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[2019] ZAGPPHC 32
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Dempsey and Another v Kideo Ark (PTY) LTD and Others (23299/2018) [2019] ZAGPPHC 32 (13 February 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE
NO. 23299/2018
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
DATE:13/2/2019
In
the matter between: -
ZETA
DEMPSEY
FIRST PLAINTIFF
HERMANUS
PETRUS DEMPSEY
SECOND PLAINTIFF
AND
KIDEO
ARK (PTY) LTD
FIRST DEFENDANT
ANTON
GERRIT VAN ROOYEN
SECOND DEFENDANT
ELIZABETH
JOHANNA VAN ROOYEN
THIRD DEFENDANT
JUDGMENT
GWALAAJ
1.
The plaintiffs instituted an action
against the defendants in which they claim payment of the sums of R
270, 000.00 and R 53, 000.00
in respect of claims A and B,
respectively. The action is based on the alleged breach of contract.
The
defendants filed an exception to the plaintiffs' particulars of claim
on basis thereof that the particulars of claim lack averments
necessary to sustain a cause of action. The plaintiffs opposed the
exception.
2.
The upshot of the allegations made in
the plaintiffs' particulars of claim are,
inter
alia,
the following: that on 19
October 2015 and at Boksburg they entered into a written lease
agreement (''lease agreement") with
the first defendant who, at
the time of conclusion thereof, was represented by the second and the
third defendants; that the plaintiffs
leased a certain property
situated at No 9A sett Street, Boksburg West, Johannesburg (the
property) to the first defendant, that
the first defendant agreed to
pay rent in the sum of R53, 000.00, payable monthly in advance; that
the first defendant would return
the property in good condition at
the end of the lease agreement, fair wear and tear excepted; that the
lease agreement would terminate
on 30 November 2020; that the first
defendant took occupation of the property during March 2016.
3.
The plaintiffs alleged that the lease
agreement was subject to a suspensive condition that Anton Geritt Van
Rooyen and Elizabeth
Johanna Van Rooyen, the second and third
respondents, respectively bound themselves to the lessor as surety
and co-principal debtors
for all obligations of the lessee to the
lessor under the lease agreement as well as those arising in
consequence of any termination
thereof.
4.
The
plaintiffs further alleged that the defendants prematurely terminated
the lease agreement in that on 02 February 2017, the defendants
gave
their notice of intention to terminate the lease agreement. The
termination would be effective from 30 April 2017, the date
on which
the first defendant eventually vacated the property. The plaintiffs
did not accept the early termination of the lease
agreement. They
contend that despite vacating the property, the defendants remained
liable for rent until the date a new tenant
was secured. Apparently,
the new tenant was secured and took occupation of the property with
effect from 01 June 2017 and in view
thereof, the plaintiffs claim
payment of the sum of R53, 000.00 for rental due for the month of May
2017.
5.
The plaintiffs further claim payment of
the sum of R270, 000.00. For this claim it is alleged that the
defendants caused some damages
to the property. As a result of these
damages, the plaintiffs sold the property at a reduced price. It is
alleged that the property
was sold less R200, 000.00 than its market
value.
6.
Lastly, the plaintiffs alleged that
prior to the transfer of the property in December 2017, the purchase
who took occupation thereof
with effect from 01 June 2017, paid
occupational rent at a reduced amount in the sum of R40, 000.00
instead of the market related
amount of R53, 000.00 per month. This
too was alleged to be as a result of damages allegedly caused to the
property by the defendants.
7.
As a result of the reduction in the
rental amount, so it is alleged, the plaintiffs suffered damages in
the sum of R70, 000.00 hence
the claim of R270,000.00.
8.
Essentially, there are three
grounds of exception raised by the defendants.
