About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: South Gauteng High Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: South Gauteng High Court, Johannesburg
>>
2019
>>
[2019] ZAGPJHC 207
|
|
Petersen NO and Others v Xoulios Take Aways CC and Another (10433/2019) [2019] ZAGPJHC 207 (27 June 2019)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
Case
number: 10433/2019
In
the matter between:
PETERSEN,
ISAK SMOLLY (ID NO: […]) N.O
In
his capacity as trustee of MERGENCE AFRICA
PROPERTY
INVESTMENT TRUST (IT NO. 11263/2006)
First
Plaintiff/ Applicant
ASMAL,
RIDWAAN (ID NO: […]) N.O
In
his capacity as trustee of MERGENCE AFRICA
PROPERTY
INVESTMENT TRUST (IT NO. 11263/2006)
Second
Plaintiff/ Applicant
AZIZOLLAHOFF,
BRIAN HILTON (ID NO: […])
In
his capacity as trustee of MERGENCE AFRICA
PROPERTY
INVESTMENT TRUST (IT NO. 11263/2006)
Third
Plaintiff/ Applicant
JUNKOON,
JUJDEESHIN (ID NO: […]4)
In
his capacity as trustee of MERGENCE AFRICA
PROPERTY
INVESTMENT TRUST (IT NO. 11263/2006)
Fourth
Plaintiff/ Applicant
and
XOULIOS
TAKE AWAYS CC
First
Defendant/Respondent
(REG
NO. 2011/042210/23)
MARIA
EFSTATHIOU CHARALAMBOUS
Second
Defendant/Respondent
(ID
NO: […])
JUDGMENT
GOODMAN,
AJ
:
Introduction
1.
This
is an opposed application for summary judgment. The plaintiffs
seek an order for payment of an amount of R113 806.59,
plus interest
calculated at the prevailing prime rate plus 2% per annum, compounded
monthly, against the first defendant, the principal
debtor, and the
second defendant, its surety. That debt arises from outstanding
rental and rates owing by the first defendant in
respect of its
occupation of certain property under a lease agreement concluded with
the plaintiffs.
2.
The
plaintiffs initially also sought an order for the ejectment of the
first defendant from the property. They did not persist
with
that relief because the first defendant has now moved out.
However, they stand by a claim for damages arising from the
early
termination of the lease agreement between the plaintiffs and the
first defendant. Because those damages are not for
a liquidated
amount, the plaintiffs ask that the defendants be granted leave to
defend that claim. This application is consequently
confined to
the outstanding rental and rates (“the arrears claim”).
The pleaded
basis for the arrears claim
3.
In
laying the basis for the principal debt, the particulars of claim
pertinently plead that:
3.1.
The
plaintiffs and the first defendant, represented by the second
defendant, entered into a five-year written lease agreement in
respect of the property on or about 14 March 2017. A copy of
the lease agreement (albeit missing one page) is attached.
3.2.
In
terms of the lease, the first defendant was obliged to pay, monthly
and in advance:
3.2.1.
basic
monthly rental of R22 311,34 (excluding VAT) for the period from 1
October 2018 to 30 September 2019;
3.2.2.
a
contribution toward rates, taxes, electricity and water consumption
charges, and pro rata sanitation and refuse removal charges;
and
3.2.3.
other
associated charges.
3.3.
If
the first defendant failed to make payment of any amount payable
under the lease, the Trust would be entitled to recover interest
at a
the prime overdraft rate per annum, plus 2% per annum compounded
monthly in arrears, until payment was made in full.
3.4.
In
breach of the requirements of the the lease, the first defendant
failed to pay the monthly rental, rates and associated charges
from
December 2018 up to and including March 2019, and was consequently
indebted to the plaintiffs in an amount of R113 806,59.
A
reconciliation of that amount is attached to the particulars of
claim.
4.
The
particulars of claim also aver that, in August 2016, the second
defendant signed a deed of suretyship, in terms of which she
bound
herself jointly and severally as surety and co-principal debtor for
the first defendant’s debts to the plaintiffs.
A copy of
the deed of suretyship is annexed to the particulars of claim.
