About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2015
>>
[2015] ZAGPPHC 377
|
|
Phedisa Civil Enterprises (Pty) Ltd and Another v Beaux Lane (SA) Properties (Pty) Limited (17086/2014) [2015] ZAGPPHC 377 (22 May 2015)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO: 17086/2014
DATE:
22 MAY 2015
In the matter
between:
PHEDISA CIVIL
ENTERPRISES (PTY)
LTD
............................................................
First
Applicant
FRANS JACOBUS
REYNEKE
.................................................................................
Second
Applicant
And
BEAUX LANE
(SA) PROPERTIES (PTY)
LIMITED
......................................................
Respondent
JUDGMENT
DODSON
AJ
Introduction
[1] This is an
application for rescission of a judgment granted by the
Registrar in terms of rule 31(5)(b)(i) of the
uniform rules.
[2] Rescission is
sought in terms of rule 42(1)(a), alternatively, rule 31(5)(d),
alternatively, the common law.
[3]
To the extent that the application was brought in terms of rule
31(5)(d), the application was filed one day outside the 20 day
period
provided for. Condonation is sought in this regard, is not opposed
and is granted.
Factual background
[4]
The factual background provided in the affidavits is sparse.
[5] The indebtedness
which forms the subject matter of the default judgment has its
origins in a lease agreement concluded between
the first applicant
and the respondent and in respect of which the second applicant bound
himself as surety.
[6]
It is common cause that the first and second applicants abandoned the
leased premises on 3 December 2013, notwithstanding that
the lease
term only expired on 31 October 2015.
[7]
Arising out of the events pertaining to the lease, the respondent
issued summons against the applicants in respect of various
claims.
Only two of these form the subject matter of the default judgment
proceedings.
[8]
The first claim is in respect of an amount of R115 615,38 arising
from an acknowledgement of debt signed by the
second
applicant on behalf of the
first
applicant. The acknowledgment of debt pertained to outstanding
amounts due in terms of the lease agreement in respect of rental,
rates and taxes, electricity, sewerage, water and interest.
[9]
Also included in the first claim is a separate amount of R48 519,
06. It is also in respect of arrear charges for rental,
rates
and taxes, electricity, sewerage, water and interest there was no
acknowledgment of debt signed in this regard.
[1O]
The second claim pertains to an amount of R382 631,87 being in
respect of pre-estimated liquidated damages provided for in
the lease
agreement in respect of the applicants' having abandoned the premises
and ceased to pay rental well before the end of
the lease term.
Analysis
[11]
Although the respondent disputes this, I will assume in favour of the
applicants that they were not in wilful default.
[12]
What must then be considered is whether the applicants have shown
that they have bona fide defences to the claims concerned.
[13]
In respect of the claim for R115 615,38 based on the acknowledgment
of debt, the second applicant says the following in the
founding
affidavit:
"8.
2 I was
requested to sign this document on behalf of the
first
defendant and I was told that in the event that the first defendant
does not
sign
this
document
it
would
be
required
to
vacate
the
premises
forthwith
and that it
would not be
entitled
to take any of the machinery and movable
assets with
me.
8.
3 At that stage
the first defendant leased various machinery
from
other suppliers and I was concerned
about the machinery. I
thus
signed the document under duress fearing that the business of the
first defendant, if forced to vacate the premises
forthwith, would
fail and that I would forfeit the rights to access to the machinery
on the
premises."
[14]
He also goes on to say-
"I deny that
I would have signed the acknowledgment of debt on behalf of the first
defendant had I not been pressurised or
influenced to do so under the
threat of severe financial implications."
[15] Christie
The
Law of Contract in South Africa
[1]
quotes Wessels at para 1167 where the latter sets out the
requirements for duress as follows:
"In order to
set aside
a
contract on the grounds of violence or fear
our law requires the following elements:
(1)
actual violence or reasonable
fear;
(2)
the fear must be caused by the threat or some considerable
evil
to the party or is
family;
(3)
it must be the threat of an imminent or inevitable evil;
(4)
the threat or intimidation must be contra bonis mores;
(5)
the moral pressure used must have caused damage."
[16] Tested against
the backdrop of these requirements, the applicants’ version in
the second applicant's own affidavit simply
does not pass muster as
constituting duress.
