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[2021] ZAGPJHC 414
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Liberty Group limited and Another v LA Kandyan Trading (Pty) Limited t/a Mayur Indian Cuisine (2020/44118) [2021] ZAGPJHC 414 (13 September 2021)
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Certain
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IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNESBURG
CASE NUMBER:
2020/44118
REPORTABLE: NO
OF INTEREST TO OTHER
JUDGES: NO
REVISED: YES
13 SEPTEMBER 2021
In the matter between:
LIBERTY
GROUP
LIMITED
First Applicant
TWO
DEGREES PROPERTIES (PTY) LIMITED
Second Applicant
and
LA
KANDYAN TRADING (PTY) LIMITED
T/A
MAYUR INDIAN CUISINE
(Registration
Number: 2012[....])
First Respondent
FATHIMA
AREEZA MOHAMED NIZAR
(Identity
Number:
[....])
Second Respondent
JUDGMENT
DE WET AJ:
1.
The applicants before the court are Liberty
Group Limited, a public company with limited liability, the first
applicant, and Two
Degrees Properties (Pty) Ltd, a private company
with limited liability, the second applicant (hereinafter referred to
as the applicants).
2.
The first respondent is La Kandyan Trading
(Pty) Limited trading as Mayur Indian Cuisine, a private company, and
the second respondent,
is Fatima Areeza Mohamed Nizar, an adult
female and director of the first respondent.
3.
The applicants instituted action against
the first respondent as lessee and the second respondent as surety,
in which action the
applicants claimed payment of the following
amounts:
3.1.
Claim A: An amount of R953 972,60
under and in terms of an acknowledgment of debt;
3.2.
Claim B: An amount of R2 027 192,45
under and in terms of a lease agreement (“the lease
agreement”).
4.
The first respondent and second respondent
delivered a plea in which they essentially raise the following
defences:
4.1.
a special plea of
lis
pendens
;
4.2.
the first respondent was not able to
commence trading on the intended date because of delays caused by the
applicants;
4.3.
the first respondent was denied access to
the leased premises as a result of the national state of disaster
which was declared following
upon the covid-19 pandemic and the
subsequent regulations published under the
Disaster Management Act,
2002
, which were effective from 26 March 2020, and was only again
allowed access to the premises in June 2020;
4.4.
the first respondent could not obtain
access in June 2020 because it lost possession of its business to
Ramesh Nunna (“Mr
Nunna”) and Prasad Kotikela (“Mr
Kotikela”)(“the partners”) who also took control of
the premises.
5.
During or about March 2021 and upon the
respondents having delivered their plea to the applicants’
claim, the applicants brought
an application for summary judgment in
which they claim payment as follows:
5.1.
R953 972,60;
5.2.
interest on the amount in 5.1 at the rate
of 7% per annum
a tempore morae
to date of final payment;
5.3.
R2 027 192,45;
5.4.
interest on the amount in 5.3 at the rate
of 9% per annum,
alternatively
7% per annum
a tempore morae
to date of final payment;
5.5.
costs of suit on the scale as between
attorney and client.
6.
The respondents opposed the application for
summary judgment and they filed an opposing affidavit in which they
repeated the defences
as contained the plea.
7.
In addition, the respondents contend that
the deponent to the affidavit in support of summary judgment, Mr
Preston Gaddy (“Mr
Gaddy”), does not have the personal
knowledge necessary to depose to the affidavit in support of the
application and further
that he has not been authorised by the
applicants to bring the application.
8.
On 31 July 2019, the applicants
qua
landlords, and the first respondent
qua
tenant, entered into a written lease agreement in terms whereof the
first respondent leased certain premises in the Nelson Mandela
Square
Shopping Centre for the purpose of conducting the business of a
restaurant from the premises, under the name Mayur Indian
Cuisine
(“the restaurant”).
9.
The first respondent was obliged, in terms
of clause 5.5 of the lease agreement, to make payment of all amounts
due to the lessor
monthly in advance, by no later than the first day
of each month, without set-off or deduction for any cause whatsoever,
free of
exchange, bank commission and charges. The first payment of
rental would be made on 1 September 2019.
10.
The second respondent executed a deed of
suretyship on 6 September 2019 in terms whereof she stood as surety
and co-principal debtor
for the amounts owing by the first respondent
to the applicants.
