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[2022] ZAKZPHC 77
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Tower Property Fund Limited v Fit 24 Gyms (Proprietary) Limited and Another (886/2021P) [2022] ZAKZPHC 77 (28 November 2022)

IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Case
No: 886/2021P
In
the matter between:
TOWER
PROPERTY FUND LIMITED
APPLICANT
and
FIT
24 GYMS (PROPRIETARY) LIMITED                    FIRST

RESPONDENT
MAREK
STEFAN BURCZAK                                       SECOND

RESPONDENT
ORDER
The
following order is granted
against
the first and second respondents, jointly and severally, the one
paying the other to be absolved for:
1.
Payment to the applicant of the amount
of R4 001 328.85 together with interest thereon at the prescribed
rate of interest as calculated
from due date to date of final
payment; and
2.
Costs of the application on the scale as
between attorney and own client.
JUDGMENT
MOSSOP
J:
[1]
This
is an application brought by the applicant for a judgment sounding in
money against the first and second respondents. The amount
in respect
of which judgment was initially sought was the amount of R4 585
729.46.
[2]
The
first respondent runs a gymnasium (gym) and the second respondent is
its guiding mind. He is also its guarantor. The applicant
is the
landlord of the building in which the first respondent previously had
its gym,
[1]
where it offered its
members the opportunity, through strenuous exercise, to convert fats,
sugars and starches into aches, pains
and cramps.
[3]
The applicant was represented by Mr
Schaup when the application was argued and the respondents were
represented by Mr Reddy. Both
counsel are thanked for their
respective arguments.
[4]
The applicant concluded a lease with the
first respondent in September 2017, in terms of which it let its
premises to the first
respondent for the purpose of the latter
running its gym (the lease agreement). For reasons that need not
detain me, the first
respondent fell into arrears with its monthly
rental payments to the applicant. A previous application in which a
money judgment
was sought against the respondents by the applicant
was the consequence (the first application). The respondents did not
deliver
an answering affidavit in the first application. They were
thus vulnerable to having default judgment entered against them.
Perhaps
because of this, the parties decided to resolve the matter
and recorded their settlement in a settlement agreement (the
settlement
agreement). This appears to have been signed on 1 June
2021. On the day that the default judgment was to be heard, 7 June
2021,
an order was taken (the order) in the following terms:
‘
1.
The Application for Judgment by Default is adjourned
sine die
,
the matter having been settled between the parties in terms of the
written Settlement Agreement dated 1 June 2021, a copy of which
is
attached marked “A”.
2.
In the event of the Defendants
defaulting and not carrying out their obligations the Plaintiff may,
after having given notice in
terms of clause 9 of the Settlement
Agreement, apply for Judgment for the amount due on five (5) days’
notice to the Defendants
in terms of Rule 41(4).’
[5]
It is necessary to dwell a while on the
terms of the settlement agreement. It was concluded in full and final
settlement of all
amounts due, owing and payable to the applicant. In
arriving at the amount due by the first respondent, certain
concessions were
made by the applicant and a portion of the amount
alleged to be owing by it was forgiven by the applicant. The first
respondent
was required to make a lump sum payment of R400 000 within
15 days of the date of signature of the settlement agreement, and in

