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[2015] ZAGPPHC 436
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Forum 1 And 2 Panorama Office Estate (Pty) Ltd v Indigold Cellular CC and Others (72355/09) [2015] ZAGPPHC 436 (10 July 2015)
IN
THE GAUTENG DIVISION HIGH COURT, PRETORIA
(REPUBLIC
OF SOUTH AFRICA)
Case Number: 72355/09
Date:
10/7/2015
In
the matter between:
FORUM 1 AND 2 PANORAMA OFFICE ESTATE (PTY)
LTD
PLAINTIFF
and
INDIGOLD
CELLULAR
CC
FIRST DEFENDANT
TARYN
CHANTAL
PILLAY
SECOND DEFENDANT
JOSHIE
PILLAY
THIRD DEFENDANT
VISPANATHAN
KRISHNA PILLAY
FOURTH DEFENDANT
VINOSHINI
PILLAY
FIFTH DEFENDANT
JUDGMENT
MOLEFE J:
[1] On 30 January 2009,
the plaintiff entered into a written rental agreement with the first
defendant for a period of 3 years.
The second to fifth
defendants, all members of the first defendant, signed surety for the
first defendant’s obligations in
terms of the rental
agreement. The first defendant breached the agreement by
failing to pay rental and vacated the leased
premises during
September/October 2009.
[2] The plaintiff issued
summons against all the defendants for payment of arrear rental of
R62 182, 00 in terms of the rental agreement
and damages of R799
220,00 suffered due to the breach of the agreement, together with
interest on both amounts at the rate of 15,5%
per annum a
temporae
mora
and costs on an attorney and client scale, in accordance
with the lease agreement.
[3] The defendants all
defended the action and the first, second and third defendants filed
an affidavit commissioned on 15 February
2012, opposing the
plaintiff’s application for summary judgment, in which all
liability towards the plaintiff is denied and
various defences
raised.
[4] The second, third,
fourth and fifth defendants also filed an affidavit in support of an
application for the rescission of judgment
which was granted to them.
[5] The second, third,
fourth and fifth defendants filed an amended plea dated 28 April
2015, in which liability for the arrear
rental in the amount of R62
182, 00 is admitted and payment thereof is tendered and the
counterclaim is abandoned.
[6] In the defendants’
latest plea, all the plaintiff’s allegations are admitted and
the only issue in dispute is whether
the plaintiff mitigated its
damages. The defendants further pleaded that:
6.1 the lease agreement
was varied to the effect that “
the
first defendant was obliged to pay rentals until such time as a new
tenant was obtained”;
6.2 The variation was
done and signed by the respective parties, in emails dated 5 and 9
October 2009, which were attached to the
plea as annexure “B”;
6.3 the first defendant
found a suitable tenant (“KSS Cellular”) that was willing
to take over the lease agreement
on the same conditions and
terms as the first defendant from 1 November 2009;
6.4 the first defendant
therefore complied with the varied lease agreement and was therefore
no longer obliged to pay rentals from
1 November 2009.
[7] In the alternative to
the above, the defendants pleaded that should the court find that the
lease agreement was not varied:
7.1 the first defendant
informed the plaintiff that KSS Cellular was willing to conclude a
lease agreement on the same terms and
conditions as the plaintiff had
with the first defendant;
7.2 had the plaintiff
concluded the lease agreement with KSS Cellular, the plaintiff could
have fully mitigated its loss;
7.3 the plaintiff
therefore failed to mitigate its loss.
[8] The parties agreed
that the
onus
and the duty to begin rest on the defendants.
[9] The defendants called
four witnesses, namely the third and fourth defendants, Mr Pierre
Marais and Mr Arthur Pearson and Mr
Retief Swart testified on behalf
of the plaintiff.
9.1
Mr
Vispanath Krishna Pillay (“Clive”)
the fourth defendant testified that the nature of the first
defendant’s business is to conduct a cellular call centre.
