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[2021] ZAGPJHC 106
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Charisma Properties (Pty) Limited v Woodstar & Co (Pty) Limited (41129/2019) [2021] ZAGPJHC 106 (29 July 2021)
REPUBLIC OF
SOUTH AFRICA
IN THE HIGH
COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
(1)
REPORTABLE:
NO
(2)
OF INTEREST TO OTHER
JUDGES:
NO
(3)
REVISED:
CASE
NO
:
41129/2019
DATE
:
29
th
JULY 2021
In
the matter between:
CHARISMA
PROPERTIES (PTY) LIMITED
Plaintiff
and
WOODSTAR
& CO (PTY)
LIMITED
Defendant
Coram:
Adams J
Heard
:
20 July 2021 – This matter was disposed of without an oral
hearing
in terms of
s 19(a)
of the
Superior Courts Act 10 of 2013
.
Delivered:
29 July 2021 – This
judgment was handed down electronically by circulation to the
parties' representatives by email, being
uploaded to the CaseLines
system of the GLD and by release to SAFLII. The date and time for
hand-down is deemed to be 12:30 on
29 July 2021.
Summary:
Application for summary judgment – defendant denies that it
entered into a monthly tenancy with the plaintiff – it alleges
that the lease was in fact concluded with a related sole
proprietorship with a similar name – plaintiff contended that
defendant’s
fanciful defence should be rejected as far-fetched
–factual dispute between the parties, which the court is not
required
to decide or to determine whether or not there is a balance
of probabilities in favour of the one party – Amended Uniform
Rules of Court 32(2)(b) and 32(3)(b) discussed – the Court was
satisfied by the defendant’s affidavit that it has a
bona
fide
defence to the action – summary judgment refused.
ORDER
(1)
The plaintiff’s application for
summary judgment is dismissed.
(2)
The defendant is granted leave to continue defending the
action against it by the plaintiff.
(3)
The costs of the application for summary judgment shall be in
the cause of the main action.
JUDGMENT
Adams J:
[1]
I have before me an opposed application by the plaintiff for
summary judgment against the defendant, whose only defence to the
plaintiff’s
claim is simply one of ‘mistaken identity’.
[2]
The plaintiff’s cause of action against the defendant is
based on a monthly tenancy in respect of commercial premises situated
in Kew, Gauteng. The lease agreement between the parties, according
to the particulars of plaintiff’s claim, has never been
reduced
to writing. It is the case of the plaintiff that previously the
monthly tenancy was between the plaintiff and a Mr Hikmet
Acar
trading as Woodstar. The lessee initially was Mr Acar who did
business as a sole proprietor under the name and style of ‘Woodstar’.
This lease or monthly tenancy, so it is alleged by the plaintiff in
its particulars of claim, was taken over by and assigned to
the
defendant on its incorporation during 2018.
[3]
In this action the plaintiff sues the defendant for arrear
rental and for an eviction order on the basis that during 2019 the
defendant,
in breach of the monthly tenancy, had fallen into arrears
with its monthly instalments. As and at November 2019 the arrear
rental
amounted in total to R594 757.77. In any event, during
June 2019, so the plaintiff avers, the monthly tenancy with the
defendant
was cancelled because the defendant was not prepared to
commit itself to a written lease agreement.
[4]
The defence raised by the defendant in its
plea is simply that it (the defendant) is not the lessee in terms of
the monthly tenancy,
as alleged by the plaintiff. It is in fact Mr
Acar, who trades as a sole proprietorship under the name and style of
‘Woodstar’,
who is and has always been the lessee and the
occupier of the property. Mr Acar, who incidentally is the sole
director and shareholder
of the defendant, admits the existence of
the defendant and that it was incorporated during 2018. However, he
denies in the strongest
possible terms that the defendant took over
the lease from his firm, Woodstar, or that the defendant is the
present occupier of
the premises in question. The defendant, so Mr
Acar and the defendant maintain, has been wrongly cited in these
proceedings.
[5]
In its affidavit resisting summary judgment, the defendant
repeats this defence to the plaintiff’s claim. The defendant
does
not deal in any way with any of the other allegations made in
the particulars of plaintiff’s claim. So, for example, Mr Acar
does not address the issue whether or not the occupier of the
premises is in arrears with his monthly instalments or whether the
monthly tenancy has been cancelled. So, the way I see it, the
defendant stands or falls by this one defence raised by it.
[6]
Uniform Rule of Court 32(3)(b) requires the defendant to satisfy the
court
by affidavit that he has a
bona fide
defence to the
plaintiff’s claim. As pointed out by
Erasmus: Superior Court
Practice, Volume 2,
‘satisfy’ does not mean ‘prove’.
