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[2019] ZAGPPHC 67
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Redefine Retail (Pty) Ltd v Cuppaza Pazaz (Pty) Ltd and Another (2771/2018) [2019] ZAGPPHC 67 (15 February 2019)
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REPUBLIC OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
(1)
NOT REPORTABLE
(2)
NOT OF INTEREST TO OTHER JUDGES
(3)
REVISED
CASE NO: 2771/2018
15/2/2019
REDEFINE
RETAIL (PTY) LTD
Applicant
(Registration
no: 2012/079189/07
and
CUPPAZA
PAZAZ (PTY)
LTD
1
st
Respondent
(Registration
no: 2014/169146/07
JEANNETE
ENGELBRECHT
2
nd
Respondent
(Identity number
[….])
JUDGMENT
SKIBI
AJ
Introduction
[1] This is an
application where the applicant seeks a final relief against the
respondent for:
[1.1] Payment of the amount of
R94,468.21
towards arrear rental and ancillary charges;
[1.2] The immediate ejectment of
the 1st Respondent and all persons claiming occupation under it from
the
premises;
[1.3] An order making Annexure
"
E"
an order of court (Acknowledgement of debt)
[1.4] Interest at prime plus 2%
per annum a tempore morae on prayers1 & 3;
[1.5] Any further claims between
the parties postponed sine die;
[1.7] Costs on an attorney
client scale
[2] At the hearing counsel
for the applicant informed the court that the applicant is
no longer
seeking an order for ejectment in respect of prayer 2. It also moved
for an amendment of prayer 3 to read that an order
sought is to make
Annexure
"E"
an order of court. The application for
amendment was granted.
[3] The application is
opposed by the respondent.
Factual
background
[4] On or about 13
December 2016 at or near Klerksdorp the first respondent concluded
a
written Lease Agreement with the applicant for lease of the property
situated at shops number 116 and 116a, Matlosana Mall in
the North
West Province. The first respondent was duly represented by the 2nd
respondent. According to the terms of the agreement
the contract was
to commence on 1 October 2016 and terminate on 30 September 2019. The
parties agreed that the respondent was to
pay monthly rental to the
applicant in terms of the contract. Prior to the conclusion of the
Lease Agreement between the parties,
the first respondent occupied
the leased property and fell into arrears and it is alleged that the
applicant tried to assist the
first respondent and an acknowledgement
of debt was signed for an amount of R331,295.00 on 28 February 2017.
[5] In November 2017
the applicant instituted an action against the respondent at
Klerksdorp Magistrate court for payment of the amount of
R61,095.20
and ejectment which action was defended by the respondent. Whilst
the action was pending at Klerksdorp Magistrate's Court the applicant
launched an application in this court seeking the same prayers with a
revised amount of
R94,468.21,
ejectment as well as other
prayers set out above.
[6] It is alleged that
the first respondent fell into arrears of payment of the
amount
contained in the acknowledgment of debt and as well the rent which
amounts remain unpaid and the first respondent is in
breach. The
applicant alleges that the first respondent is indebted to the
applicant for arrear rental and related expenses in
the sum of
R94,468 .21.
Issues
[7] The
main issue for determination is whether the order sought can be
resolved
on papers where there is dispute of fact. The applicant's
argument is that there is no dispute of fact. The respondent, on the
other hand, argues that there is a dispute of fact which cannot be
resolved on papers.
[8] The
respondents raised three points in
limine
being:
(i)
lis pendens
;
(ii) a challenge of
the jurisdiction of this court to hear the matter; and
(iii) the authority of the applicant.
[9] The other issue
for determination is whether the applicant has made out a case
for
the order/s sought. However, due to the ruling made in respect of the
issue mentioned on paragraph 7 it will not be necessary
to deal with
this issue.
Law
[10] Rule 6(5)(g) of the
Uniform Rules of court deals with the situation where an application
cannot
properly be decided on affidavit. The rule provides that if
the material facts are in dispute and there is no request for the
hearing
of oral evidence, a final order will only be granted on
notice of motion if the facts as stated by the respondent together
with
the facts alleged by the applicant that are admitted by the
respondent, justify an order.
[1]
I will pause here for a moment and first deal with the
points in
limine
raised
by the respondent.
