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IN THE HIGH COURT OF SOUTH AFRICA
WESTERN CAPE DIVISION, CAPE TOWN
Case number: 9804/2023
In the matter between:
PARETO (PTY) LTD
First Plaintiff/Applicant
MOMENTUM METROPOLITAN LIFE LTD
Second Plaintiff/Applicant
and
SULIZE CECILIA THERON
(Identity number: 8[…])
First Respondent/Defendant
MOHAMED OSMAN ABDI
((Identity number: 8[…])
Second Respondent/Defendant
Coram: Acting Justice A Montzinger
Heard: 06 September 2024
Delivered: 06 September 2024
JUDGEMENT
Montzinger AJ
Summary Introduction
1. This is an application for summary judgment.
2. The plaintiffs seek summary judgment against the defendants, Mr. and Mrs.
Theron, for R 602,790.26, together with interest and costs on an attorney and
client scale. The claim arose from the defendants’ liability as sureties for the
obligations of Monclair Trading CC (“Monclair”).
3. On 9 June 2019 the plaintiffs, as co-owners and landlords of Shop UL508A at
the Tyger Valley Shopping Centre ("the premises"), entered into a commercial
written lease agreement (the “main lease”) with Monclair for the rental of the
premises to conduct a coffee shop. The lease was concluded for a fix ed term
of 3 years to commence on 1 July 2019 and to expire on 30 June 2022.
Monclair undertook to pay rental and other related charges in accordance with
the terms of the main lease. To guarantee Monclair’s obligations to the
plaintiffs, the defendants each executed a deed of suretyship, binding
themselves as co-principal debtors for all amounts due under the main lease.
4. Montclair fell behind on rental payments, and by August 2020, it had accrued
arrears totalling R71,078.51. However, what was not pleaded in the
particulars of claim but does not seem in dispute , is that on or about 1 August
2020 Montclair entered into a sublet agreement with a certain Mr. Willem
Greyling (“Greyling”) who would continue to lease the premises from 1 August
2020 onwards for a period of 11 months until at least June 2021.
5. Greyling also did not comply with his obligations in terms of the sublet
agreement as Montclair continued to incur liability towards the plaintiffs for
outstanding rental and related charges. At some point the plaint iffs must have
instituted a liquidation application against Montclair seeking its winding -up.
The application was successful and on 25 January 2022 Montclair was finally
liquidated by an order of this court . Following Monclair's liquidation, the
plaintiffs sought payment from the defendants as sureties for the outstanding
arrear rental amounts.
6. The plaintiffs , on 20 June 2023, instituted the current action which was
defended with the filing of the required notice on 28 January 2024 . The
defendants represented themselves. A month later on 28 February 2024 the
defendants filed their plea. In response, t he plaintiffs applied for summary
judgment, asserting that the defences raised are not bona fide and are in any
event without merit. The summary judgement application was launched on 25
March 2024 to which the defendants filed an affidavit opposing the granting of
judgement.
The defences raised
7. The first ground of opposition is that the plaintiffs ’ claim is not liquidated.
Secondly, also tied to the first ground , is the contention that a substantial
portion of the amount claimed consists of legal fees, which is not taxed.
Thirdly, t he defendants assert that their obligations under the suretyship
agreement fell away when the plaintiffs accepted the sublease agreement
between Monclair and Greyling. The defendants maintain that by consenting
to the sublease, the plaintiffs effectively absolved the m from continued liability
under the original lease as sureties. As a fourth ground, t he defendants claim
that they have suffered prejudice as sureties due to the plaintiffs’ conduct,
particularly in allowing Greyling to occupy the premises without ensuring t hat
the monthly rental payments were made , basically claiming that the plaintiffs’
failure to mitigate their damages, result ed in prejudice to the defendants as
sureties.
8. The defendants also rely on a counterclaim for the repayment of the balance
of a deposit amount of R 70,704.03, which they allege should be returned to
them following Monclair’s liquidation. They also claim that they are entitled to
the value of the moveable goods left at the premises , as these good s
belonged to them.
9. I now turn to summa rise the legal principles, before evaluating the merits of
the plaintiffs’ application in light of the defences raised.
