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[2024] ZAGPJHC 271
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Vorna Valley Shopping Centre CC v Flava Pot (Pty) Ltd and Another (2022/054751) [2024] ZAGPJHC 271 (15 March 2024)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA GAUTENG LOCAL DIVISION, JOHANNESBURG
Case Number:
2022-054751
1. REPORTABLE:NO
2. OF INTEREST TO OTHER
JUDGES:
3. NO REVISED: NO
VORNA
VALLEY SHOPPING CENTRE CC
Applicant
(REGISTRATION NUMBER:
1989/014240/23)
and
FLAVA
POT (PTY)
LTD
First Respondent
(REGISTRATION NUMBER:
2019/505172/07)
NOORIE
JOSEPH
Second Respondent
(IDENTITY NUMBER: […])
IN RE:
VORNA
VALLEY SHOPPING CENTRE CC
Plaintiff
(REGISTRATION NUMBER:
1989/014240/23)
and
FLAVA
POT (PTY)
LTD
First Defendant
(REGISTRATION NUMBER:
2019/505172/07)
NOORIE
JOSEPH
Second
Defendant
(IDENTITY NUMBER: […])
JUDGMENT
[
1]
On 28 February 2022, a written agreement of lease was
concluded between the plaintiff as lessor and the first defendant as
lessee
in terms whereof the plaintiff let to the first defendant a
shop situated at Vorna Valley Shopping Centre (“the premises”).
[2]
On 23 February 2022 the second defendant in writing bound
herself personally as surety and co-principal for the punctual
performance
and in particular the due and punctual payment by the
first defendant of all its obligations under and arising in terms of
the
lease agreement.
[3]
In
terms of the agreement of lease, the first defendant was obliged to
pay to the plaintiff rental, calculated in accordance with
the lease,
operating costs as defined and in the amounts set out in the lease,
municipal rates and taxes, electricity, water, gas,
refuse removal
charges, sanitary fees, domestics and industrial effluent fees.
[1]
[4]
The first defendant took occupation of the leased premises and
was accordingly obliged to pay to the plaintiff the aforementioned
amounts.
[5]
It is not in dispute that the first defendant breached its
obligations under the lease agreement and failed to pay to the
plaintiff
the amounts detailed in paragraph 15 of the plaintiff’s
particulars of claim totalling R122 775,95. The amounts are
detailed in both the aforementioned paragraph as well as an annexure
annexed to the plaintiff’s particulars of claim marked
annexure
“POC3”.
[6]
On 7 September 2022, the plaintiff directed a demand to
the first and second defendants to pay the aforementioned amount in 7
days
failing which it would cancel the lease agreement. The first
and/or second defendants failed to make payment of the aforesaid
amount
and on 27 October 2022, plaintiff, as it was entitled to,
cancelled the aforesaid lease agreement by written notice to the
first defendant affording it an opportunity until 28 November
2022 to vacate the leased premises.
[7]
The
first defendant failed to vacate the leased premises on 28 November
2022 and continued, according to the plaintiff, to
remain in unlawful
occupation for a further 91 days
[2]
.
In respect of the unlawful holding over, plaintiff claims an amount
of R1 642,60 per day for the unlawful occupation from
1 December
2022 to the date first defendant vacates the premises. In the
affidavit in support of the application for summary judgment,
the
amount claimed as part of Claim B or Claim 2 is computed in the
amount of R116 624,60 and is the amount for unlawful holding
over from 28 November 2022 to 7 February 2023.
[8]
The defendants in resisting summary judgment filed a plea, the
essence of which is a bare denial of the material allegations pleaded
by plaintiff. In addition, the defendants put forward a counterclaim
in an amount of R1 249 978,69 but, which is
unsubstantiated,
does not disclose a cause of action, is laconic and
bereft of any detail. It does not in my view, raise a cognisable
defence which
requires further adjudication.
[9]
There
is in my view no defence set out either in relation to Claim A (Claim
1) or Claim B. Claim A it is my view clearly liquidated
and the
plaintiff is entitled to summary judgment against both the first and
second defendants jointly and severally. However,
in relation to
Claim B, the amounts claimed are not liquidated and summary judgment
is not appropriate
[3]
.
[10]
I should also mention that the application was properly
enrolled for hearing for 4 March 2024. At the hearing, counsel for
the plaintiff
properly drew my attention to a notification received
from the second defendant to the effect that she was unable to attend
the
hearing on 4 March 2024 as she had personal litigation in which
she was involved. The matter then stood down to accommodate the
second defendant until 7 March 2024 but once again, the same issue
was raised. I declined any further postponement on the basis
that the
second defendant had been afforded an adequate opportunity to appear
in court and more importantly on the basis that there
was no
bona
fide
defence disclosed in the pleadings and no purpose would be
served in postponing the matter further.
[11]
In the circumstances, I make the following order:
(1)
Judgment is entered against the defendants jointly and
severally for payment of:
(2)
The sum of R122 775,95;
(3)
Interest on the aforesaid amount at the prescribed mora rate
from date of demand to date of final payment both dates inclusive;
(4)
Claim 2 is postponed
sine die
;
(5)
The first and second defendants are ordered to pay the costs
of the application on the attorney and client scale;
(6)
Summary judgment in respect of Claim 2 is refused.
D M FINE SC
ACTING JUDGE OF THE
HIGH COURT
[1]
The underlying
causa
and amounts payable by the first defendant under the lease have been
set out in great detail in paragraph 15 of the particulars
of claim
and have not been effectively denied or challenged by the
defendants.
[2]
This is not challenged by the first or second defendant.
[3]
Hyprop Investments Limited and Another v NCS Carriers and Forwarding
CC and Another
2013 (4) SA 607
(GSJ), paras 54, 60, 61, 103 and 105