11.
On 18 February 2020 the first respondent
executed an acknowledgment of debt in favour of the applicants in
terms whereof
inter alia
:
11.1.
The first respondent acknowledged that it
was indebted to the applicants in the amount of R953 972,60 in
lieu of arrear rental
and other charges payable to the applicants in
terms of the lease agreement (“the capital”);
11.2.
The first respondent undertook to pay the
capital in ten instalments of R95 397,26 each, the first
instalment to be made on
7 March 2020 and then on each month
thereafter as well as pay interest on each instalment at 2% above the
prime rate;
11.3.
In the event that the first respondent
fails to comply with its obligations under the acknowledgement of
debt, the applicants were
entitled to institute proceedings for the
immediate recovery of the balance of the debt, including interest at
prime plus 2%;
11.4.
The second respondent bound herself jointly
and severally as surety and co-principal debtor with the first
respondent in favour
of the applicants for the capital as well as the
agreed interest thereon.
11.5.
The respondents undertook to pay legal
costs on the attorney and client scale.
12.
The respondents, despite demand, have
failed to pay any of the instalments due in terms of the
acknowledgement of debt.
13.
The respondents have further failed to make
payment of the amount of R2 027 192, 45 to the applicants
in lieu of arrear
rentals and charges under the lease agreement.
14.
This
summary judgement application is brought under the amended
rule 32.
Such rule, which came into effect on 1 July 2019
[1]
,
provides that:
“
(1)
The plaintiff may, after the defendant has delivered a plea, apply to
court for summary judgment on each of
such claims in the summons as
is only-
(a)
on a liquid document;
(b)
for a liquidated amount of money;
(c)
…
(d)
…
together with any
claim for interest and costs.
(2) (a) Within 15
days of the date of delivery of the plea, the plaintiff shall deliver
a notice of application for summary
judgment, together with an
affidavit made by the plaintiff or by any other person who can swear
positively to the facts.
(b)
The plaintiff shall, in the affidavit referred to in subrule (2)(a),
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.
(3)
The defendant may-
(a)
…
(b)
satisfy the court by affidavit (which shall be delivered five days
before the day
on which the application is to be heard), or the leave
of the court by oral evidence of such defendant or of any other
person who
can swear positively to the facts that the defendant has a
bona fide
defence
to the action;
such affidavit or
evidence shall disclose fully the nature and grounds of the defence
and the material facts relied upon therefor
.
”
(own emphasis)
15.
In Standard Bank v Rahme & another 2019
ZA GPJHC 283 (3 September 2019) the court held that under the amended
rule 32
the plaintiff/applicant had the duty to satisfy the court
that the defendant/respondent had no defence on the merits, which
appears
to raise the bar and onus for securing summary judgment. The
court has a discretion to refuse summary judgment. The court further
has the jurisdiction, in terms of
rule 32(6)
, to give leave to defend
as to part of the claim and enter judgement against the respondents
as to the balance thereof.
16.
It
is trite that summary judgment is an important means of preventing
defendants who can demonstrate no
bona
fide
defence
from taking advantage of delays resulting from the matter going to
trial.
[2]
Summary judgment is no
longer regarded as an extraordinary remedy and strict compliance with
the provisions of the amended
rule 32
is required.
[3]
17.
It is against this background that the
court must determine whether the applicants have discharged its onus
and whether the respondents’
defence, as pleaded and as appears
in the affidavit opposing summary judgment, discloses a
bona
fide
defence. The court, in Roestof
supra
,
held as follows at page 498:
“
The
papers as a whole must be looked at in order for a court to come to a
conclusion as to whether leave to defend should be granted
to a
defendant or not. The function of a court should not be to protect
dishonest defendants because the plaintiffs are less than
perfect.
Each case must be judged on its own facts.
”
18.
It
is trite, as had been held in Breytenbach v Fiat SA (Edms) Bpk
[4]
that the respondents are obliged in the affidavit opposing summary
judgement to set out the grounds for their defence and the material
facts upon which they rely with sufficient particularity as to
disclose a
bona
fide
defence
and absence of sufficient particularity may indicate an absence of
bona
fides
on the part of the respondents. A defence that is set out in a bald,
vague or imprecise manner may result in a conclusion by the
court
that the respondents have dishonestly sought to avoid the dangers
inherent in the presentation of a clear version. This may
result in a
finding that the respondents are not
bona
fide
in their opposition to the summary judgement application.
