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[2013] ZAKZDHC 39
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Liberty Group Ltd v Sonitis and Another (2036/2013) [2013] ZAKZDHC 39 (20 August 2013)
1
NOT
REPORTABLE
IN THE KWAZULU-NATALHIGH COURT, DURBAN
REPUBLIC OF SOUTH AFRICA
CASE NO:2036/2013
In the matter between:
LIBERTY GROUPLTD
.......................................................................
Applicant
and
SOTIRIS SONITIS
....................................................................
First
Respondent
CIRCUS CIRCUS FRANCHISING (PTY) LTD
.................
Second Respondent
___________________________________________________________
JUDGMENT
___________________________________________________________
GORVEN J
In this application summary judgment is sought. It
arises from a lease which the applicant avers was concluded over
premises situated
at the Midlands Liberty Mall. Against the
respondents, the applicant relies on a deed of suretyship which it
says was executed
by themin favour of the applicant in respect of
the obligations of the principal debtor who is the named tenant in
the lease.
The applicant seeks a money judgment for rental and
related amounts, including damages, which it says arise from the
lease.
In the particulars of claim, the applicant pleads the
following. A written lease alternatively a partly oral, partly
written lease
alternatively a tacit lease further alternatively an
implied lease was concluded with the principal debtor. The written
lease,
alternatively the written part of thelease, comprises
annexures ‘A’ and ‘B’ to the particulars of
claim.
Annexure ‘A’ is a letter dated 30 September 2011
signed by the Leasing Manager of the applicant inviting the
principal
debtor (as would be tenant) and the respondents to sign
the letter. Their signatures would constitute an offer to lease and
offers
of deeds of suretyship respectively. The principal debtor and
the respondents signed annexure ‘A’ on 3 October
2011 and the applicant’s representative signed it on 5 October
2011. It is clear that annexure ‘A’ contains
sufficient
information to constitute a lease and deeds of suretyship. Annexure
‘B’ is a comprehensive lease agreement
which is not
averred to have been signed at all.
The applicant goes on to plead that clause 22 of
annexure ‘A’ contains two suspensive conditions. The
first requires
the cancellation of the existing lease over the
premises by 30 September 2011. The second requires the arrears over
the premises
to be paid within 24 hours of the ‘tenant
receiving the signed confirmation of the landlord’. The
applicant pleads
the fulfilment of the first suspensive condition in
that the existing lease was cancelled and the tenant given
occupation of
the premises by 30 September 2011. As
regards the second condition, the applicant pleads that ‘this
suspensive
condition is exclusively for the benefit of the Plaintiff
and have (
sic
) been waived by it’. The applicant
pleads, in the alternative, that both conditions were waived by the
parties, alternatively
that the parties waived their rights to
cancel the agreement as a result of non-fulfilment, further
alternatively that the lease
was later revived or reinstated by the
parties, further alternatively that the two conditions were both
exclusively for the benefit
of the applicant which waived them.
Summary judgment has far reaching consequences. It is
‘intended to prevent sham defences from defeating the rights
of parties
by delay…’.
1
If
summary judgment is granted, adefendant isprecluded fromdefending
the action and pleading or excepting to the summons. It therefore
applies to a closed subset of claims and requires strict compliance
with Rule 32. Even if the applicant has complied and the
defendant
does not make out a defence,the court has a discretion to refuse
summary judgment.
2
In
lieu of a trial where evidence is led and cross-examination takes
place, the applicant must accordingly give limited evidence
by way
of affidavit swearing ‘positively to the facts verifying the
cause of action and the amount, if any, claimed’
in the
summons.
3
This is why it is necessary for the deponent to be
someone who has personal knowledge of the facts alleged in the
particulars
of claim and ‘it is improper for the deponent to
make statements based only on his own information and belief’.
4
It is crucial, therefore, that the cause of action
verified by the deponent to the affidavit in support of summary
judgment is
a complete one.
5
For a complete cause of action arising from a contract
subject to a condition precedent, a plaintiff must plead and prove
one
of two things. First, it may plead and prove the fulfilment of
the condition.