terms of clause 4.1.4, the first respondent was also required to pay
an amount of approximately R1,6 million to the applicant for
the
period March 2020 to August 2020, in 18 equal monthly instalments.
[6]
The settlement agreement further
recorded that the second respondent stood as the guarantor of the
obligations of the first respondent
and that such obligation was a
primary obligation. The signature of the settlement agreement did not
constitute a novation of the
original debt and the applicant was
entitled, in the event of the respondents breaching any of the terms
of the settlement agreement,
to claim the full amount of the original
obligation. In the event that the applicant was compelled to bring
legal proceedings to
enforce its rights, any costs awarded to it
would be on the attorney and own client scale.
[7]
Subsequent to the conclusion of the
settlement agreement on 1 June 2021, an addendum thereto was agreed
to by the parties (the addendum)
on 26 November 2021. The reason for
its conclusion is alluded to in that document when it states:
‘
After
the Settlement Agreement, the Tenant failed to pay to the Landlord
its rental and other financial obligations in terms of
the Lease
Agreement, but made payment of the Settlement Amount, thereby leading
to a further dispute.’
In
the settlement agreement, the term ‘settlement amount’ is
defined to mean the amount of approximately R1,6 million.
[8]
The addendum recorded that clause 4.1.4
of the settlement agreement was to
be
deleted in its entirety and replaced with the following clause:
‘
Tenant
agrees to pay and the Landlord agrees to receive an amount of R2 614
978,25 which amount includes the operational and rates
costs for the
period March 2020 up to and until August 2020 and the amount of R753
590 for the rental and other rates and utilities
for the months June
2021 till October 2021 (“
Settlement Amount”
) in 18
(eighteen) equal monthly instalments of R150 915,88 per month,
without interest thereon, from the Signature Date hereof.’
In
addition, a further clause was to be inserted immediately after the
new clause 4.1.4, as clause 4.1.5, to read as follows:
‘
The
monthly payment referred to in Clause 4.1.4 shall be paid such that
the Tenant agrees to pay and the Landlord agrees to receive
R92
934.97 of [sic] the 1
st
of each month, R188 397.45 on the
20
th
of each month and R57 980.91 on the 7
th
of
each month.’
[9]
The founding affidavit makes all of this
reasonably clear. However, a significant measure of that clarity was
lost when Mr Schaup
commenced his argument. Firstly, he submitted
that notwithstanding the explicit allegation in the founding
affidavit that the settlement
agreement had been made an order of
court, this had not happened. A perusal of the order reveals that
there is merit in this submission.
The order did not specifically
state that the settlement agreement had been made an order of court.
If the settlement agreement
had been made an order of court, the
order would undoubtedly explicitly have said so. The settlement
agreement was attached to
the order simply for identification
purposes, but none of its terms became orders of the court. Despite
this point being raised
at the last minute, it was not seriously
challenged by Mr Reddy. I must thus conclude that the settlement
agreement was not made
an order of court.
[10]
The second point advanced by Mr Schaup
that obscured the clarity of the matter was his submission that the
application had not been
brought in terms of Uniform rule 41(4). The
applicant’s notice of motion, which bears the heading ‘Amended
Notice of
Motion – Rule 41(4)’ and founding affidavit
which contains the following statement at paragraph 5 that ‘[t]his

is an application in terms of Rule 41(4)’, make it plain that
the application was brought in terms of that rule. Rule 41(4)
reads
as follows:
‘
Unless
such proceedings have been withdrawn, any party to a settlement which
has been reduced to writing and signed by the parties
or their legal
representatives but which has not been carried out, may apply for
judgment in terms thereof on at least five days'
notice to all
interested parties.’
The
wording of the rule may be detected in the wording of the order taken
on 7 June 2021.
[11]
However,
Mr Schaup disavowed any reliance on that rule and attempted to
advance the argument that the application had not been brought
in
accordance with that rule. He, however, later submitted that the
application had either been brought in terms of that rule ‘or

in terms of the lease agreement’. I am not sure why this
aversion to reliance on the provisions of rule 41(4) arose: there
was
a written settlement agreement, modified by the addendum; the
agreement had allegedly not been carried out; and the requisite

notice in terms of the rule had been given to the respondents.
[2]
It was accordingly permissible to claim relief under rule 41(4), the
original application having not been withdrawn.
[12]
It was not disputed by the respondents
that the first respondent had defaulted on its payment obligations to
the applicant for the
period January to April 2022. So much so was
admitted by it in the answering affidavit. It was also admitted that
the rental amount
that the first respondent was required to pay was
R190 000 per month. To establish the total indebtedness of the first
respondent
to it, the applicant relied upon a certificate of balance,
permitted in terms of the lease agreement. The amount certified as
being
due by the first respondent to the applicant was the sum of
approximately R4,17 million. This was not the amount claimed in the

