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[2018] ZAGPPHC 776
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Business Venture Investments NO 1360 (Pty) Ltd v Soft Coffee (Pty) Ltd t/a Hard Rock Cafe and Others (57868/17) [2018] ZAGPPHC 776 (23 February 2018)
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
(1)
NOT REPORTABLE
(2)
NOT OF INTEREST TO
OTHER JUDGES
(3)
REVISED
CASE
NO: 57868/17
23/2/2018
In
the matter between:-
BUSINESS VENTURE
INVESTMENTS NO. 1360 (PTY) LTD
Applicant
And
SOFT
COFFEE (PTY) LTD T/A HARD ROCK
CAFÉ
1
st
Respondent
DOMENICO
PICONE
2
ND
Respondent
SASSI
JEAN
3
rd
Respondent
YARON
ASAYAG
4
th
Respondent
JUDGMENT
MSIMEKI
J
[1]
This
is a Summary Judgement application by the plaintiff against the
defendants. I shall refer to the parties as such. The Summary
Judgement application is opposed.
[2]
The
plaintiff instituted an action against the first up to the fourth
defendants see king payment in the amount of R343 914, 76;
interest
thereon to be calculated at the rate of 10.25% per annum a tempore
morae; confirmation of cancellation of the lease agreement;
eviction
of the first and or any other occupant from the premises;
postponement sine die of the plaintiff's damages and costs on
an
attorney and client scale.
[3]
The
defendants entered their appearance to defend the plaintiff's action.
The plain tiff then brought an application for summary
judgement
based on its particulars of claim dated 16 August 2017 and on the
basis that the defendants had no bona fide defence
to its a c t ion
and that their notice to defend had been delivered solely for the
purpose of delay. The first to fourth defendants
served and filed an
affidavit resisting summary judgement on 27 October 2017 and 30
October 2017, respectively.
[4]
The
affidavit resisting summary judgement, seemingly, caused the
plaintiff to remove and re-enrol the application for hearing on
18
January 2018. This was done by notice of set down served on 1O
November 2017.
[5]
The
plaintiff, in the meantime, on 13 December 2017, delivered a Notice
in terms of Uniform Rule 28(1). The plaintiff intended to
amend its
particulars of claim in its entirety and substituting it with the
particulars of claim that were attached to the aforesaid
notice.
[6]
The
defendants contend that the plaintiff's delivery of the notice
referred to in paragraph 5 above, after it opposed summary judgement,
renders the application for summary judgement incompetent and
non-compliant with the Uniform Rules of Court.
[7]
I
need to mention that the application for summary judgement was based
on the plaintiff's particulars of claim dated 16 August 2017,
the
unamended particulars of claim .
[8]
The
defendants, in their affidavit resisting summary judgement
application, contend that they have a bona fide defence in the action
and that their Notice of Intention to defend was not delivered solely
for the purpose of delay.
[9]
It
is significant to mention that the action is based on the lease
agreement entered into by and between Menlyn Park Shopping Centre
and
Business Venture Investments No 1360 (PH) LTD referred to in the
lease agreement as the "Landlord " and Soft Coffee
(PTY)
LTD referred to in the lease agreement as the Tenant (first
defendant) on 8 July 2015.
[10] The
second up to the fourth defendants are parties in the action in that
they signed a Deed
of Suretyship binding themselves as sureties and
co- principal debtors jointly and severally in solidum to the
plaintiff for the
due and proper fulfilment of all the obligations of
the first defendant arising from or out of or in terms of the
agreement renouncing
all the necessary benefits.
[11] The
plaintiff contends that it complied with all its obligations in terms
of the agreement.
It further contends that the first defendant
materially breached the terms of the lease agreement by failing and /
or refusing
to make payments to it as and when such payments became
due in terms of the agreement. The payments said to be due, owing and
payable
are said to amount to R343 914,76. The plaintiff, further,
alleges that it has elected to cancel the lease agreement.
[12]
The plaintiff, in its particulars of claim, refers to Tyrone Harding
as the fifth defendant.