These
are:- first, that the second plaintiff lacked the requisite
locus
standi;
second, that the plaintiffs' particulars of claim do not
make any allegation that the suspensive condition contained in the
lease
agreement was fulfilled; and, third, that whilst the plaintiffs
allege that the second and third defendants bound themselves as
surety and co-principal debtors to the first defendant in favour of
the plaintiffs, the plaintiffs did not attach to their particulars
of
claim a written document signed by or on behalf of the second and
third defendant containing the terms of the contract of suretyship
as
contemplated in tenTts of Section 6 of the General Law Amendment Act
50 of 1956 as amended.
9.
I will deal first with the first ground
of exception. The defendants contend that the second plaintiff was
not a party to the lease
agreement upon which the claim is founded.
On that basis, there is no privity of contract between the second
plaintiff and the
first defendant. Therefore, the second plaintiff
does not have a claim against the defendants and may not sue based on
the lease
agreement to which he is not a party.
10.
In essence, in respect of the first
ground of exception the defendants' argument is that the second
plaintiff may not enforce the
terms of the lease agreement in court.
He may claim any relief based on the lease agreement because it does
not create any right
for him since he is not a party thereto.
11.
The approach to exception in which it is
claimed that the impugned pleading does not sustain a cause of action
is well established.
The court is to take as true the allegations
pleaded by the respondent and to assess whether they disclose a cause
of action. A
cause of action, in the case of a plaintiff, comprises –
'every
fact which it would be necessary for the plaintiff to prove, if
traversed, in order to support his right to the judgment
of the
Court. It does not comprise every piece of evidence which is
necessary to prove each fact, but every fact which is necessary
to be
proved.'
[1]
12.
To
succeed in a no cause of action exception the excipient must
demonstrate that on every reasonable interpretation of the pleading,
and assuming all the pleaded allegations to be true, no cause of
action is made out upon which judgment could be granted in favour
of
the plaintiff.
[2]
13.
When
considering whether an exception should be upheld the pleadings are
considered as a whole and one does not read paragraphs
in
isolation.
[3]
For purposes of
exception facts pleaded must be taken as correct.
[4]
14.
In this matter it is common cause that
the second plaintiff did not sign the lease agreement. Same was
entered into between the
first plaintiff and the first defendant duly
represented by the second and third defendant.
15.
In its introductory clause the lease
agreement states that:
"Agreement
of Lease entered into by and between Zeta Dempsey ID No...
from:
8
tenth Street Boksburg North
who
confirms that she is authorised to enter into this agreement by her
husband and co-owner of the property, Hermanus Petrus Dempsey
(herein
after referred to as the "LESSOR'?
And
Kideo
Ark (Pty) Ltd.
REG.
No. 2014/286033/07
From:
9A
Sett Street Boksburg West Herein duly represented by:-
Antony
Van Rooyen and Elizabeth Van Rooyen
Who
confirm that they are authorised to enter into this agreement (herein
after referred to as the "LESSEE}
16.
The lease agreement was signed on
behalf of the first defendant by AG Van Rooyen and EJ Van Rooyen who
signed in their respective
capacities as
"
DIRECTOR, SURETY, AND CO-PRINCIPAL DEBTOR{S] ON BEHALF OF THE
LESSEE".
17.
Locus
standi
is
indeed one of the most fundamental requirements for any legal action
undertaken. It is basically the right to institute action.,
It
relates to the right or legal capacity of a party to sue or be sued,
or a party's right to make a legal claim or seek judicial
enforcement
of a duty or a right.
[5]
18.
A
person who claims relief from a court in respect of any matter must,
as a general rule, establish that he has a direct interest
in that
matter in order to acquire the necessary right or standing to seek
such relief.
[6]
19.
The test for determining locus standi
was explained by the court in United
Watch
and Diamond (Pty) Ltd v Disa Hotels Ltd
[7]
as follows;
"to
establish that one has locus standi in judicio, one must show,...
that he has an interest in the subject matter of the
judgment or
order sufficiently direct or substantial...
"
20.
