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
>>
2021
>>
[2021] ZAGPJHC 723
|
|
Izandla Property Fund (Pty) Ltd v Afro Arhitectural CC and Another (21601/2020) [2021] ZAGPJHC 723 (31 May 2021)
IN THE HIGH COURT
OF SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNESBURG
CASE
NO
: 21601/2020
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
REVISED
31
MAY 2021
This
application was heard virtually on the
Microsoft
teams
platform
.
In the matter between:
IZANDLA PROPERTY FUND
(PTY) LTD
[REG
NUMBER:…] PLAINTIFF
and
AFRO ARCHITECTURAL
CC FIRST
DEFENDANT
[REG NO: ………..]
and
SERGE
NZEMBELA SECOND
DEFENDANT
[ID NUMBER:…..]
Coram:
Majavu
AJ
Heard
: 13
May 2021
Delivered:
31
May 2021 – This judgment was handed down electronically by
circulation to the parties' representatives by email, as well
as by
being uploaded to the
CaseLines
digital system of the GLD and
by release to SAFLII. The date and time for hand-down is deemed to be
14h00 on 31 May 2021
.
Summary:
Application for summary judgement. Defendant pleaded that it
concluded lease agreement with a different party, thus plaintiff
non-suited
, also pleased
vis major
due to covid-19
pandemic and resultant lockdown restrictions, lack of beneficial use
of the leased premises, defences not
bona fide
and not raising
any triable issues, application granted with costs on attorney and
own client scale.
ORDER
(a) The
first defendant and second defendants are ordered to pay the amount
of R 334 681, 95 to the
plaintiff, the one paying the other to be
absolved;
(b) The
first defendant and second defendants are ordered to pay interest
thereon at the rate of 9%
per annum
compounded monthly from 2
March 2020 to date of payment, the one paying the other to be
absolved;
(c) The
first and second defendants are ordered to pay costs on an attorney
and own client scale, including
the costs consequent upon the
employment of counsel.
Majavu AJ
Introduction
Let me start off by
expressing my gratitude to counsels for the detailed heads of
argument, which I found very helpful.
[1] This
is an opposed application for summary judgement.
[2] The
plaintiff instituted action against the defendants in which its claim
is based on the written lease agreement
and deed of suretyship in
respect of the second defendant, which was in turn opposed by the
defendants. Subsequently, as per the
amended rule 32, the defendant
filed its plea, preceding the current application.
[3] The
application for summary judgement is resisted by the defendants and
the basis of the defence was set out
in the accompanying affidavit,
which mimics the grounds set out in the plea.
Brief factual matrix
[4] For
the sake of convenience and ease of reference, the parties will be
referred to as the plaintiff and defendant/s
respectively.
[5] The
central issue for determination, seem to me to be a resolution of the
dispute regarding the true identity
of the plaintiff, as the
defendant takes the point quite sharply. Simply put, the defendant
asserts that the current plaintiff
is non- suited as it is not the
party with whom the defendant concluded the lease agreement,
consequently, according to the defendant,
there is no
lis
between it and the plaintiff. Firstly, the defendant boldly avers
that it concluded a
tacit
lease agreement with Investec
Property fund (Pty) Ltd (“Investec”), which is a
distinctly separate entity from Izandla
Property Fund (“Izandla”).
The defendant also accepts that it concluded a lease agreement with
the
landlord
, but omits to mention (in the plea paragraph 4,
as they state in paragraph 5 of their heads of argument)
who that
landlord is
, bearing in mind that it denies having concluded a
lease agreement with the plaintiff (Izandla). Secondly, the defendant
then pleads
further that rental, which was due on its own admission,
was not paid due to constraints as a result of covid-19 pandemic.
Thirdly,
it appears that the defendant further denies having been in
occupation. Fourthly, there was a challenge regarding the
jurisdiction
of this court, which was later and correctly abandoned
by the defendant. (emphasis)
[6] For
convenience and flow of reading, I prefer to deal with the issues
raised in paragraph 5 above before dealing
with the applicable law in
relation to summary judgement applications. On the face of it, there
seems to be a veiled attempt to
create a dispute of fact, however, I
hold the view that even if such a dispute is present, it is not one
which renders the resolution
thereof impossible on the papers before
me. To the contrary, that aspect (pertaining to the party with whom
the defendants concluded
a lease agreement) in my view, is capable of
resolution without any need to resort to oral evidence. I will
accordingly approach
the matter on that basis. The second and third
issues would fall to be considered only in the event I were to
dismiss the first
point.