The legal principles
10. The legal principles governing summary judgment are well -established and
had been consistently applied and endorsed across numerous decisions over
the years. Given the settled nature of the principles , it is unnecessary to
restate every specific aspect thereof. A substantial body of case law provides
clarity on how to apply and evaluate the requirements for granting or refusing
summary judgment . Although, the recent amendments to the summary
judgment procedure have initially caused a furore, the fundamental
considerations a court should have regard to when faced with a summary
judgement remain consistent. For in stance, in Tumileng Trading 1, the court
reaffirmed the established principles laid down in earlier cases such
as Maharaj2 and Joob Joob Investments 3, specifically noting that despite the
procedural amendments, the core principles when evaluating a summary
judgement application remain intact.
11. Considering the drastic nature of a summary judgement a helpful starting
point when evaluating the request must always be whether the procedural
requirements outlined in rule 32(1)(a - d) of the Uniform Rules of Court have
been satisfied. Common sense dictates that a drastic remedy requires a high
degree of strict compliance. The claim must therefore be based on a liquid
document, or a liquidated amount of money, delivery of specified movable
property or for ejectment, together with any claim for interest and costs.
12. In opposing a summary judgement request the defendant must present an
affidavit4 disclosing fully the nature and grounds of the defence . The defence
must be a bona fide defence that is legally cognisable and factually
supported, as underscored in Breitenbach5. However, e ven if a defendant’s
defence appears weak or insubstantia l, the court retains a residual discretion
1 Tumileng Trading CC v National Security and Fire (Pty) Ltd 2020 (6) SA 624 (WCC) (“ Tumileng
Trading”),
2 Maharaj v Barclays National Bank Ltd 1976 (1) SA 418 (A) (“Maharaj’)
3 Joob Joob Investments (Pty) Ltd v Stocks Mavundla Zek Joint Venture 2009 (5) SA 1 (SCA) (“Joob
Joob”)
4 Uniform Rule 32(3)(b).
5 Breitenbach v Fiat SA (Edms) Bpk 1976 (2) SA 226 (T) (“Breitenbach”)
to refuse summary judgment 6. This discretion allows the court to consider
whether granting summary judgment might result in an injustice, particularly
where there is a reasonable possibility that a fuller exploration of the issues at
trial could reveal a valid defence7.
13. In the context of the liability of a surety and the granting of a summary
judgment the court must consider whether a valid surety agreement has been
concluded. According to the General Law Amendment Act 50 of 1956, for a
suretyship agreement to be valid, the terms must be embodied in a written
document signed by or on behalf of the surety 8. Once there is no qualm over
the validity of the surety agreement, a surety’s liability arises and is contingent
upon the principal debtor’s failure to satisfy the debt9.
Procedural aspects of the application
14. As foreshadowed it is incumbent on me to first consider whether the
application for summary judgement suffers from any procedural defects. In my
assessment the application suffers from at least 2 defects. The application
was not delivered in time and is also not for one of the claims as
contemplated in rule 32(1)(a - d). If I am persuaded that there are merits in
either of these procedural shortcomings, I do not have to venture further into
the merits of the matter and summary judgement must be refused.
Application not delivered in time
15. At the time the plaintiffs launched the application for summary judgement the
defendants were still representing themselves. Uniform rule 32(2)(a) requires
that within 15 days after the date of delivery of the plea, the plaintiff shall
deliver a notice of application for summary judgment, together with an affidavit
made by the plaintiff or b y any other person who can swear positively to the
6 Tesven CC v SA Bank of Athens [1999] 4 All SA 396 (A), 2001 (1) SA 268 (SCA)
7 Breitenbach at 227 D
8 Inventive Labour Structuring (Pty) Ltd v Corfe 2006 (3) SA 107 (SCA) for an exposition on this issue.
(“Incentive Labour”)
9 Botha v Mibit and Another (2238/2021) [2022] ZAECQBHC 9 (19 May 2022)
facts. Uniform rule 32(2)(c) provides further that the notice of application for
summary judgment shall state that the application will be set down for hearing
on a stated day not being less than 15 days f rom the date of the delivery
thereof. On closer scrutiny of the application, neither of these requirements
were met.
16. Although the plea was dated 28 February 2024, it was served on 1 March
2024. I will accept this date as the point at which the plaintiff s' obligation to file
the application within 15 days was triggered . Excluding 1 March 10 and noting
that 21 March was a public holiday, the plaintiffs were required to deliver the
application by 25 March 2024 . This was acknowledged in a letter by the
plaintiffs’ attorney addressed to the defendants on the last-mentioned date.