5.
The
affidavit in support of the claim for summary judgment is signed and
deposed to by Ms Vanessa Jones. She states that she
has
positive knowledge of the facts giving rise to the plaintiffs’
cause of action and verifies the arrears claim.
The
defendants’ defences
6.
The
first and second defendants together oppose the grant of summary
judgment on three grounds.
6.1.
First,
they allege that the wrong defendant has been cited and the
plaintiffs’ claim is consequently not competent.
6.2.
Second,
they claim that the requirements of Rule 32(2) are not met because Ms
Jones has not shown she has sufficient personal knowledge
to verify
the plaintiffs’ cause of action. That, they say, is
because she has failed to attach a resolution authorising
her to act
as the plaintiffs’ managing agent.
6.3.
Third,
they complain that the basis on which rates are charged is not
disclosed in the lease agreement attached to the particulars
of
claim, and that the defendants are consequently unable to check, and
potentially dispute, the rates charged to them and the
amount owing
under the lease agreement.
7.
If
I find that any of these grounds disclose a
bona
fide
defence to the arrears claim, then both the first and second
defendant are entitled to leave to defend that claim.
8.
If
I reject those defences, the second defendant raises additional
defences in respect of the suretyship agreement. She claims
that the suretyship is incomplete and falls short of the statutory
requirements, that her initials have been forged on four of
its six
pages and that, in any event, she signed it in error and without
intending to bind herself as the first defendant’s
surety.
On each of these grounds, she claims that the suretyship is invalid
and that she is entitled to leave to defend the
arrears claim, even
if summary judgment is granted against the first defendant.
9.
I
consider each of the defences raised, in turn.
The citation
of the first defendant
10.
The
defendant cited in these proceedings is Xoulios Take Aways CC.
The lease agreement was signed by Imbabala Investments
20 CC.
The defendants point to the difference in names to claim that Xoulios
Take Aways has been misjoined, and that the
arrears claim is advanced
against the wrong party.
11.
But
despite the different nomenclature, Xoulios Take Aways and Imbabala
Investments 20 are clearly the same entity. They are
registered
under the same registration number 2011/042210/23, and the CIPC
registration documents attached to the particulars of
claim show that
Imbabala Investments 20 CC underwent a name change in 2012 and is
currently called Xoulios Take Aways CC.
12.
The
misjoinder point consequently does not raise a
bona
fide
defence.
The
verification of the arrears claim
13.
The
attack on Ms Jones’ state of knowledge is similarly misplaced.
Ms Jones explains, in her affidavit, the basis on which
she has
personal knowledge of the claim. She expressly avers that:
13.1.
Dipula
Income Fund Ltd is the plaintiffs’ authorised managing agent;
13.2.
she
is a portfolio manager of Dipula Income Fund Ltd;
13.3.
she
oversees the plaintiffs’ day-to-day operations and its
relationship with its customers, including with the defendants;
and
13.4.
as
such, she has personal knowledge of the facts at issue and can –
and does – verify the cause of action on which the
claim for
summary judgment is based.
14.
There
is no reason to doubt or go behind Ms Jones’s evidence in that
regard, nor to require her to put up the resolution authorising
Dipula’s to provide managing services to the plaintiffs.
15.
I
accordingly find that Ms Jones’ affidavit meets the
requirements of Rule 32(2).
The arrears
amount
16.
The
defendants do not dispute that the first defendant is in arrears to
the plaintiffs. On the contrary, the second defendant
states,
in the affidavit resisting summary judgment, that:
“
On or
about December 2018, Imbabala Investments was unable to meet its
financial obligations and
therefore
failed to pay the full rental amount owed by it to the Plaintiffs
.
This was due to a decline of business in the area and the general
economic downturn in the country. Imbabala Investments,
in an
attempt to avoid merely defaulting in terms of its oblgiations as
contained in the Agreement of Lease sought to negotiate
with the
Plaintiffs on an amicable way forward, in light of the reduction in
its business. No agreement could be reached amd the
Plaintiffs
therefore initiated these proceedings.”
[emphasis added]
17.