19.
Mr
Goslett, for the respondents, relying on the judgment of Maharaj v
Barclays National Bank Ltd
[5]
,
submitted that the application for summary judgment should fail as
the deponent to the affidavit in support of the summary judgment,
Mr
Gaddy, is neither the plaintiff as envisaged in
rule 32(2)(a)
nor a
person other than the plaintiff who can swear positively to the
facts.
20.
The respondents contend that Mr Gaddy does
not confirm in his affidavit in support of the application for
summary judgment that
he can swear positively to the facts, as a
consequence whereof the applicant does not comply with the
requirements of
rule 32(3)(2)(a).
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21.
Mr Goslett submitted that Mr Gaddy was not,
subsequent to July 2019 and the conclusion of the lease agreement,
involved in any dealings
between the respondents and the applicants
nor of Accelerate Real Estate Services (Pty) Limited (“JHI”).
The person
with whom the respondents dealt in regard to the lease
agreement at all material times and accordingly who can swear
positively
to the facts is a Mr Peter Raggart, a leasing manager of
JHI.
22.
In
answer to these contentions by the respondents, the applicant relied
on the authority of the Supreme Court of Appeal in Rees
& another
v Investec Bank Ltd
[6]
where it
was held that:
“
As
stated in Maharaj, 'undue formalism in procedural matters is
always to be eschewed' and must give way to commercial pragmatism.
At
the end of the day, whether or not to grant summary judgment is
a fact-based enquiry. Many summary judgment applications
are
brought by financial institutions and large corporations. First-hand
knowledge of every fact cannot and should not be required
of the
official who deposes to the affidavit on behalf of such
financial institution or large corporation. To insist
on
first-hand knowledge is not consistent with the principles espoused
in Maharaj.”
23.
Mr Hoffman, for the applicants, countered
and pointed out that JHI are the managing agents of the applicants.
Mr Gaddy, who is employed
by JHI, is the general manager of the
Sandton precinct, he deals with all the tenants of the applicants and
in particular the premises
which are the subject matter of the lease
agreement.
24.
Both applicants are large corporations. Mr
Gaddy informs that he has knowledge of the facts of the matter and
that he is able to
swear positively thereto as he is the general
manager of the Sandton City precinct. The respondents’
contention to the contrary
is unduly formalistic. This point is not
upheld.
25.
The respondents submitted that there was no
evidence that Mr Gaddy was authorised to bring the application for
summary judgment.
The respondents submit that Mr Gaddy was merely
authorised to depose to the affidavit on behalf of the applicants.
Absent a mandate
to bring the application which would be evidenced by
a resolution from either of the applicants confirming Mr Gaddy’s
authority
to bring the application, the applicants and application
are not properly before the court and on this ground too, the
application
should be dismissed.
26.
Mr Hoffman submitted that it is not
required that Mr Gaddy be authorised to depose to the affidavit in
support of the summary judgment
as it is not the deponent that is
required to be authorised to depose to an affidavit but rather the
institution of the proceedings
that ought to be authorised. Mr
Hoffman submitted that such challenge of authority to bring the
proceedings should be made by the
delivery of a notice in terms of
rule 7 of the Uniform Rules of Court.
27.
In
Ganes & another v Telecom Namibia Ltd
[7]
the Supreme Court of Appeal held as follows:
“
[19]
… The deponent to an affidavit in motion proceedings need not
be authorised by the party concerned to depose to
that affidavit. It
is the institution of the proceedings and the prosecution thereof
which must be authorised. ….
”
28.
The
Supreme Court of Appeal specifically held that where proceedings were
instituted and prosecuted by a firm of attorneys purporting
to act on
behalf of a party it should be accepted that the institution of the
proceedings were authorised. In the event that such
authority is to
be challenged, the provisions of rule 7 provides a procedure to do
so.
[8]
Accordingly, there is no
merit in these submissions of the respondents.
29.
The respondent raise various defences to
the claims.
30.
The respondents raised as first defence
lis
pendens.
31.
In respect of the special plea of
lis
pendens
, the Supreme Court of Appeal
held in Socratous v Grindstone Investments
2011 (6) SA 325
(SCA)
that:
“
South
African courts are under severe pressure due to congested court
rolls, and the defence of
lis alibi
pendens
must be allowed to operate in
order to stem unwarranted proliferation of litigation involving the
same parties based on the same
cause of action and related to the
same subject-matter.
