About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: South Gauteng High Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: South Gauteng High Court, Johannesburg
>>
2021
>>
[2021] ZAGPJHC 644
|
|
Petersen and Others v Bochum Foods (Pty) Limited t/a Roman's Pizza Bochum and Another (2020/18058) [2021] ZAGPJHC 644 (18 August 2021)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
(GAUTENG LOCAL
DIVISION, JOHANNESBURG)
CASE NO:
2020/18058
REPORTABLE
YES
OF
INTEREST TO OTHER JUDGES NO
REVISED
In
the matter between:
PETERSEN,
IZAK SMOLLY (ID No. [....])
N.O.
in his capacity as trustee of MERGENCE
AFRICA
PROPERTY INVESTMENT TRUST (IT No. 11263/2006)
First
Plaintiff
ASMAL,
RIDWAAN (ID No. [....]) N.O. in
his
capacity as trustee of MERGENCE AFRICA
PROPERTY
INVESTMENT TRUST (IT No. 11263/2006)
Second Plaintiff
AZIZOLLAHOFF,
BRIAN HILTON (ID No.
[....])
N.O. in his capacity as trustee of
MERGENCE
AFRICA PROPERTY INVESTMENT
TRUST
(IT No.
11263/2006)
Third Plaintiff
JUNKOON,
JUJDEESHIN (ID No. [....])
N.O.
in his capacity as trustee of MERGENCE
AFRICA
PROPERTY INVESTMENT TRUST (IT No.
11263/2006)
Fourth Plaintiff
and
BOCHUM
FOODS (PTY) LIMITED t/a ROMAN’S PIZZA
BOCHUM
(Registration
No.
2018/372299/07)
First Defendant
ELIZABETH
RONELL UYS(ID No. [....])
Second Defendant
Case
summary : summary judgment – amended Uniform Rule 32(2) –
“reading in” approach in the case of Tumileng
Trading CC
v National Security and Fire (Pty) Limited
2020 (6) SA 624
(WCC) to
be followed in this Division – defence pleaded must raise a
genuine issue for trial – Plaintiff’s supporting
affidavit drafted within the context of the deponent’s
knowledge and content of plea that has been delivered – pleaded
defence must be bona fide - Defendants required to place facts before
the court at summary judgment stage, if a genuine defence
is being
advanced and cannot complain if the court is left in a position in
which it is unable to find a reasonable basis to find
that such
Defendants have a bona fide defence – summary judgment granted.
Jurisdiction
–
Section 21
of the
Superior Courts Act 10 of 2013
–
jurisdiction over all causes arising within this Division’s
area of jurisdiction – cause of action originated
within the
court’s area of jurisdiction – choice of domicilium
citandi et executandi in itself not sufficient to establish
jurisdiction – court has jurisdiction as lease agreement was
concluded (offer accepted) in its jurisdiction, suretyship was
concluded (offer was accepted) in its jurisdiction and payment
(performance) takes place in an area over which this Division has
concurrent jurisdiction – principle of causa continentia
applicable.
JUDGMENT
FRANCK
AJ
:
[1]
The Plaintiffs applied for summary judgment against the Defendants,
jointly
and severally, the one paying the other to be absolved in
respect of claim 1, as prayed for in the Particulars of Claim for the
following relief:
[1.1] Payment
of the amount of R91 375,60;
[1.2]
Interest on the above at the prevailing prime rate as from time to
time (as at December 2020, 7.25% per annum)
plus 2% per annum,
compounded monthly,
a tempore morae
from date of service of
summons to date of final payment;
[1.3]
Ejectment of the First Defendant or anyone claiming occupation
through the First Defendant from the commercial
leased premises
situated at Shop 101, Ground Floor, Bochum Plaza, corner Dendron &
Blouberg Roads, Bochum Extension 3, Limpopo
(measuring approximately
60 square metres);
[1.4] Costs
of suit on the scale as between attorney and client together with
disbursements so incurred and such collection
commission as the
Plaintiffs are obliged to pay its attorneys;
[1.5] Further
and/or alternative relief.
[2]
It is common cause between the parties that, the First Defendant no
longer
occupies the commercial leased premises and as such, the
Plaintiffs do not persist in seeking an order in terms of prayer 3
relating
to ejectment.
[3]
Plaintiffs issued summons against the Defendants on 23 July 2020.