The
defendants accordingly admit that the first defendant is indebted to
the plaintiffs. They dispute only the extent of such
debt.
18.
In
setting out the basis for such dispute, the second defendant says the
following:
“
37.
The Plaintiffs claim the amount of R113 806.59, which comprises
charges for rental
and
a pro rata contribution to water, electricity, refuse and sewerage
(sanitation).
. . .
39. In the
lease reference is made to clause 25 of Annexure A to the lease and
to item 10 of the Schedule. A copy of clause
25 of Annexure A .
. . provides no indication of how
the pro rata amount Municipal
charges and utilities (charges payable by the tenant) is to be
calculated.
40. Item 10
of the rental schedule does not appear in the copy of the Agreement
of Lease Annexed to the Plaintiffs’ Particulars
of Claim as
Annexure “C”. This is owing to the fact that the
rental schedule commences on page 3 of 8, page 6
of the said schedule
(whereupon item 10 thereof ought to appear) is missing.
Accordingly, the annexures to the Plaintiffs’
Particulars of
Claim is incomplete in that page 6 of the rental schedule is in fact
missing.
41. I
reiterate that I do no have a full and complete copy of the duly
signed Agreement of Lease and neither does Imbabala Investments.
This is because the signed Agreement of Lease was retuned to the
Plaintiffs and no copy was provided to us.
42. In light
of this it is impossible for me or for Imbabala Investments calculate
the exact amount that the Plaintiffs are claiming
against us or, more
importantly, to verify whether this amount is in fact the true and
correct amount that is owing and payable
by the First Defendant to
the Plaintiffs.”
[emphasis added]
19.
The
defendants’ counsel, Mr Ben-Zeev, argued that these statements
raised two separate grounds resisting the grant of summary
judgment.
First, the arrears claimed could not be ascertained on the pleadings
before the Court. He therefore argued
that the pleadings were
excipiable and that the debt claimed was not for a liquidated
amount. Second and in any event, the
defendants had disputed
the arrears claim on the basis that they were unable to ascertain and
check the extent of the municipal
service charges levied against
them.
Have the
plaintiffs competently claimed a liquidated amount?
20.
It
is common cause that page 6 of the schedule to the lease agreement
has not been attached the particulars of claim, and that item
10 of
the rental schedule appeared on that page. The pleadings do not
disclose how the municipal services were to be pro
rated and charged
to the first defendant.
21.
However,
that does not, in my view, render the particulars of claim
excipiable. As set out above, the plaintiffs have pleaded
that:
-
the
first defendant was obliged, under the lease agreement, to pay “
a
contribution toward rates, taxes, electricity and water consumption
charges, and pro rata sanitation and refuse removal charges
”;
-
In
breach of that obligation, the first defendant failed to pay the
contributions for which it was liable under the lease agreement;
-
The
extent of the first defendant’s arrears is set out in a
schedule to the particulars; and
-
The
plaintiffs seek an order compelling it to pay such outstanding
amounts.
22.
I
am satisfied that the plaintiffs have pleaded all the necessary
elements to sustain their cause of action. The arrears claim is
competent and is not, in my view, excipiable.
23.
The
question is then whether, in the absence of item 10 of the rental
schedule being attached to the particulars of claim, the plaintiffs
are entitled to summary judgment for their arrears.
24.
Rule
32(1)(b) permits a plaintiff to apply for summary judgment in respect
of “
a
liquidated
amount
in money”
.
A claim is for a liquidated amount where “
the
amount. . .has been fixed by agreement or by judgment of the court .
. . [or]
if
the amount is a mere matter of calculation
.
In the last-mentioned case, however, the data upon which the
calculation is to be based would themselves have to be amounts
about
which there is no room for uncertainty, estimation or debate”.
[1]
An amount is thus liquidated if it is readily ascertainable by simple
calculation.
25.
Mr
Ben-Zeev accepted as much but submitted that the liquidated amount
had to be ascertainable by calculation
by
the Court
,
and not merely as between the parties. He argued that the
absence of the missing page from the lease agreement rendered
the
arrears claim unliquidated. However, that approach has not been
accepted by in the authorities.
