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[2022] ZAGPJHC 533
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Menlyn Main Investment Holdings (PTY)Ltd and Another v Christo Menlyn (Pty)Ltd and Others (49594/2021) [2022] ZAGPJHC 533 (8 August 2022)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
LOCAL DIVISION, JOHANNESBURG)
CASE
NO: 49594/2021
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
REVISED
8
AUGUST 2022
In
the matter between
MENLYN
MAIN INVESTMENT
HOLDINGS
(PTY) LTD
FIRST PLAINTIFF
GOVERNMENT
EMPLOYEES PENSION FUND
SECOND PLAINTIFF
and
CHRISTO
MENLYN (PTY) LTD
t/a
TURN & TENDER CENTRAL SQUARE
FIRST DEFENDANT
PETER
CHRISTOFORAKIS
SECOND DERENDANT
MYRON
CHRISTOFORAKIS
THIRD DEFENDANT
ANTHONY
CHRISTOFORAKIS
FOURTH DEFENDANT
CHRISTOS
TZELLIOS
FIFTH DEFENDANT
J
U D G M E N T
(LEAVE
TO APPEAL)
VAN
OOSTEN J:
[1]
The unsuccessful defendants, in the application for summary judgment,
now seek leave to appeal against the whole of my judgment
and the
order granted. For ease reference, the parties will be referred to as
in the action.
[2]
At the outset, I consider it necessary to clarify, what seems to be a
misunderstanding, having emerged from counsel for the
defendants’
argument before me, concerning my approach, as set out in para 20 of
the judgment. The approach adopted was specifically
in respect of the
summary judgment application, and
not
in regard to the
plaintiffs’ claim, in particular, the amount in respect of
which judgment was sought and granted. It was
in my consideration of
the defendants’ defence, that the defendants’ version was
accepted, in order to establish whether
their version that a reduced
rental was payable, constituted a bona fide, sustainable defence. The
defendants did not challenge
the plaintiffs’ calculation of the
claim amount, but merely contended that on the 7% formula, they in
fact were in credit.
On the basis of my finding that, on their
version, the defendants were in arrears, the defence did not assist
them and I proceeded
to a separate determination of the plaintiffs’
claims.
[3]
The grounds, on which the application for leave to appeal is
premised, have all been dealt with in my judgment. In argument
counsel for the defendants submitted that, at worst, summary judgment
should have been granted for payment of the admitted portion
of the
claim amount, with leave to defend on the remaining portion. Counsel
for the plaintiffs, in response thereto, submitted
that the ejectment
order should in any event stand, as it is common cause that the
defendants were in arrears.
[4]
Although counsel for the plaintiffs’ contention is not without
merit, considerations such as, the importance of this matter,
the
nature of the disputes raised, and lastly, the finality of summary
judgment, have persuaded me to refer the matter as a whole
for
reconsideration by a court of appeal. This matter does not warrant
the attention of the Supreme Court of Appeal, and it follows
that
leave to appeal to the Full Court of this Division, ought to be
granted.
Order
[5]
In the result, I grant the following order:
1.
Leave to appeal to the full court of the Gauteng
Local Division of the High Court of South Africa, is granted.
2.
The costs of the application for leave to appeal
are costs in the appeal.
FHD
VAN OOSTEN
JUDGE
OF THE HIGH COURT
GAUTENG
LOCAL DIVISION
COUNSEL
FOR PLAINTIFFS
ADV JG DOBIE
PLAINTIFFS’ATTORNEYS
REAAN SWANEPOEL INC
COUNSEL
FOR DEFENDANTS
ADV MC ERASMUS SC
DEFENDANTS’
ATTORNEYS
MARK EFSTRATIOU INC
DATE
OF HEARING
8 AUGUST 2022
DATE
OF JUDGMENT
8 AUGUST 2022