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[2021] ZAGPPHC 422
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Westhills 379 Development (Pty) Limited v Bantu Foods (Pty) Ltd (32500/2020) [2021] ZAGPPHC 422 (28 May 2021)
IN THE HIGH COURT OF
SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Case
Number
: 32500/2020
In
the matter between:
WESTHILLS
379 DEVELOPMENT (PTY) LIMITED
APPLICANT
(REG.
NO.: 2017/155033/07)
and
BUNTU FOODS (PTY)
LTD
RESPONDENT
(REG.
NO: 2017/479535/07)
JUDGMENT
KUBUSHI
J,
Delivered:
This judgement is handed down
electronically by circulating to the parties’ representatives
by email and by uploading on Caselines
INTRODUCTION
[1]
In this application the applicant, Westhills 379 Developments (Pty)
Limited, seeks
an order for the eviction of the respondent, Buntu
Foods (Pty) Ltd, from the commercial premises it leased to the
respondent, with
costs. The principal issues being whether the
respondent materially breached the lease agreement and if so, whether
the lease agreement
require rectification in respect of the
obligation to pay the second deposit required in terms of the lease
agreement.
BACKGROUND
[2]
The common cause facts are that on 14 December 2018, the parties
concluded a written
lease agreement. The lease agreement applies to
premises comprising two parts, Unit 2 and Unit 3. The lease agreement
provides
for the respondent to pay a deposit, which was to be paid in
two tranches, and for the respondent to pay rental for Unit 3. The
respondent paid rentals, in respect of Unit 2 and the first tranche
of the deposit. The respondent has not paid any rental in respect
of
Unit 3, and has not paid the second tranche of the deposit. The
respondent remains in possession of Units 2 and 3. After giving
the
respondent an opportunity to remedy its breaches, the applicant is
alleged to have validly terminated the lease agreement,
and, as a
result, it is averred on behalf of the applicant that the respondent,
remains in unlawful possession of the premises.
The applicant has as
such approached court for the relief to have the respondent evicted
from the premises.
[3]
The respondent is opposing the application and raises various
defences. In answer
to the applicant’s claim, the respondent
seeks to establish that it did not breach the lease agreement by
failing to pay
the second deposit payment and by failing to make any
payments in respect of Unit 3, which is the unit in contestation. The
respondent’s
defence, in essence is that:
3.1
Firstly, it has not breached the obligation to make the second
deposit payment because the
lease agreement falls to be rectified on
the basis of a mutual mistake between the parties.
3.2
Secondly, it has not breached the obligation to pay any amounts in
respect of Unit 3. In
that regard, the respondent contends, that it
was not afforded full beneficial occupation of the premises since
there are various
defects at the premises (Unit 3 in particular) and
it has not been provided with occupation certificates for Unit 2 and
Unit 3.
[4]
In addition, the respondent has raised two preliminary points,
namely, the application
to strike out in terms of Uniform Rule 16 (5)
and a material dispute of fact. I have to deal, first, with the
preliminary points
before considering the merits of the main
application.
PRELIMINARY
POINTS
Rule
6 (15) Application
[5]
As earlier stated, the respondent has launched an application for an
order in terms
of Uniform Rule 6 (15) as a preliminary issue.
The purpose of the application is to have certain paragraphs and/or
words
contained in the applicants' replying affidavit struck out as
it is contended that they constitute a new cause of action not
pleaded
in the founding affidavit and which is prejudicial to the
respondent.
[6]
Uniform Rule 6 (15) provides as follows:
“
The
Court may on application order to be struck out from any affidavit
any matter which is scandalous, vexatious, or irrelevant
with an
appropriate order as to costs, including costs as between attorney
and client. The Court shall not grant the application
unless it is
satisfied that the applicant will be prejudiced in his case if it is
not granted.”
Grounds for
Striking-Out
[7]
The legal
grounds upon which the respondent
relies upon are the impugned words, paragraphs, and annexures stand
to be struck out because they
constitute a new cause of action which
the applicant is attempting to introduce in the replying affidavit
and the respondent is
prejudiced thereby. The paragraphs and/or words
that the respondent seeks to strike out are stated in the
application to strike out as follows:
7.1
The following words in paragraph 4 of the applicant's replying
affidavit "
or other charges whatsoever for Unit 3
' be
struck out.
7.2
The following words in paragraph 8.2 of the applicant's replying
affidavit
"and utility charges relating to Unit 3
including water, electricity and the like
' be struck out.
7.3
Paragraphs 8.5 and 8.6 of the applicant's replying affidavit be
struck out.
