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[2018] ZAGPJHC 34
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Cumulative Properties Limited v Name Plate Centre Signs (Pty) Limited (2017/47035) [2018] ZAGPJHC 34 (2 March 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES:
NO
DATE:
2
nd
MARCH 2018
CASE
NO
: 2017/47035
In
the matter between:
CUMULATIVE
PROPERTIES
LIMITED
Plaintiff
and
NAME
PLATE CENTRE SIGNS (PTY)
LIMITED
Defendant
JUDGMENT
ADAMS
J
:
[1].
This is an application by the plaintiff for summary judgment
against the defendant. The plaintiff’s cause of action is based
on a written commercial lease agreement (‘the lease agreement’)
concluded between the parties on the 7
th
October 2016 in
terms of which lease agreement the defendant let from the plaintiff
premises in Isando for a period of two years
from the 1
st
of September 2016 to the 31
st
of August 2018. The monthly
rental payable by the defendant to the plaintiff was agreed upon in
the in the written lease agreement.
[2].
Pursuant to the lease agreement the
defendant had occupied the premises from the 1
st
of September 2016 to the end of October 2017, and the ‘absconded’,
according to the plaintiff, from the premises during
or about October
2017. The plaintiff’s claim is for an amount of R339 426.14,
being in respect of arrear rentals and
ancillary charges relating to
the period of occupation up to and including October 2017, when the
defendant vacated the premises.
The plaintiff claims a further sum of
R140 518.82, representing basic rental for a period of a further
two months during which
it had been unable to re – let the
premises. Although couched as a claim for a loss due to the
defendant’s breach of
the lease agreement, the claim is in fact
also for rental payable by the defendant to the plaintiff in terms of
the lease agreement,
which was to endure until the 31
st
of August 2018.
[3].
The plaintiff’s breakdown of the
amount of R339 426.14 indicates that this amount in fact
represents short payments on
the rental and ancillary charges from
about January 2017, and the balance due accumulated on a monthly
basis to the total due of
R339 426.14 at the end of October
2017. It is in fact the plaintiff’s case that from about June
2017 the defendant,
in breach of the lease agreement, failed to
effect payment of the ancillary charges payable in terms of the lease
agreement in
addition to the basic rental.
[4].
In its affidavit resisting summary judgment the defendant
raises a point
in limine
to the effect that the deponent to
the affidavit in support of the application for summary judgment has
not provided his Estate
Agent’s Certificate, and therefore, so
the defendant submits, had failed to prove his mandate. There is no
merit in this
legal point, and same stands to be rejected out of
hand.
[5].
The defendant also opposes the application for summary
judgment on the basis that it disputes the amounts charged by the
plaintiff
in respect of the ancillary charges. In that regard, the
defendant’s main contention relates to the charges for the
consumption
of water. It had on numerous occasions taken issue with
these charges and pointed out to the plaintiff that same is excessive
which
may very well have resulted from a leak.
[6].
The defendant also denies that it absconded from the leased
premises. The plaintiff in fact at some point during October 2017 had
locked them out of the premises, thus breaching the contract, which
caused the defendant to vacate the premises.
[7].
The defendant’s defence to the plaintiff’s claim
is therefore twofold. It disputes that the amount claimed in respect
of ancillary charges is the correct amount. It also denies that it is
liable to plaintiff for further rental payable in terms of
the lease
agreement. It is in fact the plaintiff, so it is alleged by the
defendant, who breached the lease agreement, by unlawfully
and by
self – help having them evicted from the premises. This
defences, in my view, are not so far – fetched as to
be
rejected out of hand. If anything, it seems to be supported by the
fact that the defendant maintained payment of the basic rental
on a
monthly basis up to shortly before they vacated the premises, which
seems to confirm their version that they had a genuine
dispute
relative to the consumption of municipal services.
[8].
Uniform Rule of Court 32(3)(b) requires the defendant to satisfy the
court by affidavit that he has a bona fide defence to
the plaintiff’s
claim. ‘Satisfy’ does not mean ‘prove’. What
the rule requires is that the defendant
sets out in his affidavit
facts which, if proved at the trial, will constitute an answer to the
plaintiff’s claim. If the
defence is based upon facts, in the
sense that material facts alleged by the plaintiff in his summons are
disputed or new facts
are alleged constituting a defence, the court
does not attempt to decide these issues or to determine whether or
not there is a
balance of probabilities in favour of the one party or
the other.
[9].
If the affidavit lacks particularity regarding the material facts
relied upon and falls short of the requirements of the subrule,
the
court may not be able to assess the defendant’s
bona fides
but it may still, in an appropriate case, exercise its discretion in
favour of the defendant if there is doubt whether the plaintiff’s
case is unanswerable.
[10].
In terms of subrule (5): ‘The court may enter summary
judgment.’ The word ‘may’ in this subrule confers
a
discretion on the court, so that even if the defendant’s
affidavit does not measure up fully to the requirements of subrule
(3)(b), the court may nevertheless refuse to grant summary judgment
if it thinks fit. The discretion, clearly, is not to be exercised
capriciously, so as to deprive a plaintiff of summary judgment when
he ought to have that relief.
[11].
Applying these principles
in
casu
, I am satisfied that in its
resisting affidavit the defendant has demonstrated a
bona
fide
defence on the merits of the
plaintiff’s claim, and it is accordingly entitled to leave to
defend.
Order
Accordingly,
I make the following order:-
1.
The defendant is granted leave to defend the action.
2.
The cost of the application for summary judgment shall be in
the
cause of the main action.
_________________________________
L ADAMS
Judge of the High Court
Gauteng Local Division,
Johannesburg
HEARD ON:
27
th
February 2018
JUDGMENT DATE:
FOR
THE PLAINTIFF:
2
nd
March 2018
Adv
D Strydom
INSTRUCTED
BY:
Harris
Hadar Incorporated
FOR
THE SECOND DEFENDANT:
Adv
INSTRUCTED
BY:
De
Vries Attorneys