”
32.
The respondents relied on the following
facts to sustain such defence:
32.1.
The applicants instituted an action against
the respondents on the 4
th
of November 2019 under case number 19/40228 (“the first
action”);
32.2.
In the first action the applicants rely on
substantially the same cause of action as they do in the present
case, being the lease
agreement and the surety of the second
respondent;
32.3.
The applicants issued the present action
out of this court on 15 December 2020 whilst the first action
remained pending between
the parties.
33.
The applicants join issue with the
respondents in regard to the special plea and contend that in the
first action the applicants
claimed arrear rental and associated
charges arising out of the lease agreement for the period October
2019 to November 2019, which
period predates the acknowledgment of
debt.
34.
In this action, the applicants, in respect
of claim A, rely on the breach of the acknowledgment of debt, which
constitutes a different
cause of action to that upon which the
applicants relied in the first action. In respect of claim B the
applicants rely on arrear
rental and other charges due in terms of
the agreement for the period April 2020 to November 2020, being a
different period to
the period in respect whereof the first action
lay and a period subsequent to the period in respect whereof the
respondents acknowledged
their respective indebtedness to the
applicants in the acknowledgement of debt.
35.
In
argument, Mr Hoffman, relied on Chemfos Ltd v Plaasfosfaat (Pty)
Ltd
[9]
when submitting that the
acknowledgement of debt was a separate cause of action and that the
acknowledgement of debt, together
with the undertaking to pay, gives
rise to an independent and principal obligation. Accordingly, the
lease agreement and the acknowledgement
of debt each constitute a
separate and distinct cause of action.
36.
In addition to the foregoing, the
applicants informed in the affidavit supporting summary judgement
that they have withdrawn all
their claims in the first action save
for the claim for costs. This is common cause. Upon having done so,
no claim founded on the
lease agreement for arrear rental and
associated charges for the period October 2019 and November 2019
exists between the applicants
and the respondents, be it in the first
action or herein.
37.
I find that there is no merit in the
respondents’ defence of
lis
pendens.
38.
As second defence the respondents contend
that the applicants failed to comply with their undertaking that they
would assist the
first respondent to timeously complete the
renovation and set-up work for the business. They list various facts
which according
to the respondents demonstrate the applicants’
failure to do as undertaken. This conduct of the applicants, so the
argument
of the respondents runs, resulted in the first respondent
not being able to commence and conduct the business of the
restaurant.
Consequently, the respondents conclude that they are
entitled to be excused from payment of the amounts due to the
applicants under
the lease agreement during the period of delay.
39.
On a careful consideration of the contents
of the respondents’ opposing affidavit and the annexures
thereto, specifically
annexure “A14” being the attached
summons and particulars of claim issued out of this court on 22
January 2021 under
case number 21/2601, being in respect of an action
between the first respondent and the partners the following is clear;
the first
respondent admits that it fell into arrears in respect of
rental and charges, that it concluded the acknowledgement of debt
with
the applicants after negotiations between them and that it
agreed to pay the amount of R953 972, 60 to the applicants.
40.
There is no dispute before this court as to
the validity and enforceability of the acknowledgement of debt or the
amount claimed
in terms thereof.
41.
The applicants’ claim A is not
founded on the lease agreement but on the acknowledgement of debt. In
Chemfos Ltd
supra
the Supreme Court of Appeal held on p 115 as follows:
“
I
turn to the question whether the admissions made on 13 June in
fact gave rise to "independent and substantive"
causes of
action upon which the appellant could successfully sue for payment of
the admitted debts - a question which the Court
a
quo
answered
adversely to the appellant.
In Adams
v SA Motor Industry Employers Association
1981 (3) SA 1189
, this
Court was required to consider the situation which arises, according
to law, when an existing obligation to pay the balance
of the
purchase price under a deed of sale has been followed by an
acknowledgment of debt in respect of such balance. The issue
related
to the competence of the creditor to cede to a third party his claims
under the deed of sale. Addressing himself to the
general principles
governing such a situation, JANSEN JA said (at 1198) that
"an
acknowledgment of debt, provided it is coupled with an express or
implied undertaking to pay that debt, gives rise to an
obligation in
terms of that undertaking when it is accepted by the creditor".”