Lis
pendens
[11]
The
applicant contends that this issue has no merit and it should be
dismissed. The applicant's submission is that there is no pending
litigation at Klerksdorp as the said application was withdrawn on 10
April 2018, furthermore, the respondent was notified of such
withdrawal before they filed their answering affidavit.
[2]
[12] The respondent
on the other hand, contends that at the time the application was
launched
in this court on 18 January 2018 an action was pending at
Klerksdorp Magistrate' s Court and it was within their right to raise
the defence of pending litigation. Counsel for the respondent
concedes that the issue is not a defence any more.
[13]
I
am of the considered view that the concession is correctly made.
Accordingly, and the court finds that th
ere is no merit
in this point at the present moment and this defence stands to be
dismissed.
Jurisdiction
[14]
The
respondent raised an issue that this matter deserves the audience of
the lower court in that all the parties stay in Klerksdorp
and the
property in question is in Klerksdorp. The applicant's submission is
that it was within its right to bring the matter to
this court.
Counsel for the applicant contends that this application was filed in
January 2018 and it is only matters which were
instituted after the
29 of March 2018 which may not be adjudicated upon in this court in
terms of the Government Gazette
[3]
.
[15] The respondent's
contention is that summons was issued at Klerksdorp Magistrates'
court
from the onset but when the applicant was faced with the
special plea and to avoid the dismissal of this application, it
withdrew
the action in Klerksdorp and tendered costs. The applicant
argued that the court is seized with the matter now because it is
here
already and to take it back to the lower court would incur
further costs.
[16]
The
second issue regarding jurisdiction is that the value of the amount
claimed by the applicant falls within the jurisdiction of
the
magistrate's court and the matter ought to have been dealt with in
the Magistrates' court in Klerksdorp. The respondent in
his
contention relies on the full court decision of this court, the case
of
Nedbank
Limited v Thobejane and similar matters
[4]
in which this court
held that the court may
mero
motu
transfer
the matter to another other court if it is in the interest of justice
to do so.
[5]
In the instant case
there is no valid reason as why this matter was launched in this
court when it deserved the audience of the
Magistrate's court. The
argument by the applicant that the matter is before this court and it
should be adjudicated upon is not
good enough.
[17] In the
Thobejane
matter,
the full court held that if a party is of the view that a
matter falls within the jurisdiction of the Magistrate's Court and
that
it should be heard in this Court, an application must be
launched setting out reasonable grounds why the matter should be
heard
in this Court. Counsel for the applicant's counter argument is
that the full court issued a directive which refers to matters which
are instituted as from 2 February 2019 and that this matter was
already pending in this court when the judgment was delivered.
[18] At the time of
argument I am informed that this matter has been taken on appeal to
the Supreme
Court of Appeal but it is still pending. I agree that the
matter was already launched in this court and that the order says the
matters instituted after 2 February 2019. The court finds that at the
time this application was launched it had a concurrent jurisdiction
to hear the matter.
Authority
[19] This point has not been
persisted with during the oral arguments. It can be inferred that the
respondent
is no longer persisting with it. However, the court needs
to make a determination on the matter. This point has been addressed
by counsel for the applicant and from the papers filed, I am of the
view that the deponent of the founding affidavit had the necessary
authority
[6]
to depose to the affidavit. The court is of the view
that this point raised regarding the authority of Ms Erasmus who
deposed to
the applicant's founding affidavit has no merit. The
challenge of the authority of the deponent of the founding affidavit
is dismissed.
The respondent's factual dispute of fact
[20]
The respondents contend that:
(i) a factual dispute of
fact exists regarding the indebtedness towards the applicant;
(ii) the legality of the
acknowledgment of debt is placed in dispute;
(iii) the certificate of balance is
totally late, flawed and in contradiction of the applicant's
own
claim;
(iv) the applicant from time to time
collected rental in cash, the amount of which is in dispute;
(v) that a dispute arose as a
result of a faulty electricity statement, thereby disputing the
amount owed. This was inclusive of second electricity point.
Arrears
[21] The respondent in its affidavit
dispute being in arrears and alleges that the first respondent
was
never in arrears with monthly rental
[7]
.
They also state that arrears began as a result of a high electricity
bill which was not the respondent's fault
[8]
. The first respondent also alleges that it was up to date with
rental payment amounts.
[9]
However, in sharp contrast with the allegation stated above, the
first respondent alleges that, if it was not for the applicant
who
spoliated the first respondent,...