It, however, does not cite Tyrone Harding as
the fifth defendant in the summons.
[13]
The
plaintiff, in the particulars of claim, further, alleges that the
second up to the fifth defendants, despite demand, have failed
and
/or refused to pay the amount of R343 914, 76 or any amount which the
first defendant has failed to pay to the plaintiff.
[14]
Th e defendants raised the issue of non
-joinder of Old Mutual, one o f the land lords in the lease
agreement. The plaintiff filed
a Notice of Intention to Amend its
particulars of claim to deal with the issues raised in the affidavit
resisting the summary judgement
application. The plaintiff contends
that the defendants did not object to the proposed amendment and that
it subsequently filed
the amended pages appearing on page 274 to 288
of the paginated papers.
[15] The
plaintiff also filed an amended affidavit in support of the summary
judgement application
confirming the cause of action and amount
claimed as per the amended particulars of claim. The amended
affidavit in support of
the application for summary judgement is
dated 3 January 2018.
[16]
The
defendants, rep resented by Adv. U Lettering, (Ms Lettering), contend
that the application for summary judgement has become
incompetent in
that the plaintiff amended its particulars of claim and the affidavit
in support of the application while the application
is based on the
unamended particulars of claim. Said otherwise , it is the
defendants' contention that the plaintiff was not entitled
to amend
its particulars of claim .
[17]
The
plaintiff sees the issues raised by the defendants as technical
defences as the amendments, in its view , do not generate and
cause
any prejudice to the defendants.
[18]
The
non -inclusion of the fifth defendant in the summons is again seen by
the plaintiff which is represented by Adv GT Avvakoumides
(Mr
Avvakoumides) as a technical defence which can be condoned.
[19]
On 12 January 2018 the defendants served
their notice of objection in terms of Rule 30(A) (1). The notice was
filed on 15 January
2018. Defendants' Notice of objection in terms of
Uniform Rule 30(2) (b) was handed up to the court when the
application for summary
judgement application was argued. Ms
Lettering submitted that Rule 30 A (1) and 30 (2) (b) had to be
adjudicated upon before the
summary judgement application was heard.
Mr Avvokoumides disagreed, submitting that the summary judgement had
been argued, anyway.
His submission has merit.
[20]
The defendants, in their Rule 30 A (1)
Notice, contend that the plaintiff's application amounts to
non-compliance with the Uniform
Rules as envisaged by Uniform Rule
30A. The grounds for the defendant's objection are set out in the
Rule 30(A) (1) Notice.
[21]
The
defendants, in their Ru le 30(2) (b) Notice contend that the
plaintiff 's amended affidavit in support of the application for
summary judgement by
Matibane Olive
Ndebele dated 3 January 2018,
constitutes
an irregularityy as contemplated by Uniform Rule 30. The reasons for
the contention are set out in the Rule 30(2) (b)
Notice.
[22]
The
defendants in the Rule 30(A)
(
1)
Notice threatened to bring an application to have the summary
judgement application struck out and that the plaintiff be ordered
to
pay the costs of the application on a punitive scale unless the
grounds of objection mentioned in the notice were removed within
10
(Ten) days of the delivery of the notice.
[23]
In
the Rule 30 (2) (b l No tic e, the defendants threatened to set the
irregularity aside unless the plaintiff removed the grounds
of
complaint mentioned in the notice within 10 (Ten) days of delivery of
the notice.
THE ISSUES
[24]
The issues to be determined are:
1.
Whether
the summary judgement application needs to be stayed pending the
adjudication of Rule 30 A (i) and Rule 30(2) (b) applications.
2.
Whether
the amendment of the particulars of claim and the affidavit in
support of the summary judgement application has rendered
the summary
judgement application incompetent and thereby resulting in the
defendants being entitled to leave to defend the plaintiff's
action
against them.
[25]
Rule 32 is key to the determination of
the issue s.