His testimony was that he represented the first defendant in entering
into a lease agreement with the plaintiff, represented
by Mr
Retief Swart. Prior to the signing of the lease
agreement sometime in January 2009, the defendants and plaintiff
orally agreed that in the event the defendants are unable to continue
with its business due to Cell C, their only client cancelling
its
contact with the defendants, the defendants would have to secure an
alternative tenant for the premises and the defendants
would
accordingly be released from their obligations in terms of the lease
agreement and suretyship.
The lease agreement was
entered into in January 2009 and the first defendant moved into the
leased premises during the same month.
In September 2009, Cell
C cancelled its contract with the first defendant and thereafter the
first defendant vacated the plaintiff’s
leased premises.
As per the previous oral
agreement of January 2009, Mr Swart agreed to release the first
defendant from the lease agreement on
condition that the defendants
find a suitable tenant to take over the lease. The fourth
defendant relied on the emails dated
5 October 2009, and 9 October
2009 written by the third defendant and him respectively to Mr Swart
as a “
variation
agreement”
of the lease agreement.
During October 2009, Mr
Arthur Pearson assisted the defendants to find a suitable tenant, KSS
Cellular (“KSS”) to take
over the lease agreement with
the plaintiff on the same terms and conditions as the first
defendant. The fourth defendant
testified that he
telephonically informed Mr Swart about KSS and a meeting was arranged
between KSS and Mr Swart. Due to
Mr Swart’s request for a
substantially higher rental than the rental paid by the first
defendant, KSS never took over the
lease. KSS did not sign the
lease due to Mr Swart’s negligence.
Under cross-examination,
the fourth defendant admitted that the terms of the oral agreement
between the defendants and Mr Swart
in January 2009 were not
incorporated in the subsequent written lease agreement. He
testified that the emails (“
variation
agreement”)
were only pleaded for the first time in the defendants’ latest
plea because their IT specialist, (the fourth defendant’s
wife)
only found the emails 4 weeks prior to the trial. Although he
was not at the meeting held between KSS and Mr Swart,
he testified in
cross-examination that he did not know what offer was made by KSS to
Mr Swart. He was however telephoned
by Mr Swart who informed
him that he requested a higher rental from KSS and expected KSS to
negotiate the rental down.
9.2
Mr
Joshie Pillay (“Denash”)
,
the third defendant testified that the first defendant vacated the
leased premises around October 2009 and took some of
the
computers after the cancellation of the Cell C contract. He
wrote the email dated 9 October 2009 to Mr Swart giving him
permission to find a suitable tenant to take over their lease.
Mr Pearson introduced KSS to them as a suitable tenant.
Under cross-examination,
the third defendant testified that they found KSS prior the emails
and KSS knew the terms and conditions
of the first defendant’s
lease agreement. He could not explain in cross-examination why
the alleged oral agreement
of January 2009 was not raised in the
defendants’ plea of 29 March 2012, nor could he explain the
affidavit he deposed to
in the rescission of judgment in terms of
which he alleged an agreement which excused the first, second and
third defendants from
their lease obligations and the fourth and
fifth defendants admitted liability.
9.3
Mr
Pierre Marais
testified that he together with his two partners own KSS Cellular,
which conducts a call centre business. During October
2009,
they were looking for a bigger rental space for their business
and were introduced to the third and fourth defendants
by Mr Pearson.
They discussed a possibility of KSS taking over the first defendant’s
lease with the plaintiff on the same
terms and conditions as the
premises were “a plug and play” set up. A meeting
was arranged for them to look at
the premises and to discuss the
lease with Mr Swart. The meeting was very brief and ended
quickly as the terms of the lease
were different from the terms
discussed with the third and fourth defendants.
Under cross-examination
Mr Marais testified that due to the lapse of time he could not
remember if KSS made any offer to Mr Swart
nor exactly what was said
at the meeting but the plaintiff’s building was too big for
their requirements.