notice of motion.
[13]
A statement of account was, however,
attached to the founding affidavit. The respondents drew attention to
the fact that included
in the amount reflected in the certificate of
balance, was a provision for legal costs in the amount of
approximately R200 000,
and the applicant’s entitlement to
claim that amount was disputed. This was the full extent of the
respondents’ complaint
regarding the accuracy of the amount
claimed by the applicant. Mr Schaup, fairly, conceded this point. He
accordingly proposed
to rework the figures to exclude the amount
claimed in respect of costs. After the matter stood down, Mr Schaup
performed the mathematical
exercise of recalculating the amount due
and presented the court with an amount of R4 001 328.85 as
allegedly being due
to the applicant. Mr Reddy confirmed that he
agreed with the correctness of the calculation performed by Mr Schaup
but in so doing
did not agree that the respondents were liable for
that amount.
[14]
Is
the applicant entitled to judgment in the lesser amount calculated by
Mr Schaup? As a general proposition, an applicant will
not be
precluded from claiming a
minus
petitio
.
[3]
I am satisfied that the recalculation can be accepted.
[4]
The amount claimed has been reduced and there can be no prejudice to
the respondents.
[5]
[15]
In resisting the applicant’s claim
to payment of any amount, whether the amount claimed in the notice of
motion, the certificate
of balance or the amount calculated by Mr
Schaup, Mr Reddy initially identified five arguments in his heads of
argument. Two of
those arguments were abandoned by him without
argument being adduced, leaving three that must be considered by the
court.
[16]
The first argument advanced was that the
deponent to the founding affidavit is a male, being a Mr Rivaaj
Singh, but the attestation
clause on that document referred to the
deponent as ‘she’, which appellation was not corrected by
the deponent or the
commissioner of oaths upon the signing and
commissioning of the document. The attestation clause also indicated
that it had been
signed at ‘Durban’, whereas the
commissioner of oaths’ stamp indicated that he practices from
an address located
at ‘Umhlanga New Town’.
[17]
The
point taken undoubtedly has its genesis in the judgment in
Absa
Bank Ltd v Botha NO and others.
[6]
In that matter, where a similar misdescription as to the gender of
the deponent occurred (the deponent was a woman but the attestation

clause recognised her as a male), the judge found that the court was
unable to place reliance upon the certification of the commissioner

of oaths because ex facie the affidavit, it was unclear whether the
deponent was a male or a female. I am not persuaded by the
reasoning
followed in that matter and I am not obliged to follow it.
[7]
Such omissions are fairly commonplace and are undoubtedly
innocuous
and inadvertent.
In
any event, after the point was taken by the respondents in their
answering affidavit, any uncertainty over the gender of the
deponent
was erased when the commissioner of oaths himself deposed to an
affidavit confirming that the applicant’s deponent,
Mr Rivaaj
Singh, had appeared before him and signed the founding affidavit.
[18]
As regards the area where the
commissioner of oaths practices, nothing further needs to be said
about that as Umhlanga New Town
is a suburb within the metropolis of
Durban. Both descriptions were thus correct and either could have
been employed. The fact
that both were employed does not detract from
their individual correctness.
[19]
The first argument must therefore be
dismissed.
[20]
The second argument advanced by Mr Reddy
is that the amount claimed by the applicant has not been correctly
calculated. This argument
has, by way of the concessions correctly
made by Mr Schaup mentioned earlier in this judgment, already enjoyed
some success as
the amount initially claimed by the applicant has
been reduced by the amount of approximately R585 000 after the
recalculation
of the amount claimed by Mr. Schaup. The principal
complaint of the respondents was confined to the inclusion of the
costs in the
total amount claimed by the applicant. No other
inconsistencies in the amount claimed by the applicant were
identified.
[21]
The argument of the respondents,
however, was not confined simply to the inclusion of costs in the
overall amount claimed. It went
beyond that. The argument is that the
settlement agreement recorded that it was concluded in ‘full
and final settlement’
of the dispute between the parties. The
amount recorded in the settlement agreement was thus the total amount
that the applicant
could demand of the respondents. While it may be
so that the settlement agreement was to constitute a written memorial
of the final
settlement of the dispute as it was framed at that point
in time, it must be borne in mind that it covered a discrete period
in
the life of the lease. The lease had not been cancelled, it
remained in place and was to be ongoing after the conclusion of the

settlement agreement. As the lease would continue running into the
future, the parties could not have intended that the applicant,
in
concluding the settlement agreement disposing of the then extant
dispute, could never look to the first respondent in the future
if
amounts due to it arising out of the ongoing lease were not paid by
the first respondent. That could never be the case because
at the
time of the conclusion of the settlement agreement, the future
amounts were neither due nor owing and that is all that the

