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[2023] ZAKZPHC 92
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Beyonce Hairpiece Salon and General Mechandiser (Pty) Ltd and Another v Bester and Another (AR423/2022) [2023] ZAKZPHC 92 (8 September 2023)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Appeal
case number:
AR423/2022
Court
a quo case number:
9201058/2021
In
the matter between:
BEYONCE
HAIRPIECE SALON AND GENERAL
FIRST APPELLANT
MERCHANDISER
(PTY) LTD
Registration
number 2015/151193/07
MR
SAMSON NNAMDI OKAFOR
SECOND APPELLANT
(Passport
number A[...])
and
SUSAN
MARGARET WARD BESTER
FIRST RESPONDENT
(Identity
number 6[...])
BEVERLY
LYNNE PICKFORD
SECOND RESPONDENT
(Identity
number 5[...])
Coram
:
Seegobin J and Mossop J
Heard
:
8 September 2023
Delivered
:
8 September 2023
ORDER
On
appeal from:
Pinetown Magistrates’ Court (sitting as the
court of first instance):
1.
The appeal is dismissed with costs.
JUDGMENT
Mossop
J (Seegobin J concurring)
:
[1]
This is an appeal against an order by the
Pinetown Magistrates’ Court granting summary judgment in favour
of the respondents
against the first and second appellants for
payment of the amount of R63 916.36, interest thereon at the rate of
7.7 percent per
annum from date of service of the summons to date of
payment and for ejectment from certain commercial premises.
[2]
The respondents jointly own the commercial
premises referred to above, which are situated in Pinetown,
KwaZulu-Natal (the premises).
The respondents concluded a written
agreement of lease (the lease agreement) with the first appellant for
the premises on 6 February
2018, which was to endure for a period of
three years. The second appellant, who acted on behalf of the first
appellant in concluding
the lease agreement, also agreed to stand as
surety for the obligations of the first appellant.
[3]
The respondents subsequently alleged that
the first appellant was in arrears with its monthly rental payment
obligations and accordingly
issued summons against both appellants,
the latter on the strength of his suretyship. The appellants filed a
plea, and having considered
the plea, the respondents concluded that
no triable defence had been raised by the appellants. The bringing of
the summary judgment
application was the inevitable consequence. The
appellants delivered an affidavit resisting the granting of summary
judgment but
the magistrate, nonetheless, granted the summary
judgment that is now being appealed against.
[4]
Summary
judgment is often characterised as being a drastic remedy because, if
it is granted, it deprives a defendant of the opportunity
to raise
its defence in trial proceedings. However, as was stated by Navsa JA
in
Joob
Joob Investments (Pty) Ltd v Stocks Mavundla Zek Joint Venture:
[1]
‘
It
was intended to prevent sham defences from defeating the rights of
parties by delay, and at the same time causing great loss
to
plaintiffs who were endeavouring to enforce their rights.’
The
learned judge of appeal went on to conclude that:
‘
Having
regard to its purpose and its proper application, summary judgment
proceedings only hold terrors and are “drastic”
for a
defendant who has no defence.’
[2]
[5]
When the summary judgment application came
before the magistrate, three points were initially raised by the
appellants upon which
their opposition to the granting of summary
judgment was predicated. These points were formulated as points in
limine and were
contained in the appellants’ affidavit
resisting the granting of summary judgment. The three points were
that:
(a)
Mr Murray Guy Evennett (Mr Evennett), who
concluded the lease agreement on behalf of the respondents and who
deposed to the affidavit
supporting the granting of summary judgment
(the verifying affidavit), lacked:
‘…
the
necessary
locus standi
to depose to the Founding Affidavit.’
In
addition, it was alleged that Mr Evennett had no authority to depose
to the verifying affidavit;
(b)
Mr Evennett lacked personal knowledge of
the facts to which he deposed to in the verifying affidavit; and
(c)
There
had been non-compliance with rule 14(2)
[3]
of the Magistrates’ Court Rules in that the amount in respect
of which summary judgment had been ordered was not a liquidated
amount.
[6]
Before the magistrate, the appellants
abandoned the first point. Nothing more need be said about it other
than that it was probably
a good decision not to rely on it.
[7]
As regards the second point, the appellants
submitted that Mr Evennett was not a person who could swear
positively to the facts
contained in the verifying affidavit. The
high point of the appellants’ submissions in this regard is to
be found in the
following paragraph in the affidavit resisting
summary judgment:
‘
It
is submitted that it is inconceivable that, the deponent, being the
majority member of a substantial property management operation,
would
have personal knowledge of the transpiring of and matters pertaining
to, and incidental to, the Applicants’ cause of
action.’
[8]
Why it is ‘inconceivable’ that
Mr Evennett has such personal knowledge is not mentioned. Mr Evennett
stated under oath
in the verifying affidavit that he had such
personal knowledge. The appellants’ rather cavalier submission
that he did not,
was a bald statement that was not fashioned upon any
revealed facts.