9.4
Mr
Arthur Pearson
testified that he is an internal office renovator and the third and
fourth defendants are his friends and clients. Mr Pearson
testified that he introduced KSS to the defendants and
he arranged a meeting between KSS and Mr Swart. He did
not
attend the meeting but he later got a telephone call from Mr Marais
that the negotiations with Mr Swart were not what was agreed
to with
the defendants and they therefore did not sign the lease agreement.
Under cross-examination
Mr Pearson admitted that the meeting between KSS and Mr Swart was set
up by the fourth defendant and that
KSS was a possible tenant.
He also testified that prior to the trial he spoke to Mr Swart
telephonically who informed him
that KSS made a rental offer which
was not suitable. He could not remember what was discussed
between the defendants and
KSS before Mr Marais approached Mr Swart.
[10]
Mr Retief Swart
,
testified that he was the plaintiff’s only director and
plaintiff was the owner of Forum 1 and 2 Panorama Office Park (“the
premises”). On 30 January 2009, the plaintiff entered
into a written lease agreement with the first defendant for three
years and the second to fifth defendants were sureties. He
denied that prior to the lease agreement he had an oral agreement
with the defendants where the cancellation of the Cell C contract
with them was identified as a risk and discussed.
The defendants never
informed him that they were vacating the premises. He was
informed by his secretary who saw them removing
equipment from the
premises. He phoned the third and fourth defendants and they
confirmed that they had vacated the premises.
A few days later,
the third defendant and his wife came to see him and they agreed to
give Mr Swart permission to look for a suitable
tenant to take over
their lease agreement. Thereafter, the third defendant sent an
email dated 5 October 2009 authorising
Mr Swart to rent out the
premises to a suitable tenant but not to release them from the lease.
Mr Pearson then contacted
Mr Swart about a tenant who needed bigger premises and KSS was
introduced to him as a potential tenant.
A meeting was held
with KSS as they wanted to see the premises, KSS informed Mr Swart
that the premises were too big for their
requirements and made a very
low rental offer. Mr Swart showed them the plans of the
building, and requested them to come
back with a written offer to
him. Mr Pearson later informed Mr Swart by email that KSS had
found another building to rent
after Mr Swart enquired from him about
KSS.
Mr Swart testified that
if KSS had made an offer to him on the same terms and conditions as
the first defendant’s lease agreement
he would have taken the
offer as he had a huge mortgage bond repayments on the property.
Mr Swart testified that
since October 2009, he appointed numerous rental consultants and
estate agents to get a tenant for the vacated
premises but the ±
900 square meter building was too huge for most of the potential
tenants. He did everything he
could to get the premises
leased. He only got the present tenant to sign the lease
agreement in November 2010 and the lease
commenced on 1 January 2011
and this was after he had spent R925 000, 00 to convert and renovate
the building for the tenant who
rents the premises with an option to
buy.
Under cross-examination
he denied that the defendants found KSS as a suitable tenant and
testified that he did not conclude the
lease agreement with KSS as
they did not make any written offer to lease the premises. He
testified that the two emails relied
upon by the defendants did not
qualify as a variation agreement.
He testified under
cross-examination that he took steps to mitigate the defendants’
loss by personally negotiating with ±30
tenants but most of
the prospective tenants needed a smaller place.
Variation of the lease
agreement
[11] The defendants’
allegation contained in their latest plea regarding the variation of
the lease agreement is based on
the emails dated 5 October 2009
[1]
and 9 October 2009
[2]
. The
email sent and signed by the third defendant dated 5 October 2009
read as follows:
“
This letter
serves to confirm that Denash Pillay - - - and Chantal Andrews - - -
hereby give Retief Swart, the owner of the building
Forum 1 and 2
Panorama Office Park, permission to lease the Building out, or to
get an agent to find a suitable tenant, until
then our lease
agreement over the above property still stands”.
The email dated 9 October
2009 sent and signed by the fourth defendant reads as follows:
“
- - - as per
our meeting with you today please accept this as confirmation that
we are closing down our business. We we (sic) hereby
grant you
authority to seek new tenants or sell your property and we will
ensure that your rental for this month is paid - - -
-“.