Wrong plaintiff point
[7] The
defendant strongly asserts that it is not a party to any lease
agreement with the plaintiff. The defendant
makes the point further
that “
far from admitting a lease with the plaintiff, on the
contrary, the defendants’ whole case is that they are
not
a party
to the written lease agreement relied upon by the
plaintiff and attached to the plaintiff’s summons and
particulars of claim
herein”
(sic) They make it plain that
the first defendant “
had a different lease agreement
altogether. The contractual terms relied upon by the plaintiff for
its alleged cause of action do
not apply to the defendants. In the
context of the present case, that is the crux of the matter”
(sic)
. I agree with the defendants’ counsel that, it is the
crux of the matter, hence I sought to determine that aspect first, as
I hereby do. (emphasis)
[8] A
useful starting point would be to examine the impugned lease
agreement closely and come to a conclusion regarding
who were the
executing parties and in respect of which property, then compare that
with how the plaintiff’s claim was particularized
and juxtapose
with the essence of the defendants’ plea and basis set out in
the affidavit resisting summary judgement.
Written lease agreement
dated 15 July 2019
[9] On
the very first page of the lease agreement, the parties have been
clearly described as:
IZANDLAPROPERTY FUND
(PTY) LTD -------- (Landlord) and duly represented by Nonhlanhla
Mayisela
And
AFRO ARCHITECTURAL
CC:------------------------( Tenant) and duly represented by Serge
Nzembela (“Nzembela”). It is further
noteworthy that both
signatories on behalf of the parties expressly represented and/or
warranted that they have been duly authorised
to conclude this lease
agreement, by virtue of resolutions of their respective entities. In
this case, the resolution of the Board
of Directors of the defendant
expressly authorised Nzembela to conclude a lease agreement with the
plaintiff and not any other
party, least of all Investec.
[10] It
is further self-evident and not in dispute, that the leased premises
indeed relate to corner Nentabos &
Botterklapper Street,
Greenhill Village, Lynwood, Johannesburg. This corresponds with the
description of the leased premises as
pleaded in the particulars of
claim.
[11] It
is also further evident that the address chosen as a
domicilium
citandi at executandi
, in respect of the landlord is care of
company secretarial, Investec Ltd, 100 Grayston Dr, Sandton, and that
of the tenant, is
the same as the leased premises. Over and above
that, the signatory to the same lease agreement, is the same person,
Nzembela,
who also stood
surety
on behalf of the tenant (Afro
Architectural) in respect of the obligations arising out of this
self-same lease agreement. In the
deed of suretyship, Nzembela,
expressly binds himself, jointly and severally with
Afro
architectural CC
(who is described as the debtor)
in favour
of
Izandla Property Fund (Pty) Ltd (the creditor) pursuant
to the same lease agreement attached to the particulars of claim,
which
is also signed by himself on behalf of the first defendant.
On the face of these documents, there can be hardly any ambiguity
regarding who the
actual parties
thereto are. (emphasis)
[12] I
observed further that, at the top right corner of each page of the
said agreement, an inscription is made
as follows, “
Investec
standard fund office lease, June 2016
”. This appears to be
a template for such lease agreements. It does not however suggest
that the landlord (lessor) is to be
accepted as Investec, as
contended by the defendant. I therefore find that reference to
Investec, either on the top right corner
of all the pages of the
lease agreement, as well as in the
domicilium
address, as well
as the email address of the landlord is purely for administrative
convenience. It cannot in all seriousness be
elevated to being
indicative of a party to this agreement. The parties have been
clearly defined and I therefore find no reason
to be persuaded
otherwise.
[13] The
lettable area of the lease premises, as recorded in clause 1.9 is
approximately 2 87 m², with 7 open
parking bays and 4 basement
bays.
[14] This
accords with the description or narration as stipulated in various
invoices which were rendered to the
defendant at the end of each
month. Most importantly, to the extent that some invoices
were
paid
, no issue can be raised by the defendant at this stage,
regarding the accuracy or otherwise of the description or recordals
in
those invoices. For example, the tenant consolidated account (see
pages 119-120 annexed to the particular of claim) accords with
the
description as set out in the lease agreement.
[15] In
the light of the above, I find that the plaintiff is indeed the
correct and suitable party and consequently
entitled to institute
this action against the defendant. In the result, there is no merit
in the defendant’s contention,
which it rightly describes as
the crux of the matter, that the plaintiff is non-suited. It
therefore follows axiomatically that
such defence falls to be
dismissed.
[16] With
that aspect out of the way, the next defence to be considered is the
Covid related one.
Covid-19 defence
[17] According
to the defendant, the current Covid-19 pandemic creates a supervening
impossibility of performance
due to
vis major,
due to its
extraordinary nature, as well as the fact that it is beyond the
control of either of the parties. The defendant amplifies
its
assertion by referring to the lockdown regulations as set out in GN
313 of 2020 and issued on 25 March 2020 by the Minister
of
co-operative Governance and Traditional Affairs with effect from 27
March 2020. In terms thereof, its argues, businesses and
other
entities were obliged to cease operations, except for any businesses
or entity involved in the manufacturing, supply or provision
of an
essential service. What this assertion ignores was that there was no
directive for the cessation of all trading activities
completely.
What was restricted was movement to and from respective places of
work. It was still permissible and indeed possible
to continue, as
far as possible and practical, with the day-to-day operations of most
businesses remotely and with the usage of
available and enabling
technology. It is unclear exactly on what basis, an entity that is
involved in architectural designs could
have been completely
precluded from conducting some or portions of its commercial
activities. Be that as it may, the lock down
restrictions were
imposed on a staggered and adjusted basis. For example, initially
during lockdown level 5, there were stricter
and more stringent
prohibitions, which subsequently eased down to the current level 1.
It is common cause that since around June
2020, the restrictions were
eased significantly (to 4, 3, 2) and thus enabling most businesses to
resume the full operations. That
being the case, it is inexplicable
why between June 2020 until when someone’s was issued, the
defendant was unable to meet
its obligations in terms of the lease
agreement.
[18] I
am thus unpersuaded that the Covid-19 pandemic, without more, excused
the defendant from its contractual
obligations. The defendant does
not indicate how its business was particularly affected to bring it
within the ambit of its alleged
impossibility of performance due to
this
Act of God,
or what attempts it made to re-negotiate the
terms with the plaintiff. It is clear why it did not do so, as it
contends, quite
strongly, that it did not conclude any lease
agreement with the plaintiff. It therefore stands to reason that the
alleged
vis major
is thus irrelevant and, logically, it
therefore cannot be mounted as a defence to claim in which the
defendant takes the view that
the plaintiff is
non- suited
.
This is a classic case of the defendant speaking through both sides
of its mouth. This ground too, is unmeritorious and falls
to be
dismissed.
Denial of occupation
defence
[19] Firstly,
the defendant denied ever being in beneficial occupation at all after
27 March 2021. Notably, the
first
defendant does not indicate,
to what extent, due to covid-19 it was unable to trade and operate
from the leased premises and for
how long. All that is said is that
the
second defendant
was “stuck outside of the country
and could not return” due to covid-19. That can never be
accepted as a reason for
the first defendant’s (without any
explanation) failure and subsequent excusal from paying its rental in
respect of premises
which they were clearly occupying at all material
times, until, at the very least, the issuance of the summons. Given
the paucity
of the explanation, I am unable to find that, on a
balance of probabilities, the defendant does raise a triable issue or
bona fide
defence. In order for a
vis major
to be a valid
defence, it must
demonstrably
have a direct impact on the
actual possibility of performance. In this case, barring the
reference to lockdown regulations, in
a generalized fashion, ignoring
that those were applied on a differentiated and adjusted approach
(different levels 5 downwards
to 1), as well the fact that the second
defendant was stuck overseas,
no explanation
regarding the
direct impact of the regulations and the possibility or otherwise of
performance of contractual obligations is provided,
either in the
plea or the affidavit resisting summary judgement. In the result, I
find that this ground too, is baseless and falls
to be dismissed. In
fact, the above mentioned defences are indeed inextricably linked,
due to the fact that, it seems the reason
for non-occupation,
resulting in alleged lack of beneficial use, as the defendant would
have us believe, is due to restrictions
imposed by the regulations in
terms of the Disaster Management Act (“the regulations”).
This is patently false, as
restrictions came into operation on 27
March 2021, way after the commencement of the lease agreement, which
I found to have been
validly concluded between the parties
in
casu.
Rule 32
[20] As
I indicated in the opening paragraph, what is before me is an
application for summary judgement. The applicable
rule is the amended
rule 32
[1]
. In this case this
claim is based on a lease agreement, which makes it a liquidated
amount in money and needless to say, capable
of being promptly
ascertained.
[21] For
purposes of this matter, “
rule
32 (2) specifically provides that a notice of application for summary
judgement, must be accompanied by an affidavit made by
the applicant
or any other person who can swear positively to the facts
verifying
the cause of action and the amount, claimed and stating that in his
opinion there is no bona fide defence to the action…..”.
In this case, the required affidavit was filed by Ms Jacqueline
Bisschoff. In it, she clearly explains how she came to have personal
knowledge of the facts, as she is the relevant portfolio manager of a
management company (Broll Porperty Management (PTY) LTD)
acting on
behalf of the plaintiff. The lease agreement is attached to the
supporting affidavit which accompanies the application
for summary
judgement. Ms Bisschoff, has duly positively sworn to and verified
the cause of action on which the claim is based,
as well as
computation of the amounts owing by the defendant, in this matter.
She has further set out why in her view, she believes
that the
defendant has not raised a
genuine
or bona fide
defence, which gives rise to any
triable
issue. Barring the technical contentions by the defendant with
regards
to
locus standi
,
covid related (
vis
major
)
and lack of beneficial use of the leased property defences, on which
I have already indicated that I am not persuaded, there is
absolutely
no indication by the defendant, as to what its true defence, on the
merits would be, if any at all, which could have
entitled them to
proceed to trial at some future date. It is quite clear that the
defendant has no defence; otherwise, it would
have raised it to
enable me to make an assessment regarding its genuineness, and not so
much to make a final determination on its
prospects of success. At
this stage, I refer with approval to the
dictum
by Wallis J in the case
of
Shackelton
[2]
“
it
will be bold for the defendant to limit his or her affidavit
resisting summary judgement technical matters when they believe
they
have a good defence on the merits. They run the risk of having
summary judgement granted if the technical differences rejected,
as
there would not have dealt with the merits of the plaintiff’s
claim
”.
[22] I
find this passage very apt
apropos
the current case. The
defendant, quite
boldly
asserted that the
crux of
the matter
and presumably the high watermark of its defence, is
simply, the fact that the plaintiff lacks the necessary
locus
standi
to institute the action in the first place and the
subsequent application for summary judgement. (emphasis).
[23] Having
rejected the technical defences raised by the defendant, nothing is
left of its purported to defence,
neither are there any possible
triable issues raised by the defendant, which would warrant the
matter to proceed to trial.
[24] The
novelty with regard to the amended rule, is the requirement that an
application for summary judgement
can only be proceeded with
after
the defendant has filed a plea. This is sound, as it enables the
plaintiff to carefully assess the nature of the defence raised before
it considers to bring an application for summary judgement. In this
case, mindful of the cause of action and the fact that the
claim is
based on a lease, it seems self-evident that no genuine defence has
been raised.
[25]
The onus resting upon an applicant for summary judgement was aptly
stated as follows by Bins-Ward J
inTumileng
Trading CC v National Security and Fire (Pty) Ltd
[3]
:
“
for
the reasons given later with regard to the cases before me, I
consider that the amended rule 32 (2) (b) makes sense only if
the
word ‘genuinely’ is read in before the word ‘raise’
so that the pertinent phrase reads’ explain
briefly where the
defence as pleaded does not genuinely raise any issue for trial. In
other words, the plaintiff is not required
to explain that the plea
is acceptable. It is required to explain why it is contended that the
pleaded defence is a sham.”
[26]
Put
differently, the court is required to consider whether the defence
raised by the respondent in its plea and affidavit resisting
summary
judgement, is a genuine defence or raises any triable issue or
whether it is contrived, with the intention to delay the
inevitable
and undisputed liquidated debt or one capable of easy computation
.