[9]
The appellants, however, appear to have
forgotten that the respondents had pleaded in their particulars of
claim that Mr Evennett
had represented them in concluding the lease
agreement with the appellants. The appellants, significantly,
admitted this in their
plea. That being so, it can be accepted that
Mr Evennett was personally involved in negotiating and concluding the
lease agreement
with the appellants. He also alleged in the verifying
affidavit that his business is the managing agent of the premises,
which
encompassed:
‘
the
responsibility of entering into lease agreements with prospective
tenants, the levying and collection of rental, and general
management
services in respect of the building ….’
The appellants did not
deal with this allegation in their affidavit resisting summary
judgment. It must therefore be accepted as
being correct.
[10]
Mr Evennett stated in the verifying
affidavit that the first appellant had fallen into arrears with its
rental and utility payments.
This is not a fact that is at variance
with the appellants’ version.
They
pleaded in their plea that:
‘
The
Defendant’s (sic) do not owe the Plaintiffs’ (sic) the
sum as claimed. If any amount of money is due and owing to
the
Plaintiffs’ (sic) it is far below the sum of R63 916.36.’
They went on also to
plead, briefly, that:
‘
Any
amount that may be due to the Plaintiffs’ (sic) by the
Defendants’ (sic) is not immediately outstanding, owing or
payable, in that the First Defendant had entered into an arrangement
with the Plaintiffs’ (sic) in respect of rental that
fell
overdue as a result of the Level 5 national lockdown’.
And they rounded off
their plea with the following statement:
‘‘…
the
Defendants’ (sic) plead that they have not refused to bring any
amount owing up to date and that the amount the Plaintiffs’
(sic) are claiming is disputed.’
[11]
Inherent in these extracts from the
appellants’ plea is a tacit admission of the appellants being
in arrears with their obligations.
Mr Evennett’s knowledge
therefore appears to have mirrored the knowledge of the appellants
and cannot be criticised. Indeed,
Mr Evennett went further than the
appellants and quantified the amount of the arrears. Despite alluding
to arrears or to an indebtedness
due to the respondents, the
appellants never attempted to suggest how much that indebtedness was.
[12]
Dwelling
for a minute on the reference to the level 5 national lockdown, Ms
Holtzhausen submitted in her heads of argument that
the allegation of
an arrangement concluded as a consequence of the lockdown raised a
bona fide defence. I cannot agree with that
submission. How much
rental was overdue was not disclosed by the appellants. What the
terms of the arrangement were was not disclosed.
Whether the
arrangement was in writing or was oral was not disclosed. It was
accordingly not a bona fide attempt to express a legitimate
defence.
Moreover, what the appellants appear to be alluding to in making a
reference to this arrangement is some variation of
the terms of the
lease agreement. The lease agreement provided that any variation to
it had to be recorded in writing and signed
by the parties. The
Appellate Division, as it then was called, held that where it is
stipulated in an agreement that variations
thereto may only be in
writing, such agreement cannot be varied orally. This is the
well-known
Shifren
principle.
[4]
The
Shifren
principle was considered in
Brisley
v Drotsky
,
[5]
where the Supreme Court of Appeal held that a court has no discretion
to decline to enforce a valid contractual term (of which
a
non-variation clause is part) and considerations of reasonableness
and fairness do not come into play in the enforcement of such
non-variation clauses. This was reaffirmed in
SH
v GF and others
,
[6]
where the court stated that:
‘
This
court has for decades confirmed that the validity of a non-variation
clause such as the one in question is itself based on
considerations
of public policy, and this is now rooted in the Constitution.’
No
written variation of the lease agreement was referred to or put up by
the appellants. An oral variation of the lease agreement
had no
starting price and could not constitute a bona fide defence. It goes
without saying that this court should not have to engage
in this
essentially speculative exercise to deal with a vague allegation that
is alleged to constitute a good defence. The onus
is on the
appellants to clearly set out the facts upon which they rely.
[7]
[13]
Given his admitted personal involvement in
the conclusion of the lease agreement and the undisputed allegation
that his business
managed the premises, it seems to me to be very
likely that Mr Evennett did have personal knowledge of the facts to
which he deposed
to in his affidavit. The appellants did not suggest
that they did not know Mr Evennett or that they did not have dealings
with
him.
[14]
Ironically,
the appellants, of course, can have no personal knowledge themselves
of whether Mr Evennett had personal knowledge,
as they have no
insight into the workings of Mr Evennett’s business. In any
event, even if I am incorrect in my conclusion
as to Mr Evennett’s
personal knowledge, as the magistrate correctly pointed out in her
judgment, it is not necessary that
a deponent in summary judgment
proceedings should have personal knowledge of every fact, and it is
quite permissible to have reference
to relevant documents to acquire
knowledge.
[8]
The appellants’
argument was advanced
in
vacuo
as a purely theoretical construct devoid of any supporting facts. It
was, in my view, ‘
deliberately
vague’.
