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[2008] ZASCA 168
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Narainsingh v Singh and Another (217/08) [2008] ZASCA 168; [2009] 2 All SA 239 (SCA) (2 December 2008)
THE
SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH
AFRICA
JUDGMENT
Case number: 217/08
No precedential significance
In
the matter between:
A
S NARAINSINGH APPELLANT
v
KUAR
SINGH 1
st
RESPONDENT
KRUSHEEDA
SINGH 2
nd
RESPONDENT
Neutral
citation:
Narainsingh
v Singh
(217/2008)
[2008]
ZASCA 168
(2 December 2008)
Coram:
Streicher
JA, Jafta JA et Kgomo AJA
Heard: 13
November 2008
Delivered: 2
December 2008
Summary:
Summary judgment.
ORDER
On
appeal from:
High
Court, Pietermaritzburg (Ndlovu J and Murugasen AJ), sitting on
appeal from the Magistrate’s Court of Lower Tugela
(Stanger).
In
the result the following order is made:
[1] Claim
one
The
appeal is upheld and the order by the court a quo is set aside and
replaced with the following order:
‘
The
appeal is dismissed with costs.’
[2] Claim
two
The
appeal is upheld in so far as it relates to the claim for payment of
the agreed occupational consideration and the municipal
rates and
dismissed in so far as it relates to the claim for payment of the
purchase price, interest on the purchase price and
the legal fees in
respect of the deed of sale. The order by the court a quo is set
aside and replaced with the following order:
(a) ‘The
appeal is upheld to the extent that it relates to the claim for
payment of the purchase price, interest on the purchase
price and the
legal fees in respect of the deed of sale. Save as aforesaid the
appeal is dismissed. The order by the court a quo
is set aside and
replaced with the following order:
“
Summary
judgment is granted as follows:
(i)
Payment of the sum of R11 751,91.
(ii)
Payment of the sum of R19 575,95.
(iii) Costs.
Save
as aforesaid the application for summary judgment is dismissed and
the defendants are granted leave to defend the action.”
(b) The
respondent is ordered to pay the costs of the appeal in so far as it
relates to claim two.’
[3] Claim
three
The
appeal is upheld. The order by the court a quo is set aside and
replaced with the following order:
‘
The
appeal is dismissed with costs.’
[4] The
respondents are ordered to pay the costs of the appeal.
JUDGMENT
KGOMO
(STREICHER JA, JAFTA JA concurring
)
[1] This
is an appeal against a judgment in the Pietermaritzburg High Court
(‘the court a quo’) in terms of which a
summary judgment
in the magistrate’s court for the district Lower Tugela held at
Stanger, was set aside on appeal. The appeal
is with the leave of the
court a quo. The respondents did not oppose the appeal.
[2] The
summons in terms of which the appellant instituted action against the
respondents in the magistrate’s court contained
three claims.
The first claim was for the payment of rental in respect of a
commercial building for the period 1 June 2002 to 31
December 2003 in
terms of an oral agreement of lease, mora interest and attorney and
client costs. The second claim was for the
payment of (i) R100 000,
being instalments in respect of the purchase price payable in terms
of a deed of sale; (ii) interest on
that amount; (iii) R11 751,91,
being an agreed amount payable in respect of the occupation of the
premises sold; (iv) R19 575,95
being the rates and taxes payable in
respect of the premises sold for the period of occupation; (v) legal
costs in respect of the
deed of sale; and (vi) costs of suit on the
attorney and client scale. The third claim was for the ejectment of
the respondents
from the premises that formed the subject matter of
the deed of sale, on the basis that it had been cancelled, and for
the payment
of damages.
[3] When
the respondents entered an appearance to defend the action the
appellant applied for summary judgment in respect of all
the amounts
claimed in terms of the first and the second claims and in respect of
the claim for ejectment in terms of the third
claim.
[4] The
respondents opposed the application for summary judgment but the
magistrate held that they had failed to disclose a bona
fide defence
and granted summary judgment to the appellant for the amounts claimed
in the first and second claim and for ejectment
as claimed in the
third claim with costs. On appeal the court a quo set the judgment
aside but granted leave to the appellant to
appeal to this court.