17. On 25 March 2025, approximately 11:31, the plaintiffs addressed a letter to
the defendants attaching an application for summary judgement that did not
contain a date on which the application will be heard. The relevant paragraph
of the letter proceeds as follows:
“You will, however, note that the date of the Application has not yet
been completed on the enclosed document, that being due to the fact
that we have not yet been able to obtained a date for the hearing of the
Applicant for Summary Judgement from t he Registrar of the Court.
However, your Plea was received by us on 1 March 2024 and therefore
today, 25 March 2024, is according to the Rules of Court the last date
that we can inform you of our clients’ intention to proceed with an
Application for Summar y Judgment, hence the reason why we serve
this Application on yourselves today, although no date has as yet been
obtained from the Court.”
18. On 26 March 2024 the plaintiffs again served the application for summary
judgement on the defendants by e -mail. This time the e -mail to which the
application is attached is sent at 15:10 in the afternoon. The notice of
10 Interpretation Act 33 of 1957 s 4
application now ha d a hearing date of 30 May 2024. The first page of the
application contains the court stamp of 26 March 2024.
19. There are several difficulties with the plaintiffs' compliance with the subrule
when the application was served. Firstly, there was in fact no compliant
application served on the defendants on 25 March 2024, the last day on which
the plaintiffs could deliver the application. Secondly, the application for
summary judgement contains a stamp by the registrar dated 26 March 2024.
This means even if I accept that the incomplete application of 25 March 2024
can be condoned, it was only filed at court on 26 March. This means that
delivery of the summary judgement application was only complete then. The
rule is peremptory that the application ‘shall deliver’ the notice of application
within 15 days. Deliver means served and file with the Registrar 11. This was
not done.
20. There is another difficulty. According to the e -mails in the record the plaintiffs
served the ‘issued’ application for summary judgement on the 26 March 2026
on the defendants by e -mail. The time of the e -mails ranges from 15:10 –
15:33 in the afternoon. It is the practice in this division that the Registrar does
not accept the delivery of pleadings or notice s after 15:00 in the afternoon.
The date stamp of 26 March 2024 could therefore not have been affix ed on
the first page of the application for summary judgement. It is obvious that the
plaintiffs obtained the date for the hearing of the summary judgement
application on 26 March 2024, already a day out of time, caused the date
stamp to be affixed on the first page of the application and e-mail the court
stamped application later during the day. In any event by this time the
application was out of time. Alternatively, the application, which now complied
with the subrule, had to be delivered to the Registrar again.
21. The difficulty with the application is therefore not only a technical difficulty that
could simply be informally condoned by the court. I can overlook the fact that
the application on 25 March 2024 did not mention a date of the hearing, as
11 Rule 1 of the Uniform Rules
the plaintiffs could have filed a notice of set down as soon as the date was
known. However, in this case the application was delivered out of time.
22. Mr. Bence who appeared for the plaintiffs also aimed to persuade me on the
basis that there was no obvious prejudice to the defendants. He called on the
court’s inherent power to condone non -compliance with the rules as the court
is not there for the rules. While the court will in appropriate circumstances not
yield to the dogmatic and strict requirements of the rule, a cou rt should be
apprehensive to do so in summary judgement proceedings where strict
compliance has always been a feature of the rule. I am persuaded to follow
the same approach in Firstrand Bank v Maenetja Attorneys 12 that there is
little13 latitude with the Rules when it comes to the summary judgement
applications. There must be strict compliance and in the absence of a
condonation application, the court should refuse the application.
23. Mr. Bence impressed on me to allow the plaintiffs to then launch an
application for condonation to prevent my inclination to refuse the application
on the basis that there has not been compliance with the subrule. I was
reluctant to do so, considering the long lapse of time already in the matter and
also, it is incumbent on the plaintiffs to present a cogent compliant application
to the court. However, to be fair I was willing to allow the application if the
plaintiffs only impediment to be granted judgement is the fact that the
application was served a few hours late . Unfortunately this was not the case
as the application had another shortcoming.