[17]
On top of that, as counsel for the respondent pointed out, the fear
that the second applicant alleges induced him to sign the
acknowledgment of debt, was the fear of being forced to vacate the
premises forthwith. Yet, despite this, the applicants vacated
the
premises of their own volition shortly after signing the
acknowledgment of debt.
[18] Accordingly
I am not satisfied that the applicants have put up a
bona
fide
defence in respect of this
component of the first claim.
[19] In respect
of the amount of R48 519,06, the second applicant says in the
founding affidavit-
"The amount
set forth for monthly electricity, sewerage and water have not been
supported by any documentation and thus the
computation of these
amounts remains in dispute until such time as proof of these amounts
is provided by the plaintiff."
[20] This does not
amount to a defence. It is simply a request for proof and it is
implicit in this paragraph that once the proof
is provided, the
applicants will concede the claim. That too does not amount to a
bona
fide
defence. Particularly so where no facts are put up to form a
basis upon which it might be concluded that there is a risk of
incorrect
calculation of the amounts.
[21]
In respect of the amount of R382 631,87 claimed under claim 2, the
second applicant says the following in the founding
affidavit:
"The amount
so claimed and granted by the registrar was for pre estimated
liquidated damages. I submit that there should
be
a
significant reduction in this pre-estimated damages in
that the term
in the lease agreement amounts to
a
penalty, in the sense that
the
plaintiff intended it to operate 'in terrorem'.
8.
11 The penalty
is grossly disproportionate to any prejudice which may have been
suffered by the plaintiff and I should be given
an opportunity to
prove the extent to which the penalty should be
reduced.
8.
12In terms of
the Conventional Penalties Act, 15 of 1962, section 3,
I
should be given an opportunity to defend the claim and plead for
a
reduction of the
penalty."
[22] The allegations
in this regard are bald and sketchy. No facts are put up to support
the basis upon which the applicants intend
to make their claim for a
reduction. There is no suggestion that the respondent
has been able to or is likely
to be able to find a replacement tenant
who might be in a position to mitigate the damages.
[23]
Further, the allegation, only
made in reply,
that there
was a verbal
agreement reached
with the respondent's agent at the time of vacating the premises that
another tenant in the building would take
over the section formerly
occupied by the applicants, is extremely vague and
defeated by the non-variation
clause in the lease agreement.
[24]
In those circumstances I am not satisfied that the applicants
have a
bona fide defence
in respect of the second claim.
Judgment
erroneously sought or erroneously granted
[25]
The applicants further allege that the judgment was erroneously
granted because the registrar should have observed that, as
a result
of it being recorded in the return of service that the summons was
served by affixing it to the door, it would not
have come to
the attention of the applicants. He ought therefore not to have
granted judgment until there had been better service,
such as at the
second applicant's personal address which was reflected on the
suretyship agreement annexed to the particulars of
claim.
[26]
In the answering affidavit, the respondent averred that-
"The
Registrar granted the judgment because the summons
was
properly served in terms of the Rules and is not under an obligation
to require further service, when there has been compliance
with the Rules."
[27] This allegation
went unanswered in the replying affidavit.
[28] Moreover, the
service address was the applicants' chosen
domicilium citandi et executandi
in terms of the relevant
agreements.
[29] In
the circumstances I am not satisfied
that the default judgment
was
erroneously granted by the registrar as contemplated in rule
42(1)(a).
[30]
I accordingly make the following order:
(1) The
application for rescission of judgment is dismissed.
(2) The
applicants are ordered to pay the respondent's costs.
A ADOSON
ACTING JUDGE OF
THE HIGH COURT OF SOUTH AFRICA GAUTENG DIVISION PRETORIA
Counsel for the
applicants: ADV S MARITZ Instructed by: DIEMONT INC,Central House,
38 Ingersoll Street,
Lynwood Glen, Pretoria
Counsel
for the respondent: ADV B STEVENS
Instructed by:
GILDENHUYS MALATJI INC,
Gmi House,
Harlequins Office Park, 164 Totius Street
Groenkloof,
Pretoria
Date
of hearing: 4 May 2015
Date of judgment:
22 May 2015
[1]
61h Ed at p 315