What the rule requires is that the defendant sets out in his
affidavit
facts which, if proved at the trial, will constitute an
answer to the plaintiff’s claim. In this matter, the
defendant’s
defence is based upon facts, in the sense that the
defendant disputes the very material fact alleged by the plaintiff in
its particulars
of claim, namely that the defendant took over from a
sole proprietorship the lease agreement. In these circumstances, the
court
is not required to decide these factual issues or to determine
whether or not there is a balance of probabilities in favour of the
one party or the other. I am satisfied that the defendant in
resisting the application for summary judgment has set out facts
which constitute a defence to the plaintiff’s claim. On those
facts, the plaintiff, in a manner of speaking, is ‘barking
up
the wrong tree’. And that is a solid defence.
[7]
The new Subrule 32(2)(b), introduced by the Amendment to the
Rules which came into effect on the 1
st
of July 2019,
requires the plaintiff, in his affidavit in support the summary
judgment application, also to explain briefly why
the defence as
pleaded by the defendant does not raise any issue for trial. The
plaintiff complies with this requirement by stating
the following in
his supporting
affirmation: -
’
11. The
Respondent / Defendant denies that its business was previously a sole
proprietorship trading as Woodstar
and represented by Acar. The
Respondent / Defendant further denies that it occupies the rented
property described or that the Respondent
/ Defendant has any
agreement with the Applicant / Plaintiff. The Respondent pleads
further that its business is separate and distinct
from the business
of Acar. The Respondent / Defendant further pleads that Acar rents
the property from the Applicant / Plaintiff.
11.1
The allegations herein are spurious and opportunistic; the
Respondent
/ Defendant attaches no document whatsoever in support of these
allegations. The Plea is nothing other than a bare denial.
11.2
The Respondents does not raise a triable issue and it shows
that the
Respondent has no bona tide defence to the Applicant’s /
Plaintiff's Claim. What is significant is the Respondent
/ Defendant
does not deny it is in occupation or even on its version in the plea
that the business is on the premises and utilizing
the premises.
There is no defence of a triable nature raised herein.
11.3
In an affidavit deposed to under Magistrates Court case number
1327/2019 in the Alexandra Magistrates Court in 2019, the Defendant
as represented by one Acar Hikmet stated that both he and the
Defendant were occupying the premises and that ostensibly he traded
as a sole proprietor under the name of Woodstar, that it was
incorporated in 2018 and that it too trades from the premises, but as
a separate entity. This is simply disingenuous and far-fetched
and is
not a defence to the fact that whichever entity is relied upon,
neither has paid its rentals for months and notice has been
given for
them to vacate. Neither Hikmet trading as Woodstar, nor Woodstar
(Pty) Ltd are in lawful occupation and neither has paid
its rentals
for years, either way, neither entity, even if one were to accept the
defence pleaded which is not admitted as having
any validity are
entitled to remain in occupation either way. A copy of that affidavit
will be made available to the court if the
Defendant in its Resisting
affidavit disputes that such admissions were made.’
[8]
The plaintiff’s stance in that regard is, in my view,
misguided.
For starters, I cannot agree with the plaintiff’s
submission that the version of the defendant in its plea and in its
affidavit
resisting summary judgment, is far-fetched. On the
contrary, all things considered, defendant’s version is not
far-fetched
at all. It is true, as contended by the defendant, that
at no stage during the events preceding the institution of this
action
was reference ever made to the defendant. So, for example, the
invoices and the statements in respect of the rental payments were
all addressed to ‘Woodstar’, as were the final demand and
cancellation notice from the plaintiff’s attorneys
dated 28
June 2019. It is very probable, as submitted by the defendant, that
the plaintiff assumed that the defendant had taken
over the lease
when it was incorporated during 2018. There is however not one iota
of evidence in support of that assumption.
[9]
In these circumstances, there is a genuine prospect that the
defendant
will be able to demonstrate at trial that Woodstar, the
sole proprietorship, and not it, the defendant, is the lessee in
terms
of the monthly tenancy on which the plaintiff’s cause of
action is based. If this can be demonstrated by the defendant, then
the plaintiff’s claim will not succeed.
[10]
For all of these reasons, I am, in the words of the rule, satisfied
by the defendant’s
affidavit that it has a
bona fide
defence to the action. The affidavit does disclose fully the nature
and grounds of the defence and the material facts relied upon
therefor. The defendant
is accordingly entitled to
leave to defend.
Order
[11]
Accordingly, I make the following order: -
(1)
The plaintiff’s application for
summary judgment is dismissed.
(2)
The defendant is granted leave to continue defending the
action against it by the plaintiff.
(3)
The costs of the application for summary judgment shall be in
the cause of the main action.
L R ADAMS
Judge of the High Court
Gauteng
Local Division, Johannesburg
HEARD ON:
21
st
July 2021 –
The matter was disposed of without an
oral hearing in terms of
s 19(a)
of the
Superior Courts Act 10 of
2013
.
JUDGMENT DATE:
29
th
July 2021 – judgment handed down
electronically.
FOR THE PLAINTIFF:
Mr O L Mbunye
INSTRUCTED BY:
Larry Marks Attorneys, Johannesburg
FOR THE DEFENDANT:
Mr Hikmet Acar
INSTRUCTED BY:
The Defendant’s Sole Director