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[2016] ZAGPPHC 84
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Pretoria Hebrew Congregation - Scopus Heights v Mpale Investments Holdings (Pty) Ltd and Another (72084/2015) [2016] ZAGPPHC 84 (12 February 2016)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE
NO: 72084/2015
Date
of hearing: 2 February 2016
Judgment
Delivered: 12 February 2016
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
In
the matter between:
PRETORIA
HEBREW
CONGREGATION
-
SCOPUS
HEIGHTS
Plaintiff
and
MPALE
INVESTMENTS HOLDINGS (PTY) LTD
First
Defendant
GEORGE
MAANDA
NEGOTA
Second
Respondent
J
U D G M E N T
MAKGOKA.
J
[1]
This is an opposed summary judgment application. The plaintiff
instituted action against the defendants for payment of R321
793.48
for rental and other charges. The action is pursuant to a written
lease agreement concluded between the plaintiff and the
first
defendant on 25 October 2010 in respect of certain commercial
property situated in Pretoria. The lease agreement was for
the period
1 December 2010 to 31 January 2016. The second defendant bound
himself as surety and co- principal debtor with the first
defendant
in respect of the lease agreement.
[2]
The plaintiff alleges that the first defendant breached the terms of
lease agreement by failing to pay rental and other related
charges,
resulting in arrear rental accumulating to R321 793.48. In support of
this, the plaintiff relies on a running balance
statement and a
certificate of balance. The plaintiff, through its authorised agent.
sent two notices of default on 9 January 2014
and 5 February 2014,
respectively. In the latter letter the plaintiff indicated its
intention to terminate the lease agreement
within seven days, should
the arrear rental not be paid. In an undated letter to the plaintiffs
agent, in which reference is made
to an earlier letter of 28 March
2014, the second defendant, on behalf of the first defendant, stated
that because of the high
rental, the first defendant was intending to
close its business at the end of April 2014.
[3]
The plaintiff further alleges that the first defendant failed to
settle the arrears. The plaintiff issued and served a summons
on the
first defendant under case number 38041/2014 in which it sought to
terminate the lease agreement. That action was subsequently
withdrawn. The first defendant vacated the premises during August
2014. The plaintiff alleges that it had to effect necessary repairs
to the leased premises in the amount of R5 974.24 in order to render
the premises the premises in good order for re-occupation.
The
plaintiff secured a new tenant during April 2015.
[4]
In an opposing affidavit deposed to on behalf of the defendants, the
second defendant states that the first defendant admitted
that as at
date of service of summons, it was indebted to the plaintiff in the
sum of R230 290.70. The second defendant attached
to the opposing
affidavit, a schedule of charges in which the opening balance as at
31 July 2014 is reflected as R171 527.28. To
that, certain charges
for water, electricity, interest. etc, are incrementally added,
totalling to an amount of R230 290.70. The
second defendant further
alleges that this amount has since been paid as follows: payments
each on 1 August 2015, 23 November 2015
and 11 December 2015 in the
amounts of R20 000, R45 000 and R61 921.18. An amount of R100 000 was
designated as 'Appropriation
of deposit on or about
03109/2014'. and R3 369.52 as credit for circuit breaker reduction.
The second defendant says that
the first defendant is still indebted
to the plaintiff for interest to be calculated on the admitted
amount, which the first defendant
tendered payment thereof.
[5]
Furthermore, the defendants allege that the plaintiff repudiated the
lease agreement when it issued the summons in May 2014,
referred to
earlier. The defendants' defence to that action was that the
plaintiff at that stage did not have
locus
standi
as it had ceded its right title in respect of the property in
which the premises are located, to First Rand Bank Ltd. This was
raised
in an affidavit resisting summary judgment in that action, as
a result of which the plaintiff withdrew the action. By service of
the summons under those circumstances, so assert the defendants,
objectively displayed a deliberate and unequivocal intention no
longer to be bound by the lease agreement. and thus repudiated it,
which repudiation the first respondent accepted and vacated
the
premises in August 2014.
[6]
The remedy of summary judgment is an extraordinary and drastic one,
which has the hallmark of a final judgment in that it closes
the
doors of the court to the defendant and permits a judgment to be
given without a trial. In
Dowson and Dobson Industrial Ltd
v
Van der Wert
1981 (4) SA 417
(C) AT 419,
it was noted that an ever increasing reluctance to grant summary
judgment in the face of opposition, was evident from
the South
African courts. See also
District Bank Ltd v Hoosain
1984 (4)
SA 544
(C) at 550, and
Standard
Krediet
Korporasie v
Botes
1986 (4) SA 946
(SWA).
Therefore the court must always be reluctant to deprive the defendant
of his normal right to defend, except in a clear case.
See
Standard
Bank of SA Ltd v
Naude
2009 (4) SA 669
(E) at
672C-676D.
[7]
In the present case, the defendants' defence is premised on two
grounds, one factual and the other legal. Factually, the amount
owed
to the plaintiff is placed in dispute by the defendants, and that
much less was owed, which has been paid. The defendants
also raise a
point of law, namely repudiation of the agreement. In the nature of
summary judgment, the plaintiff is not afforded
an opportunity to
reply to the defendants' assertions.
[8]
I cannot see how it can tenably be argued that this is a clear case
where the plaintiff is entitled to summary judgment. The
issues
between the parties can only be clarified and ventilated at the
trial, after a full set of pleadings and discovery had been
exchanged. I do not have to be satisfied at this stage of the
veracity of the defendants' allegations. All I have to be satisfied
about is whether the defendants have disclosed a defence, good at
law, which if proven at the trial, would constitute a complete
answer
to the plaintiff's claim.
[9]
For the above reasons, and considering the conspectus of all the
relevant factors - the facts and the proper approach to applications
for summary judgments, I am satisfied that the defendants have
disclosed a
bona
fide
defence to the
plaintiffs claim. There is nothing inherently implausible about the
defendants' version. As stated earlier,
if established at the
trial, it will be a complete answer to the plaintiffs claim. The
defendants are therefore entitled to be
granted leave to defend.
[10]
In the result the following order is made:
1.
Summary judgment is refused;
2.
The defendants are granted leave to defend;
3.
Costs are in the main action.
______________________
TM
Makgoka
Judge
of the High Court
Date
of hearing:
2 February 2016
Judgment
delivered: 12
February 2016
Appearances
For
the Plaintiff:
Adv. B.D. Stevens
Instructed
by:
Smit Jones & Pratt, Pretoria
For
the Defendants: Adv.
Sullivan
Instructed
by:
Stabin Gross & Shull, Johannesburg