[2]
Rather, this Court has confirmed that “
when
an amount is due upon a contract and the exact amount due is simply a
matter for calculation
from
figures in books
,
the claim is liquidated”
.
[3]
An amount can thus be liquidated even if it has to be
calculated from evidence extrinsic to the pleadings.
26.
In
this case, I am satisfied that the contribution to municipal services
owing by the first defendant under the lease agreement
is easily
calculated under the agreement and constitutes a liquidated amount.
This objection by the defendants must therefore
fail.
Have the
defendants disclosed a
bona fide
defence on the amount of the
arrears claim?
27.
That
raises the question whether the defendants have disclosed a
bona
fide
defence
to the amount claimed for the municipal services portion of the
arrears claim. To do so, they were required to disclose
the
nature and grounds of their defence, as well as the material facts
relied upon for them. The defence must be “
clear
and supported by such detail as an honest despondent might reasonably
have been expected to put forward even in a concise
reply to a
summary judgment application”
,
to avoid the impression that “
the
defendant has, or may have, dishonestly sought to avoid the dangers
inherent in the presentation of a fuller or clearer version
of the
defence which he claims to have”
.
[4]
28.
In
this case, the second defendant sets out the defendants’
defence on the municipal services portion of the claim very
sparsely.
She implies that she and the first defendant were
unable to calculate the municipal services contributions owing under
the lease
because they did not have a full copy of the lease
agreement. But she does not positively state that she and the first
defendant
were unaware of how the municipal service fees would be pro
rated and charged, or that they were unable to ascertain that on the
documents available to them.
29.
Indeed,
a careful reading of the second defendant’s affidavit suggests
the contrary. Paragraph 41 of second defendant’s
affidavit
(quoted above) does not identify what portions of the lease agreement
were missing from the defendants’ copy.
Instead, it
merely “
reiterates
”
what is said earlier in the affidavit. The deficiencies in the
defendants’ copy of lease agreement are set out
in paragraphs
33 and 34 of the affidavit, which state:
“
During
the course of these negotiations [between the plaintiffs and the
first defendant], and on various occasions during February
2019, a
full copy of the signed lease was requested, as the one that had been
signed had been returned to the Plaintiffs.
The
copy purportedly sent by the Plaintiffs was incomplete in that pages
1 to 4 of the suretyship agreement were missing
.
Only pages 5 and 6 were provided.
On 26
February 2019 we therefore again requested copies of pages 1 to 4 of
the alleged suretyship agreement. This was only
provided to us
on 1 March 2019.”
[emphasis added]
30.
Properly
understood, then, the defendants’ copy of the lease was only
missing pages 1 to 4 of the suretyship agreement, but
was otherwise
complete. Congruent with that, an email sent to Ms Jones on 27
February 2019 on behalf of the defendants (and
attached to the
affidavit resisting summary judgment) records that the defendants
have:
“
Pages
1-8 (preamble to the lease agreement)
Page 1-33
(terms and conditions)
Annexure C –
Page 5 & 6 (PAGES 1-4 MISSING)
. . . ”
.
31.
There
is nothing before me to suggest that the defendants were missing page
6 of the schedule to the lease agreement, or that they
were ignorant
of how municipal charges were to be calculated or charged under item
10 of the schedule. Yet, despite that,
they have failed to take
issue with the amounts or extent of services charged to them or,
indeed, any line item of the reconciliation
attached to the
particulars of claim.
32.
In
those circumstances, I find that the defendants have failed to put up
sufficient facts and grounds to disclose a
bona
fide
defence in respect of the municipal services amount that it owes.
33.
The
grounds of defence raised jointly by the first and second defendants
must therefore fail. That leaves only the second
defendant’s
opposition to the suretyship claim.
The
suretyship claim
34.
