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2024
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[2024] ZAFSHC 108
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John B Belgrove Properties (Pty) Ltd v Mamohato Fruits and Veg and Transport (Pty) Ltd and Another (3156/2023) [2024] ZAFSHC 108 (14 February 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
Case
no:
3156/2023
In
the matter between
:
JOHN
B BELGROVE PROPERTIES (PTY)LTD
Plaintiff
and
MAMOHATO
FRUITS AND VEG AND TRANSPORT (PTY) LTD
First
Defendant
(REG
NO: 2022/552032/07)
DAVID
MOSHOESHOE MOSHOESHOE
Second
Defendant
CORAM:
PJJ
ZIETSMAN AJ
HEARD
ON:
9
NOVEMBER 2023
RESERVED
ON:
13
NOVEMBER 2023
DELIVERED
ON:
14
FEBRUARY 2024
Introduction
[1]
This
is an opposed application for summary judgment.
[2]
The
Plaintiff’s claims against the First Defendant are premised on
a written lease agreement for a business premises situated
at
Sterkspruit.
[3]
The
cause of action against the Second Defendant is a written suretyship
agreement in terms whereof the Second Defendant bound himself
to the
Plaintiff as surety and co-principal debtor with the First Defendant.
Nature
of the Plaintiff’s claims
[6]
Plaintiff instituted three distinct
claims against the First
Defendant.
[7]
The first claim (Claim A) is for payment
of arrear rental of R
66 325,33.
[8]
The
second claim (Claim B) is for damages of “
not
less than R 90 459,00
”
[1]
for early cancellation of the lease agreement; and
[9]
The
third claim is for payment of “
damages
in the amount R 991, 33 per day (VAT excluded) for the period 1
July 2023 until 31 June 2025, alternatively until
the premises has
been re-let, whichever occurs first
”
[2]
as a result of the early cancellation of the lease agreement.
[10]
The Plaintiff alleges that the claims are liquidated amounts
of money
which falls within the ambit of Rule 32(1)(b).
Nature
of the Defences
[11]
The Defendants oppose the application on both technical grounds
and
the merits.
[12]
Firstly, they contend that the deponent to the founding affidavit
does not have locus standi to bring the application on behalf of the
Plaintiff, secondly they submit that the Court does not have
jurisdiction to hear the application and thirdly they allege that the
Plaintiff failed to disclosed latent defects in the lease
premises
which misrepresentations are material and induced the agreement.
Liquidated
claim for purposes of Rule 32(1)(b): Claims B and C
[13]
Summary
judgment is available if a plaintiff has a claim for a liquidated
amount of money
[3]
.
[14]
In
Botha
v W Swanson & Company (Pty) Ltd
1968
(2) PH F85 (CPD) Corbett J (as he was then) put the test as follows:
‘
[A]
claim cannot be regarded as one for “a liquidated amount in
money” unless it is based on an obligation to pay an
agreed sum
of money or is so expressed that the ascertainment of the amount is a
mere matter of calculation.’
[15]
I shall first deal with Claim B and C
[16]
The nature of Claim B is one for past damages as a result
of the
early cancellation of the lease agreement. It is calculated for the
period 1 April 2023 until 30 June 2023, i.e. the period
before
summons was issued.
[17]
Claim C is also one for damages as a result of the early cancellation
but in respect of future damages, calculated for the period 1 July
2023 (the first day of the month following the issuing of the
summons) until 31 June 2025, (the last day of the agreed leased term
as per the lease agreement), alternatively until the premises
has
been re-let.
[18]
In paragraph 11.1 of
the particulars of claim it is pleaded that the daily rate of
R
991,33 (VAT included) in respect of claim C
is
derived by multiplying the monthly rental of R 30 153,00 by
twelve months and then divide it by 365 days to arrive at a
daily
rate.
[19]
The difficulty with
the Plaintiff’s calculation is that the agreed monthly rental
as per clause 4.1 of the agreement is R
28 317,60 (VAT excluded) per
month for the period 1 July 2023 to 30 June 2024 and R 30583,01 (VAT
excluded) per month for the period
1 July 2024 to 30 June 2025.
[20]
The basis for the Plaintiff’s calculation of its daily
rate for
future damages is thus not evident from the lease agreement.