"there would not have been
any outstanding amounts
[10]
."
The second respondent confirms in the email dated 20 June 2017,
that she could only make partial payment and she requested an
extension
to make full payment. The said email has been attached and
forms part of the record
[11]
.
[22] There is an email correspondence
dated 17 October 2017 between the second respondent and Mr
Olwage, a
representative of the applicant. The importance of this email is the
unconditional confirmation that the first respondent
is in arrears
with rent and that the purchase price would include the current
rental.
The second respondent refers to the amount of R300
000.00 outstanding in the acknowledgment of debt and mentions that
the arrangement
would be reviewed in February 2018.
The email reads
[12]
:
""Die koop prys wat sy tanswil
betaal sluit die
huidiqe
aqterstalllliqe huur
in. Ek kan net
nie die
R300.000
ook
in bereking bring... in the
dokumentasie
en korrespondensie het hulle daarna verwys dat die bedraq en reeling
hersien sal word in Feb 2018..."
[23] It is based on these
contradictions of the version of the respondents the applicant argues
that the dispute raised is not genuine but is a fictitious dispute of
fact. At one stage the respondent admits having been in arrears
with
rental payment. Another there is an allegation of the arrangement to
be revised in February 2018.
[24] The electricity account is also in
dispute. In terms of the Lease Agreement, there is a provision
which
states that the second respondent will be held liable for all
municipal charges including and without the limitation of the
electricity.
[13]
It is confirmed by the respondents that after receiving a higher
electricity account than was expected, they were informed that
there
was a circuit breaker (meter) and it was not connected.
[14]
The respondents confirm in their papers that the applicant informed
them that they would remain liable for the circuit breaker
to which
the respondent accepted that it was, however, they requested more
time to make payment
[15]
.
[25] The respondents state the arrears
started as a result of the higher electricity account during
August
2017.
[16]
On 17 October 2017 the second respondent confirms that the purchase
price includes the current outstanding arrear rental. The second
respondent does not dispute the arrears in the correspondence, she
confirms that the first respondent is in arrears.
[17]
It is the applicant's argument that the first respondent remains
liable for the electricity, the terms of the lease agreement are
binding.
[26] The applicant argues that the
version of the respondent has bare denials and nowhere in the
opposing affidavit, or email correspondence was it contested that
rental was collected, was not all accounted for. The applicant
provided slips for all the cash collected. It is on this basis that
the applicant argues that the version of the respondent regarding
unexpected visits and allegation of taking all the cash is simply
unsubstantiated. The court accepts the argument by the applicant
on
this point.
Acknowledgment
of debt
[27] The version of the respondent on
this point is so improbably that it cannot be reasonable possibly
be
true. The respondents in the opposing affidavit which led up to the
signing of the Acknowledgement of Debt is alleged to have
been signed
under duress. It is alleged that in June 2017 the applicant's
representative, Mr Olwage was unhappy with the respondents
conduct as
the result of that being that Mr Olwage would make unexpected visits,
without prior notice or arrangements and would
take all the funds in
the first respondent's cash register.
[28] During July 2017 the
respondent received a substantially higher electricity account.
[18]
During September 2017 the second respondent informed the
applicant that she obtained a purchaser for the first respondent and
enquired
as to the process to be followed. She alleged that two days
after her inquiry Mr Olwage made unfounded personal remarks towards
her children and family. On 20 October 2017 the respondents received
a notice of termination of the lease agreement and a letter
of
demand.
[19]
It is alleged that as a result of the events set out
above from June to September, the acknowledgement of debt was signed
under
duress. This is so improbably that it cannot be true defence
that threats which allegedly occurred in October 2017 could have
induced
the signing of the acknowledgment of debt which took place on
20 February 2017.
[29] Counsel for the applicant
contends that the Acknowledgment of Debt's, validity was never
in
dispute, notwithstanding the argument in the opposing affidavit and
in court that it was signed under duress.
Certificate
of balance
[30] The respondents argue that
the certificate of balance is totally late, flawed (due to being
signed and it is not properly dated) and in contradiction of the
applicant's own statement.
The applicant concedes that the certificate of balance
is not dated. It contends that it is clear that it was done after the
issue
of the application and simultaneously with the replying
affidavit. The applicant further contends that the certificate of
balance
was signed in May 2018 but submit that that they do not rely
on the certificate of balance to prove the arrear amount, but it is
merely attached to indicate that at the time of the preparation of
the replying affidavit, the arrears were escalating even further.
