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[2014] ZAGPPHC 269
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Mitchpap Share Block (Pty) Ltd v Kleynhans t/a S.A.K. Bikes (6812/14) [2014] ZAGPPHC 269 (12 May 2014)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORI
A
Case Number 6812/14
Date: 12 May 2014
In the matter
between
MITCHPAP SHARE BLOCK
(PTY)
LTD
.....................................................................................
Plaintiff
And
JACOBUS JOHANNES
KLEYNHANS T/A S.A.K.
BIKES
.....................................................
Defendant
JUDGMENT
BAM J
1. Plaintiff issued
summons against the defendant based on a lease agreement, claiming
payment of R82 566,43 and eviction of the
defendant from the premises
in question, as well as payment of rent from 1 February 2014 to 31
August 2016.
2. In the
particulars of claim it was alleged by the plaintiff that the
agreement between the parties was entered into on 6 August
2013. The
defendant would have had the benefit of no rent to be paid for the
period 5 August 2013 to 31 October 2013, subject to
certain
conditions. Initially the applicant was satisfied that the defendant
has complied with the said conditions. However, the
plaintiff averred
that on 31 October 2013 the defendant breached the terms of the
agreement.
3.
The summary judgment application was resisted by the defendant
stating that he had a bona fide defence against the plaintiff's
claims. The defendant also took three points
in
limine.
4.
I will deal briefly with the points
in
limine.
The
first issue raised by the defendant was that the application or
summary judgment with the heading
"Notice
of Set Down for Summary Judgment"
is
not an application in terms of the Rules. Although this contention
may be technically correct, the contents of the notice were
clear and
unambiguous. This point was therefore without merit.
The
second point
in
limine
dealt
with the requirement in terms of the Rule that the Plaintiff was
obliged to state that the defendant has no
bona
fide
defence.
The plaintiff in fact made that averment. In my view it was not
necessary to elaborate on the issue.
The
third point
in
limine
turned
upon the allegation by Mr Carl Jack Paul, who deposed to the
applicant's supporting affidavit, that he was authorised by
an entity
named Savyon Building (Pty) Ltd, which company was clearly not
involved in any business between the plaintiff and the
defendant. In
perusing the applicant's supporting affidavit, it appeared that any
reference to a resolution by the said company
was in any event
superfluous. This point also stood to be dismissed.
5.
In regards to the question whether the defendant has a
bona
fide
defence,
it appears that there are several material disputes of fact between
the parties. I do not deem it expedient to refer to
the said issues
in any detail. Although it may seem,
prima
facie,
that
the existence of the second agreement between the parties, upon which
the defendant relies, may be questionable, I am of the
view that it
would be in the interests of justice that the disputes between the
parties be properly ventilated.
6.
I am, in the circumstances, of the opinion that the defendant has a
bona fide
defence
and accordingly that the defendant is entitled to be granted leave to
defend the matter.
Order
1. The application
for summary judgment is dismissed;
2. The defendant is
granted leave to defend;
3. Costs to be costs
in the cause.
AJ BAM
JUDGE OF THE HIGH
COURT
25 April 2014.