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[2010] ZAGPPHC 57
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Minty NO and Another v Exclusive Marble Merchants and Others (8337A/2010) [2010] ZAGPPHC 57 (7 July 2010)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG COURT, PRETORIA)
CASE
No. 8337A/2010
DATE:
7/07/2010
In
the matter between:
MOHAMED
MINTY
N.O
First
Plaintiff
RASH
IDA
MINTY
N.O
Second
Plaintiff
and
EXCLUSIVE
MARBLE MERCHANTS
First
Defendant
CARLOS
ALBERTO ANCARNACAO MARTINS
Second
Defendant
R
McKECHNIE
Third
Defendant
M
J OELOFSEN
Fourth
Defendant
JACO
SWART
Fifth
Defendant
JUDGMENT
Van
der Byl, AJ
[1]
This is an application for summary judgment in terms of Rule 32 of
the Uniform Rules of Court for an amount due in terms of
a written
agreement of lease.
[2]
As is apparent from the pleadings, it is common cause that the
Plaintiffs, two trustees of a Trust, and the First Defendant,
a close
corporation, entered into a written agreement of lease on 18 August
2008.
[3]
In terms of the agreement the First Defendant rented a business
premises from the Plaintiffs for a period of three years with
effect
from 1 July 2008 at a monthly rental specified in the agreement.
(4)
The Second, Third, Fourth and Fifth Defendants bound themselves as
sureties and co-principal debtors jointly and severally
in
sotidum
to
the Plaintiffs on behalf of the First Defendant in terms of a deed of
suretyship.
[5]
It is common cause that the First Defendant failed to make payment of
the agreed rental, electricity charges and operating costs
as from
June 2009.
[6]
The Plaintiffs issued summons on 10 February 2010.
[7]
On the Third, Fourth and Fifth Defendants having entered an
appearance to defend, the Plaintiffs filed an application for summary
judgment against the Defendants jointly and severally, the one paying
the other to be absolved, for-
(a)
payment
of the sum of R92 575,94
(b)
interest
at the rate of 15,5 percent per annum a
tempora
morae;
and
(c)
costs
of suit.
[8]
The Fifth Defendant, thereupon, filed, in opposition to the
application for summary judgment, on behalf of himself and the Third
and Fourth Defendants, an opposing affidavit in which it is stated -
(a)
that
on 5 August 2009 the Plaintiffs were advised that the First Defendant
was experiencing
"serious
cash flow problems",
intended
to vacate the leased premises, would endeavour to sub-let the
premises and sought the Plaintiffs' permission to do so
(paragraph
8 of opposing affidavit, record p. 56);
(b)
that,
although the Plaintiffs refused to assist the First Defendant in
sub-letting the premises or to renegotiate the monthly rental,
the
parties eventually met and orally reached a
"compromise"
during
August 2009 in terms of which -
(i)
the First Defendant would vacate the premises and the parties agreed
that the agreement would be cancelled with effect from
1 September
2009
(paragraph
8.1 of the opposing affidavit, record p. 56 and paragraph 15.1 of the
opposing affidavit, record p. 60);
(iii)
the
Plaintiffs would utilize
"the
deposit paid by the First Defendant in the amount of R25 575,81 as
payment in lieu of arrear rentals (if any) as well
as possible damage
to the leased premises"
(paragraph
8.2 of the opposing affidavit, record p. 57 and paragraph 15.2 of the
opposing affidavit, record p. 60);
(iv)
neither
party
"would
proceed against the other in terms of the Lease Agreement'
(paragraph
15.3 of the opposing affidavit, record p. 60),
whereupon, the First Defendant vacated the premises and regarded the
matter as finalized.
[9]
The question which I am now called upon to pronounce is, as was
raised in argument on behalf of the parties, whether these factual
averments constitute a
bona
fide
defence
if regard is had, particularly, to clause 16.2 of the lease agreement
which reads as follows:
"No
variation, amendment or cancellation of this lease, inclusive of this
clause 16, shall be binding unless it is in writing
and is signed by
both the Landlord and the Tenant"
[10]
It is trite that where a
"non-variation
clause",
such
as the one contained in that clause, is contained in a written
agreement, any verbal amendment or cancellation of the agreement
is
null and void and of no force and effect
(SA
Sentrale
Koop
Graanmaatskappy
Bpk v Shifren
1964 (4) SA 760
(A) at 766D-767C; Pelser v Smith
1979
(3) SA 687
(T) at 690F-691D).
[11]
Ms. Swanepoel who appeared on behalf of the Defendants acknowledged
this principle, but submitted, relying on,
inter
alia,
Christie,
The Law of Contract in South Africa, Fourth Edition, p. 521 and
decisions quoted by the learned author,
that
the Defendants are in effect relying on a waiver by the First
Plaintiff to pursue its remedies in terms of the agreement which
does
not constitute a variation of the agreement, but is rather a
pactum
de non petendo.
[12]
It is correct that it has been acknowledged by our Courts that a
non-variation clause will not prevent one party waiving a
provision
of an agreement that is entirely for a party's benefit or waiving the
right to pursue his or her remedy for a breach
that has already
occurred
{Hilsage
Investments (Pty) Ltd v National Exposition (Pty) Ltd
1974 (3) SA 346
(W) at 354C-F; Impala Distributors v Taunus Chemical Manufacturing Co
(Pty) Ltd
1975 (3) SA 273
(T) at 277B-G; Barnett v Van der Merwe
1980
(3) SA 606
(T) at 610A).
[13]
In my opinion the facts in those matters, are, as will be indicated
below, distinguishable from the facts in this matter.
[14]
It is in my view apparent from the opposing affidavit filed on behalf
of the Third, Fourth and Fifth Defendants that the First
Defendant's
alleged entitlement to vacate the premises is, despite the use of
expressions like
"compromise"
and
"novated',
in
effect based on an oral agreement to cancel the lease agreement.
[15]
The alleged right of the First Defendant to vacate cannot exist as
long as the lease agreement is still in existence, hence
the
contention in the opposing affidavit that the parties agreed to
cancel the agreement. The allegation contained in paragraph
15.3 of
the opposing affidavit that neither party
"would
proceed against the other in terms of the Lease Agreement'
is
irreconcilable with an allegation that the agreement was cancelled.
[16]
We are accordingly in my view not here concerned with a matter where
the Plaintiffs waived a provision contained in the agreement
which is
entirely for their benefit or where the Plaintiffs waived their right
to pursue their remedy for a breach that has already
occurred, but,
contrary to the non-variation clause, in reality with an oral
cancellation of the agreement.
[17]
Summary judgment is accordingly granted against the Third, Fourth
and Fifth Defendants, jointly and severally, the one paying
the other
to be absolved, for -
(a)
payment
of R92 575,94;
(b)
interest
at the rate of 15,50 per cent per annum a
tempora
morae,
(c)
costs
of sjjit.
P
C VAN DER
BYL.
ACTING
JUDGE OF THE HIGH COURT
ON
BEHALF OF THE PLAINTIFFS
ADV
C L H HARMS
On
the instructions of
SERFONTEIN
VILJOEN & SWART
165
Alexander Street Brooklyn
PRETORIA
Ref:
T Viljoen/VM0450
Tel:
(012) 362 2556
ON
BEHALF OF FIRST THE DEFENDANTS
ADV
G SWANEPOEL
On
the instructions of
ROTHMAN
PHAHLAMOHLAKA INC
189
Charles Street Brooklyn
PRETORIA
Ref
: S J Rothmann/JN (012) 460 0220
DATE
OF HEARING
21
June 2010
JUDGMENT
DELIVERED ON
7
July 2010