[21]
After having heard
the matter, I invited the Plaintiff to file supplementary heads of
argument on whether summary judgment is competent
in respect of claim
C.
[22]
The Plaintiff’s
attempt in paragraph 4.5 of its supplementary heads of argument
respectfully does not alleviate the problem
highlighted above. It,
too, contends that the monthly rental in terms of clause 4.1 of the
agreement is R 30 153,00 per month.
In addition, is would appear
that the Plaintiff’s calculation seems to suggest that the
daily rate of R 991,33 is excluding
of value added tax whereas the
particulars of claim speaks of a daily rate of R 991,33 inclusive of
value added tax.
[23]
In addition to these
inconsistencies there are two further issues of concern.
[24]
The first relates to
the nature of Claim C.
[25]
Plaintiff’
alleged that the Defendant has breached the agreement during February
2023 and has “
since
vacated the leased premises
”
[4]
but the papers are silent as to exactly when the premises were
vacated.
[26]
Furthermore, it is
the Plaintiff’s case that it terminated the lease when it
issued the summons – i.e. 21 July 2023.
[27]
Claim C is thus a
claim for future damages arising from the early cancellation of the
lease however, it is noteworthy that the lease
agreement does not
provide for the payment of agreed liquidated damages in respect of
the early termination of the agreement.
[28]
I accept, in the
absence of evidence to the contrary, that the rental agreed in the
lease agreement represents the liquidated value
of the lease premises
but what considers me is the period for which damages are claimed.
[29]
Hyprop
Investments Ltd and Another v NCS Carriers and Forwarding CC and
Another
,
[5]
is a case where the applicant in motion proceedings claimed
damages
against their former tenant (and the tenant's surety) for 'holding
over', i.e. remaining in occupation of the leased premises
after
cancellation of the lease concerned. As to the nature of a claim for
damages arising from early cancellation the Full Court
held that:
[36]
Firstly: continued occupation of the premises is irrelevant to a
claim for damages arising from cancelling a lease due to the
tenant's
breach.
[37]
In such a case the measure of damages is the rent for the unexpired
portion of the lease post-cancellation (and suitably discounted
if
the full period has not matured by date of judgment), less the amount
actually received from subsequently reletting the premises
to a new
tenant, or which ought to have been received had the landlord taken
reasonable steps to mitigate its damages (see
Hazis
v Transvaal and Delagoa Bay Investment Co Ltd
1939
AD 372
at 388;
Desmond
Isaacs Agencies (Pty) Ltd v Contemporary Displays
1971
(3) SA 286
(T)
at 290F – H; and
Soar
h/a Rebuilds for Africa v JC Motors en 'n Ander
1992
(4) SA 127 (A)
at 135A – F).
[30]
In
casu
,
the full period of the lease has not mature at date of this judgment
and particulars of claim is silent on whether the Plaintiff
was able
to re-let the premises since the First Defendant vacated it or
whether the Plaintiff has taken reasonable steps to mitigate
its
damages.
[31]
I am thus not
convinced that Claim C constitutes a liquidated damages claim within
the ambit of Rule 32(1)(b).
[32]
I am also not
convinced that the Plaintiff has made out a case in respect of Claim
B. It is again important to have regard to the
nature of the claim,
as formulated in the particulars of claim. In this regard the
Plaintiff pleads in paragraph 10 of the Particulars
of Claim that:
“
As
a result of the early cancellation of the Lease Agreement plaintiff
is suffering damages in the amount of not less than R 90 459,00
(VAT included) for the period from 1 April 2023 until 30 June 2023”
[33]
However, it is the Plaintiff’s case that the agreement
was only
cancelled when the particulars of claim was issued, i.e. on 21 June
2023.
[34]
Claim B, as pleaded, is thus a claim for damages as a result
of the
early cancellation of the lease agreement in respect of a period
during which the agreement had not been cancelled. Such
a claim
cannot be sustained.
