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[2016] ZAGPPHC 922
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Guy & Guy Investments Projects CC v Tau Pahlane Incorporated Attorneys (49638/2016) [2016] ZAGPPHC 922 (21 October 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Case
Number: 49638/2016
DATE:
21/10/2016
Reportable:
No
Of
interest to other judges: No
Revised.
In
the matter between:
GUY
& GUY INVESTMENTS PROJECTS
CC
Applicant/Plaintiff
and
TAU PHALANE
INCORPORATED
ATTORNEYS
Respondent/Defendant
JUDGMENT
SWARTZ
AJ
[1]
This is an application for summary judgment that is opposed. The
plaintiff/applicant claims payment of the sum of R197 773,11
plus
interest at the rate of 15.5% per annum. The applicant as lessee
entered into a written lease agreement with the owner of
the leased
premises as lessor. The applicant, as lessor, then entered into a
sublease agreement with the respondent. The applicant
and respondent
entered into a written agreement of lease. The applicant’s
claim against the respondent is for payment of
an amount equivalent
to the monthly rental, for the period that it remained in occupation
of the property after the agreement was
cancelled. The applicant
cancelled the lease agreement with effect from 1 November 2015, but
the respondent remained in occupation
of the property after the
expiry of the notice period, namely 31 December 2015 until 31 March
2016. The rental for the three months
amounts to R185 883,84. The
electricity and services bill amounts to R11 889,27.
[2]
The respondent does not deny that the parties have entered into the
written lease agreement; the terms of the agreement; the
amount of
rental payable; that the agreement was cancelled; that the respondent
had to vacate the premises by 31 December 2015
and that it remained
in occupation of the leased premises until 31 March 2016.
[3]
On 11 November 2015 the applicant addressed an email to the
respondent in which, amongst others, the following is communicated:
“
Be
informed that the lease agreement between Guy & Guy B investment
Projects and Zasm properties has been terminated with immediate
effect from 1 November 2015 due to the persistent breach of its
material term from inability to pay the rental timeously….I
was also made aware of the fact that even the electricity account has
remained in arrears for unreasonable period ….
The
landlord has agreed to allow continued occupation of the property for
limited period until the end of December 2015 on terms
…”
[4]
On the same day, the respondent responded to this email by addressing
an email saying:
“
I
welcome the termination of lease and will only vacate the premises at
the end of March 2016”.
[5]
Clause 12.2 of the lease agreement entered into between the parties
on 1 March 2014 stipulates as follows:
“
While
for any reason or on any ground the tenant occupies the leased
property and the landlord disputes it's right to do so, until
the
dispute is resolved, whether by settlement, arbitration or
litigation, the tenant shall (notwithstanding that the landlord
may
contend that this lease is no longer in force) continue to pay
(without prejudice to its rights) an amount equivalent to the
monthly
rental, or charges and operating costs provided for in the lease
monthly in advance, on the seventh day of each month,
and the
landlord shall be entitled to accept and recover such payments, and
acceptance thereof shall be without prejudice to and
shall not in any
way whatsoever affect the landlord’s claim then in dispute …”
[6]
In the affidavit resisting summary judgment, the deponent denies that
he does not have a defence to the applicant’s claim
and that he
entered defence solely for the purpose of delay. He raises various
points
in limine.
In short, this relates to the claimed amount
not being readily determinable and being illiquid; a contradiction of
paragraph 14
of the particulars of claim relating to the period for
which the rentals are claimed (January, February and March 2016), and
the
Certificate of Balance, stating that rentals are claimed for the
period 1 March 2014 to 31 December 2015. Furthermore, that interest
is claimed calculated at 15.5%. Furthermore, that the claim is
excipiable on no less than seventeen grounds set out in a notice
in
terms of Rule 23 (1). Over and above these points
in limine,
the respondent avers that he has a
bona fide
defence to the
claim. He avers that this relates to claims for rental after the
termination of the lease agreement; a claim for
payment of the sum of
R11 889,27 on the basis of enrichment without determination of which
condictio
it relies on and, included in the claim for R11
889,27 are amounts that the respondent is not obliged to pay.
[7]
Rule 23 requires that, the affidavit opposing the application for
summary judgment must disclose fully the nature, grounds and
material
facts relied upon by the defendant for his defence. The court must be
satisfied that the defendant has a
bona fide
defence as fully
outlined in the affidavit resisting summary judgment. The affidavit
must disclose his defence and the material
facts on which it is based
with sufficient particularity to enable the court to find that he has
a
bona fide
defence. See:
Maharaj v Barclays National
Bank Ltd
1976 (1) SA 418
(A)
at 422;
Central
News Agency Ltd v Cilliers
1971 (4) SA 351
(NC)
.
[8]
In my view, the respondent does not raise any valid defence to the
applicant's claim. All the purported defences raised in opposition
to
the application for summary judgment are frivolous and amount to
nothing more than a grasping at straws. Of particular importance
is
clause 12.2 of the agreement, discussed above, that clearly
stipulates the respondent’s obligation to continue paying
monthly rental, other charges and operating costs provided for in the
lease agreement. In his email response the respondent acknowledged
the termination of the lease agreement and his unequivocal statement
to remain in occupation of the leased premises until the end
of March
2016. It follows that, him being in occupation of the premises
obliges him to pay the rent and other charges. There is
no merit in
any of the defences raised and the respondent has entered defence
purely for the purpose of delay.
[9]
Accordingly, I find that a proper case has been made out for summary
judgment together with interest
a temporae morae
at the
prescribed legal rate. In the result, the following order is made:
1.
The respondent is ordered to pay the
applicant the amount of R197 773,11;
2.
Interest on the amount of R197 773,11 at
the rate of 9% per annum,
a temporae
morae;
3.
The respondent is to pay the costs on an
attorney-own-client scale.
__________________
E.L.
SWARTZ
ACTING
JUDGE OF THE HIGH COURT
CASE
NO: 49638/2016
HEARD
ON: 14 October 2016
FOR
THE APPLICANT: ADV. H.M. BARNARDT
INSTRUCTED
BY: Mathebula Attorneys
FOR
THE RESPONDENT: ADV. K. KORFF
INSTRUCTED
BY: Tau Phalane Incorporated
DATE
OF JUDGMENT: 21 October 2016