42.
The admitted acknowledgement of debt
herein, in which the first respondent admitted the debt and undertook
to pay such debt in instalments,
thus exists independent and as a
principal obligation. The events relied on by the respondents all
pre-date the acknowledgement
of debt. The allegations of obstruction
by or failure of the applicants to assist in timeously completing the
renovations, as raised
by the respondents, are no defence to the
applicants’ claim A.
43.
Accordingly, the applicants are entitled to
judgment in the amount of R953 972,60.
44.
The respondents assert that they received
no use and benefit from the premises from 15 March 2020 to June 2020.
45.
The respondents firstly contend that they
could not legally access the premises as a consequence of the
covid-19 pandemic, the hard
lockdown which was effective from 26
March 2020 and the regulations published under the
Disaster
Management Act, 2002
.
46.
The respondents contend that these events
constitute an intervening event of impossibility that excuses the
first respondent from
complying with its obligations in terms of the
lease agreement, and as such it is a triable issue.
47.
Mr
Goslett relied on Flamman & Co v Kokstad Municipality
[10]
as well as Frajenron v Metcash Trading.
[11]
In Frajenron
supra
the court held as follows:
“
[13]
Our law on the impossibility of performance evolve on a similar
footing. As noted above, it commenced with the dictum
(quoted in 10
above) in Peters, Flamman & Co. By that dictum the two factors or
circumstances that would excuse the non-performance
are
vis
major
and
casus
fortuitous
. As the law evolved, it was
clarified that not every
vis major
or
casus fortuitous
will
excuse the non-performance. Facts specific to a case will determine
whether the non-performance should be excused. These would
include
the nature, terms and context of the contract, the nature of the
parties, their relationship and the nature of the impossibility
relied upon. No party is allowed to rely on an impossibility caused
by its own act or omission – there should be no fault
or
neglect on its part in the creation of the impossibility. The
impossibility must be absolute and not relative and it must be
applicable to everyone and not personal to the defendant, i.e. it
must be objective.
[14]
In terms of this rule an obligation to perform is discharged by
a subsequent change of circumstances that were neither
foreseeable
nor foreseen. The reasoning underlying the doctrine is that the need
or demand for justice requires that the law excuses
non-performance
because not to do so would effectively be punishing a party that
wants to, but cannot, perform its obligations
through no fault or
neglect of its own, and in conditions whereupon, by exercising
reasonable and prudent care
ab initio
it could never have foreseen that
circumstances preventing it from performing would come to prevail. It
is a valuable rule.
”
48.
The respondents contend that once level 4
lockdown was lifted the first respondent could not operate the
restaurant save under highly
restrictive conditions. These conditions
did however not restrict the respondents from completing whatever
renovations were still
required. The respondents counter by relying
on a communication by JHI dated 5 June 2020 in which the first
respondent was advised
that it should obtain government approval
prior to being granted access to the premises at that stage.
49.
The respondents’ evidence on this
point is all but clear as on the first respondent’s version in
the particulars of
claim in the partners action the first respondent
pleads that it indeed had access to the premises during the period 18
February
2020 until 30 September 2020, during which period
renovations were continued with and that it had paid to the
applicants a portion
of August 2020 rental and the full rental for
September 2020.
50.
Thereafter, the first respondent contends,
it was denied access to the premises by Mr Nunna and Mr Kotikela, its
partners, who had
“hijacked its business”.
51.
Relying on these particular facts the
respondents submit that they are excused from payment of the amount
claimed in B, being the
sum of the amounts claimed in terms of the
lease agreement for the relevant periods.
The
legal basis for this argument of the respondents is the
exceptio
non adimpleti contractus
.
52.
The
applicant, relying on Tudor Hotel Brasserie & Bar (Pty) Ltd v
Hencetrade 15 (Pty) Ltd
[12]
submitted that in terms of clause 5.5 of the lease agreement, the
parties had agreed that the rental shall be payable monthly in
advance, thereby altering the normal position that rental is payable
in arrear at the end of each period in the case of a periodical
lease
and after the lessor had fulfilled its obligation. The payment of
rental by the first respondent in thus not contingent upon
prior
performance by the applicants.
53.