[5] The
respondents had indeed failed to disclose a defence to the
appellant’s first claim for rental, mora interest and costs.
However, the court a quo set the summary judgment aside on the ground
that the oral agreement of lease alleged by the appellant
‘lacked
some of the common material clauses in a lease agreement’ such
as who would be responsible for maintenance
and repairs and whether
the appellants were allowed to effect alterations. Another reason
advanced by the court a quo was that
one of the paragraphs of the
particulars of the claim was ambiguous. There is no merit in any of
these reasons. Whether or not
the parties agreed to the matters
referred to is irrelevant to the relief claimed by the appellant. The
ambiguity referred to is
also irrelevant because it relates to an
alleged undertaking by the respondents to pay certain fees in respect
of the drawing of
the agreement of lease whereas such fees are not
claimed by the appellant. The court a quo should, therefore, have
dismissed the
respondents’ appeal against the summary judgment
granted in respect of claim one.
[6] In
respect of the second claim the respondents alleged that the claim
had been novated, that the deed of sale could ‘well
be found to
be null and void due to’ non-compliance with the formalities
prescribed in Chapter II of the Alienation of Land
Act 68 of 1981in
respect of agreements for the sale of land on instalments and also
‘because there has been placed, so I
am informed and believe, a
bar on registration and transfer of property including that forming
the subject of the deed of sale,
by the Registrar of Deeds, due to
pending land claims’. Chapter II applies to land used or
intended to be used mainly for
residential purposes and the
respondents did not allege that that was the case. In so far as the
bar against transfer is concerned
no particulars were given. Not even
the source of the information was disclosed. No case has therefore
been made out that the agreement
of sale was invalid. However, the
appellant conceded that, in the light of the cancellation of the
agreement of sale as alleged
in claim three, he was not entitled to
payment of the instalments that had become payable in respect of the
purchase price. He
furthermore conceded that he was not entitled to
the legal costs in respect of the agreement of sale as no basis for
such claim
had been alleged. The appellant’s right to the
occupational consideration and the rates and taxes for the period of
occupation
had already accrued and the respondents disclosed no
defence to these claims. It follows that the respondents’
appeal to
the court a quo should only have succeeded in respect of
the R100 000 claimed in respect of the purchase price, the interest
thereon
and the R5 130 claimed in respect of the legal costs relating
to the deed of sale.
[7] The
respondents disclosed no defence to the claim for ejectment. Summary
judgment was, therefore, correctly granted in respect
of that claim
and the court a quo should have dismissed the appeal against the
order.
[8] In
the result the following order is made:
[1] Claim
one
The
appeal is upheld and the order by the court a quo is set aside and
replaced with the following order:
‘
The
appeal is dismissed with costs.’
[2] Claim
two
The
appeal is upheld in so far as it relates to the claim for payment of
the agreed occupational consideration and the municipal
rates and
dismissed in so far as it relates to the claim for payment of the
purchase price, interest on the purchase price and
the legal fees in
respect of the deed of sale. The order by the court a quo is set
aside and replaced with the following order:
(a) ‘The
appeal is upheld to the extent that it relates to the claim for
payment of the purchase price, interest on the purchase
price and the
legal fees in respect of the deed of sale. Save as aforesaid the
appeal is dismissed. The order by the court a quo
is set aside and
replaced with the following order:
“
Summary
judgment is granted as follows:
(i)
Payment of the sum of R11 751,91.
(ii)
Payment of the sum of R19 575,95.
(iii) Costs.
Save
as aforesaid the application for summary judgment is dismissed and
the defendants are granted leave to defend the action.”
(b) The
respondent is ordered to pay the costs of the appeal in so far as it
relates to claim two.’
[3] Claim
three
The
appeal is upheld. The order by the court a quo is set aside and
replaced with the following order:
‘
The
appeal is dismissed with costs.’
[4] The
respondents are ordered to pay the costs of the appeal.
________________
F
D KGOMO
ACTING
JUDGE OF APPEAL
APPEARANCES:
FOR
APPELLANT: M S Khan
ATTORNEYS: Jay
Pundit and Company
Kwa
Dukuza
Bezuidenhouts
Attorneys
Bloemfontein
FOR
RESPONDENT: No appearance
ATTORNEYS: