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[2023] ZAGPJHC 517
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Member of the Executive Council for the Department of Human Settlements, Gauteng v Bobworth Investment Propriety Limited (A5042/2020 ; 2018/23489) [2023] ZAGPJHC 517 (19 May 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION,
JOHANNESBURG
APPEAL CASE NO:
A5042/2020
COURT A
QUO
CASE NO:
2018/23489
NOT REPORTABLE
NOT OF INTEREST TO
OTHER JUDGES
REVISED
19.05.23
In the matter between:
THE
MEMBER OF THE EXECUTIVE COUNCIL FOR THE DEPARTMENT OF
THE
HUMAN SETTLEMENTS, GAUTENG
APPELLANT
And
BOBWORTH
INVESTMENT PROPRIETY LIMITED
RESPONDENT
Neutral Citation
:
The Member of The Executive Council For
Department Of The Human Of The Human Settlements, Gauteng v Bobworth
Investment Propriety
Limited
(Case No:
A5042/2022) [2023] ZAGPJHC 517 (19 May 2023)
FULL COURT APPEAL –
JUDGMENT
WRIGHT J (ADAMS et
STRYDOM JJ concurring):
1.
The present respondent
company, Bobworth, owns and rents out commercial property. The
appellant provincial department, as represented
by the MEC, needed
space. The parties appear from the court documents to have begun
business as early as March 2009, if not earlier.
2.
Bobworth instituted
action against the MEC. A claim A and a claim B were brought. Summary
judgment was applied for and opposed.
Bobworth abandoned the summary
judgment application for claim B. Summary judgment was granted on
claim A and the MEC now appeals
with the leave of the court below.
3.
Bobworth cross-appeals,
with leave, the failure of the learned judge below to grant a costs
order in favour of Bobworth relating
to the costs in the summary
judgment application.
4.
Molahlehi J below did
not deal with costs in his order. At the end of the hearing before
Molahlehi J, the parties undertook to provide
him with affidavits on
the question of previously reserved costs. It is unclear whether or
not they did so. There seems to be considerable
confusion regarding
the question of costs in the summary judgement application. The
learned Judge was of the view that the question
of costs had been
settled.
5.
Regarding Claim A, the
particulars of claim allege two written lease agreements. The first
is referred to as the 2016 agreement.
The second is described as the
2017 agreement. The 2016 agreement had a commencement date of 1 May
2013. This agreement seems to
firm up an ongoing landlord and tenant
business relationship going back at least four years. The 2017
agreement had an end date
of 30 April 2018
6.
An allegation is made,
in paragraph 21 of the particulars of claim, that the MEC breached
the agreements by failing to pay amounts
due and payable “
between
the period of 1 May 2013 until 30 April 2018
.”
It is further alleged, in paragraph 22 of the particulars of claim
that “
The
details of the defendant’s breaches are contained in POC3
”.
POC3 is annexed to the particulars of claim. It starts with what is
obviously a balance brought forward from an earlier
date. It does not
appear from POC3 how far back the account goes or how the opening
balance is calculated. POC3 starts with the
date 2015/09/28 and ends
with the date 2018/03/27. In its terms, it contradicts the allegation
in paragraph 21 of the particulars
of claim, at least for the reason
that Claim A is from “
1
May 2013
”,
while POC3 starts two years and five months later. The allegation in
the particulars of claim that “
details
of the defendant’s breaches
”
are to be found in POC3 is confusing. The particulars of claim are
therefore excipiable on the ground of being vague and
embarrassing.
7.
The answering affidavit
sets out in great detail why many of the allegations in the
particulars of claim are incorrect and why the
MEC intends filing in
due course a counterclaim for overpayments.
8.
At the summary judgment
hearing, Bobworth sought and was granted an amendment to its notice
of motion in the summary judgment application.
The amendment related
to the amount in a certain invoice. The effect of the amendment was
to reduce the claim by about R200 000.
The amendment, in a
vacuum was innocuous. But what it showed was that the affidavit in
support of the application for summary judgment
was unreliable. The
affidavit of course cannot be amended. It can be explained, but the
best place for such explanation is in a
trial.
9.
I have much doubt that
the amount granted as summary judgment is correct. Bobworth has, at
this stage, not clearly isolated from
a long standing running account
what it now seeks. It would be unwise, on the papers before me to
attempt to arrive at the correct
figure, either way.
10.
In these circumstances,
the appeal must succeed and it is not necessary to canvass a number
of other defences raised.
ORDER
The
appeal is upheld with costs.
The
cross-appeal is removed from the roll.
The
costs relating to the summary judgment application and the costs of
the cross-appeal are reserved for the trial court.
The
order of the court below is set aside and replaced with one reading
“
1.
The defendant is
granted leave to defend.
2. The costs of the
summary judgment application are reserved for the trial court.”
GC Wright
Judge of the High Court
Gauteng Division,
Johannesburg
I
agree
ADAMS J
Judge of the High Court
Gauteng Division,
Johannesburg
I
agree
STRYDOM J
Judge of the High Court
Gauteng Division,
Johannesburg
I
agree
HEARD
: 17 May 2023
DELIVERED
: 19 May 2023
APPEARANCES
:
APPELLANT
Adv
MH Mhambi
Instructed
by
Mr
Colin Thaver
083 226
2169
KThaver@justice.gov.za
RESPONDENT
Adv
N Naidoo
Instructed
by
VDMA
Law
Stuart
Roux
082 457
6581
sroux@vdmalaw.com