Mr Swart responded
thereto by email dated 9 October 2009 by saying:
“
- - - I trust
that we will find a new tenant ASAP and that you will keep up
payments until such time”.
[12] It is based on the
above-mentioned emails that the defendants pleaded that during the
period 5 October 2009 to 9 October 2009,
the plaintiff and the first
defendant concluded a written and signed variation to the lease
agreement to the extent that the first
defendant was obliged to pay
rentals until such time as a new tenant was obtained.
[13] Defendant’s
counsel
[3]
submits that Swart’s
email shows that there was a meeting of the minds as in response to
the fourth defendant’s email,
Swart confirmed that the first
defendant would keep up payments until such time as a new tenant was
found. Defendant’s
counsel contends that the exchange of
emails meets the writing and signature requirements of clause 18.5 of
the lease agreement.
[14] Clause 18,5 of the
written lease agreement states:
“
No variation
or consensual cancellation of this lease shall be of any force or
effect unless reduced to writing and signed by both
parties”.
[15] Plaintiff’s
counsel
[4]
submits that no valid
variation agreement was entered into by means of emails on which the
defendants rely. Furthermore counsel
argued that the emails
were in any event not signed by both parties as required by the lease
agreement.
[16] I do not agree that
the emails bear evidence of the variation of the lease agreement in
the terms alleged by the defendants.
The emails were clearly
the defendants giving permission to the plaintiff to lease or sell
the property and nothing else.
Swart’s email in response
clearly held the defendants liable to the terms of the lease
agreement – to pay rentals until
a new tenant has been
obtained. The interpretation of the emails is neither ambiguous
nor unclear. The emails were
not an intention by the parties to
vary the lease agreement.
[17] Although based on
the fact that the emails are not a variation agreement not much needs
to be said about the parties’
signatures on the emails.
However, Counsel for the defendants relies on the names at the bottom
of the emails as being the
parties’ signatures and referred the
court to
Spring
Forest Trading 599 CC v Wilberry (Pty) Ltd t/a Ecowash and
another
[5]
,
wherein
the Supreme Court of Appeal held that “
a
legal requirement of an agreement to be in writing - - - is satisfied
if it is in the form of a data message”.
The general rule that
parties to a contract are as free to vary or discharge their contract
as they were to make it is subject to
limitations. It would be
remiss of the courts to permit parties who had entered into contracts
with the prescribed formalities
to vary such formalities informally.
In my view, the third and
fourth defendants’ names at the bottom of the emails do not
constitute signatures nor electronic
signatures as contemplated and
required on the written agreement and do not satisfy the clause 18.5
requirement of the lease agreement.
The alleged variation of
the lease agreement is unfounded and is rejected. I find that
there was no written and signed variation
of the lease agreement.
Alienation of a
Suitable Tenant by Plaintiff
[18] The defendants
pleaded in the alternative that they found a suitable tenant (“KSS
Cellular”) that was willing to
take over the lease agreement on
the same terms and conditions as the first defendant had from 1
November 2009. Although
the defendants’ witness, Marais
did not remember if KSS made an offer or not to Swart, he testified
that had they been presented
with a lease agreement KSS would have
concluded a lease agreement with the plaintiff on the same terms and
conditions as the first
defendant.
[19] Defendants’
witness Pearson conceded that he was not present at the meeting
between KSS and the plaintiff and can therefore
not dispute the
plaintiff’s version of the events. His testimony about
the events at the meeting is hearsay and inadmissable.
Pearson was very evasive
under cross-examination and could only remember very clearly facts
that were in the defendants’ favour
but was conveniently unable
to remember other issues.
[20] Plaintiff’s
counsel submitted that the defendants failed to prove that a suitable
tenant was found and that the plaintiff
was informed thereof.