6
If
the condition is not fulfilled by a particular date, the contract is
rendered void.
7
Secondly,
it may plead and prove that the condition precedent was waived. If
waived, it is as if the condition had been fulfilled.
One of the two
must be pleaded and proved for the contract to survive. Where a
waiver of the condition is relied on, the waiver
must, like
fulfilment, take place before the date set for the fulfilment of the
condition.
8
This
is because if the condition is not fulfilled or waived by the time
fixed, the contract isrendered void. Since it is void,
there is no
longer an operative condition to be waived. Any subsequent contract
between the parties which may come into effect
cannot do so by way
of waiver or by fulfilment of the condition. A fresh agreement is
necessaryin order to revive the void contract.Further,
there cannot
be both a waiver and a fulfilment of a condition precedent. The two
situations are mutually exclusive. If the condition
is fulfilled, it
cannot be waived and if it has been waived, it cannot be fulfilled.
In argument, the applicant submitted that fulfilment
and waiver can be seen as complementary alternatives. As mentioned
above,
the particulars of claim, and therefore the evidence of the
deponent verifying them, aver fulfilment of the first condition,
alternatively that the applicant waived it, alternatively that the
parties waived it, alternatively that the lease revived by
agreement. It seems unlikely that a person could crediblygive
evidence that the condition was both waived by the applicant and
fulfilled. Such evidence would be affirming contradictory factual
situations. It seems even less likely that credible evidence
can be
given that the parties both waived the condition and that the lease
was revived by the parties by agreement. How can both
parties have
waived the condition and also have agreed that the lease should be
revived? If the condition was not waived, the
lease was rendered
void. If the condition was waived, the lease is extant and does not
require revival. Similar reasoning applies
to the alternative causes
of action, one based on an express agreement and the others ona
tacit or implied agreement. The evidence
in the supporting affidavit
may therefore be self-contradictory because it is not clear that the
alternatives set out above are
not mutually destructive.
If alternative causes of action are really
complementary to one another and not mutually destructive, ‘
it
is perfectly in order to verify a cause of action based on
alternative claims. What is objectionable is verifying a cause of
action based on two mutually destructive alternative versions of the
cause of action’.
9
It
is also open to a deponent in support of summary judgment to verify
a particular cause of action where a number of causes of
action
appear in the summons, even if they are mutually destructive of one
another.
10
As was said in
Smith
,
though, if this is done, ‘it must be clear that the cause of
action on which the particular claim is based has been duly
verified.’
11
Where
mutually destructive versions are verified, there has not been a
proper verification of thecause of action relied on ‘because
an essential allegation has in the same breath been verified and
contradicted.’
12
In
Threeball Construction Ltd v Lipschitz,
Stegmann J reasoned in the following terms:
‘
Pleading inconsistent versions in the
alternative is, of course, entirely proper. The pleader knows the
limitations of the evidence
available to him, and that it may be
found not to go far enough to establish the
facta
probanda
on which the first cause of
action is based. He therefore pleads in the alternative that the
available evidence is sufficient to
make out a somewhat different
cause of action with elements inconsistent with the cause of action
first set out. The pleader's
alternatives are as to the conclusions
of law that are to be drawn from the available evidence. A witness is
in a different position.
He does not testify about conclusions of law
but about facts. If he purports to testify that he met the defendant
at a particular
time and place and expressly agreed on a stated
price, he cannot expect to be believed if he also testifies that he
did not meet
the defendant, and that they did not expressly agree on
the stated price. That seems to me to be the effect of the affidavit
filed
on behalf of the plaintiff in the present matter…
In the present matter it is not clear that the alternatives are
complementary to each other (as they may be), and that they are
not
mutually destructive.
It is therefore not clear that the plaintiff's affidavit is not
self-contradictory, and the plaintiff cannot be said to have an
unanswerable case.’
13
This reasoning is, in my respectful view, correct and
applies equally to the present matter. Likewise, in the light of what
I have
dealt with above,in particular to the issue of fulfilment or
waiver of the first condition or the revival of the lease by
agreement,
it cannot be said that the applicant has an unanswerable
case. Nor is it clear that an essential allegation has not been
verified
and contradicted in the same breath.