Their
cause of action is based on a written agreement of lease
entered into between the Plaintiffs and First Defendant on 8 October
2018
at Rosebank, Gauteng. The claim against the Second Defendant is
based on a deed of suretyship. In their Particulars of Claim, the
Plaintiffs plead that this court has jurisdiction to entertain this
action as the whole cause of action arose within the jurisdictional
area of this court.
[4]
The Plaintiffs claim that the First Defendant absconded from the
commercial
leased premises during or about 30 April 2020 whereas, the
Defendants allege, according to their plea, that the First Defendant
vacated the premises pursuant to a valid cancellation of the lease
agreement, which cancellation occurred on 3 June 2020.
[5]
The
Plaintiffs claim summary judgment in respect of claim 1 of their
Particulars of Claim for the abovementioned amount which consists
of
arrear rental up to and including July 2020. If regard is had to the
calculation of claim 1 as contained in Annexure “D”
to
the Particulars of Claim
[1]
, the
period for arrear rental is calculated from February 2020 to July
2020.
[6]
Plaintiffs’ claim 2 relates to pre-estimated liquidated
damages,
in respect of which the Plaintiffs do not claim summary
judgment, calculated from 1 August 2020 to 31 July 2021. In the
Application
in support of summary judgment reference is made to claim
2, stipulating that leave to defend should be granted in respect of
this
claim.
[7]
The Defendants filed a plea dated 7 September 2020, in respect of
which
the following defences were raised:
[7.1] The
monetary value of the Plaintiffs’ claim fall within the
jurisdiction of the Magistrate’s Court
and summons should have
been issued out of the Magistrate’s Court.
[7.2] The
Gauteng Local Division, Johannesburg, does not have jurisdiction to
adjudicate on this cause of action as:
[7.2.1] the
First and Second Defendants’
domicilium citandi et
executandi
is in Groblersdal, in Limpopo Province;
[7.2.2] the
lease agreement and surety were concluded in Groblersdal, in Limpopo
Province;
[7.2.3] the
commercial leased property is located in the Limpopo Province;
[7.3] The
Defendants validly cancelled the lease agreement on 3 June 2020 as a
result of a misrepresentation made by
the Plaintiffs to the
Defendants, which misrepresentation was made either negligently,
fraudulently or innocently that the First
Defendant would have direct
access to a neighbouring taxi rank to whose clientele the First
Defendant “
would have been able to render its products to,
which, factually was not the position”
.
[7.4] In the
alternative to its defence based on misrepresentation, the First
Defendant pleaded that it gave its intention
to the Plaintiffs to
terminate the lease agreement on 21 days’ notice in terms of
the Consumer Protection Act No. 68 of 2008
(“the
Consumer
Protection Act&rdquo
;) as the nett asset value of the First Defendant
is less than R2 000 000,00. No specific section of the
Consumer Protection Act is
referred to by the Defendants.
[7.5] The
Defendants also relied on
vis major
caused by the Covid-19
pandemic and the national state of disaster declared by the State
President as the First Defendant was unable
to trade for the period
April and May 2020.
[8]
The Defendants admit the following in their plea:
[8.1] the
description of the Defendants;
[8.2] the
Second Defendant signed the lease agreement on behalf of the First
Defendant;
[8.3] the
terms of the lease agreement accord with Annexure “C” to
the Particulars of Claim;
[8.4] the
First Defendant was granted beneficial occupation of the leased
premises;
[8.5] the
Second Defendant signed the suretyship, which suretyship accords with
Annexure “E” and contains
the terms as set out in
Annexure “E” to the Plaintiff’s Particulars of
Claim;
[8.6] that
the provisions of the
National Credit Act No. 34 of 2005
do not have
application in this matter by virtue of
Section 8(2)(b)
of the
National Credit Act.
[9
]
In terms of Uniform
Rule 32(2)
, as amended, any Plaintiff, applying
for summary judgment, shall “
verify the cause of action and
the amount, if any, claimed, and identify any point of law relied
upon and the facts upon which the
Plaintiff’s claim is based,
and explain briefly why the defence as pleaded does not raise any
issue for trial”
.