[9]
An attack on
the personal knowledge of a deponent to a verifying affidavit in
summary judgment proceedings
is,
unfortunately, a stratagem that is regularly employed these days when
no other defence exists to avoid an inevitable judgment.
There
are undoubtedly cases where such an attack may be justified. This is
not such a case. In my view, the magistrate rightly found
against the
appellants on this point.
[15]
The
third point taken by the appellants was that the amount claimed from
the appellants is not a liquidated amount in money.
Colman
J in
Oos-randse
Bantoesake Administrasieraad v Santam Versekeringsmaatskappy Bpk en
andere
(2)
[10]
stated as follows on this issue:
‘
A
money claim is liquidated if the amount thereof has been fixed by
agreement or by the judgment of a Court. To those two cases
one
can perhaps add a third one (as suggested in
Botha
v Swanson & Co. (Pty.) Ltd
.,
and in
Leymac
Distributors Ltd
.
v
Hoosen
and Another
),
namely, if the ascertainment of the amount is a mere matter of
calculation. In the last-mentioned case, however, the
data
upon
which the calculation is to be based would themselves have to be
amounts about which there was no room for uncertainty,
estimation or
debate. When, in order to prove his claim, the plaintiff will have to
show that it, or some element in it, or some
datum
involved
in its computation, was fair or reasonable, the claim is not
liquidated
.
’
(Citations omitted.)
[16]
The particulars of claim set out the rental
amounts payable over the entire three-year period of the lease
agreement. In the first
year of the lease, the monthly rental would
be R22 104.71. In the second year, it would be R24 094.13 per month
and in the final
year of the lease agreement, the monthly rental
would be R26 262.60. These are agreed amounts and are therefore
liquidated amounts.
[17]
The amount claimed by the respondents in
their particulars of claim is in respect of both rental and
utilities. The appellants undertook
to pay for all amounts due in
respect of electricity, power and water consumed at the premises. The
amounts due in respect of these
utilities are swiftly ascertainable
by reference to invoices rendered by the respective service
providers. It follows that the
amounts claimed by the respondents,
both in respect of rental and utilities, are liquidated amounts.
[18]
The appellants contended further that
payments had been made that had not been taken into account by the
respondents. Only a single
payment was so identified. That payment
had nothing to do with the amount claimed by the respondents in the
summary judgment and
everything to do with a payment arising out of a
previous default by the appellants.
[19]
The magistrate thus correctly found against
the appellants on all the points taken by them. These points having
been disposed of,
what triable issues remained? The answer that the
magistrate arrived at, was that there were none. I agree. Summary
judgment was
therefore correctly entered against the appellants.
Ordinarily, costs follow the result. I see no
reason to depart from that principle.
[20]
In the circumstances, I would propose the
following order:
1.
The appeal is dismissed with costs.
MOSSOP
J
I
agree and it is so ordered
SEEGOBIN
J
APPEARANCES
Counsel
for the appellant:
Ms T
Holtzhausen
Instructed
by:
Manoj
Haripersad Attorneys Inc.
Suite
4, Ground Floor
16
School Road
Pinetown
Counsel
for the respondent:
Mr R
M Van Rooyen
Instructed
by:
Sinclair
and Company
Suite
2B, First Floor
Unit
2, Burnside Office Park
1
Builders Way
Hillcrest
Date
of argument:
8
September 2023
Date
of Judgment:
8
September 2023
[1]
Joob
Joob
Investments (Pty) Ltd v Stocks Mavundla Zek Joint Venture
[2009]
ZASCA 23
;
2009
(5) SA 1
(SCA)
para 31.
[2]
Ibid
para 33.
[3]
The
appellants specifically reference Rule 14(2) of the Magistrate’s
Court Rules of Court in their affidavit opposing summary
judgment.
In fact, that is the title of a section of their affidavit.
Rule 14(2) is not the correct rule as it deals with
the procedural
aspects of a summary judgment application. Rule 14(1) deals with
competent claims for summary judgment.
[4]
SA
Sentrale Ko-op Graanmaatskappy Bpk v
Shifren
en andere
1964
(4) SA 760 (A).
[5]
Brisley
v Drotsky
2002 (4) SA 1 (SCA); 2002 (12) BCLR 1229 (SCA).
[6]
SH
v GF and others
[2013]
ZASCA 144
;
2013
(6) SA 621
(SCA)
para 16.
[7]
Maharaj
v Barclays National Bank Ltd
1976
(1) SA 418
(A)
at 426A-C.
[8]
Shackleton
Credit Management (Pty) Ltd v Microzone Trading 88 CC and another
2010 (5) SA 112 (KZP) para 13.
[9]
Rees
and another v Investec Bank Ltd
[2014] ZASCA 38; 2014 (4) SA 220 (SCA) para 22.
[10]
Oos-randse
Bantoesake Administrasieraad v Santam Versekeringsmaatskappy Bpk en
andere
(2)
1978 (1) SA 164
(W) at 168H-169A.