodus usus
of the premises
by the plaintiffs.
As pointed out above, the interference with the defendant’s
commodus usus
which is alleged by the defendant is the
plaintiffs’ conduct in concluding a lease agreement with
Jimmy’s Killer Fish
and Chips, a competitor, in respect of the
next door premises. This, it is alleged, resulted in a serious
decline in the profitability
of the defendant’s business
ultimately resulting in his being forced to close the business and
vacate the premises. Reliance
is placed in this regard on the
decision of the Appellate Division in
Sishen Hotel (Edms) Bpk v
Suid-Afrikaanse Yster en Staal Industri
ë
le
Korporasie Bpk
2
.
In this regard, I am in agreement with counsel for the plaintiff
that the defendant can only rely on the alleged interference
with
his
commodus usus
if the interference is not permitted by the
express terms of the lease.
In this regard, clause 7.1 of the lease agreement provides as
follows:
“
The landlord does not
warrant that
any other premises
in the building or property
shall not be let for any of the purposes set out in item 11 of the
Schedule to any person,
or that any other tenant in the building
shall not compete
with any business of the tenant.”
(emphasis added)
Item 11 of the schedule reads as follows:
“
11. USE OF LEASED
PREMISES
Solely for the purposes of a
seafood and grill restaurant.”
In my view, the defendant is not entitled to rely on the breach
complained of when it is specifically permitted by the terms
of the
lease agreement.
3
The defendant alleges further that the act of the plaintiff in
leasing the neighbouring property to Jimmy’s Killer Fish
and
Chips was mala fides and for that reason, the plaintiffs are
precluded from placing any reliance on clause 7.1 of the lease
agreement. However, he provides no factual, let alone legal, basis
for these allegations.
In the circumstances, I am of the view that the plaintiff is
entitled to summary judgment.
Judgment is accordingly granted for-
Payment of the sum of R83 861,36;
Interest on the above amount at the rate of 10,5% per annum from 2
August 2012 to date of payment;
Costs of suit.
1
2012 (3) SA 167
(WCC) at 177.
2
1987 (2) SA 932
(A).
3
See
Sweets from
Heaven (Pty) Ltd and Another v Ster Kinekor Films (Pty) Ltd and
Another
1999 (1) SA 796
(W) at para 9.