Swart’s version is that he did not know that KSS were willing
to take the lease on the same terms
and conditions. KSS stated
that the building was too big and he told them to give him a written
offer if they were interested.
He never heard from KSS again
until Pearson informed him that they got another building.
[21] There is
consequently a clear factual dispute between the plaintiff’s
and the defendants’ versions. The truth
is therefore to
be determined at the hand of the credibility of the witnesses.
(See
Stellenbosh Farmers’ Winery Group Ltd and Another v
Martell et Cie and Others
2003 (1) SA 11
(SCA)
at paragraph
[5].
[22] In my view, the
third, fourth defendants, were not credible witnesses. They
both contradicted themselves, each other
and their pleadings in
various respects. The biggest improbability in the defendants’
version is the alleged variation
agreement which was pleaded for the
first time in their latest plea. Their versions in the
affidavits also differed from
their testimonies.
I interpose to mention
that, the defendants throughout the proceedings denied all the
relevant allegations made by the plaintiff,
only to admit them a
month before the trial.
[23] Swart was an honest
and reliable witness – he did not contradict himself in any of
the pleadings. He answered questions
honestly without
hesitation and his evidence was not diminished by cross-examination
and it ought to be accepted as the truth.
[24] In my view, the
defendant’s version that the plaintiff refused to enter into
the lease agreement with KSS is highly unlikely
and improbable.
The plaintiff’s undisputed evidence is that he had a bond
installment of R70 000 per month. It
would make no sense not to
accept KSS’s offer if it was made to him. Furthermore, I
do not think that the mere “
finding”
of a suitable
tenant, without the tenant actually entering into a lease agreement,
released the defendants from their lease obligations.
I do not
find that the plaintiff alienated KSS from concluding a lease
agreement on the same terms and conditions as the first
defendant.
Plaintiff’s
failure to mitigate the claim
[25] The defendants have
further pleaded in the alternative that the plaintiff failed to
mitigate its loss. Counsel for the
defendants submitted that
the plaintiff may not recover damages for loss which is the factual
result of the defendant’s conduct,
but could nevertheless have
been prevented if the plaintiff had taken reasonable steps
[6]
.
Defendants’ counsel relied on
Jayber
(Pty) Ltd v Miller
1980 (4) SA 280
(W)
wherein it was held that a plaintiff that fails to mitigate his loss
cannot recover damages in respect of loss that the plaintiff
could
reasonably have prevented.
[26] It was argued for
the defendants that Swart refused to take a lower offer of R30 000
rental and alienated KSS from concluding
the lease agreement with the
plaintiff by increasing the rental. It is on this basis that
defendants’ counsel contends
that an amount of R810 000
calculated by multiplying R30 000 by 27 months should be reduced
from plaintiff’s claim.
[27] The
onus
to
prove that the plaintiff failed to mitigate his damages rests on the
defendants,
Christie, The Law of Contract
page 578 states the
following:
“
The plaintiff
does not have to plead and prove that he has done what is reasonable
to mitigate his damages, because the onus is
on the defendant to
prove that he had not. The plaintiff is not required to do more
than a reasonable man would do to mitigate
his damages, and the
defendant’s onus of proving that the plaintiff has not acted
reasonably is difficult to discharge”.
[28] In
casu
,
apart from the defendants’ allegations that the plaintiff
negligently failed to enter into a lease agreement with KSS (which
I
do not agree with), it is not disputed that the plaintiff made all
attempts a reasonable man would do to find new tenants after
the
defendants repudiated the lease agreement in order to mitigate its
damages.
In
Holmdene
Brickworks (Pty) Ltd v Roberts Construction Co Ltd
1977 3 SA 670
(A)
689 Corbett JA
said:
“
Being a
question of mitigation, the onus of establishing that there were
other less costly remedies which respondent ought to have
adopted
rested upon the appellant. In a case such as the present
one, where the breach of contract creates something
of an emergency
and the sufferer finds himself in a position of embarrassment as a
consequence of the breach, the measures which
he may be forced to
adopt to extricate himself ought not to be weighed in nice scales and
the court should not be astute to hold
that this onus has been
discharged”.