[10]
In the
matter of
Tumileng
Trading CC v National Security and Fire (Pty) Limited
[2]
,
(“the Tumileng Trading case”) the court adopted a
“
reading
in”
approach to the (amended) rule as follows:
“
[21] The
requirement that the plaintiff's supporting affidavit should explain
briefly why the pleaded defence 'does not raise
an issue for trial'
is of more interest. It cannot be taken literally, for a plea that
did that would be excipiable, and there
is no indication that the
amended summary judgment procedure is intended as an alternative to
the exception procedure. For the
reasons given later with regard to
the cases before me, I consider that the amended
rule 32(2)(b)
makes
sense only if the word 'genuinely' is read in before the word 'raise'
so that the pertinent phrase reads 'explain briefly
why the defence
as pleaded does not genuinely raise any issue for trial'.
In other words, the plaintiff is not required
to explain that the
plea is excipiable. It is required to explain why it is contended
that the pleaded defence is a sham. That
much is implicit in what the
Task Team said in para 8.3 of its memorandum. The position would have
been made clearer had the words
'does not make out a bona fide
defence' been used. That would have made for a more clearly
discernible connection between the respective
requirements of
subrules (2)(b) and (3)(b). That there be such a connection is
necessary if the amended rule as a whole is
to be workable.
[22] What the
amended rule does seem to do is to require of a plaintiff to consider
very carefully its ability to allege
a belief that the defendant does
not have a bona fide defence. This is because the plaintiff's
supporting affidavit now falls to
be made in the context of the
deponent's knowledge of the content of a delivered plea. That
provides a plausible reason for the
requirement of something more
than a 'formulaic' supporting affidavit from the plaintiff. The
plaintiff is now required to engage
with the content of the plea in
order to substantiate its averments that the defence is not bona fide
and has been raised merely
for the purposes of delay.
[23] It seems
to me, however, that the exercise is likely to be futile in all cases
other than those in which the pleaded
defence is a bald denial. This
is because a court seized of a summary judgment application is not
charged with determining the
substantive merit of a defence, nor with
determining its prospects of success. It is concerned only with an
assessment of whether
the pleaded defence is genuinely advanced, as
opposed to a sham put up for purposes of obtaining delay. A court
engaged in that
exercise is not going to be willing to become
involved in determining disputes of fact on the merits of the
principal case. ...
[40] However,
does the fact that the bones of a triable defence have been made out
in the plea mean that summary judgment
must be refused? The answer is
clearly 'no'! The reason for the negative answer is that the enquiry
is not whether the plea discloses
'an issue for trial' in the literal
sense of those words, it is whether the ostensible defence that has
been pleaded is bona fide
or not. As discussed earlier, that that is
the relevant enquiry in a summary application follows from the
rule-maker's decision
to leave subrule 32(3) substantively unamended.
If one were to apply the amended rule differently, it would be
impossible to marry
the requirement of a plaintiff apparently posited
by subrule 32(2)(b) (viz showing that 'the defence as pleaded does
not raise
any issue for trial') with what is demanded of a defendant
in terms of subrule 32(3)(b) (viz showing that its defence to the
action
is bona fide, ie that its ostensible defence is not a sham).
The respective supporting and opposing affidavits would pass each
other like ships in the night if one were to understand the notion of
'issue for trial' in subrule 32(2)(b) as denoting something
different
from a 'bona fide defence' within the meaning of subrule 32(3)(b).
[48] ...
If a defendant fails to put up the facts that it obviously should
have been able to do were it advancing a
genuine defence, it cannot
complain if the court is left in a position in which it is unable to
find a reasonable basis to doubt
that it does not have a bona fide
defence.”
DEFENDANTS’
DEFENCES
[11]
In
the matter of
Raumix
Aggregates (Pty) Ltd v Richter Sand CC and another and similar
matters
[3]
,
and with reference to the amended Rule (dealing with the issue of
retrospectivity), it was stated that the purpose of a summary
judgment application is to allow the court to summarily dispense with
actions that ought not to proceed to trial because they do
not raise
a genuine triable issue, thereby conserving scarce judicial resources
and improving access to justice. Once an application
for summary
judgment is brought, the applicant obtains a substantive right for
that application to be heard, and, bearing in mind
the purpose of
summary judgment, that hearing should be as soon as possible. That
right is protected under s 34 of the Constitution.
