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[2012] ZAGPPHC 109
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Wallace NO and Others v Woman Affairs Beauty Salon CC and Others (57910/2011) [2012] ZAGPPHC 109 (13 June 2012)
NOT
REPORTABLE
THE
NORTH GAUTENG HIGH COURT
Case
No.: 57910/2011
DATE:13/06/2012
In
the matter between:
EDWARD
ALAN WALLACE N.O.
…...........................................................................
1
st
Plaintiff
ROUX
PETRUS JOHANNES GEBER
N.O.
...............................................................
2
nd
Plaintiff
DIRK
LE ROUX
N.O.
....................................................................................................
3rd
Plaintiff
CHARLES
FOURIE
N.O.
.............................................................................................
4th
Plaintiff
and
WOMAN
AFFAIRS BEAUTY SALON
CC
.................................................................
1st
Defendant
DAVID
BENJAMIN
SITHOLE
.....................................................................................
2nd
Defendant
SHARON
SHIRLEY
SITHOLE
..................................................................................
3rd Defendant
JUDGMENT
MNGQIBISA-THUSI
J:
[1]
In its notice for summary judgment against the defendants, the
plaintiffs, as trustees of the Karenpark Property Investment
Trust
("the trust"), seek on behalf of the trust, an order on the
following terms:
1.1
payment of the sum of R 200 486.33;
1.2
interest on the sum of R 200 486.33 at the rate or 2% per month,
alternatively, 15.5% per annum a tempore morae to date of final
payment;
1.3
costs on an attorney and client scale.
[2]
On 11 August 2008 the first plaintiff, acting on behalf of the trust
and the first defendant, represented by the third defendant,
concluded a lease agreement in terms of which the trust agreed to
lease certain premises to the first defendant. The lease was
for
period 11 August 2008 to 30 November 2012.
[3]
The second and third defendants signed a deed of suretyship with the
trust, binding themselves as sureties and co-principal
debtors for
the debs of the first defendant.
[4]
It is-common cause that:
4.1
in early 2009 the first defendant fell into arrears with its rental
payments;
4.2
on 13 October 2009 the trust had sent the first defendant a final
letter of demand for payment of rent accrued in the amount
of R66
932.94.
[5]
On 10 October 2010 the trust issued a summons which was served on the
defendants at their domicilium addresses on 13 Oqtober
2010 in which
the trust was claiming payment of an amount of R 211 486.33 plus
interest which was outstanding rent for the period
June 2009 to
October 2011.
[6]
The defendants fiiea a notice to aefena. . The plaintiff instituted
summary judgment. The defendants filed their opposing affidavit
late
and are seeking to have this affidavit admitted. The attorney for the
defendants has filed an affidavit giving an explanation
for the late
filing of the defendants' affidavit. I am of the view that the
explanation given is reasonable and, in view of the
drastic nature of
summary judgment proceedings, I am satisfied that it would be in the
interest of justice for the defendants'
affidavit to be admitted.
[7]
The defendants have raised the following points in limine:
7.1
That although the plaintiff's are claiming monthly arrear rental over
a period of time, its verifying affidavit in support of
summary
judgment confirms the amount owed for the total owed, instead of
confirming and verifying amounts for each month.
7.2
That the deponent to the affidavit in support of the summary judgment
application only verified and confirmed the amount owed
only in
relation to the first defendant and not with regard to the second and
third defendant.
[8]
The points in limine raised by the defendants are at the least
technical have no substance. The deponent to the affidavit in
support
of summary judgement does not necessarily have to verify each and
every moth owed. It is clear and by their own admission
the
defendants have been in default of their rental payments for over a
period of time. It is clear that the amount claimed by
the plaintiffs
is for the whole period of default. Further it is not necessary that
the deponent to me verifying affidavit to nave
confirmed and verified
tne amount owed for each defendant. The claim against these two
defendants is based on and dependent on
the first defendant's
indebtedness. The second and third defendants. Therefore the points
in limine raised by the defendants ought
to fail.
[9]
In its affidavit opposing the granting of summary judgment, the
defendants allege that they have a bona fide defence against
the
plaintiffs' claim and that they are not opposing summary judgment
solely in order to delay the plaintiffs claim.
[10]
The defendant is opposing the granting of summary judgment on the
following grounds:
10.1
that the plaintiffs' are estopped from claiming part of the amount in
arrears
10.2
that by the plaintiffs accepting rentals after it had sent the final
letter of demand, the plaintiffs had waived their right
to claim
under the agreement whatever it alleges it is owed.
[11]
It was submitted on behalf of the defendants that after summons were
issued, the defendants had concluded an oral agreement
with two
employees of the trust. He terms of this oral agreement was that if
the defendants paid 50% of the money owed, the trust
would waive its
rights to the remaining balance of 50% of the amount owed.
[12]
It is the contention of the defendants that because of the alleged
oral agreement, the plaintiffs' were estopped from bringing
this
application.
Funner,
a is contended mat oecause the piainnffs naa waived meir rights to
50% of the debt owed and had not tried to enforce it
for some time,
they had waived their claim against the defendants.
[13]
The above arguments by the defendants do not hold water in that in
terms of the agreement; in particular clause 30 thereof,
any
variation to the terms of the agreement had to be in writing.
Secondly the defendants do not show evidence leading to their
conclusion that the two employees with whom they allegedly had an
oral agreement with had the authority to waive the trust's rights
to
what was due to it.
[14]
It is apparent that the defendants have not shown that they have a
bona fide defence to the plaintiff's claim and I am of the
view that
their opposition is merely to delay the claim of the plaintiffs.
[15]
Accordingly the following order is made:
Summary
judgment is granted against the defendants jointly and severally the
one paying the other to be absolved, for:
15.1
Payment of the sum of R 200 486.33.
15.2
Interest on the sum of R 200 486.33 at the rate of 15.5% per annum
from 13 October 2011.
15.3
Costs on an attorney and client scale.
N.
P. MNGQIBISA-THUSI
Judge
of the High Court