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[2014] ZAGPPHC 310
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Lynnwood Forum (Pty) Ltd v Danton Pub CC and Others (65945/2013) [2014] ZAGPPHC 310 (23 May 2014)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO: 2013/65945
DATE:
23 MAY 2014
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
In
the matter between:
LYNNWOOD
FORUM (PTY)
LTD
...................................................................................
PLAINTIFF
and
DANTON
PUB CC
…..........................................................................................
FIRST
DEFENDANT
DANIEL
JOHANNES BREDENKAMP HAMMAN
...................................
SECOND
DEFENDANT
JOHAN
ANTON
SWANEPOEL
.......................................................................
THIRD
DEFENDANT
MARTINUS
CORNELIUS
HUMAN
...........................................................
FOURTH
DEFENDANT
JUDGMENT
COLLIS
AJ:
INTRODUCTION
[1]
The Plaintiff issued summons against the First, Second, Third
and Fourth defendants suing them jointly and severally, the one
paying
the other to be absolved for:
(a)
Payment in the amount of R45 389.42, for the deposit still due
and outstanding;
(b)
Payment in the amount of R468 897.86 for the outstanding
rental for the period 1 January 2012 to 1 October 2013;
(c)
Interest on the aforesaid amounts at 15.5% per annum
calculated from date of service of summons, to date of payment.
(d)
Costs of the action on a scale as between Attorney and Client.
[2]
Pursuant to the summons being served on the defendants, the
defendants entered an appearance to defend the action, whereupon the
plaintiff applied for summary judgment within the ambit of Rule 32 of
the Uniform Rules of Court.
BACKGROUND
[3]
The
plaintiff is the registered owner of fixed commercial property. On 27
June 2011, it entered into a lease agreement
[1]
with the first defendant for a period of 5 years commencing on 1
October 2011. The first defendant took occupation on 1 October
2011.
In terms of the lease so concluded the first defendant was required
to pay a deposit and thereafter rental as set out in
the lease
agreement. On 27 June 2011 the second, third and fourth defendants
executed deeds of suretyship
[2]
in favour of the plaintiff wherein they bound themselves jointly and
severally as sureties and co-principal debtors with the first
defendant and in respect of the first defendant’s liability
towards the plaintiff. Plaintiff alleges that the first defendant
failed to pay the full deposit as required in terms of the lease
agreement and further that the first defendant as from January
2012
fell into arrears with his rental payments.
[4]
The defendants opposed the application for summary judgment
and in their affidavit resisting summary judgment had raised two
defences.
Firstly, they denied the correctness of page 7 of the lease
agreement annexed to the particulars of claim. The plaintiff relies
on this document to proof the rental amount (Clause 18) and the
initial rental deposit (Clause 19). Secondly, the defendants set
out
that they intend instituting a counterclaim against the plaintiff in
relation to the discontinuation of electricity supply
to the leased
premises and failure of working air conditioners of the leased
premises.
FIRST
ISSUE
[5]
The second defendant has attached annexure A and B to his
opposing affidavit, in substantiation of the defendants’
defence
disputing the correctness of page 7 of the lease agreement.
According to the defendants, page 7 of the lease agreement may have
been altered and therefore not reliable.
[6]
Ex facie the two documents, the terms of the lease agreement
recorded therein, are exactly the same. The only difference is that
in Annexure A two signatures were appended next to the deleted clause
18.3, whereas in Annexure B three signatures were appended
next to
the deleted clause 18.3.
[7]
The dispute between the parties is for the shortfall of the
deposit and the outstanding arrear rental. The terms that pertain to
this dispute are contained in clauses 18 and 19 of the lease
agreement. The documents relied upon by the defendants to dispute
the
reliability of page 7 of the lease agreement show that the rental
amount and the deposit amount are those as particularised
in the
plaintiffs claim. Thus, these documents support the version of the
plaintiff insofar as the rental amounts and deposit amounts
are
concerned.
[8]
In view of the fact that the material terms of the lease
agreement as recorded in annexures A and B are exactly the same; I
conclude
that in these circumstances the omission of one signature
(in annexure A) is not material in showing that the terms of the
lease
agreement were different to those as alleged by the plaintiff.
[9]
In further substantiation of their defence, the second
defendant denies at paragraph 2.11 of the opposing affidavit that he
had
the authority to sign on behalf of the other defendants. I
surmise that the second defendant’s denial of authority relates
to the signing of the lease agreement. It is apparent that the
plaintiffs claims against the second, third and fourth defendants
were by virtue of the suretyship agreements concluded between the
plaintiff and them. The suretyship agreements are separate and
distinct agreements and the underlying causa to prove the
indebtedness of the second, third and fourth defendants. Therefore,
and as a result I cannot but conclude that the identity and authority
of the signatory to the lease agreement is of no consequence.