As already pointed out the plaintiffs'
claim is that the first defendant breached the lease agreement in
that,
inter alia,
it
did not return the property in good condition. As a result thereof
they suffered damages such as the reduction in the purchase
price and
the occupational rental as well as the early termination of the lease
agreement resulted in them losing rental for the
month of May 2017.
All these claims are based on the alleged breach of the lease
agreement of which the second plaintiff was not
a party.
21.
The plaintiffs submit that the second
plaintiff, as a co-owner of the property, has a direct and
substantial interest in the matter
and therefore was properly cited
as a necessary party in this litigation. They submit further that
because of the reduction in
purchase price and occupational rent,
which were as a direct result of the damages allegedly cause to the
property by the defendants,
the second plaintiff has suffered a
direct financial loss. Therefore, so the argument goes, he has an
interest as a person who
was impacted upon directly by these factors.
22.
The argument on behalf of the second
plaintiff that he has
locus standi
because he is a co-owner of the
property and that he equally suffered loss with the first plaintiff
as a result of the damages allegedly
caused to the property is not
helpful for purposes of this exception. It does not go to the heart
of the complaint by the defendants.
The difficulty with the
plaintiffs' argument is that the basis upon which it said that the
second plaintiff has a direct and substantial
interest in the matter
is not pleaded anywhere in the particulars of claim.
23.
Whilst
the second plaintiff may have some or other claim against the
defendants in relation to the property, such claim may not
be founded
on the lease agreement. The second plaintiff was indeed not a party
to the lease agreement. The doctrine of privity
of contract does not
permit a situation where parties who are not privy to a contract to
sue based on the contract they are not
privy to.
[8]
24.
From the allegations as pleaded in the
particulars of claim in this action the plaintiffs seek to enforce
right in terms of the
lease agreement. There is no other basis for
the claim pleaded. Since the second plaintiff was not a party to the
lease agreement,
he has no right to enforce under that agreement.
Consequently, I will uphold the exception in this regard.
25.
The defendants submitted that the second
plaintiffs claim should be dismissed with costs. I am not convinced
with this submission.
At the very least it does appear from the lease
agreement that the plaintiffs are married to one another. On that
basis notwithstanding
that it has not been pleaded, the second
plaintiff would have some or other interest in the matter. It would
be too drastic to
dismiss his claim at this stage. Such a move will
close the doors of the court on his face. It is indeed in order, and
I intend
to do so, to give the second plaintiff an
opportunity, if so advised, to amend
the particulars of claim to demonstrate the interest he may
have in the subject matter. I am thus of the view that the usual
order normally granted in cases of exceptions be granted in this
matter as well.
26.
The second and third ground of exception
may be dealt with at once. They relate basically to the suretyship.
The attack being that,
first, the plaintiffs' particulars of claim
lack an allegation that the suspensive condition contained in the
lease agreement was
fulfilled and, second, that a copy of the
suretyship agreement was not attached to the particulars of claim.
27.
Clause 20 of the lease agreement which
is attached to the particulars of claim provides as follows:
"20
SURETYSHIP: -
The
lease
is
subject to the suspensive condition that Anton Gerritt Van Rooyen
ID... and Elizabeth Johanna Van Rooyen ID... bound themselves
to
the
LESSOR
as
surety
and co-principal debtor for all the obligations of the
LESSEE
to the LESSOR under this lease, as
well
as
those
arising in consequence of any termination thereof'.
28.
In paragraphs 31 (for claim A) and 41
(for claim B) of the particulars of claim, the plaintiffs allege that
the second and third
defendants bound themselves as surety and
co-principal debtors of the first defendant in favour of the
plaintiffs. Of cause, in
view of the finding that the second
plaintiff was not a party to the lease agreement, the second and
third defendant could only
bind themselves as surety and co-principal
debtors in favour of the first plaintiff only.
29.
It seems to me that the allegations made
in paragraphs 31 and 41 of the particulars of claim are sufficient to
plead fulfilment
of the suspensive condition of the lease agreement
and nothing more needs to be pleaded. I find thereof that the
plaintiffs did
allege the fulfilment of the suspensive condition of
the lease agreement.