settlement agreement dealt with: amounts that were then due and owing
to the applicant.
[22]
Had this been the respondents’
view on the settlement agreement, the first respondent could, and
should, have declined to
execute the addendum. It did not do so: it
consented to the revised value of the amount due by it. It now cannot
claim not to be
bound by the terms of the settlement agreement as
revised by the addendum.
[23]
Other
than the point taken regarding the legal costs, which was conceded by
the applicant, the second argument lacks any further
merit and cannot
be upheld.
[24]
The third and final argument pressed by
Mr Reddy was that the addendum to the settlement agreement is
unenforceable. This argument
appears to be predicated upon the
understanding that the settlement agreement was made an order of
court. It could thus only be
amended, so the argument went, by an
application to court to vary the court order. Having already found
that the settlement agreement
was not made an order of court, this
argument must wither and perish. Nor did the matter become
res
judicata
, as suggested by Mr Reddy
in his heads of argument. The settlement agreement was the parties’
document and they were capable
of changing it as they deemed fit and
necessary. This they then did in the form of the addendum and the
respondents cannot now
be heard to complain that they are not bound
by its terms.
[25]
The respondents have not suggested that
the first respondent has paid all amounts due by it to the applicant.
Their defences were
based upon points of criticism concerning the
presentation of the applicant’s case, and did not comprise
positive assertions
regarding conduct on the part of the respondents
that would permit them to escape liability for the amount ultimately
claimed by
the applicant. Those defences that were raised have failed
and the inevitable result is that judgment in favour of the applicant

must follow.
[26]
One final aspect needs to be addressed.
The lease agreement provided in clause 39.5 that the applicant was
entitled to levy interest
on any due but unpaid amounts owed by the
first respondent to it:
‘…
at 2% (two percent) above
the prime Rate, from due date of payment to the date of actual
payment.’
The
clause did not identify whose prime rate of interest is to be
applied. It was within the applicant’s power to do so as
it was
the author of the lease agreement. The interest rate that accordingly
must be applied is that permitted in terms of the
Prescribed Rate of
Interest Act 55 of 1957 from time to time.
[27]
I accordingly grant the following order
against the first and second respondents, jointly and severally, the
one paying the other
to be absolved for:
1.
Payment to the applicant of the amount
of R4 001 328.85 together with interest thereon at the prescribed
rate of interest as calculated
from due date to date of final
payment; and
2.
Costs of the application on the scale as
between attorney and own client.
MOSSOP
J
APPEARANCES
Counsel
for the applicant
:         Mr.
D. Schaup
Instructed
by:

:      Cliffe Dekker Hofmeyer
Incorporated
8
th
Floor, Cliffe Dekker Place
11
Buitengracht Street
Cape
Town
Counsel
for the first and second   :          Mr.
T. Reddy
respondents
Instructed
by

:      Manley Incorporated
179
MacKenzie Street
Brooklyn
Pretoria
Date
of Hearing

:      21 November 2022
Date
of Judgment

:       28 November 2022
[1]
The
notice of motion also sought the eviction of the first respondent
from the applicant’s premises, but by the time that
this
application was argued, the first respondent had already vacated the
premises.
[2]
Massey-Ferguson
(South Africa) Ltd v Ermelo Motors (Pty) Ltd and others
1973
(4) SA 206
(T) at 214H-215A.
[3]
In
Trust
Bank of Africa Ltd v Hansa and another
supra at 104I-J, the court held that ‘a plaintiff can always
claim less than his allegations seem to justify’.
[4]
Scally
v Feltra (Pty) Ltd
[2019] ZAKZPHC 36 p
ara
9.
[5]
In
Trust
Bank of Africa Ltd v Hansa and another
1988 (4) SA 102
(W) at 106I-J, the court held that ‘
it
is possible to give judgment for the aforesaid . . . or to ignore
all debits of interest and give judgment for the remaining
amount .
. .
’
.
[6]
Absa
Bank Ltd v Botha NO and others
2013
(5) SA 563 (GNP).
[7]
It
appears that I am not alone in this regard:
Christodoulos
v Jacobs
[2019] ZAGPJHC 178, paras 16-
18
(especially the last part of para 18);
Capriati
v Bonnox (Pty) Ltd and another
[2018]
ZAGPPHC 345
paras
8-9; and
Waste
Group Projects (Pty) Limited v Reshumile Environmental Co-operative
Limited
[2020] ZAGPJHC 223 para 18.