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[2023] ZAKZPHC 70
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Botha t/a Lola B and Another v Willmeg Investments (Pty) Ltd (AR248/2022) [2023] ZAKZPHC 70 (9 June 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Case
No: AR248/2022
In
the matter between
:
CATHERINE
ANN BOTHA t/a LOLA B
FIRST APPELLANT
(First
Defendan
t
/
Respondent in the Court a quo
)
STEPHEN
CHARLES
BOTHA
SECOND
APPELLANT
(Second
Defendant
I
Respondent
in the Court a quo)
and
WILLMEG
INVESTMENTS
(PTY)
LTD
RESPONDENT
Plaintiff/
Applicant in the Court a quo)
ORDER
1.
The late
prosecution
of
the appeal is condoned.
2.
No order of
costs is made in the application for condonation for the late
prosecution of the appeal.
3.
The appeal is
upheld
.
4.
The order
granting summary judgment with costs is set aside.
It is replaced
with the following order:
'The
summary judgment application is refused. The defendants
are
granted
leave
to defend
the
action.
The
costs of the application for summary judgment are reserved for
determination by the trial court
.
5.
The respondent
is ordered to pay the costs of the appeal.
JUDGMENT
Mngadi
J (Mathenjwa AJ concurring)
[1]
The
appellant
appeals
against
the
judgment
of
a magistrate
granting
summary
judgment in favour of the respondents.
[2]
The first
appellant is Catherine Ann Botha t/a Lola B
,
a major female
businesswoman.
The second
appellant is Stephan Charise Botha an adult male businessman.
The respondent
is Willmeg lnvetsments (Pty) Ltd a company duly incorporated and
registered in terms of the company
laws of the
Republic of South Africa
.
[3]
The respondent
instituted an action in the magistrate
'
s
court against the appellants claiming R89 669.93 plus interest and
costs on attorney and client scale
.
[4]
The respondent
as basis of
its
claim it
claimed that it concluded a lease agreement with the
first
appellant.
The
lease
agreement
was
for
a
period
of
two
(2)
years
commencing
on 1 August
2019 at a rental of R15 000 per month
.
On 30 April
2020 first appellant repudiated the agreement.
The respondent
does not accept the repudiation
.
[5]
The
respondent
further
stated
that
the
first
appellant
is
in breach
of
the
lease
agreement for failing to pay the monthly rental and municipal charges
as per the statement of account dated August 2020.
The respondent
addressed to the first appellant a notice of breach on 4 August 2020
demanding payment of R89 669. 93
.
[6]
The respondent
as against the second appellant claimed that he bound himself as
surety and co-principal debtor in solarium with
first appellant in a
surety on 6 June 2019 for the obligations of the first appellant in
terms of the lease agreement.
.
[7]
The
respondent
in
its
particulars
of
claim
attached
the
lease
agreement
,
the statement
of account
,
its notice of
breach and the deed of surety by the second appellant.
[8]
The statement
of account shows rental not paid is from the first of April 2020 to
the first of August 2020
.
The notice of
breach by a firm of attorneys states: ' on 30 April 2020 you
addressed a letter to our client indicating your client's
intention
to cancel the lease agreement dated 6 June 2019 which letter amount
to a repudiation
.
Our
client
does
not
accept
your
client's repudia
t
ion
of the
agreement.
We
a
re
i
nstructed
that your
client is in breach of the agreement for failing to pay the monthly
rental and utility account due to our cl
i
ent
i
n
terms of the agreement.
A copy
of
our
client's
monthly
statement
as
at
August
2020
is
enclosed
herewith
for
ease
of reference
and your attention is drawn to the fact that the amount of R89 669
.
93
is
now
due
owing and payable to
our client.
Notice is
hereby given to your client to make payment of the above amount
within the next 7 (seven) days failing which our client
will approach
the magistrate
'
s
court to enforce the
agreement against your client and its surety
.'
[9]
The
appellants
in
their
plea
admitted
the
conclusion
of
the
lease
agreement
but claimed
that the lease agreement was invalid since the premises the subject
of the lease agreement were not compliant with the
National Building
Regulations and Building Standards Acts 103 of 1977.
Further,
pleaded the appellants
,
the respondent
committed breaches of the lease agreement, the first appellant gave
the respondent a notice of the breaches on 21
April 2020 and the
respondent failed to rectify the breaches then the first appellant
cancelled the lease agreement on 30 April
2020
.
[10]
The respondent
then applied for summary judgment.
The affidavits
in support of the application for summary judgment is deposed to by
Mr Kent Robert Knoop (Knoop)
.
Knoop states
that he is a joint business rescuer practitioner appointed for the
respondent on 9 June 2020
.
Knoop stated
that the allegations that the premises were not compliant with the
Nation Building Regulations and Standards Act were
factually
incorrect and even, if correct, that would not render the lease
agreement invalid.
Mr Knoop
stated that the defences raised by the appellants had no merit and do
not constitute an issue fit for trial.