Rule 32(1) provides:
"32 Summary Judgement
(1)
Where
the defendant has delivered notice of intention to defend, the
plaintiff may apply to court for
summary
judgement on each
of such
claims
in the summons
as
is only-
(a)
On
a
liquid document;
(b)
For
a
liquidated
amount
in money;
(c)
For delivery of specified movable
property; or
(d)
For ejectment
Together with any claim for
interest
and
costs"
Rule 32(2) provides:
(2)
The
plaintiff shall wit in 15 days after the date of delivery of notice
of intention to defend, deliver notice of application for
summary
judgement, together with an affidavit made by himself or by any other
person who can swear positively to the facts verifying
the
cause
of
action
and
the
amount,
if any,
claimed and stating that
in
his
opinion there
is
no bona
fide
defence to
the action and that notice of intention to defend has been delivered
solely for the purpose of delay.
If the claim is
founded on a liquid document a copy of the document shall be annexed
to such affidavit and the notice of application
for summary judgement
shall state that the application will be set down for hearing on a
stated day not being Jess than 10
days from the date of
the delivery thereof". (My emphasis)
Rule 32(4) provides:
(4)
No
evidence may be adduced by the plaintiff otherwise than by an
affidavit referred to in sub rule (2), nor may either party
cross
examine
any person who gives evidence viva
voce
or on
affidavit:
Provided
that the court may put to any person who gives oral evidence such
question
as
it
considers may elucidate the matter." (My emphasis)
[26] Ms
Lettering, after arguing the application for summary judgement,
submitted that the application ought
to be stayed as the court did
not have the power to deal with the Rule 30A (1) and 30 (2)(b)
applications and, in the alternative,
that the application be
dismissed . It is noteworthy that the dismissal of the application
presupposes that the application has
been argued.
[27] Rule
32(4), which is peremptory, does not permit the adducing of evidence
by the plaintiff
or by any other person who can swear positively to
the facts verifying the cause of action and the amount, if any,
claimed. The
Ru le requires the plaintiff or any other person
referred to in the Rule to state that in his opinion there is no bona
fide defence
to the action and that notice of intention to defend has
been delivered solely for the purpose of delay. The Rule, further,
does
not permit the cross examination of any person who gives
evidence viva voce or on affidavit. Only the court is permitted to
put
to any such person who gives oral evidence such questions as it
considers may elucidate the matter.
[28]
Ms
Lettering's submission is that Rule 32(4) does not permit any
document other than those set out in Rule 32(2) . The submission
is
correct.
[29]
Fannin J in
Mon
Truck
and
Bus
SA (PTY) (LTD) v Singh
and
Another
(1) 1976(4)SA264(N)
agreed
with the dissenting judgement of Erasmus J in the case of
Consolidated Press of SA LTD v Van
der Merwe 1951(1) SA 337 (C)
and
disagreed with the decision of Van Zyl J. In
the
Consolidated Press
of
SA
Ltd V
Van
der
Merwe ,
the court had permitted
the plaintiff to file an affidavit setting up answers to the defence
that the defendant had raised.
[30]
Fannin
J in
Man Truck
and
Bus (SA) (PTY) Ltd
v
Singh (supra)
clearly stated that
the provisions of Rule 32(4) are indeed peremptory. It, according to
Fannin J, matters not whether a defendant
sets up a defence which
existed as at the date of the issue of summons or a defence which
arose subsequent thereto. This, because
the only allegations which
the plaintiff may make in an affidavit in support of an application
for summary judgement are limited
to those set out in Rule 32(2)
which may not include evidence in support of the plaintiff's case(see
also
All Purpose Space Heating
Co.
of SA (PTY)Ltd v Schweitzer
1970(3)SA56D(N) at (563-F-G)
and
Venter v Kruger
1971 (3) SA 848(N)
at 851 (B_C)
[31]
In
Steeldale Reinforcing (Cape) (PTY) v Ho Hup Corporation SA (PTY) LTD
2010 (2) SA
580
,
Froneman
J, in paragraph 15 said:
" (15) .....