[12]
The
approach followed in the Tumileng Trading case, was followed in the
Gauteng Division in the matter of
Saglo
Auto (Pty) Ltd v Black Shades Investments (Pty) Ltd
[4]
.
[13]
The Defendants’ defences listed above, will be dealt with
individually, in terms
of the approach as set out in the Tumileng
Trading case.
Magistrates' Court
jurisdiction
[14]
It was
indicated to the court at the hearing of this matter that the
Defendants will not proceed with their defence that the action
should
have been launched in the Magistrate’s Court as a result of the
quantum of the Plaintiffs’ claims. This is as
a result of the
judgment in the matter of
The
Standard Bank of SA Limited and Others v Thobejane and Others
(38/2019
and 47/2019) and the
Standard
Bank of SA Limited v Gqirana NO and Another
(999/2019)
[5]
Jurisdiction of Gauteng
Local Division, Johannesburg
[15]
In terms of
Section 21
of the
Superior Courts Act 10 of 2013
:
[15.1] a
division has jurisdiction over all persons residing or being in, and
in relation to
all causes arising
and all offences triable
within its area of jurisdiction; and
[15.2] a
division also has jurisdiction over any person residing or being
outside its area of jurisdiction who is joined
as a party to any
cause in relation to which such court has jurisdiction if the said
person resides or is within the area of jurisdiction
of any other
division.
[16]
The First
Defendant made an offer to lease to the Plaintiffs, which written
offer was accepted by the Plaintiffs at Rosebank on
26 August
2018.
[6]
[17]
Clause 24.2 of the offer to lease stipulates that “
Upon
acceptance signified by signature hereof by the Lessor this offer
will become a binding agreement of lease upon the terms and
conditions contained herein read mutatis mutandis with the Lessor’s
standard terms and conditions of lease…”
which the
First Defendant agreed to sign in terms of Clause 24.3 of the offer
to lease.
[18]
Pursuant to
the acceptance of the offer, the agreement of lease attached as
Annexure “C”
[7]
was
concluded between the parties. The agreement of lease was signed by
the First Defendant on the 11
th
of September 2018 and accepted by the Plaintiffs on the 8
th
of October 2018.
[8]
[19]
In terms of the agreement of lease, the Plaintiffs’ physical
address is stipulated
as Centurion. The Plaintiffs’ counsel
argued at the hearing of this matter that, the Gauteng Local Division
and Gauteng Division
have concurrent jurisdiction in respect of
Centurion. This was not disputed by the Defendants. In terms of
Government Gazette 39601
published on the 15
th
of January
2016 such concurrent jurisdiction exists. Payment takes place to the
Plaintiffs, in Centurion.
[20]
The commercial property is situated in Limpopo. The
domicilium
citandi et executandi
of both Defendants are in Limpopo.
[21]
It was argued on behalf of the Plaintiffs that there were sufficient
jurisdictional aspects
situated in the jurisdiction of the Gauteng
Local Division, in order to establish that this Court has
jurisdiction to entertain
the action and to hear this application for
summary judgment.
[22]
A High
Court has jurisdiction if the cause of action arose within its
jurisdiction, which includes the conclusion or performance
of the
agreement.
[9]
[23]
“
A
‘cause arising’ is not to be confused with a cause of
action, and, to determine what a ‘cause arising’,
is also
to determine of what the court may take cognisance, if one is driven
back to the common-law jurisdictional principles.”
[10]
[24]
There must
be a sufficient connection between the suit and the area of
jurisdiction of the court concerned, so that disposing of
the case by
that court is appropriate and convenient.
[11]
[25]
“
Causes
arising”
referred to in
Section 21(1)
of the
Superior Courts Act,
(alternatively
in Section 19(1) of the Supreme Court Act 59 of 1959),
means any action or legal proceedings which, according to the law,
had duly
originated within the court’s area of
jurisdiction.
[12]
[26]
The primary
object of the above approach is to avoid an unnecessary proliferation
of proceedings and the possibility of conflicting
decisions on the
same cause of action, between the same parties.
[13]
[27]
The choice
of a
domicilium
citandi et executandi
in itself, is not enough to establish the jurisdiction of the
court.
[14]
[28]
The claim
against the Second Defendant is based on a suretyship. Suretyship is
a bilateral juristic act. It is a contract which
arises from
agreement between creditor and surety and it involves the acceptance
of an offer communicated by the would-be surety
to the creditor.