In Tudor Hotel Brasserie & Bar
supra
the Supreme Court of Appeal held at
[11] as follows:
“
The
agreement that the rent was payable ‘monthly in advance’
had the effect of altering the usual position, that in
the absence of
contractual provisions, rent is payable in arrear at the end of each
period in the case of a periodical lease, after
the lessor has
fulfilled his obligation.
The
lease agreement therefore altered the reciprocal nature of the
obligations of the lessor and the lessee. The obligation of the
lessee to make payment of the rent was no longer reciprocal to the
obligation of the lessor to grant beneficial occupation of the
premises to the lessee.”
54.
Mr Hoffman in argument conceded that the
absence of benefit to the first respondent may in certain
circumstances give the first
respondent a claim to partial remission
of rental. Such claim for abatement of rental has however not been
pleaded and such a claim
has not been raised in a counterclaim.
55.
There is merit in the respondents’
submission that the hard lockdown may constitute an intervening event
of impossibility
that may excuse the first respondent from its
contractual obligations to pay to the applicants the rental for the
months of April
2020 and May 2020.
56.
Mr Hoffman conceded, albeit reluctantly,
that the respondents may be entitled to a remission of payment of the
rental and charges
for the months of April 2020 and May 2020, being
the months which, on the affidavits before the court, access to the
premises was
not possible due to the covid-19 regulations which were
applicable to level 5 hard lockdown and level 4 lockdown. This was so
as
renovations to a restaurant do not constitute essential services.
57.
In light of the foregoing, the respondents
have raised a triable issue in respect of the applicant’s claim
for rental and
other charges for the months of April 2020, a claim in
the amount of R223 515,97, and May 2020, a claim in the amount
of R222 088,40.
58.
As fourth defence the respondents contend
that they have lost possession of the premises. During June 2020 the
first respondent
contends, it was despoiled of the business by its
partners, Mr Nunna and Mr Kotikela. The respondents contend that Mr
Nunna and
Mr Kotikela have taken over the business of the restaurant
and have since June 2020 occupied the premises to the exclusion of
the
first respondent.
59.
The contentions above ring hollow on
considering the affidavit of the respondents and particularly the
facts pleaded by the first
respondent to sustain its claim for
damages against the partners. As stated above, a copy of the summons
and particulars of claim
issued under case number 21/2601 is annexed
to the opposing affidavit as “A14”. In this action the
first respondent
inter alia
claims damages as against its partners for breach of the partnership
agreement. Such damages include the amount of R240 564,08
in
lieu of rental paid to the applicants, which includes part payment of
rental and charges for August 2020 and rental and charges
for
September 2020.
60.
The first respondent pleaded in the
partnership action that on or about 18 February 2020 it entered into
a partnership agreement
with Mr Nunna and Mr Kotikela. It is of
significance that the first respondent in the partnership action
contends that, in paragraph
18 thereof, the material terms of the
partnership agreement include a provision that the first respondent
remains the tenant of
the Sandton premises (being the same premises
as which are the subject matter herein) and that it would be obliged
to honour the
terms of the lease to the landlord, being the lease
agreement between the first respondent and the applicants herein.
61.
It is further significant that the first
respondent pleads in paragraph 22 of the particulars of claim in the
partnership action,
that it has complied with all its obligations in
terms of the lease agreement, that it continued insofar as
practically possible
with the renovation work at the Sandton premises
to set up Mayur Restaurant during the period from 18 February 2020
until 30 September
2020 notwithstanding the COVID-19 lockdown.
62.
Further
to the above, the respondents allege in the plea to the applicants’
claim that the applicants have acquiesced to the
first respondent’s
partners occupying the premises. In the affidavit resisting summary
judgement the respondents contend
that Mr Gaddy as well as the
applicants are very well aware of the situation. In argument Mr
Goslett submitted that the applicants
may have acted in concert with
the partners. He suggested that upon the partners being joined and
discovery being made the respondents
may be able to determine the
true state of affairs and at such stage the respondents may perhaps
be able to determine whether there
could be any further defence
against the claims of the applicants herein, arising out of the
suggested knowledge.
[13]
Such
vague suggestions of the possible existence of a defence which may in
future be determined does not assist the respondents
herein.
63.