I am satisfied that the
plaintiff acted reasonably in the adoption of remedial measures in an
attempt to mitigate his damages and
the defendants’ failed to
prove that the plaintiff did not reasonably mitigate its damages and
their defence to that effect
is rejected.
Reduction of
Plaintiff’s Claim
[29] Defendants’
counsel submitted that any increased rental that the plaintiff
obtained from its new tenant (RFS Fanancial
Services CC) should be
taken into account, and consequently, the plaintiff’s damages
claim should be reduced by that amount.
The plaintiff collected
rentals from the new tenant from 1 January 2011 to 31 January 2012 in
the amount of R964 281, 25 and
would have collected rental from
the first defendant for the same period in the amount of R725 165,
00. The plaintiff
therefore collected R239 116, 25 more
than if the lease agreement with the first defendant would have
continued.
[30] It is therefore
argued on behalf of the defendants that the benefits should be
considered when calculating the plaintiff’s
claim for damages
as the benefits of the plaintiff’s new lease clearly flow from
the first defendant’s breach of contract.
It is contented
that without the first defendant’s breach the plaintiff would
not have been able to conclude a more beneficial
lease with its new
tenant and therefore the benefits is not collateral or merely
res
inter alios acta.
[31] Plaintiff’s
counsel submitted that there are no merits in the defendants’
argument as the plaintiff’s claim
is based on contract and not
on delict. It was argued for the plaintiff that any benefit
that the plaintiff might have gained
by entering into the agreement
with the new tenant is a collateral benefit and does not reduce the
defendants’ liability.
Plaintiff’s counsel
relied on
Hunter v Shapiro
[1955] 3 ALL SA 1
(D)
wherein the court stated the following in this regard:
“
The net result
may well be that because of the scale the plaintiff is in pocket, but
I can see no reason why the defendant
should get the benefit
of it or be entitled to set up the case that he should get the
benefit thereof.
As was said by LORD
PARMOOR in Hill & Sons
supra
at p.115.
If the contract or
work which gives the plaintiff an alleged advantage is a contract or
work wholly independent of the relations
created between the
plaintiff and the defendant by the particular contract or work
cannot be pleaded in mitigation of damages”.
[32] The legal position
on this point is clear: reduction or elimination of the plaintiff’s
loss by a third party is not a
matter of mitigation and does not
reduce the defendant’s liability. The occurrence must be
ignored as a collateral
benefit or
res
inter alios acta
[7]
.
The defendant’s
reliance on
Everett v Marian Heights (Pty) Ltd
1970 (1) SA 198
(C)
is completely misplaced. This case did not deal
with premature breach of rental agreement as
in casu.
If the plaintiff’s
efforts at mitigation are so successful that he is better off than he
would have been if the contracts
had not been breached, there is
authority that this profit cannot be set off against loss previously
accrued from the same breach.
In light of the legal
position above-mentioned, there is no need for me to deal with the
plaintiff’s replication to the defendants’
amended plea
of 15 April 2015. The defendants’ argument to have the
plaintiff’s claim reduced is rejected.
Deposit of R50 000,
00 paid to the Plaintiff
[33] The defendants made
an unconditional tender of the arrear rental in the amount of
R62 182, 00, which tender was accepted
by the plaintiff in the
opening address at the trial. Defendant’s counsel submits
that the tender was made on the understanding
that the R62 182,
00 was the amount owing after the deposit had been taken into
account. However, it transpired during
Swart’s
cross-examination, that the deposit of R50 000 was not taken
into account in calculating the amount of R62 182,
00. It
is submitted therefore that the R50 000, 00 deposit should be
set-off against any amount that the court find
that the defendants
owed to the plaintiff.