[15]
[29]
In terms of
the principle of
causa
continentia
,
where a court has jurisdiction over part of the cause of action,
considerations of convenience, justice and good sense justify
it
exercising its jurisdiction over the whole cause.
[16]
[30]
In the current matter, this court has jurisdiction as the lease
agreement was concluded
(the offer was accepted) in Rosebank, the
suretyship was concluded (the offer was accepted) in Rosebank and
payment (performance)
takes place in Centurion (an area over which
this court has concurrent jurisdiction with the Gauteng Division).
Furthermore, considerations
of convenience, justice and good sense
justify this court exercising its jurisdiction over the whole cause
of action in respect
of both Defendants.
Cancellation of the lease
[a] Misrepresentation
[31]
The Defendants plead in paragraph 11.2 that Plaintiffs misrepresented
to the First Defendant
“
either negligently, fraudulently or
innocently, which representation goes to the root of the Agreement,
that the Defendant will
have direct access to a neighbouring Taxi
Rank to whose clientele the Defendant would have been able to render
its products to,
which, factually was not the position.”
[32]
The Defendants rely on this alleged misrepresentation and state that
the misrepresentation
resulted in the cancellation of the lease
agreement dated 3 June 2020.
[33]
In the Plaintiffs’ affidavit in support of summary judgment,
these averments are
dealt with by the Plaintiffs by stating that:
[33.1] The
purported representation is not a representation insofar as it
relates to a future fact and in fact it is
contained as a term of the
lease agreement, the term being purely that the First Defendant would
be entitled to trade at the taxi
ranks.
[33.2] The
Plaintiffs never prevented the First Defendant from trading at the
taxi ranks.
[33.3] The
fence that was erected had been erected some time ago and was not
erected by the Plaintiffs. The Plaintiffs
could never have been aware
of the erection of such fence nor had any control thereof as the
Plaintiffs are not the owners of the
taxi rank.
[33.4] Such
representations are in any event excluded by the provisions of the
lease agreement and there is no basis
to suggest that the Plaintiffs
could or should possibly have been aware of the fact that the taxi
rank was going to be fenced off.
[34]
In the Defendants’ affidavit resisting summary judgment, the
Defendants simply repeat
the contents of paragraphs 10 and 11 of
their plea. The only averment that is added relating to the alleged
misrepresentation is
that, had the Defendants known that the First
Defendant would be physically separated from the taxi rank, the First
Defendant would
not have entered into the lease agreement.
[35]
The Defendants do not deal with the averments contained in the
Plaintiffs’ affidavit
in support of summary judgment, nor does
it provide any particularity to the court regarding a timeline
relating to the conclusion
of the lease agreement and the erection of
the fence at the taxi rank. The Defendants chose not to deal with
averments made by
the Plaintiffs relating to the fact that:
[35.1] the
Plaintiffs were unaware that a fence would be erected;
[35.2] the
Plaintiffs did not erect the fence;
[35.3] the
Plaintiffs do not own the taxi rank;
[35.4] that
no misrepresentation was made and that any misrepresentations are
excluded by the terms of the lease agreement.
[36]
In order to avoid summary judgment, and in order to advance a genuine
bona fide defence,
the Defendants should have provided the court with
sufficient facts and information. Anaemic and repetitive statements
do not enable
the court to come to the Defendants’ assistance
in order to establish that they have a
bona fide
defence.
[37]
In terms of
clause 35.1 of the agreement of lease
[17]
“
This lease
incorporates the entire agreement between the landlord and the tenant
and no alteration, consensual cancellation or variation
hereof shall
be of any force or effect unless it is in writing and signed by both
the landlord and the tenant who hereby acknowledge
that no
representations or warranties have been made by either the landlord
or the tenant, nor are there understandings or terms
of the lease,
other than those set out herein.”
[38]
In the offer to lease, referred to hereinabove, a note is inserted in
paragraph 28 that
states “
Landlords consent to sell taxi
pizzas in and around the taxi rank”
.
[39]
Neither the offer to lease nor the agreement of lease contain any
undertakings by the Plaintiffs
to ensure access to the taxi rank.
[40]
As a result of the contents of the lease agreement, the Defendants
are not in a position
to rely on an innocent or negligent
misrepresentation. Furthermore, the Defendants have set out no
averments upon which a fraudulent
misrepresentation can be claimed by
them.
