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[2016] ZAGPJHC 401
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Gumede and Others v Maqubela (14201/16) [2016] ZAGPJHC 401 (24 June 2016)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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REPUBLIC
OF SOUTH AFRICA
GAUTENG LOCAL DIVISION
JOHANNESBURG
CASE
NO: 14201/16
In
the matter between:
GUMEDE:
NYANGENI SAUL (ID NO: … ) N.O. in his capacity as
Trustee
of MERGENCE AFRICA PROPERTY INVESTMENT TRUST
(IT
11263/2003)
First
Plaintiff
DE
BRUYN: BRIGITTE (ID NO: … ) N.O. in her capacity as
Trustee
of MERGENCE AFRICA PROPERTY INVESTMENT TRUST
(IT
11263/2003)
Second
Plaintiff
PETERSEN:
ISAK SMOLLY (ID NO: … ) N.O. in his capacity as
Trustee
of MERGENCE AFRICA PROPERTY INVESTMENT TRUST
(IT
11263/2003)
Third
Plaintiff
AZIZOLLAHOFF:
BRIAN HILTON (ID NO: … ) N.O. in his capacity
as
Trustee of MERGENCE AFRICA PROPERTY INVESTMENT
TRUST
(IT
11263/2003)
Fourth
Plaintiff
and
MAQUBELA:
SAKHUMZI LUNGELO
(ID
NO: … )
Defendant
JUDGEMENT
CARSTENSEN
AJ:
1.
The Plaintiffs seek summary judgement in the amount of R819 903.68
together with interest and costs in respect of arrear
monthly rental
and charges which arise out of an agreement of lease concluded
between, the Plaintiff states, the Plaintiff and
Defendant.
2.
The Defendant raises a number of defences, including:
2.1. That he never
authorised Johannes Jurgens Bezuidenhout to represent him in
concluding the lease. (This appears to be
irrelevant as it is
common cause that the Defendant signed the lease and was not
represented by Bezuidenhout).
2.2. Secondly, the
Plaintiff states that the Plaintiff seeks to mislead the court by
using the words “trading as” in
the summons and
particulars of claim. (I do not believe that this constitutes a
bona fide
defence as the signed agreement of lease also used
the words “trading as”).
3.
However, the Defendant states Safana Panel Beaters and Spray Painters
is not his alter ego, but is actually a legal persona and
attaches
the CIPC certificate indicating that there is a company registered in
the name of Safana Panel Beaters and Spray Painters
(Pty) Ltd with
registration number 2011/136859/07 and which has three directors.
4.
The Defendant states that on the 21
st
January 2015 he
approached the Plaintiff to reopen the business which resulted in the
Defendant signing a proposal to JHI in re
reinstitution of the lease
agreement between Safana Panel Beaters and Spray Painters (Pty) Ltd
and JHI.
5.
This proposal, which appears on page 70 of the papers, indeed states
that it is a “re reinstitution” of a lease agreement
between “Safana Panel Beaters and Spray Painters (Pty) Ltd and
JHI”. The document is also signed by the Defendant
“as
director”, and “duly authorised representative”, as
set out in the preamble and where the Defendant
signs he also signs
for and “on behalf of” Safana Panel Beaters and Spray
Painters (Pty) Ltd.
6.
He also states, however, in paragraph 7 that he will be running
Safana as a “sole proprietor”. Despite THE
CONTENTS
OF paragraph 7, it is my view that the proposal is clearly made in
the name of the company and to reinstate the lease
in the name of the
company.
7.
The Defendant states that he “ …
did not conclude the
lease agreement in his personal capacity. I have at all times
acted as a director in the company”
. This is
contradicted by the lease agreement which records the Defendant’s
name, ID number trading as Safana Panel
Beaters and Spray Painters
without the designation “(Pty) Ltd”. In addition,
in paragraph 3 the tenant is defined
as the Defendant personally.
It is also noted that annexure C, being the suretyship, annexure D
being the resolution are
all deleted indicating that there was no
intention to conclude the lease agreement on behalf of the company.
8.
Nevertheless, I must bear in mind that if it turns out that the
Defendant did not conclude the lease agreement personally but
in the
name of the company, that would constitute a defence at the trial.
Arend v Astra Furnishers (Pty) Ltd
,
1974 (1) SA 298
(C) at 303
H to 304 A.
9.
At present, I am faced with a conflict between the proposal and the
lease agreement and I am of the view that evidence would
be required
to show why the proposal was made in the name of the company, but the
lease agreement was purportedly signed by the
Defendant personally.
10.
In the premises, I am not inclined to grant summary judgement.
11.
Consequently, I make the following order:
11.1. the Defendant is
granted leave to defend the Plaintiffs’ action and the costs of
the application for summary judgement
are reserved for determination
by the trial court.
_________________________
P
L CARSTENSEN
ACTING
JUDGE OF THE
HIGH
COURT
HEARD: ___ JUNE 2016
DELIVERED: 24 JUNE
2016
COUNSEL
FOR PLAINTIFFS: J G DOBIE
INSTRUCTED
BY: REAAN SWANEPOEL ATTORNEYS
COUNSEL
FOR DEFENDANT: T J MACHABA
INSTRUCTED
BY: JERRY NKELI & ASSOCIATES INC.