This presupposes a balancing act against the contentions by the
plaintiff, weighed against those by the defendant. It is clear
from
both the plea and affidavit resisting summary judgement that the
defendant is relying on an overly formalistic technicality,
which has
nothing to do with its
undisputed
indebtedness towards the
plaintiff. If the defendant was serious in its denial of some form of
contractual liability (flowing form
a duly signed lease agreement)
towards the plaintiff, it has not explained why it made payment of
some months during the tenure
of the now disputed lease agreement.
All objective facts, lead to one inescapable conclusion, namely, that
the defendant suddenly
encountered a
Damascus road
experience
and now seeks to resile from a duly and properly executed lease
agreement.
[27] The
practical effect of permitting the defendant in this case to proceed
to trial, would simply be to delay
the inevitable. It is either the
defendant has raised a genuine defence at this stage of the
proceedings, or it has not. None can
be manufactured along the way to
trial. If one were to borrow with approval, from the
dictum
of
Bins-Ward J, I would say it is apparent that the defence mounted by
the defendant is a
sham
intended to delay the
inevitable, in that, money is owed and is indeed due and payable the
plaintiff. (emphasis)
[28] I
fail to see what usefulness would be derived, if an unmeritorious
case such as
this one
, were to be permitted to proceed to
trial. If anything, it remains my considered view that, such would be
an abuse of court processes.
The courts, in the adjudication of
disputes, generally frown upon overly formalistic and technical
quibbles, which have nothing
to do with the true merits of the case.
This is a classic case where an end must be put to what could easily
be a protracted litigation,
wherein the defendant, clearly has no
defence, whatsoever.
[29] I
am fortified by and align myself fully with an observation which my
sister Siwendu J makes in her separate
judgement and opening gambit,
in the combined matters of
Standard
Bank, FNB, GMG Trust Company et al
[4]
,
“
the
object of summary judgement is to prevent the frustration and
unreasonable delay of the plaintiff’s claim by a non- triable
defence. The value of the procedure for a plaintiff lies in obtaining
an
expedited
judgement.”
(Emphasis)
[30] Should
this not be the case, the unintended consequence would be that a
plaintiff, worthy of an expeditious
(considering the fact that a plea
has now been filed) judgement in its favour, could potentially be
strung along by an errant defendant,
having to further finance
protracted and frivolous litigation. Needless to say, this also puts
an undue strain on the already overstretched
judicial resources. This
cannot be countenanced.
Order
[30] In
the result I make the following order.
[30.1] The first
defendant and second defendants are ordered to pay the amount of R
334 681, 95 to the plaintiff, the one
paying the other to be
absolved;
[30.2] The first
defendant and second defendants are ordered to pay interest thereon
at the rate of 9%
per annum
compounded monthly from 2 March
2020 to date of payment, the one paying the other to be absolved;
[30.3]
The first and second defendants are ordered to pay costs, on an
attorney and own client scale, including the costs consequent
upon
the employment of counsel.
Z M
P MAJAVU
Acting Judge of the
High Court
Gauteng Local
Division, Johannesburg
HEARD
ON: 13
May 2021
JUDGMENT
DATE: 31
May 2021
FOR THE
PLAINTIFF: Adv
JG Dobie
INSTRUCTED
BY: Reaan
Swanepoel
Attorneys
FOR THE
DEFENDANT: Adv BP
Geach SC
INSTRUCTED
BY: Rina
Rheeders
Attorneys Inc.
[1]
Rule
32 of the Uniform Rules of Court, rule 32 (1) (a) “where the
defendant has delivered notice of intention to defend,
the plaintiff
may apply to court for summary judgement on each of such claims in
the summons as is only- (a) a liquid document
,and (b) and a
liquidated amount in money
[2]
Shackleton
Credit Management (Pty) Ltd v Microzne Trading 88 CC and Another
2010 (SA) 112 (KZNP)
[3]
2020
JDR 0747 (WCC)
[4]
see
Combined cases under case numbers: 46904/2017, 27740/2018,
27741/2018, 3765/2019 and 1192/2018 and handed down on 3 September
2019.