As
outlined above, the second defendant takes issue with the validity
and enforceability of the deed of suretyship sought to be
enforced
against her. Among others, she claims that she had no intention
to bind herself as surety and co-principal debtor
to the first
defendant and was ignorant of the terms of the suretyship. She
alleges that she was unaware that she entering
into a deed of
suretyship because:
-
the
bundle of lease documents that she signed included only two of the
six pages of the suretyship;
-
The
suretyship agreement was an unusual agreement in the context of the
lease and ought accordingly to have been drawn to her attention,
but
was not; and
-
none
of the information or documentation that would ordinarily be required
for the conclusion of a suretyship was requested from
her.
35.
The
plainitffs’ counsel, Mr Dobie, submitted that the second
defendant’s affidavit did not adequately disclose a defence
of
justus
error
because:
35.1.
A
party cannot escape liability for a contract solely on the ground
that it was unaware of its contents. Where the parties
ought to
have been aware that they were signing a deed of suretyship, their
mistake will not be reasonable and they cannot avoid
its terms.
35.2.
In
this instance, the page of the suretyship agreement that the second
defendant admits to signing records that “
the
signatures on this page rate in connection with the terms and
conditions of the suretyship provided by the undersigned as contained
in pages 1-to-5 of this document”.
The
second defendant must or ought therefore to have been aware that she
was binding herself to a suretyship and ought to have apprised
herself of its terms.
36.
Despite
Mr Dobie’s submission, I am satisfied that the second defendant
has put up a
bona
fide
defence
to the suretyship claim. If she proves the averments set out
above at trial, a court may find that her error was reasonable
and
that the suretyship was not validly concluded. In determining
that question, it will have regard to the full context
and background
to the conclusion of the lease and suretyship agreement.
37.
I
am also mindful that a court should exercise its discretion in favour
of granting leave to defend where there is a reasonable
possibility
that an injustice may be done by the grant of summary judgment.
[5]
In this case, the lack of certainty around whether the second
defendant was provided with, and signed, a complete copy of
the
suretyship or not would, in my view, render it inappropriate to grant
summary judgment against her.
Costs
38.
The
plaintiffs have successfully established a case for summary judgment
against the first defendant and are entitled to costs against
it.
Conclusion
39.
In the circumstances, I grant
the following order:
1. In respect of claim 1:
1.1.
Summary judgment is granted
against the first defendant for:
1.1.1.
Payment of the amount of
R113 806.59;
1.1.2.
Interest on the above amount,
at the prevailing prime rate, as from time to time plus 2% per annum
compounded monthly in arrears,
a
tempora morae
from the date
of service of summons to the date of final payment;
1.2.
The second defendant is granted
leave to defend;
2.
In respect of claim 2, the
first and second defendants are granted leave to defend;
3.
The first defendant is ordered
to pay the plaintiffs’ costs of the summary judgment
application.
_______________________
I GOODMAN, AJ
ACTING
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION
JOHANNESBURG
Appearances
Counsel
for the Applicants
: Adv. JG Dobie
Instructing
Attorneys
: Roosebloom Attorneys
Counsel
for the Respondents
: Adv. O Ben-Zeev
Instructing
Attorneys
: Rina Caldiera Attorneys
Date
of hearing
:
6
June 2019
Date
of judgment
:
June
2019
[1]
Oos-Randse
Bantoesake Administrasieraad v Santam Versekeringsmaatskappy Bpk en
Andere (2)
1978
(1) SA 164
(W) at 168H-169C (emphasis added), quoted with approval
in
Standard
Bank of South Africa v Renico Construction (Pty) Ltd
2015
(2) SA 89
(GJ) para 15. See also
Bannister’s
Print (Pty) Ltd v D&A Calendars CC and Another
2018
(6) SA 77
(GJ) para 14.
[2]
See
S
Dreyer and Sons Transport v General Transport Services
1976
(4) SA 922
(C) at 923A-D
[3]
Fatti’s
Engineering Co (Pty) Ltd v Vendick Spares (Pty) Ltd
1962
(1) SA 736
(T) at 739A (emphasis added), quoted with approval in
Standard
Bank
(supra)
para 16.
[4]
Breitenbach
v Fiat SA (Edms) Bpk
1976
(2) SA 226
(T) at 228G-229A.
[5]
Breitenbach
(supra)
at 229D-F.