[11]
The first
appellant in an affidavit opposing the application for summary
judgment reiterated the defences raised and the averments
made in the
plea that the respondent breached the terms of the lease agreement,
she gave the respondent notice of the breaches
and the respondent
failed to rectify the breaches
,
she then
cancelled the lease and vacated the premises before the end of April
2020
.
[12]
The learned
magistrate in the judgment on summary judgment dealt with the points
in limine
raised and
dismissed them.
The magistrate
held that the appellants had not furnished proof that the respondent
breached the terms of the lease agreement and
therefore there was no
issue raised fit for the trial.
[13]
In my view
,
the learned
magistrate misdirected
himself in
requiring the appellants to produce proof of their defence at the
stage of a summary judgment application
.
In addition
,
it was
common
cause
that the first
appellant
alleged the
breaches
of
the lease in a formal notice but the respondent did not dispute the
alleged breach and did not remedy what was alleged to be
the breach.
It was also
common cause or not disputed that on notice to the respondent
the first
appellant
vacated the
premises
at
the end of April 2020 and she stopped paying rental as from April
2020.
Further
,
it was common
cause that the respondent only in August 2020 purported to be
rejecting the cancellation of the lease agreement by
the first
appellant done in April 2020
.
[14]
The respondent
claimed rental for the premises that would have been payable had the
first defendant not cancelled the lease agreement
and vacated the
premises.
The
issue is whether the cancellation of the lease agreement by the first
appellant was lawful or not.
It was common
cause that it happened.
It was an
issue fit for trial. If nothing inherently incredible in the
defendant's answer which if established would support a defence
that
is good in law, the court is obliged to dismiss the application for
summary judgment.
See
Chambers
v Jonker
1952
(4) SA 635
(C)
.
In my view,
the appellants disclosed a defence and material facts with sufficient
particularity and completeness, which suffices
for purposes of
opposing the application for summary judgment.
See
Maharaj
v
Barclays
National
Bank
Ltd
1976
(1)
SA
418
(A)
at 426C-D
.
[15]
The appellants
sought condonation for the late prosecution of the appeal, which the
respondent opposed.
The appellants
after the
learned magistrate
gave judgment
filed a notice of appeal and paid the prescribed security
.
[16]
The respondent
in an answering affidavit to the condonation application stated that
in
terms
of
Rules 50 (4) (a) and Rule 50(1) of the Uniform Rules of Court an
appellant is required within forty (40) days of noting an appeal
to
apply to the Registrar for the allocation of a date of hearing of the
appeal and to prosecute an appeal within 60 days after
noting an
appeal, unless so prosecuted
the appeal is
deemed to have lapsed.
It was only on
or about 23
August
2022 that the
appellants
prosecuted
the appeal.
[17]
The appellants
in the application for condonation state that there was
miscommunication between their
instructing
and instructed
attorney, which resulted in neither of them timeously prosecuting the
appeal.
Mr
Louw counsel for the appellant argued that the laxity on the part of
the appellant's legal representatives should not cause prejudice
to
the appellants.
He argued that
the appellants on time gave clear instructions to pursue an appeal.
He argued that
the respondent as a result of the failure to prosecute the appeal on
time suffered no prejudice.
It is in the
interest of justice to condone the late prosecution of the appeal, he
argued.
[18]
Mr Pretorius
for the respondent argued that for a period of (4) months nothing was
done by the appellants to prosecute the appeal.
There is no
explanation for the failure to prosecute the appeal.
[19]
The manner in
which the appellant's
legal
representatives handled the matter is, in my view, shocking.
They have
completely failed to give a reasonable logical
full
explanation
which cover the entire period for the delay in prosecuting the
appeal.
It
is not only that they did not prosecute the appeal on time, they also
failed to apply for condonation for the late prosecution
of the
appeal on time.
[20]
The
appellants, in my view, have shown reasonable prospects of success on
appeal as set out above
.
The cause of
the delay was the ineptitude of the appellants' legal
representatives
.
The Respondent
has not shown
any prejudice
to be caused
to it if condonation for the failure to prosecute the appeal on time
is condoned.
I
am of the view that it is in the interest
of justice to
grant condonation
for late
prosecution
of
the appeal.
[21]
I propose the
following order:
1.
The late
prosecution
of
the appeal is condoned.
2.
No order of
costs is made in the application for condonation for the late
prosecution of the appeal.
3.
The appeal is
upheld.
4.
The order
granting summary judgment with costs is set aside.
It is replaced
with the following order:
'The
summary
judgment application is refused. The defendants are granted leave to
defend the action.
The
costs of the application for summary judgment are reserved for
determination by the trial court
.
5.
The respondent
is ordered to pay the costs of the appeal.
Mngadi,
J
I
agree.
Mathenjwa, AJ
APPEARANCES
Case
Number
AR
248/2020
Appellant's
represented by
Mr
Louw
Instructed
by
Manly
Inc.
PRETORIA
Respondent
represented by
Mr
Pretorius
Instructed
by
Tatham
Wilkes Inc.
PIETERMARITZBURG
Date
of Hearing
5
May 2023
Date
of Judgment
09
June 2023