The applicants were aware of the dispute
between the first respondent and its partners. There is no evidence
before the court, and
neither has it been pleaded, that there is a
contractual or other relationship between the applicants and the
partners. Save for
the bald and vague allegations that the applicants
were very well aware of the situation, being the occupation of the
premises
by the partners, and that the applicants’ have
acquiesced thereto, there are no facts upon which the respondents can
rely
when suggesting that there is something untoward in the
applicants’ knowledge of the presence of the partners in the
premises
or the knowledge of the partnership dispute. The first
respondent was entitled to occupation of the property and it was
entitled
to enforce such right against third parties, including its
partners. It failed to take any steps to do so.
64.
The respondents contend that Mr Nunna and
Mr Kotikela ought to be joined to the action between the applicants
and the respondents
as they have a real and substantial interest in
the outcome of the proceedings.
65.
The
respondents relied on the test for non-joinder as enunciated in ABSA
Bank v Naude NO
[14]
where it
was held that:
“
The
test whether there has been a non-joinder is whether a party has a
direct and substantial interest in the subject-matter of
the
litigation which may prejudice the party that has not been joined. In
Gordon v Department of Health, KwaZulu-Natal it was held
that if an
order or judgment cannot be sustained without necessarily prejudicing
the interests of third parties that had not been
joined, then those
third parties have a legal interest in the matter and must be
joined.
”
66.
The dispute between the first respondent
and its partners have no bearing on the contractual relationships
between the applicants
and the respondents or their respective
obligations flowing from the lease agreement and the suretyship.
There is no prejudice
to Mr Nunna and Mr Kotikela should a money
judgement be granted in favour of the applicants herein.
67.
There is accordingly no merit in the
respondents’ submission of material non-joinder.
68.
Considering all the evidence before the
court, the onus of the applicants, the duty of the respondents to set
out the grounds for
their defence and the material facts upon which
they rely with sufficient particularity as to disclose a
bona
fide
defence, I find that the
respondents have not disclosed a
bona
fide
defence insofar as claim B is
concerned, save for that part of the claim that relates to rental and
charges for April 2020 and
May 2020.
69.
As a consequence, I make the following
order:
1.
Summary judgment is entered against the
first respondent and the second respondents, jointly and severally,
the one paying the other
to be absolved for:
1.1.
payment of the sum of R953 972,60;
1.2.
interest thereon at the rate of 7% per
annum
a tempore morae
to the date of final payment in respect of claim A;
1.3.
payment of the sum of R1 581 588,08;
1.4.
interest thereon at the rate of 9% per
annum
a tempore morae
to the date of final payment in respect of claim B;
2.
The respondents are granted leave to
defendant in respect of the applicants’ claims for rental and
charges for April 2020
and May 2020;
3.
The respondents are directed to pay the
costs of the application on the attorney and client scale.
A. DE WET
Acting Judge of the
High Court
Gauteng Local
Division, Johannesburg
Heard:
19 August 2021
Judgment:
13 September 2021
Applicant’s
Counsel:
Adv. J.F. Hoffman
Instructed
by:
Hadar Incorporated
Respondent’s
Counsel: Adv. R. Goslett
Instructed
by:
Dewey Hertzberg Levy Incorporated
[1]
The
general approach to and application of the amended
rule 32
was
considered in Tumileng Trading CC v National Security & Fire
(Pty) Ltd 2020 (6) SA 624 (WCC).
[2]
Standard
Bank of South Africa v Roestof
2004 (2) SA 492
(W) at 497F
[3]
Joob
Joob Investments (Pty) Ltd v Stocks Mavundla Zek Joint Venture 2009
(5) SA 1 (SCA)
[4]
1976
(2) SA 226
(T) at 228-229
[5]
1976
(1) SA 418 (A)
[6]
2014
(4) SA 220
(SCA) at par 15
[7]
2004
(3) SA 615 (SCA)
[8]
Also
see Eskom v Soweto City Council
1992 (2) SA 703
(W) at page 705F-I.
[9]
1985
(3) SA 106
(A) at 115
[10]
1919
AD 427
[11]
2020
(3) SA 210
(GJ) pars 13 and 14
[12]
793/2016
[2017] ZASCA
[13]
See
Breytenbach v Fiat SA (Edms) Bpk
supra
regarding the respondents’ obligation to set out fully their
defence as well the facts upon which they rely for such defence.
[14]
2016
(6) SA 540
(SCA)