The
court is of the view that the respondent argument on this point has
merit. The certificate of balance is flawed. Paragraph
2 thereof,
states that the interest will start running from the date of
signature but there is no date recorded on it.
[31] The amount claimed as
reflected in prayer 1 was calculated on the date of founding
affidavit
and finds corroboration with the Tenant/Debtor List
[20]
which forms part of the record. This list clearly shows the breakdown
of the amount and shows how the amount claimed was arrived
at. The
dispute still remains as to how much was owed and is due to the
applicant on the date of termination of the lease agreement
(on 20
October 2017).
[32] The applicant argues that in
terms of the Acknowledgment of Debt, an amount of R331 295,00
is
outstanding together with the amount as per the certificate of
balance in the sum of R94 469.21 as well as a portion of the
rent for
the month of May when the replying affidavit was filed.
The
applicant's claim R94 468.21
[33] On the face of it , there might
merit on the argument by the applicant that the first respondent
is
liable to pay turnover and electricity charges in terms of the lease
agreement. It is clear that in October 2017 the Respondents
confirmed
its indebtedness in the email.
[21]
It is further clear that from the Tenant/Debtor Transactions list as
of Novem
b
er 2017 the Respondent was in arrears in the amount
of
R61 095.20
[22]
.
[34] The respondent's contention
is that on 20 October 2017, on the date of termination of the lease
agreement
the amount owed and due was
R37 304.98,
while the
security deposit
(R47, 138.00)
was available to the applicant
on a mere request from the bank. I will quote the relevant paragraph
in the respondents' answering
affidavit: -
"There was an
agreement reached between the Applicant and Respondent on 20 October
2017 confirming that the lease agreement
would be terminated and the
Respondents vacate the premises by no later than 30 November 2017,
which was confirmed by myself in
writing by way of an e-mail dated 23
October 2017. A copy of the e-mail is attached hereto as annexure
"C".
However, the Olwage and Rudi Joubert threatened
myself and the employees of the 1st Respondent when we wished to
remove the equipment
and vacate the premises. This prevented the
premises from being vacated when the alleged outstanding rental was
approximately R37
304.98
as
stipulated in
"
transaction
report dated 26 October 2017 attached
as
annexure
"D".
At inception of the lease agreement, the guarantees issued
amount of R47 138.00 and attached proof of the
ABSA
guarantee
as annexure "E". This is without interest accumulated.
Therefore, there would have been no outstanding amount
leaving a
credit payable to the 1
st
Respondent.
The
contents of this paragraph are therefore denied
[23]
."
(underlined own emphases).
[35] The amount of indebtedness of the
applicant and the respondent as at October 2017 are not the
same.
When one looks at Annexure
" G"
indeed in October the
amount owed was the amount as stated by the respondent. However, in
November 2017 the amount had escalated
to
R61 095.20.
There is
still a dispute as to the amount owed as at October 2017 being the
date of termination of the lease. The applicant says
the amount due
was
R61 095.20
and on the respondent on the other hand, says
the amount which was due and payable to the applicant was
R37
304.98.
The respondent further states that there was a security
guarantee issued in the sum of
R47 138.00
which was available
to the applicant on a mere request to the bank.
Dispute of fact and the law
[36] A fact is said to be in dispute
when it is alleged by one party and denied by the other, and
by both
with some show of reason. A mere allegation, without evidence, or
against the evidence cannot create a dispute within the
meaning of
the law.
[37] In motion proceedings the
affidavits constitute both pleadings and evidence and the issues and
averments in support of the parties' case must appear clearly
therefrom. It is trite that the applicant in application proceedings
must make out his or her case in the founding affidavit. A litigant
should not be allowed to try and make out a case in the replying
affidavit.
[38] A real and genuine dispute of fact
can exist only where the court is satisfied that the party
who
purports to raise the dispute has in his affidavit seriously and
unambiguously addressed the fact said to be disputed.