[41]
In order to rely on a fraudulent misrepresentation, the Defendants
would have to aver that:
[41.1]
A
representation was made by the Plaintiffs or the Plaintiffs’
agent.
[18]
[41.2]
The
representation was fraudulent. This would necessarily involve
knowledge by the Plaintiffs that the representation was false.
[19]
[41.3]
Such
fraudulent representation induced the Defendants to enter into the
lease agreement.
[20]
[41.4]
If damages
are claimed, that the damages were suffered as a result of the
fraud.
[21]
[41.5]
If reliance
is placed on a fraudulent non-disclosure, facts giving rise to the
duty to disclose must be set out. It is also necessary
to show that
the duty to disclose was deliberately breached in order to
deceive.
[22]
[42]
When dealing with this aspect in argument, the court was referred to
paragraph 11 of the
Defendants’ plea in which no averments are
made to sustain a defence of fraudulent misrepresentation.
[b]
Consumer Protection
Act, Force
Major and Locus Standi
[43]
The
Plaintiffs alleged in their affidavit in support of summary judgment
that the First Defendant, being a company, is not entitled
to the
benefit of the provisions of
Section 14
of the
Consumer Protection
Act and
as such is not entitled to give notice to cancel the lease
agreement. This averment was not dealt with by the Defendants in
their
affidavit resisting summary judgment, the contents of this
paragraph simply being baldly denied “
as
far as it is inconsistent with what is stated in this Affidavit”
.
[23]
[44]
In paragraph 12.5 of the Defendants’ plea, it is pleaded that
the First Defendant
gave the Plaintiffs notice of its intention to
terminate the lease on 21 days’ notice in terms of the
provisions of the Consumer
Protection Act 68 of 2008 (“the
Consumer Protection Act&rdquo
;) on the basis that the First
Defendant’s net asset value is less than R2 million.
[45]
In terms of the
Consumer Protection Act:
[45.1
]
“
consumer”
includes a juristic person.
[24]
[45.2]
“
juristic person”
includes a trust as defined in
the Trust Property Control Act 57 of 1988.
[46]
In terms of
Section 5(2)(b), the
Consumer Protection Act does
not apply to any
transaction in terms of which the consumer is a juristic person whose
asset value or annual turnover, at the time
of the transaction,
equals or exceeds the threshold value determined by the minister in
terms of
Section 6.
The current threshold is R2 million.
[25]
[47]
Section 14
of the
Consumer Protection Act deals
with the expiry and
renewal of fixed-term agreements. In terms of
Section 14(2)(b)(i)(bb)
it is possible for consumers that are parties to fixed term
agreements, to cancel such agreement by giving the supplier 20
business
days’ notice in writing (not 21 days). However, in
terms of
Section 14(1)
, this section does not apply to transactions
between juristic persons regardless of their annual turnover or asset
value. As such,
the First Defendant was not entitled to utilise the
provisions of
Section 14(2)(b)(i)(bb)
to terminate the lease
agreement, as the lease agreement was concluded between juristic
persons (within the definition of the
Consumer Protection Act).
>
[48]
The
Consumer Protection Act was
not dealt with in the Defendants’
heads of argument and I was not referred to any case law to the
contrary.
[49]
Another defence that was mentioned in the affidavit resisting summary
judgment, but not
pursued in argument or mentioned in the Defendants’
heads of argument, was that of the Plaintiffs’
locus standi
.
The Defendants allege that the Plaintiffs do not have
locus standi
due to the fact that they are cited in their capacities as trustees
of the Mergence Africa Property Investment Trust but although
identified as such trust in the lease agreement, is described in the
lease agreement as a company duly registered and incorporated
in
accordance with the company laws of the Republic of South Africa.
[50]
The
Defendants claim that this proves that the Plaintiffs lack
locus
standi
or that rectification of the agreement is necessary. I disagree.
Mergence Africa Property Investment Trust is sufficiently identified
in the lease agreement as the Landlord. It is stated in paragraph 1
of the agreement of lease that the landlord is Mergence Africa
Property Investment Trust, including its successors in title and
assigns. Its trust registration number is identified together
with
the VAT registration number and the four trustees are specifically
identified with their identity numbers. Furthermore, letters
of
authority as well as a resolution passed by the trustees are attached
to the lease agreement as Annexure “D” and
Annexure
“D1”.
