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[2018] ZAGPJHC 36
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Peterson and Others v Umkhome Tourism Transport CC (2017/45102) [2018] ZAGPJHC 36 (2 March 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO
: 2017/0023133
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
DATE:
2
nd
March 2018
In
the matter between:
PETERSON
,
ISAK SMOLLY N
O
First Plaintiff
GUMEDE
,
NYANGENI SAUL N
O
Second Plaintiff
ASMAL
,
RIDWAAN N
O
Third Plaintiff
AZIZOLLAHOFF
,
BRAIN HILTON N
O
Fourth Plaintiff
In
their capacities as Trustees of the
DIPULA
PROPERTY INVESTMENT TRUST
and
UMKHOME
TOURISM TRANSPORT CC
Defendant
JUDGMENT
ADAMS
J
:
[1].
This is an application for summary judgment against the
defendant by the plaintiffs, in their representative capacities as
Trustees
for the time being of the Dipula Property Investment Trust
(‘the Trust’).
[2].
The plaintiffs’ cause of action is based on a written
commercial lease agreement (‘the lease agreement’)
concluded
between the parties on the 16
th
May 2016 in
terms of which lease agreement the defendant let from the plaintiffs
premises in Florida for a period of three years
from the 1
st
of March 2016 to the 28
th
of February 2019. The monthly
rental payable by the defendant to the plaintiffs, as well as the
ancillary charges, were agreed
upon in the written lease agreement.
On the 11
th
November 2016 an Addendum was concluded by the
parties.
[3].
Pursuant to the lease agreement the
defendant has occupied the premises from the 1
st
of March 2016 to date. The plaintiff’s claim is for an amount
of R268 630.85, being in respect of arrear rentals and
ancillary
charges relating to the period of occupation up to and including
November 2017, as well as for an amount of R653 485.81,
being
damages arising from the defendant’s alleged breach of
contract. The plaintiffs also claim cancellation of the lease
agreement and an ejectment of the defendant.
[4].
At the hearing of the application for
summary judgment, I was advised by Mr Dobie, Counsel for the
plaintiffs, that they were only
proceeding with the application for
summary judgment for the cancellation of the lease. The defendant, so
I was advised, should
be granted leave to defendant the action
relating to the claims for a monetary judgment.
[5].
The plaintiffs’ claim for
cancellation is based on their claim that as and at the end of
November 2017 the defendant was in
breach of the lease in that it was
in arrears with the rental and ancillary charges in an amount of
R268 630.85. The first
issue which I am therefore required to
adjudicate is whether the defendants were in fact in arrears with
their monthly rental at
the relevant time.
[6].
The plaintiffs’ breakdown of the
amount of R268 630.85 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
R268 630.85 at the end of November
2017. It is in fact the plaintiff’s case that from about
January 2017 the defendant,
in breach of the lease agreement, failed
to effect payment of the full amount due in respect of rental and
ancillary charges payable
in terms of the lease agreement.
[7].
The defendant opposes the application for summary judgment on
the basis that it disputes the amounts charged by the plaintiffs in
respect of the rental payable as well as the ancillary charges
payable. In that regard, the defendant’s main contention
relates to the square meters leased. The defendant alleges that it is
being charged rental and ancillary charges for 487.31 square
meters,
when in fact and in truth it only occupies 416.64 square meters. This
was the case, so the defendant claims, from the inception
of the
lease, which means that it has been overcharged on a monthly basis,
which means that if the recalculation is done, based
on the correct
square meters, it may well be that the defendant is not in arrears
with the rental. The defendant alleges that it
has on numerous
occasions taken issue with these charges and pointed out to the
plaintiffs that they base their rental on incorrect
facts.
[8].
This defence, in my view, is 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 rental on a monthly
basis, albeit that they paid less than what the plaintiff
invoiced
them for, up to November 2017. The point is that these issues, in
particular a calculation based on the correct square
meters occupied,
are issues which I cannot adjudicate on at this stage of the
proceedings.
[9].
Uniform Rule of Court 32(3)(b) requires the defendant to satisfy the
court by affidavit that they have a bona fide defence
to the
plaintiff’s claim. ‘
Satisfy’
does not mean
‘
prove’
. What the rule requires is that the
defendants set out in their 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.
[10].
While it is not incumbent upon the defendants to formulate their
opposition to the summary judgment application with the precision
that would be required in a plea, none the less when they advance
their contentions in resistance to the plaintiff’s claim
they
must do so with a sufficient degree of clarity to enable the court to
ascertain whether they have deposed to a defence which,
if proved at
the trial, would constitute a good defence to the action. Affidavits
in summary judgment proceedings are customarily
treated with a
certain degree of indulgence, and even a tersely stated defence may
be a sufficient indication of a
bona fide
defence for the
purpose of the rule. If, however, the defence is averred in a manner
which appears in all the circumstances to
be needlessly bald, vague
or sketchy, that will constitute material for the court to consider
in relation to the requirement of
bona fides
.
[11].
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.
[12].
All that the court enquires, in deciding whether the defendants have
set out a
bona fide
defence, is: (a) whether the defendants
have disclosed the nature and grounds of their defence; and (b)
whether on the facts so
disclosed the defendants appear to have, as
to either the whole or part of the claim, a defence which is
bona
fide
and good in law.
[13].
The defendant is not at this stage required to persuade the court of
the correctness of the facts stated by them or, where
the facts are
disputed, that there is a preponderance of probabilities in their
favour, nor does the court at this stage endeavour
to weigh or decide
disputed factual issues or to determine whether or not there is a
balance of probabilities in favour of the
one party or another. The
court merely considers whether the facts alleged by the defendants
constitute a good defence in law and
whether that defence appears to
be
bona fide
. In order to enable the court to do this, the
court must be apprised of the facts upon which the defendants rely
with sufficient
particularity and completeness as to be able to hold
that if these statements of fact are found at the trial to be
correct, judgment
should be given for the defendant.
[14].
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.
[1].
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
plaintiffs’ 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
J G Dobie
INSTRUCTED
BY:
Reaan
Swanepoel Attorneys
FOR
THE DEFENDANT:
Adv
INSTRUCTED
BY:
B
H Taula Attorneys