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[2010] ZAGPPHC 171
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Dainfern Shopping Centre (Pty) Ltd v Berry Hill Trading 154 CC t/a Bobby's Hire Shop (17251/10) [2010] ZAGPPHC 171 (24 August 2010)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT)
Case
number:
17251/10
Date: 24/08/2010
In
the matter between:
DAINFERN
SHOPPING CENTRE (PTY)
LTD
................................................
PLAINTIFT
and
BERRY
HILL TRADING 154 CC t/a BOBBY'S HIRE
SHOP
......................
DEFENDANT
JUDGMENT
RAULINGA
J,
[1]
This is an application for summary judgment in which the plaintiff
prays for;
■
Payment
in the amount of R1C0455-19;
■
Interest
for the sum of R100455-19 at the rate of prime plus 2% -a
tempore
morae;
■
Confirmation
of the cancellation of the lease agreement;
■
Eviction
of the Defendant and any other occupant from the leased premises, and
■
Costs
of suit.
Plaintiff
had prior to this application sued the Defendant for arrear rentals
and other costs pertaining to commercial premises
comprising part of
the Plaintiffs property portfolios arising from a written agreement
of lease.
The
Plaintiff contends that the Defendant has not set out a
bona
fide
defence
as required in law and that the points raised by the Defendant
in
limine
should
be dismissed.
[2]
The Defendant is however of the view that all the font points raised
in
iimine
are
valid and should be upheld. Further that on merits the Defendant has
a
bona
fide
defence
and as a result leave to defend should be granted.
[3]
After reading the papers and having heard Counsel I decided to
dispense with all other points in
limine
and
decided to deal with only one of them. It is my respectful view that
all these other points do not hold water. The Defendant
avers that
the particulars of claim fail to comply with the provisions of Rule
18 (6) of the Rules of Court in that the Plaintiff
failed to annex a
complete copy of the lease agreement upon which the cause of action
relies. Although the schedule is annexed
certain pages of the terms
and conditions numbered pages "A6" to "A9" and
referring to Clause 14.01 to Clauses
26.01 are missing.
As
a result the averment in paragraph 5.10 allegedly in reference to
Clause 22 of the general conditions for the payment of electricity,
water and gas by the Defendant cannot be determined by reference to
the lease agreement. Furthermore, the Plaintiff avers in paragraph
9
that it is entitled to eject the defendant from the leased premises
and cancel the lease in the event that the defendant fails
to pay an
amount on the due date, allegedly in reference to clause 26 of the
lease agreement, the alleged breach clause but this
too is missing.
[4]
Rule 18 (6) reads as follows: "A party who in his pleadings
relies upon a contract shall state whether the contract is
written or
oral and when, where and by whom it was concluded, and if the
contract is written a true copy thereof or of the part
relied on in
the pleadings shall be annexed to the pleadings."
Rule
18 (6) requires the Plaintiff to annex where it relies on a written
contract, a true copy thereof or the part relied upon in
the
pleading. The Plaintiff failed to do so and therefore the particulars
of claim are excipiable and/or vague and embarrassing
in terms of
Rule 23 (1) and the Defendant would be entitled to take an exception
alternatively to make an application that the
particulars of claim
are irregular in terms of the provisions of Rule 30 of the Rules of
Court. On this basis alone the Defendant
would be granted leave to
defendant.
[5]
However on merit an important agreement has been made by the
Defendant that there exists a tacit term of the lease agreement
that
the Plaintiff would provide and deliver a functioning shopping
centre. An averment is made that the shopping centre has only
thirty
percent tenancy. In proof of this the Defendant annexed "TH2".
This has had a large effect on the Defendant's
business which is
dependant on the shoppers who pass through. The shopping centre has
fallen into a state of disrepam which is
a breach of clause 13.01
(l)-See in this regard
u
TH3"wherein
the Dainfern Housing Estate residents have been forewarned to
exercise caution when proceeding to the Fern Shopping
Centre. A
statement has been made that the Fern Shopping Centre no longer has
security and that the area is extremely high risk.
In
Wilkins
NO v Voges
[1994] ZASCA 53
;
1994 (3) SA 130
(AD) at 144 (C-D)
the
court held that, "a tacit term in a written contract, be it
actual or imputed, can be the corollary of the express terms,
as it
were, between the lines or it can be the product of the express terms
read in conjunction with evidence of admissible surrounding
circumstances. Either way, a tacit term, once found to exist, is
simply read or blended into the contract: as such it is 'contained'
in a written deed. ( my emphasis) not being an adjunct to but
integrated part of the contract, a tacit term does not in my opinion
fall foul of either the clause in question".
[6]
In
Sishen
Hotel (EDMS) BPK v Suid- Afrikaanse Yster en Staal Industriele
Korporasie BPK 1987 (2) 932
the
court held that" the respondent had committed breach of contract
in respect of its common law obligation of giving the
commudus usus
of the leased premises to the appellant, and that the respondent was
or. thai ground liable to pay damages to the
appellant (in an amount
agreed to between the parties.)
See
also Sweets from Heaven (PTY) Ltd and Another v Ster Kinekor Films
(PTY) Ltd and Another 1999(1) SA 796 (WLD)
[7]
From the above reasoning, it is clear that the point in
limine
raised
by the Defendant and as discussed above should be upheld. Further, on
merits it can be concluded that the defendant has a
bona
fide
defence.
It therefore follows that the Defendant be granted leave to defend.
[8]
In the premises I would make the following order;
[1]
The Plaintiff's Application for summary judgment is dismissed with
costs.
[2]
The Defendant is granted leave to defend the action.
T
J RAULINGA
JUDGE
OF THE HIGH COURT NORTH GAUTENG HIGH COURT