7.4
Paragraphs 39 to 55 and annexure RA7 of the applicant's replying
affidavit be struck out.
7.5
Paragraph 64 of the applicant's replying affidavit be struck out.
7.6
Paragraph 234 and annexure RA29 of the applicant's replying affidavit
be struck out.
[8]
The argument by the respondent’s counsel, in this regard, is
that in terms of
the founding affidavit, the breach relied on by the
applicant was that the respondent had allegedly failed to pay the
'second portion'
of the deposit and the rental which were due.
Counsel argued, further, that in terms of the applicant’s
notices of breach,
the only breach relied upon by the applicant was
the respondent’s alleged failure to pay the rental and the
'second portion'
of the deposit. The issue of consumption charges
(electricity, water, and sanitation), according to the respondent’s
counsel,
was never raised by the applicant in the founding affidavit.
Therefore, the contention is that by introducing the consumption
charges
in the replying affidavit, the applicant is attempting to
introduce a new cause of action in reply. All the applicant’s
causes
of action should have been contained in the founding
affidavit, so it is argued.
[9]
In support of this argument, the respondent’s counsel referred
to the decision
in
Titty's
Bar and Bottle Store (Pty) Ltd v ABC Garage (Pty) Ltd and Others
,
[1]
wherein Viljoen J stated the following:
"It
has always been the practice of the Courts in South Africa to strike
out matter in replying affidavits which should have
appeared in
petitions or founding affidavits, including facts to establish
locus
standi
or the jurisdiction of the Court. See
Herbstein and Van
Winsen, The Civil Practice of the Superior Courts in South Africa,
2nd ed., pp. 75, 94. In my view this practice still prevails. In
submitting that an applicant may in the replying affidavit supplement
a case he has made out in the founding affidavit Mr. Van der Spuy has
referred me to the decision in the matter of
Reiter v Bierberg and
Others
, 1938 S.WA. 13, in which the headnote reads:
"A
petitioner for an interdict against spoliation is entitled to embody
in his petition only sufficient allegations to establish
his right,
and in his replying affidavit he may supplement the information in
the petition by anything further to enable him to
refute the case put
up by respondent."
It
lies, of course, in the discretion of the Court in each particular
case to decide whether the applicant's founding affidavit
contains
sufficient allegations for the establishment of his case. Courts do
not normally countenance a mere skeleton of a case
in the founding
affidavit, which skeleton is then sought to be covered in flesh in
the replying affidavit. In the present case,
the applicant has not
made out even a skeleton of a case in so far as his
locus standi
rests on a
stipulatio alteri
.
Reiter's
case,
supra
,
does not assist the applicant."
[11]
Continuing with the analogy used in
Titty's Bar and Bottle Store
case, the respondent’s counsel submits that the applicant has
not even made out a 'skeleton of a case' insofar as consumption
charges in the founding affidavit, are concerned. Accordingly, the
respondent is contending for the words, paragraphs and annexures
pertaining thereto in the replying affidavit and as identified in its
application to strike out, to be struck out.
[12]
The question that ought to be determined is whether the impugned
words, paragraphs, and annexures
that the respondent seeks to be
struck out constitute a new cause of action which the applicant is
attempting to introduce in the
replying affidavit, and if so, whether
the respondent is prejudiced thereby.
[13]
As already stated the respondent’s application to strike out is
based on the failure by
the applicant to allege one of its causes of
action, the failure to pay consumption costs, in the founding
affidavit and alleging
same in the replying affidavit.
[14]
I am in agreement with the applicant that the words and/or paragraph
the respondent is complaining
about ought not to be struck off, for
the reasons stated hereunder. As contended for by the applicant’s
counsel the consumption
charges are raised in paragraph 9.9 of the
founding affidavit. The said paragraph reads as follows:
“
9.9.
The Respondent would pay to the Applicant all electricity and
water charges in respect of the premises including
charges payable in
terms of the relevant City Council's local electricity tariffs and
by-laws as amended from time to time (clause
5);”
[15]
This question can be answered by
considering what the relief the applicant is seeking in this
application. It is common cause that
the relief sought by the
applicant is the eviction of the respondent from the leased premises.
In order to succeed in such a claim,
the applicant must allege and
prove that the respondent has breached the terms of the lease
agreement thus entitling it (the applicant)
to cancel the agreement
and evict the respondent from the premises.