For these reasons, summary judgment cannot be granted.
This is so regardless of whether or not the affidavit opposing
summary
judgment sets out a defence.
14
As
it happens, the opposing affidavit is by no means a model of
clarity. I do not propose dealing with the opposing affidavit
in
detail or all of the submissions made by the respondent. The
affidavitsets out that an alternative tenant to whom no objection
could be raised was introduced to the applicant which would have
resulted in the applicant mitigating the damages sustained but
that
the applicant rejected the introduction. This sets out, in broad
terms, a defence to that portion of the amount claimedas
damages but
very little else is addressed in concrete terms.If I am wrong on the
issue concerning the alternative causes of action,
this would
probably incline me in any event to exercise my discretion against
granting summary judgment.
The respondents urged me to award them costs on an
attorney and client scale if I refuse summary judgment. It was
submitted that
if I find that the applicant verified contradictory
causes of action, this disqualified it from obtaining summary
judgment. They
say that the trial court will not be in a better
position to determine this. In addition, on this basis, the
applicant oughtnot
to have brought the application and the
respondents are unnecessarily out of pocket which warrants a
punitive costs order. However,
the analysis above only goes so far
as to find that the alternative averments are not clearly consistent
with each other. They
may be found to be so. In addition, the
respondents did not raise any of these issues. Theirheads of
argument raised only a point
in
limine
that the deponent
verified ‘the cause of action’ where there were in fact
a number of alternative causes of action.
As such, they submitted,
it was not possible to ascertain which cause of action was being
verified. I do not find this point
convincing. All things
considered, I am of the view that the usual order reserving costs
for decision by the trial court will
meet the case. It may well be
that the respondents have no defence tothe action.
In the result, the following order shall issue:
The application for summary judgment is dismissed.
The defendants are given leave to defend the action.
The costs of the summary judgment application are
reserved for decision by the trial court.
DATE OF HEARING: 15August 2013
DATE OF JUDGMENT: 20 August 2013
FOR THE APPLICANT: M Bingham, instructed by Gideon
Pretorius Inc.
FOR THE FIRST RESPONDENTS: S Hoar, instructed by Smith
Tabata
Buchanan Boyes Attorneys.
1
Joob
Joob Investments (Pty) Ltd v Stocks Mavundla Zek Joint Venture
2009 (5) SA 1
(SCA) para 31.
2
Rule
32 (5);
Gruhn v M Pupkewitz & Sons (Pty) Ltd
1973 (3) SA
49
(A) at 58C-F.
3
Rule
32 (2).
4
Shackleton
Credit Management (Pty) Ltd v Microzone Trading 88 CC& another
2010 (5) SA 112
(KZP) at 115E-F.
5
Caltex
Oil (SA) Ltd v Crescent Express (Pty) Ltd & others
1967 (1)
SA 466
(D) at 469C-D.
6
Kate’s
Hope Game Farm (Pty) Ltd v Terblanchehoek Game Farm (Pty) Ltd
1998 (1) SA 235
(SCA) at 241C-D.
7
Legate,JM
v Natal Land and Colonization Co Ltd
[1926] LKCA 17
;
(1906) 27 NLR 439
at 455;
Southern Era Resources Ltd v Farndell NO
2010 (4) SA 200
(SCA) para 11.
8
Trans-Natal
Steenkoolkorporasie Bpk v Lombaard en ‘n ander
1988 (3) SA
625
(A) at 640C-G.
9
Per
Zulman J in
Diesel Power Plant Hire CC v Master Diggers (Pty)
Ltd
1992 (2) SA 295
(W) at 297C-D.
10
Per
Booysen AJ in
Barclays National Bank Ltd v Smith
1975 (4) SA
675
(D) at 682D-E.
11
Smith
at 682F-G. See also,
Esso Standard South Africa (Pty) Ltd v
Virginia Oils and Chemical Co (Pty) Ltd
1972 (2) SA 81
(O) at
85.
12
Smith
at 682G-H.
13
1987
(2) SA 633
(W) at 634I-635E.
14
Shackleton
Credit
para 25.