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[2011] ZAGPPHC 198
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Artio Investments (Pty) Ltd v Geldenhuys and Another (40226/11) [2011] ZAGPPHC 198 (13 October 2011)
NOT REPORTABLE
IN THE NORTH GAUTENG HIGH
COURT, PRETORIA
( REPUBLIC OF SOUTH
AFRICA)
Case
Number: 40226/11
Date:
2011-10-13
In
the matter between:
ARTIO
INVESTMENTS (PROPRIETARY)
LIMITED
........................................................
Plaintiff
and
LEENDERT
GELDENHUYS
................................................................................
First
Defendant
ERICA
GELDENHUYS
..................................................................................
Second Defendant
JUDGMENT
[1]
The plaintiff applies for summary judgment against the
defendants, jointly and severally, the one paying the other to be
absolved, for-
(1)
Payment of the sum of R1 046 574,72;
(2)
Interest on the sum of R1 046 574,72 calculated at the rate of 2
percent above the prime overdraft rate charged by the plaintiff's
banker a tempore more to date of payment;
(3)
Costs of suit on the scale as between attorney and client.
[2]
The plaintiff's claim is based on a written lease agreement entered
into between the plaintiff and the defendants on 18 January
2008 in
terms of which -
(1) the plaintiff leased
to the defendants for a period of 5 years Shop No 47 in the Brits
Platinum Mall for the rental and other
charges stipulated in the
agreement;
(2) the commencement date
of the lease was 1 May 2007 and the termination date was 30 April
2012;
(3) the lease was
subject to the comprehensive 'General Conditions of Lease' attached
to the Lease Agreement as Annexure 'A' which
include clause 40 which
reads as follows:
'WHOLE AGREEMENT'
This lease constitutes
the whole agreement between the parties and no warranties or
representations whether express or implied not
stated herein shall be
binding on the parties. No agreement at variance with the terms and
conditions of this lease nor any consensual
cancellation thereof
shall be binding on the parties unless reduced to a written agreement
signed by or on behalf of the parties.
No relaxation or indulgence
which the Landlord may show to Tenant shall in any way prejudice its
rights hereunder and in particular
no acceptance by the Landlord of
rental after due date (whether on one or more occasions) shall
preclude or stop it from exercising
any rights enjoyed by it
hereunder by reason of any subsequent payment not being made strictly
on due date. Unless otherwise stated
by the Landlord in writing, the
receipt by the Landlord or its agents of any rental or other payments
shall in no way whatsoever
prejudice or operate as a waiver,
rescission or abandonment of any cancellation effected or acquired
prior to such receipt.'
[3]
The plaintiff alleges that the defendant took occupation of Shop 47
on the occupation date and that by 1 July 2011 they were
indebted to
the plaintiff in the sum of R1 046 574,72 in respect of arrear rental
and other charges. The plaintiff also alleges
that as a result of the
respondents' failure to pay the rental and other charges in
accordance with the agreement the plaintiff
cancelled the lease
agreement. (Since the defendants have already vacated the premises it
is not necessary to consider the claim
for eviction).
[4]
In order to avoid summary judgment the defendants were required to
file an affidavit in which they set out a bona fide defence
to the
plaintiff's claim. Rule 32(3)(b) requires that such affidavit shall
disclose fully the nature and grounds of the defence
and the material
facts relied upon therefor. These requirements were considered in
Breitenbach v Fiat SA (Edms) Bpk
1976 (2) SA 226
(T) which held that
what is required of a defendant is firstly, to set out facts in the
affidavit, which, if proved at the trial,
will constitute an answer
to the plaintiff's claim; and secondly, to set out these facts, in a
manner which is not inherently and
seriously unconvincing. The court
held that the statement of facts must be sufficiently full to
persuade the court that what the
defendant has alleged, if it is
proved at the trial, will constitute a defence to the plaintiff's
claim and that these facts must
not be averred in a manner which
appears in all the circumstances to be needlessly bald, vague or
sketchy, as that will tend to
show that the defence is not bona fide
(227G-228F).
[5]
The defendants' counsel suggested in limine that the plaintiff's
affidavit does not show that the deponent has personal knowledge
of
the facts -see Schackleton Credit Management (Pty) Ltd v Microzone
Trading
2010 (5) SA 112
(KZP); First Rand Bank Ltd v Breyer
2011 (1)
SA 196
(GNP). In my view there is sufficient in the papers to show
that he does have such knowledge of the facts and the point cannot be
upheld.
[6]
The defendants have not disputed the facts alleged in the particulars
of claim but have raised the following defences (I summarise):
(1) The agreement must be
rectified to reflect the defendants' close corporation as the
lessee.The defendants alleged that the plaintiff's
authorised agent
informed them during 2007 that as soon as the close corporation was
'finalised' the agreement would be amended
to reflect the close
corporation as the lessee. The defendants do not explain why the
close corporation, which was registered in
2004, was not the tenant
from the outset;
(2) The plaintiff's
representative made certain misrepresentations to the defendants.
The defendants allege
that during the negotiations prior to the signature of the agreement
the plaintiff's representative represented
to them that the tenant
mix would be that set out in Annexure B to their affidavit but some
of the prospective tenants did not
take up premises in the centre and
others only entered into short term leases. This resulted in fewer
people visiting the centre
and it became a 'ghost centre'. As a
result the defendants' business suffered losses of R2,5 million in
respect of a bank loan
and R1 282 727,49 in respect of trading
losses.
(3) The plaintiff's
representatives failed to inform the defendants about the opening of
the new mall nearby which drew a number
of tenants from the Platinum
Mall. This also contributed to the defendants' losses.
[7]
The defendants have not made out a case for rectification of the
agreement. Clearly the close corporation was in existence but
they
intended to and in fact did enter into the agreement and at best they
have been told that the agreement will be amended. However
as appears
from clause 40 such an amendment must be in writing and signed by the
parties.
[8]
The representations and/or omissions made are not alleged to be
fraudulent and they have not been incorporated as terms into
the
agreement. Accordingly clause 40 precludes reliance on these
representations.
[9]
The defendants have therefore not set out facts which constitute a
defence. It remains to add that in view of the manner in
which the
defence is alleged I would not find that the defence is bona fide.
[10]
I grant summary judgment against the defendants, jointly and
severally, the one paying the other to be absolved for:
(1) Payment of the sum of
R1 046 574,72;
(2) Interest on the sum
of R1 046 574,72 calculated at the rate of 2 percent per annum above
the prime overdraft rate charged by
the plaintiff's banker (to be
proved by a certificate in accordance
with clause 34 of the
General Conditions of Lease) from 27 July 2011 to date of payment;
(3)
Costs of suit on the scale as between attorney and client.
B.R. SOUTHWOOD
JUDGE OF THE HIGH COURT
CASE
NO: 40226/2011
HEARD
ON: 26 September 2011 and 28 September 2011
FOR
THE APPLICANT: ADV. G.T. AWAKOUMIDES
INSTRUCTED
BY: Mark Efstratiou Inc.
FOR
THE RESPONDENTS: ADV. M. VAN TWISK
INSTRUCTED
BY: MESSRS. LOURENS ATTORNEYS
DATE
OF JUDGMENT: 13 October 2011