[39] A judge hearing the application
will be faced with the following choices which must be decided
upon
in a judicious manner:
(i) dismiss the
application if the applicant foresaw or ought reasonably to have
foreseen, before initiation of proceedings that a dispute of fact
would arise;
(ii) refer the oral dispute
to oral evidence if it can be disposed of speedily and without
any
other issues in the matter;
(iii) refer the entire
matter for trial and order that the notice of motion stand as a
simple summons, the founding affidavit stand as the declaration and
the answering affidavit stand as the plea and make any other
order
relating to the conduct of the proceedings as a trial.
[40] As far back as 1949 in the matter
of
Room Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd
[24]
the courts have held that the crucial question is whether there is a
real dispute of fact. Disputes of fact arise when-
(i) the
respondent denies allegations made in the applicant's affidavit and
further
produces positive evidence to the contrary in the answering
affidavit;
(ii) the
respondent admits the allegations in the applicant's founding
affidavit
but alleges additional facts and evidence which the
applicant disputes;
(iii) the
respondent alleges that he has no knowledge of the averments in the
applicant's
affidavit and puts him to the proof thereof;
(iv)
the
respondent alleges that he can lead no evidence to dispute the truth
of the applicant's averments and puts the applicant to
the proof
thereof by oral evidence and subject to cross-
examination.
[41] In the matter on hand the
respondent raised as a point in
limine
in her affidavit that
the applicants made an application to this court whilst there is a
material dispute of fact as to the amount
of indebtedness seems to be
in dispute and this court is unable to resolve the issue on paper.
The applicant knew, prior to the
institution of the High Court
application, that the respondents are going to dispute the claim and
indebtedness, yet it proceeded
to bring the application to this
Court. When the matter was moved to this court from the lower court
it changed its colour, came
by way of motion proceedings whereas in
the Magistrate Court it was brought by way of an action despite the
all the risks in motion
the matter by application where the applicant
foresaw dispute of fact.
[42] After a thorough reading of
the papers' and hearing the submissions of the respective parties,
I
am of the considered view that there is indeed a material dispute of
fact which the applicant should have foreseen especially
in light of
the papers which had been exchanged between his attorneys and the
respondent's attorneys of record before the litigation
was commenced.
Accordingly, the applicant should not have proceeded on application
proceedings but proceeded to trial.
[43] In the premises, I order
that the application be dismissed with costs.
SKIBI
AJ
ACTING
JUDGE OF TH HIGH COURT
GAUTENG
DIVISION, PRETORIA
Heard
on
:
5 February 2019
Judgment
delivered
:
15 February 2019
APPEARANCES
For
the Applicant
:
Adv.J Vorster
Instructing Attorneys,
Maree Attorneys, PRETORIA
For the
Respondent
:
Adv. A.M Viviers
Counsel for the Respondent
Instructing Attorneys
Theron Jordan & Smit,
KLERKSDORP
C/o
Stopforth, Swanepoel & Brewis Inc,
Arcadia,
PRETORIA
[1]
Erasmus: Superior Court Practice Volume 2 01-69
[2]
Record, Bundle 2
page
145
[3]
No 408, Dated 29 March 2018 (determination of the Area of
Jurisdiction of the Gauteng and North West Division of the High
Court
of South Africa in terms of
section 6
(3) (a) of the
Superior
Courts Act 10 of 2013
[4]
2019 (1) SA 594
(GP) at para [91] & [92]
[5]
Thobejane full court case at para [92]
[6]
Record page 4 of Cornelius Erasmus was given necessary authority by
the Board of Directors in terms of the resolution at page
12 of the
record
[7]
Page 108 para 13.2
[8]
Page
109 para 13.12
[9]
Page 110 para 13.13
[10]
Page 111 para 14
[11]
Annexure F to replying affidavit
[12]
Annexure F at page 15 7 of the record
[13]
Annexure C, Lease Agreement, clause 11.2.8.1.2.2. at page 24 of the
record
[14]
Page 109 at para 13.5, 13.8 of the Opposing affidavit
[15]
Opposing affidavit at page 109 para 13.9 and 13.10
[16]
Opposing affidavit page 109 para 13.11 and 13.12
[17]
Page
157
email
correspondence
[18]
Page 108 Opposing affidavit para 13.3 and 13.4
[19]
Record
page
110 para 13.17
[20]
Page 88 of the record
[21]
Page 157
[22]
Annexure G page 88
[23]
Paragraph 15 of the 2n d Respondent's Answering Affidavit at page
111 of the record
[24]
1949
(3) SA
1155
(T)