[34] Plaintiff’s
counsel argued that this issue was never raised in the pleadings and
the defendants did not institute a counter
claim regarding the
R50 000 deposit and the plaintiff could not therefore deal with
this issue in his pleadings. Furthermore,
Swart testified that
the amount was possibly applied to outgoing costs incurred after the
defendants vacated the premises and before
a new tenant was found.
[35] The court is
entitled to rely on evidence not covered by pleadings
[8]
.
The plaintiff did not prove nor did he claim any damages in respect
of his alleged expenses incurred after the defendants
vacated the
premises. I cannot see why the amount of R50 000 should
not be set-off against any amount the court finds
that the defendants
owe to the plaintiff.
Rate of Interest
[36]
Section 1
of the
Prescribed Rate of Interest Act, No 55 of 1975
, provides as
follows:
“
1. Interest on
a debt to be calculated at a prescribed rate in certain
circumstances –
(1) If a debt bears
interest and the rate at which the interest is to be calculated is
not governed by any other law or by an agreement
or a trade custom or
in any other manner, such interest shall be calculated at the
rate prescribed under subsection (2)
as at the time when such
interest begins to run, unless a court of law, on the ground of
special circumstances relating to the
debt, orders otherwise”.
[37] It is submitted by
defendants’ counsel that the change in the prescribed rate of
interest from 15,5% to 9% per annum
as from 1 August 2014 is a
special circumstance which allows the court to deviate from the
prescribed rate of interest of 15,5%
per annum. Counsel
contends therefore that the court should order the defendants to pay
interest at a rate of 15,5% per annum
from 23 October 2009 until 31
July 2014 and at a rate of 9% per annum from 1 August 2014 until 22
April 2015, alternatively date
of payment.
[38] Although the
prescribed rate of interest was determined as 9,0% per annum from 1
August 2014 as published under GN 554 in Government
Gazette 37831 of
18 July 2014, the rate of interest at the time when such interest
began to run in
casu
and when the amount became due and
payable was 15,5%. My conclusion is therefore that the change
in interest rate can never
be regarded as “
special
circumstances”
as required by the
Prescribed Rate of
Interest Act.
Costs
[39] In terms of clause
15 of the written lease agreement, which is admitted by the
defendants, the plaintiff will be entitled to
claim any legal
charges, including reasonable attorney and client costs incurred in
enforcing any of the defendants’ obligations
arising from the
defendants’ breach thereof.
[40] I am satisfied that;
there was no written and signed variation of the lease agreement;
there was no negligence on the plaintiff
in that he failed to
conclude a lease agreement with KSS and the plaintiff did everything
reasonable to mitigate its loss after
the defendants vacated the
premises.
[41] In the
circumstances, the following order is made:
Judgment is granted
against Second, Third, Fourth and Fifth Defendants, jointly
and severally, the one paying the other
to be absolved for:
1) Payment in the
amount of R62 182, 00 together with interest at a rate of
15,5% per annum from 23 October 2009 until
date of final payment;
2) Payment in the
amount of R749 220, 84 (R799 220,84 less R50 000, 00)
together with interest at the rate of 15,5%
per annum a temporae
morae until date of final payment;
3) Costs on an
attorney and client scale.
__________________________
D S MOLEFE
JUDGE
OF THE HIGH COURT
APPEARANCES:
Counsel
on behalf of Plaintiff
:
Adv.
Barnardt
Instructed
by
:
Counsel
on behalf of Defendants’
:
Adv.
Bamelli
Instructed
by
:
Date
Heard
: 12, 13
and 14 May 2015
Date
Delivered
: 10
July 2015
[1]
Pleadings Bundle 1 page 43
[2]
Pleadings Bundle 1 page 44
[3]
Advocate B. Balmelli
[4]
Advocate H M Barnardt
[5]
(725/13) [2014] ZASCA 178
[6]
Shrog v Valentine 1949 (3) SA 1228 (T)
[7]
Christie, The Law of Contract, at page 580
[8]
E C Chenai and Sons Cc v Lame’ &
van Blerk
[2006] ZASCA 10
;
2006 (4) SA 574
(SCA)