30.
The lease agreement was signed by AG Van
Rooyen and EJ Van Rooyen.
They
state that they were signing the lease agreement in their capacities
as,
inter alia,
surety and co-principal debtors on behalf of
the lessee. The suretyship agreement was embodied in the very lease
agreement under
clause 20 thereof. As the lease agreement is attached
to the particulars of claim, so is the suretyship agreement since it
forms
part of the very same lease agreement. It is an acceptable
practice that the suretyship agreement is often embodied in the main
or principal agreement as it is the case in this matter.
31.
Accordingly, I am of the view that the
plaintiffs did plead compliance with the suspensive condition and
that the suretyship agreement
is attached to the particulars of claim
as part of the lease agreement. There is no merit therefore in the
second and third grounds
of exception and they cannot be upheld.
32.
As with regard to the first ground of
exception, I have already found that the particulars of claims lack
averments necessary to
sustain a cause of action for the second
plaintiff only and that the plaintiffs should be given an opportunity
to amend their particulars
of claim, if so advised. Consequently, in
respect of the first ground of exception, the exception shall be
upheld. In respect of
the second and third grounds of exception, the
exception shall be dismissed.
33.
This brings me to the question of costs.
The defendants are indeed partially successful in so far as the first
ground of exception
is concerned. The plaintiffs, however, are
equally successful in their opposition in so far as the second and
third grounds of
exception are concerned. If I were to award costs, I
would award costs for the defendants in respect of the first ground
of exception
and, in turn, award costs to the plaintiffs in respect
of the second and third grounds of exception in respect of which they
are
successful. These costs should ordinarily cancel each other.
34.
In
the exercise of my discretion I am of the view that the appropriate
order regarding costs should be that each party should pay
its own
costs.
35.
In the circumstances I make the
following order: -
35.1
The exception on the ground that the
second plaintiff does not have locus standi is upheld.
35.2
The plaintiffs are given an opportunity
to amend the particulars of claim, if so advised, within 15 days of
this order.
35.3
The remainder of the exceptions are
dismissed.
35.4
Each party to pay its own costs.
M.
Gwala AJ
Acting
Judge of the High Court of South Africa
Gauteng
Division, Pretoria
Appearances:
For
the Plaintiff: Adv R Carvalheira
Instructed
by:
Hammond Pole Majole Attorneys
For
the Defendant: Adv CA Boonzaaier
Instructed
by:
Venter Attorneys
Date
of Hearing: 16 November 2018
Date
of Judgment: 13 February 2019
[1]
See: Stolts
v
Garliecke
and Bousfleld 2012(4) SA 415 at 421 para 10 H-422A
[2]
See: Lewis
v
Oneanate
(Pty) Ltd 1992{4) SA 811 (A) at 817F; SEE ALSO: First national Bank
of South Africa Ltd
v
Perry
NO and Others 2001(3) SA 960 at 965 para 6. See also Erasmus
Superior Court Practice at 01-295.
[3]
See: Net NNO v McArthur
2003 (4) SA 142
(T} at 149 F; See Also
Erasmus Superior Court Practice at 01-295
[4]
See: Michael v Caroline's Frozen Yoghurt Parlour {Pty) Ltd1999(1) SA
62.4 (W) at 632C-O; Robinowitz v Van Graan
2013(5) SA 315 (GSJ} para.6
[5]
Black's Law Dictionary (7th edition) 1999
[6]
Cabinet ofTransltional Government for Territory of South west Africa
v Eins (522/86)
[1988] ZASCA 32
; [1988) 2 AU SA 379 (A) (30 March
1988)
[7]
1972 (4) SA 409
(C) at 415A
[8]
Cosira Developments (Pty) Ltd v Sam Lubbe Investments CC t/a Lubbe
Construction and Others 2011 (6}SA 331 (GSJ)
para
11 and 14