.............
..it appears to
me,
with respect that the
past
underlying justification for allowing amplification of the
summons
[either in the verifying
affidavit,
or by delivering
a
declaration, or by delivering further particulars for the purpose
of pleading), namely that it allows for
a
more comprehensive
exposition of the
case
the defendant
has
to meet, and
thus leads to
a
better
assessment
of whether
a
defendant
has disclosed a
bona fide defence,
is
countenance neither by the wording of rule 32(2) and (4),
nor by present binding authority
. Summary judgement
has
repeatedly been described
as
an extraordinary and stringent
rem ed y,
(see Maharaj, above, at 425H; Tesven
CC
and Another v
South
African Bank of
Athens
2000 (1)
SA
268
(SCA)(
[1999] 4 ALL SA
396)
at 277 H-J; Soil Fumigation Services Lowveld
CC
v
Chemfit Technical Products (pty) ltd
2004 (6) SA 29
(SCA) at 35 C-D
([2004]
2 ALL SA 366)
and there
seems to me
to be little remaining reason for extending
its
scope
by allowing 'amplification', in whatever form, of the
cause
of action
as set
out
in either form of
summons.''
[32] Coming
back to the facts of the case, it is common cause that the plaintiff
instituted an
action against the defendants. It is also common cause
that the plaintiff refers to the fifth defendant in detail in the
particulars
of claim. What is further common cause is that the
summons does not cite the fifth defendant. If the summons was served
on the
fifth defendant, in my view, the non- citation of the fifth
defendant in the summons would not amount to hurdle which would not
be overcome.
[33]
The
plaintiff, after receipt of the defendant's appearance to defend,
brought the summary judgement application. The defendant,
in terms of
Rule 32(3) (b) served and filed an affidavit resisting the
application. After perusing and considering the defendants'
affidavit, the plaintiff removed the application from the roll. Th e
plaintiff served and filed a notice in terms of Rule 28(1)
and
amended the particulars of claim, thereafter. The affidavit in
support of the summary judgement was also amended to be line
with the
amended particulars of claim.
[34]
The
questions that need answers are whether the amendments were
permissible and whether this is not one of the applications that
Froneman J refers to in
Steeldale
Reinforcing (Cape) v Ho Hup Corporation SA (PTY) LTD (supra).
This,
in my view, is one of those applications. Case law referred to above
does not countenance this.
[35]
The
court was referred to the Constitutional Court case
of
Kevin John Eke v Charles Henry
Parsons
(2015) ZACC 30.
I must,
at the oustet, state that this case is distinguishable from the facts
of the case in casu. The case dealt with a settlement
agreement which
became an enforceable court order. The enforcement of such an order
relates to non-compliance with the settlement
and not the merits of
the original underlying dispute. The lis between the parties becomes
res judicata which means "a matter
judged".
(see
paragraphs 31 and 32 of Kevin John Eke case (supra))
[36]
Non-
compliance with the court rules, in the interest of justice, may be
disregarded by a court (see paragraph 39 of
Kevin
John Eke case (supra).
The court, in
the same paragraph, said that the court should not be hamstrung in
the performance of the core function of dispensing
justice as "the
rules exist for the courts, and not the courts for the rules".
However as I said above the facts of this
case differ from the facts
in the
Kevin John Eke case (supra)
where the parties had agreed to
regulate their case in a particular way.
[37]
It
seems to me that I will perfectly be exercising my discretion
judicially if I deal with the application, seeing that the parties
have argued the matter and sufficiently ventilated the issues
involved in the matter. This, in my view, is common cause.
[38]
Applying
Rule 32(4) and the case law I referred to above, it becomes clear
that the application for summary judgement, for non -compliance
with
the Uniform Rule, is non suited. The defendants, therefore, are
entitled to leave to defend the plaintiff's action.
[39]
I,
therefore, make the following order:
1.
The
defendants are granted leave to defend
2.
The
costs of this application are reserved for decision when the action
is finally determined.
MSIMEKI,
J