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[2014] ZAGPPHC 83
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Mooiriver Mall (Pty) Ltd v Stroebel and Another (68585/2013) [2014] ZAGPPHC 83 (18 February 2014)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT
OF SOUTH AFRICA
(NORTH GAUTENG,
PRETORIA)
CASE
NO: 68585/2013
DATE:
18 FEBRUARY 2014
In the matter
between:
MOOIRIVER MALL
(PTY)
LTD
..........................................................
PLAINTIFF
And
AL1DA MAGDALENA
STROEBEL
...................................
FIRST
DEFENDANT
MARLO
STROEBEL
.....................................................
SECOND
DEFENDANT
JUDGMENT
KUBUSHI, J
[1] This is an
opposed summary judgment application. The plaintiff is claiming
summary judgment for payment of a debt against the
members of Redwood
Falls Trading 127 CC trading as Juicy Lucy CC [the CC], According to
the plaintiff the CC was finally deregistered
on 15 July 2011. The
debt emanates from a rental
1 ; agreement
between the plaintiff and the CC and the plaintiff is holding the
defendants liable for the debt on the ground that
they were the
members of the CC at the time the CC was so deregistered.
[2] It is alleged
that the plaintiff obtained judgement in the magistrates’
court, Potchefstroom, against the CC which was
premised on the
payment of rental and damages. A warrant of execution was issued for
the recovery of the debt but the CC was deregistered
and the debt
could therefore not be realised. The plaintiff is as a result
claiming the said payment from the defendants.
[3] The defendants
are opposing the application on the ground that there is an appeal
pending against the judgment granted against
the CC in the
magistrates’ court The defendants contend that the alleged
indebtedness which the plaintiff relies on does
not represent
indebtedness due by the CC and as such they are not liable to pay it.
They allege in the opposing affidavit deposed
to by the first
defendant and confirmed by the second defendant that the defence
raised in the matter before the magistrates' court
that of the
failure by the plaintiff to provide an agreement between the
plaintiff and the CC represent a defence available to
them. According
to the defendants the CC is not deregistered but is under
liquidation.
[4] 1 The plaintiffs
contention in respect of the defendants ground for opposing the
application is that the defence in not bona
fide in that firstly, the
CC cannot be under liquidation because it has been deregistered and
there is no evidence on the papers
that it was ever registered again.
Secondly, the appeal is not pending since at the time when it was
struck off the roll of appeal
that court declared that the appeal has
not been noted.
[5] Uniform rule 32
(3) [b] requires that a defendant, against whom summary judgment has
been sought, must satisfy the court by
swearing positively to the
fact that he has a bona fide defence by disclosing fully the nature
of the grounds of the defence and
the material facts relied upon for
such a defence. The papers must be looked at as a whole in order for
a court to come to a conclusion
as to whether leave to defend should
be granted to a defendant or not
[6] I am not
satisfied that the defendants have in their answering affidavit fully
disclosed the nature of the grounds of their
defence. There is no
evidence before me that the appeal on which the defendants rely will
be prosecuted. The defendants' contention
is that it has been
postponed and that they are currently in the process of obtaining the
necessary funds to provide the required
security. During the hearing
of the application the plaintiff s counsel handed in a copy of a
judgment which shows that Prinsloo
and Phatudi ]J on 18 May 2012
declared that the CC failed to note the appeal and subsequently
struck the appeal from the roll.
The defendants' counsel did not
object to the handing in of this judgment and I therefore considered
it when giving this judgment.
There is also no evidence that the CC
is under liquidation as suggested by the defendants. No evidence was
tendered by the defendants
to that effect nor was there any sort of
confirmation from the liquidator that indeed the CC is under
liquidation or that the defendants
have approached him/her to handle
the appeal. The defendants' counsel argued against the acceptance of
the copy of a document from
CIPRO which indicated the deregistration
of the CC, Even if I do not take this into consideration, the
evidence that the CC has
been deregistered stands because the
defendants did not put a challenge to it.
[7] In the
circumstances I find myself constrained to can grant the defendants
leave to defend the matter. The defendant is entitled
to its judgment
[8] I do not agree
with the plaintiff s counsel that the plaintiff is in the
circumstances of this case entitled to a punitive cost
order.
[9] Consequently I
make the following order against the defendants:
a. Payment of the
amount of R220 371 - 25;
b. Payment of the
amount of R157 552 - 17;
c. Payment of the
amount of R857 - 75 per day for the period 19 March 2010 to 31 March
2010;
d. Payment of the
amount of R929 - 82 per day from 1 April 2010 until re-let of the
premises;
e. Payment in the
amount of R14 799 - 73;
f. Interest on the
aforesaid amounts at a rate of 15.5% per annum a tempora morae until
date of final payment.
g. Costs of the suit
on a party and party scale.
E. M. KUBUSHI
JUDGE OF THE HIGH
COURT
Appearances:
HEARD ON THE :13
FEBRUARY 2014
DATE OF
JUDGMENT : 18 FEBRUARY 2014
PLAINTIFFS'
COUNSEL : ADV D H WINBEEK
PLAINTIFFS'
ATTORNEY : BEN GROOT ATTORNEYS INC
DEFENDANTS’
COUNSEL : ADV L K VAN DER MERWE
DEFENDANTS'
ATTORNEY : CAWOOD ATTORENYS