[16]
The applicant submits that it was entitled to terminate the lease on
the basis of three breaches
by the respondent:
16.1
The respondent has failed to pay the second deposit payment due under
the lease;
16.2
The respondent has not paid any rent in respect of Unit 3 to date,
despite being in occupation of the premises;
and
16.3
The respondent has not paid any amounts in respect of water,
electricity, sanitary refuse rubbish removal,
sewerage and vacuum
tank services and/or removals (Consumption Charges) that it has
consumed in respect of Unit 3.
[17]
The applicant’s submission that the consumption charges are
validly raised even if they
were not the basis for the cancellation,
is well taken. The respondent's only substantive defence to not
paying the Consumption
Charges is that this did not form the basis
for the termination of the lease. The respondent is entitled to rely
upon any breach
to support its termination of the agreement —
even breaches it did not initially rely upon. In support of this
argument,
the applicant’s counsel quoted the decision in
Putco
Ltd v TV & Radio Guarantee Co (Pty) Ltd
,
[2]
where the following was said:
“
Where
a party seeks to terminate an agreement and relies upon a wrong
reason to do so he is not bound thereby, but is entitled to
take
advantage of the existence of a justifiable reason for termination,
notwithstanding the wrong reason he may have given.”
[18]
Whether or not the applicant relied in its termination notices on the
respondent's failure to
pay Consumption Charges is immaterial —
it may rely on those breaches now.
[19]
The question that follows is whether the said paragraphs and words if
left in the replying affidavit
will be prejudicial to the respondent.
It is my view that the respondent would not be
prejudiced if the said words and paragraphs in the replying affidavit
are not removed.
[20]
In terms of Uniform Rule 6 (15), a court shall not grant the
application unless it is satisfied
that the applicant will be
prejudiced in its case if the application is not granted.
[20]
The court in
Vaatz
,
[3]
dealing with prejudice, in relation to Uniform Rule 6 (15), remarked
as follows:
“
The
phrase ’prejudice to the applicant’s case’ clearly
does not mean that, if the offending allegations remain,
the innocent
party’s chances of success will be reduced. It is substantially
less than that. How much less depends on all
the circumstances; for
instance, in motion proceedings it is necessary to answer the other
party’s allegations and a party
does not do so at his own risk.
If a party is required to deal with scandalous or irrelevant matter
the main issue could be side-tracked
but if such matter is left
unanswered the innocent party may well be defamed. The retention of
such matter would therefore be prejudicial
to the innocent party.”
[21]
As is stated in
Vaatz
,
[4]
in motion proceedings it is necessary to answer the other party’s
allegations and a party does not do so at his own peril.
The court,
dealing with scandalous and irrelevant matters, concluded that where
a party is required to deal with scandalous or
irrelevant matter the
main issue could be side tracked but if such matter is left
unanswered the innocent party may well be defamed
and the retention
of such matter would, therefore, be prejudicial to the innocent
party.
[22]
In this, instance, the respondent would not be prejudiced as the
relief sought by the applicant
is not per se for payment of the
consumption charges, but the relief is for eviction. The failure to
state the consumption charges
would in any way not affect the
respondent’s
Material Disputes of Fact
[23]
The respondent has, as earlier stated, raised a point
in
limine re
material dispute of fact. Relying on the decision of
the
Supreme Court of Appeal in
National
Director of Public Prosecutions v Zuma,
[5]
the respondent’s counsel contends that when regard is had to
the affidavits filed of record, the papers reveal several extensive
and material disputes of fact, incapable of being resolved in these
proceedings.
Applicant
[24]
The proposition presented on behalf of the applicant is that the
respondent’s defence should
be rejected out of hand in terms of
the second exception to the
Plascon-Evans
[6]
rule and the applicant’s version be accepted as the truth.
[25]
According to the applicant’s counsel, the proper approach to
disputes of fact in motion
proceedings has been articulated by the
Supreme Court of Appeal in the following terms:
"an
applicant who seeks final relief on motion must, in the event of
conflict, accept the version set up by his opponent unless
the
latter's allegations are, in the opinion of the court, not such as to
raise a real, genuine or
bona fide
dispute of fact or are so
far-fetched or clearly untenable that the court is justified in
rejecting them merely on the papers."
[27]
Therefore, the rule, that the respondent’s version of the facts
must form the basis for
the court's adjudication of an application
for final relief, is subject to two exceptions.
27.1
The first exception applies where a denial by the respondent of a
fact which has been alleged by the applicant
may be insufficient to
raise a real, genuine or
bona fide
dispute regarding this
alleged fact. If, in such a case, the respondent has not availed
itself of the right to apply for the deponent
concerned to be called
to be cross-examined in terms of Rule 6(5)(g) of the Uniform Rules of
Court, and the Court is satisfied
as to the inherent credibility of
the factual averment of applicant, it may proceed on the basis of the
correctness of this averment
and include it within the factual matrix
upon which it determines whether the applicant is entitled to the
relief sought.