[10]
The
defendants further argue that the plaintiffs claim is not a
liquidated claim. By this I take is meant, that the claim is not
one
for a liquidated amount in money.
[11]
A
liquidated amount in money is an amount which is either agreed upon
or which is capable of speedy and prompt ascertainment
[3]
.
In Botha v Swanson & Company (Pty) Ltd 1968 (2) PH F85 (C)
Corbett J put the test as follows: “A claim cannot be regarded
as one for a liquidated amount in money unless it is based on an
obligation to pay an agreed sum of money or is so expressed that
the
ascertainment of the amount is a mere matter of calculation."
[12]
The lease agreement concluded between the parties being the
underlying causa upon which the plaintiffs claim is based, clearly
stipulates
the period of the lease, the rental amounts to be paid in
terms of the lease and who in terms of the lease agreement was liable
for such payments.
[13]
Furthermore, in paragraph 9 of its particulars of claim the
plaintiff sets out how the outstanding amount sued for was
calculated.
[14]
The outstanding amount, as claimed by the plaintiff is
therefore capable of speedy and prompt ascertainment and as a result
I find
the criticism that the plaintiffs claim is not one based on a
liquidated amount in money, to be without merit and substance.
SECOND
ISSUE
[15]
The
second issue raised as a defence is a counterclaim which the first
defendant intends instituting against the plaintiff. The
counterclaim
allegedly relates to the discontinuation of electricity supply and
faulty air conditioners on the leased premises
which resulted in
various losses for the first defendant.
[4]
In addition thereto, the first defendant contends that it had
received penalties and fines imposed by the City of Tshwane
Municipality
resulting in damages suffered by it.
[16]
The first defendant in its opposing affidavit fails to
stipulate what amount its counterclaim will constitute and in
addition thereto,
it is vague as to the particularities of its
intended counterclaim.
[17]
In
the decision Bank of Lisbon v Botes
[5]
Nestadt J remarked as follows:
“
It will be
seen that the affidavit purports to disclose three defences. One is
that the defendant has a counterclaim. This is dealt
with in the
second last paragraph of the affidavit. There is, however, nowhere to
be found any mention of how much this counterclaim
is. There is not
even an allegation that the counterclaim is in an amount in excess of
the plaintiff’s claim. In these circumstances
it seems to me
that I must hold, as I do, that this part of the affidavit discloses
no defence. It is of course clear that a counterclaim,
if properly
set out, can constitute a defence to an application for summary
judgment. It must, however, as I have indicated, be
properly set out.
As a minimum requirement it must, I think, be quantified and, if it
is to constitute a complete defence, the
quantum thereof must be in
an amount at least equal to the plaintiff’s claim. ”
[18]
In Traut v Du Toit
[6]
it was held
that;
“where
the total failure of the defendant to set out his counterclaim fully
makes it impossible for the Court to
say
that
the counterclaim can disclose a bona fide defence, the Court will
grant summary judgment against the defendant. By reason of
complete
non-quantification of the defendant’s counterclaim that
principle in my view applies to the present matter. ”
[1]
In the absence of the defendant setting out its counterclaim
fully and with sufficient particularity, I cannot find that such
intended
counterclaim discloses a bona fide defence.
[2]
Uniform Rules of Court, Rule 32(3) (b) sets out that a
defendant shall on affidavit “disclose" fully the nature
and the
grounds of the defence and the material facts relied upon
therefor. This I find, the opposing affidavit fails to disclose.
ORDER
[3]
In the result summary judgment is granted in favour of the
plaintiff against the first, second, third and fourth defendants
jointly
and severally the one paying the other to be absolved for:
(a)
Payment in the amount of R45 389, 42 (Forty Five Thousand
Three Hundred and Ninety Eight Rand and Forty Two Cents);
(b)
Payment in the amount of R468 897, 86 (Four Hundred and Sixty
Eight Thousand Eight Hundred and Ninety Seven Rand and Eighty Six
Cents);
(c)
Interest on the aforesaid amounts at the rate of 15% per annum
calculated from 4 November 2013, to date of final payment;
(d)
Costs of suit on a scale as between Attorney and Client.
C.
J. COLLIS
ACTING
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
APPEARANCES
FOR
PLAINTIFF: ADV K JORDT
INSTRUCTED
BY: LACANTE HENN INCORPORATED
FOR
DEFENDANT: ADV J.C VAN EEDEN
INSTRUCTED
BY: KEMP DE BEER & GOOSEN ATTORNEYS
DATE
OF HEARING: 05 MAY 2014
DATE
OF JUDGMENT: 23 MAY 2014
[1]
See
in this regard Annexure “L2”
[2]
See
in this regard Annexure “L3”
[3]
Lester Investments (Pty) Ltd v Narshi 1951 (2) SA464 (C)
[4]
See in this regard Opposing Affidavit para 4,1 to 4.4
[5]
1978 (4) All SA 79 (W)
[6]
1966 (1) SA 69
(O)