[26]
[51]
The reference to Mergence Africa Property Investment Trust as being a
company on the first
(cover) page of the lease agreement is a
misnomer that does not oust the
locus standi
of the Plaintiffs
nor require rectification.
[52]
In answer
to the averment made by the Plaintiffs that there is no basis to
suggest that the First Defendant was released from its
obligation
under and in terms of the lease agreement as a result of
vis
major
,
as this is specifically excluded in terms of the lease agreement
[27]
,
the Defendants simply baldly denied such averment “
as
far as it is inconsistent with what is stated in this Affidavit”
.
Vis major is indeed excluded as a defence in terms of clause 22.1.1
of the lease agreement. The Defendants did not persist with
this
defence, as it is not dealt with in their affidavit resisting summary
judgment and the allegations are simply denied by the
Defendants.
[28]
[53]
For the above reasons, I find that the lease agreement was not
validly cancelled by the
Defendants.
Defendants’
counterclaim
[54]
No counterclaim has been pleaded by the Defendants. It is raised in
paragraph 7 of the
Defendants’ affidavit resisting summary
judgment and as follows:
[54.1] The
Defendants intend instituting a conditional counterclaim to be
introduced via an amendment to the plea.
[54.2] The
counterclaim is based on enrichment in the amount of R512 614,57.
[54.3] The
Defendants rely on three invoices in order to quantify the above
amount. All of the invoices relate to the
container, referred to in
the lease agreement.
[54.4] The
Defendants “
acting upon the misrepresentations made as
alluded to before”
, which representations are not specified
with any particularity as aforesaid, purchased and upgraded a
container to be used as
a vending stall on the premises.
[54.5] The
stall was procured and manufactured specifically for the site and has
been left on the premises where the
Plaintiffs have used and in fact
let same out to a third party.
[54.6] This
benefit befalls the Plaintiffs at the expense of the Defendants and
therefore the counterclaim will seek
compensation.
[55]
Despite the affidavit resisting summary judgment being deposed to on
the 14
th
of December 2020, the Defendants have not
attempted to amend their plea for the last 7 months. The merits of
such a counterclaim
are further dubious as both the offer to lease as
well as the lease agreement state that:
[55.1] All
building work involved in connection with the container will be for
the Defendants’ account.
[55.2]
It is
specifically recorded that at the expiry or termination of the lease
agreement, for whatever reason, the First Defendant will
remove the
container and make good any alterations to the existing premises,
thereby returning the existing premises to the Plaintiffs
in the same
condition as when received, fair wear and tear accepted.
[29]
[56]
This is, however, not an issue that needs to be decided at summary
judgment stage, especially
since such a counterclaim has not been
pleaded by the Defendants. The Defendants will be at liberty to
attempt to amend their plea
to raise such a counterclaim
vis-à-vis
Plaintiff’s claim 2, as contained in the Particulars of Claim.
Any potential counterclaim is not a bar to the granting of
summary
judgment.
CONCLUSION
[57]
This court is vested with jurisdiction to entertain this action and
accordingly, to determine
the summary judgment application.
[58]
Regarding the issues of cancellation of the lease agreement, which
include allegations
of misrepresentation, the Defendants did not
fully disclose the nature and grounds of their defences and material
facts relied
upon. The defences raised by the Defendants do not
genuinely raise any issues for trial, do not constitute
bona fide
defences and have been raised with a view to delay judgment in terms
of claim 1. The Defendants were in a position to provide detailed
facts relating to their defences, if the defences being advanced were
genuine. This was, however, not done and this court is not
in a
position to find that the Defendants have raised
bona fide
defences that raise genuine issues for trial.
[59]
In the
circumstances, summary judgment should be granted in respect of Claim
1, in the Plaintiffs’ favour and costs should
follow the
result. The scale of costs, is that of attorney and client together
with disbursements to be incurred and collection
commission incurred
by the Plaintiff, as provided for in terms of the lease
agreement.
[30]
[60]
I accordingly make the following order in respect of Claim 1:
Summary
judgment is granted against the First and Second Defendants jointly
and severally, the one paying the other to be absolved
for:
1. Payment of
the amount of R91 375,60.