Claim
A
[35]
As for Claim A, the First Defendant essentially raises a defence
of
misrepresentation of latent defects which induced the First Defendant
to conclude the agreement with the Plaintiff.
[36]
In essence, the First Defendant alleges that it never inspected
the
premises before the lease was concluded and that the Plaintiff
represented to the First Defendant that the premises is
suited
for the First Defendant’s business needs but it concealed the
fact that the roof was leaking.
[37]
In addition, the First Defendant pleads that the parties concluded
an
agreement (presumably a verbal agreement) to the effect that the
First Defendant would repair the premises and that the Plaintiff
would reimburse the First Defendant.
[38]
The pleaded defence not only stands in direct contrast with
clause 15
of the lease agreement, which provides that the First Defendant
inspected the premises and acknowledges that it is fit
for purpose,
and clause 14.2 which provides that no agreement at variance with the
terms of the lease agreement shall be binding
upon the parties unless
reduced to writing under the hands of both parties, but the plea and
answering affidavit lacks the necessary
level of detail and clarity
expected for disclosing of a
bona
fide
defence to Claim A.
First
point
in
limine
[39]
The first point
in
limine
,
namely that the deponent lacks the necessary locus standi to
institute the application, and the Defendnats’ subsequent Rule
7(1) notice (filed two days before the application was heard) was, to
my mind, satisfactorily addressed through the Plaintiff’s
resolution to institute legal proceedings and the special power of
attorney, filed on 8 November 2023.
Second
point
in
limine
[40]
The second point
in
limine
,
as I understand it, is that this Court does not have jurisdiction to
adjudicate the matter because the parties agreed in clause
16.1 and
16.2 of the lease agreement to institute proceedings in the East
London High Court or the Magistrate Court of East London.
[41]
The argument is thus that the parties contractually agreed
to oust
this Court with jurisdiction.
[42]
Such a defence cannot stand in light of the Defendants’
admissions in paragraph 1 of the plea read with paragraphs 1.1 and
1.2 of the particulars of claim, namely that the
Defendants
are domiciled within the geographical jurisdictional area of this
Court, which brings this matter within the realm of
section 21
of the
Superior Courts Act, 2013
.
[43]
In
any event, an agreement contrary to
section 21
of the
Superior Courts
Act, 2013
is unlawful, unenforceable
[6]
and
ultra
vires.
Costs
of the summary judgment application
[44]
I am of the view that given the partial success on both sides,
each
party should be liable for its own costs of the summary judgment
application.
Order
[45]
I make the following order:
45.1
Summary Judgment is granted in respect of Claim A.
45.2
The First and Second Defendant is liable jointly and severally, the
one paying the other to be absolved, for:
45.2.1
Payment to the Plaintiff of R 66 326,33
45.2.2
Interest on R 66 326,33 at the rate of 7,75% per
annum
a tempora morae
to date of final
payment.
45.3
Summary judgment in respect of Claim B and Claim C is dismissed and
leave is granted to the First- and Second
Defendant to enter into the
principal action.
45.4
Each party is liable for its own costs of the summary judgment
application.
45.5
The costs of the action in relation to Claim A stands over to be
adjudicated in the principal action.
PJJ
ZIETSMAN AJ
Counsel
for the Plaintiff:
Adv
HJ van der Merwe
Instructed
by:
Symington
& De Kok
Counsel
for the First and Second Defendant:
Adv J
Merabe
Instructed
by:
MW
Mukhawana Attorneys
[1]
Particulars
of claim, para 10, p 7.
[2]
Particulars
of claim, para 11, p 8 and Application for summary judgment, para
11, p 73.
[3]
Uniform
Rule
32(1)(b)
[4]
Particulars
of claim, para 5, p 6; Founding affidavit para 18.3, p 79
[5]
2013
(4) SA 607
(GSJ) at
[6]
Bafana
Finance Mabopane v Makwakwa and Another
[2006] ZASCA 46
;
2006 (4) SA 581
(SCA) at par
21