27.2
The second exception applies where a respondent's answer contains a
denial of allegations which were so far-fetched
and untenable that a
court is justified in rejecting them on the papers. The second
exception is designed to deal with a case in
which a respondent makes
certain bald allegations or far-fetched denials which are manifestly
untenable, not supported by any evidence
or reason and which have
been designed simply to exploit the ordinary
Plascon-Evans
rule to the latter's advantage and to the detriment of applicant
whose factual averments cannot be attacked on any plausible basis.
[28]
In other words, in terms of the second exception to the
Plascon-Evans
rule, a court is entitled to reject on the papers a positive defence
put up by a respondent, so it is argued. To strengthen this
argument,
the applicant’s counsel referred to decisions in
Da
Mata v Otto, NO
[7]
and
Siffman
v Kriel,
[8]
wherein the court confirmed that even uncontradicted evidence may be
rejected by a court in motion proceedings.
[29]
It is trite that motion proceedings, unless concerned with interim
relief, are all about the
resolution of legal issues based on common
cause facts. Unless the circumstances are special, they cannot be
used to resolve factual
issues because they are not designed to
determine probabilities. It is, also, well established under the
Plascon- Evans
rule that wherein motion proceedings disputes
of fact arise on the affidavits, a final order can be granted only if
the facts averred
in the applicant's affidavits, which have been
admitted by the respondent, together with the facts alleged by the
latter, justify
such order. It may be different if the respondent's
version consists of bald or uncreditworthy denials, raises fictitious
disputes
of fact, is palpably implausible, far- fetched or so clearly
untenable that the court is justified in rejecting them merely on the
papers.
[30]
The parties seem to agree that the applicant cannot escape the fact
that there exists a fundamental
factual dispute, save where the
dictum
in the
Plascon-Evans
case can be successfully
applied.
[31]
On the papers before me the allegations of the respondent cannot be
said to be "far-fetched
or clearly untenable” justifying
this court in rejecting them merely on the papers. The defences
raised by the respondent
are not bald allegations or far-fetched
denials which are manifestly untenable, or not supported by any
evidence or reason and
does not appear to have been designed simply
to exploit the ordinary
Plascon-Evans
rule.
[32]
It is evident from the papers that there is a material dispute of
fact which cannot be decided
on the papers as they stand. In the
exercise of my discretion I do not think that the issues pertaining
to the dispute of fact
can be resolved by
viva voce
evidence
but must be referred to trial.
[33]
The parties seem not to be agreed as to the issues that requires
determination by the court.
In order to limit the issues for
determination at the trial, I, in that regard, have to rule that the
parties hold a pre-trial
conference to jointly compile the issues for
the determination of the court before the matter can be set down for
hearing.
[34]
In the premises I have to make the following order:
1.
The application to strike out is dismissed with costs.
2.
The matter is referred to trial.
3.
The parties are to hold a pre-trial conference to jointly compile the
issues
for determination by the court at the trial, before the matter
is set down for hearing.
4.
The pleadings filed on record are to serve as the pleadings at the
trial and
the parties are given leave to file any pleadings which may
be considered necessary to take the process to the conclusion of the
trial.
5.
Costs of the main application are reserved for determination at the
trial.
E.M
KUBUSHI
JUDGE
OF THE HIGH COURT
GAUTENG
DIVISION, PRETORIA
Appearance:
Applicant’s
Counsel
: Adv. DW Watson
Applicant’s
Attorneys
: Christelis & Artemides Attorneys
Respondent’s
Counsel
: Adv A Lamprecht
Respondent’s
Attorneys
: Millers Attorneys
Date of
hearing
: 20 April 2021
Date of
judgment
: 28 May 2021
[1]
1974
(4) SA 362 (T).
[2]
1985
(4) SA 809
(A) at 832C-D.
[3]
Vaatz
v Law Society of Namibia
1991 (3) SA 563
at 566J.
[4]
Page
566J – 567B.
[5]
[2009] ZASCA 1
;
2009
(2) SA 277
(SCA) at para
[26]
.
[6]
See
Plascon-Evans
Paints (TVL) Ltd v Van Riebeck Paints (Pty) Ltd [1984] 2 All SA 366
(A).
[7]
1972
(3) SA 858
(A) at 868B-F.
[8]
1909
TS 538
at 543.