2. Interest
on the above at the prevailing prime rate, as from time to time, plus
2% per annum, compounded monthly,
a tempore morae
from date of
service of summons (6 August 2020) to date of final payment.
3. Costs of
suit on the scale as between attorney and client together with
disbursements so incurred and such collection
commission as the
Plaintiffs are obliged to pay its attorneys.
[61]
In respect of claim 2, leave to defend is granted.
FRANCK,
A J
Date
of hearing : 19 July 2021
Date
of judgment : 18 August 2021
Legal
representation :
For Plaintiffs :
Adv J G Dobie
Attorneys
:
Rooseboom
Attorneys
For Defendants :
Advocate D A Cock
Attorneys:
Mark Efstratiou Inc
[1]
CaseLines, paginated page 003-78 to 003-81
[2]
2020 (6) SA 624 (WCC)
[3]
2020
(1) SA 623
(GJ) at [16]
[4]
2021
(2) SA 587 (GP)
[5]
[2021] ZASCA 92
(25 June 2021)
[6]
Offer to lease, CaseLines 003-71 to 003-77
[7]
CaseLines, 003-17
[8]
CaseLines
003-26
[9]
Roberts
Construction Co Limited v Willcox Bros (Pty) Limited
1962
(4) SA 326
(A) at 331-332 and 336-337
[10]
Multi-Links
Telecommunications Limited v Africa Prepaid Services Nigeria Limited
2014
(3) SA 265 (GP)
[11]
Multi-Links
Telecommunications Limited v Africa Prepaid Services Nigeria Limited
2014
(3) SA 265
(GP) at [11]
[12]
Multi-Links
Telecommunications Limited v Africa Prepaid Services Nigeria Limited
2014
(3) SA 265
(GP) at [13];
Cordiant
Trading CC v Daimler Chrysler Financial Services (Pty) Limited
2005
(6) SA 205
(SCA) at [11]
[13]
Cordiant
Trading CC v Daimler Chrysler Financial Services (Pty) Limited
2005
(6) SA 205
(SCA) at [14]
[14]
Geyser
v Nedbank Limited and Others; In re Nedbank Limited v Geyser
[2006] ZAGPHC 50
;
2006
(4) SA 544
(W) at 546 D – 547 E-F
[15]
Jurgens
and Others v Volkskas Bank Limited
[1992] ZASCA 152
;
1993 (1) SA 214
(A) at 218-219
[16]
Roberts
Construction Co Limited v Willcox Bros (Pty) Limited
1962
(4) SA 326
(A) at 337 and
Geyser
v Nedbank Limited and Others : In re Nedbank Limited v Geyser
[2006] ZAGPHC 50
;
2006
(4) SA 544
(W) at 546-547;
Permanent
Secretary, Department of Welfare, Eastern Cape and Another v Ngxusa
and Others
2001
(4) SA 1184
(SCA) at para [22]
[17]
CaseLines page 003-54
[18]
Geary &
Son (Pty) Limited v Gove
1964
(1) SA 434 (A)
[19]
Ruto
Flour Mills (Pty) Limited v Moriates
1957
(3) SA 113 (T)
[20]
Bill
Harvey’s Investment Trust (Pty) Limited v Orangezicht Citrus
Estates (Pty) Limited
1958
(1) SA 479 (A)
[21]
De
Jager v Grunder
1964
(1) SA 446 (A)
[22]
Gollach
& Gomperts (1967) (Pty) Limited v Universal Mills & Produce
Co (Pty) Limited
1978
(1) SA 914
(A) at 924;
Ozinsky
NO v Lloyd
1992
(3) SA 396
(C) at 418
[23]
paragraph
19 CaseLines 008-25
[24]
See definition of “
person”
in
Consumer Protection Act
[25
]
calculated in accordance with the schedule in GN294 in GG 34181 of 1
April 2011
[26]
Agreement of lease, clause 1, CaseLines 003-18, Annexure “D”
and “D1”, CaseLines 003-61 to 003-62
[27]
clause 22.1.1, CaseLines 003-44
[28]
Defendants’ affidavit resisting summary judgment, paragraph
19, CaseLines 008-25
[29]
Lease agreement, clause 18.1, CaseLines 003-24; offer to lease,
clause 30, CaseLines 003-76
[30]
Particulars of Claim, paragraph 5.9, CaseLines 003-4