24. I have had regard to fact that the strict compliance in this instance is only a
very fine line between what is meant with ‘serve’ and ‘deliver’ as contemplated
in the rules. In practice the difference between ‘serve’ and ‘deliver’ often gets
flouted in par ticular having regard to the ever -changing influence of
technology on the practice of law. However, the flouting of the rules is less
12 FirstRand Bank Ltd t/a Wesbank v Maenetja Attorneys Inc (8557/2021) [2021] ZAGPPHC 612 (17
September 2021) (“FirstRand v Maenetja”)
13 I intend to put it as the honourable judge did by saying there is ‘no’ latitude, as that appears to me a
too onerous approach. I am happy to accept there is very little wriggle if the subrule has not been
complied with.
intrusive where the exchange of a particular pleading or notice has minimal
consequences and also since our jurisprudence has always been open to
condone immaterial or non -consequential non -compliance with the rules.
However, the jurisprudence on summary judgement has always been
consistent. What is required is strict compliance and until rule 27, that requires
a condonation application, and the definition of ‘serve’ and ‘deliver’ are
adapted to be more in sync with each other or removed from the rule book,
the court in the context of a summary judgement application will in most
instances insist on strict compliance.
25. In any e vent, as indicated the application suffered from a further procedural
defect that is unassailable and to which I now turn the focus.
The claim is not one contemplated by rule 32(1)(a – d)
26. In this case Mr. Engelbrecht, who appear for the defendants, press ed the
point that the claim of the plaintiffs is not a claim as envisaged in rule 32(1)(a -
d).
27. The plaintiffs have relied on the main rental agreement and a document in the
form of a statement, attached to the particulars of claim. However, it is clear
from the pleadings and the application for summary judgement that the
plaintiffs are relying on the fact that their claim is a liquidated amount and not
a liquidated document. If it was a liquidated document it was required to be
annexed to the affidavit in support of summary judgement 14, but in this case
there was nothing attached.
28. It is therefore necessary to consider what the basis is for the plaintiffs to
regard the amount claimed as a liquidated amount:
28.1 In the particulars of claim the plaintiffs pleaded that annexure A2, being
a tenant/debtor transaction report, contain ed detail of the unpaid
14 Rule 32(2) (c): “If the claim is founded on a liquid document a copy of the document shall be
annexed to such affidavit…”
monthly rentals and related charges. This reliance was repeated in the
affidavit supporting the summary judgement application , but nothing
else was said why the amount should be regarded as liquidated.
28.2 In the heads of argument on behalf of the plaintiffs the submission was
made that the claim was liquidated, and that the obligation was on the
defendants to raise primary facts in support of their allegations that the
claim is not a liquidated claim. The submission is made that the
defendants failed to provide any substantiation why the plaintiffs’ claim
is alleged to not be liquidated.
29. A liquidated amount for purposes of summary judgment is an amount that is
either agreed upon or capable of prompt ascertainment 15. In determining
whether an amount is liquidated, the courts have traditionally referred to
whether the quantum is calculable with precision, eith er through a simple
calculation or by reference to agreed facts 16. A claim is regarded as liquid if it
stems from a liquid document (such as a contract where the amount is
specified), or if the amount can be ascertained through a simple calculation
based on the terms of the agreement. One such an example by academics is
in fact in cases of commercial leases, if the rent or charges are agreed upon
in the lease, the unpaid portion would typically constitute a liquidated amount.
In Tredoux17, the court emphas ised that a claim is not liquidated if the
quantum of the amount claimed is uncertain or if it depends on the court’s
assessment of what is reasonable, as in the case of untaxed legal fees or
disputed remuneration for services rendered18.
30. It is simply impossible to reconcile the statement on which the plaintiffs rely as
a basis to regard the claim as a liquidated amount. The following difficulties in
respect of th e statement that is relied on by the plaintiffs and the main lease
are evident:
15 Tredoux v Kellerman 2010 (1) SA 160 (C) (“Tredoux”) par 18
16 Lester Investments (Pty) Ltd v Narshi 1951 (2) SA 464 (C) and
17 Tredoux v Kellerman supra
18 Also reiterated in: Northern Cape Scrap & Metals (Edms) Bpk v Upington Radiators & Motor Grave -
yard (Edms) Bpk 1974 (3) SA 788 (NC),
30.1 The statement starts with an opening balance during November 2020
of R 189 021,69. Neither the statement nor the plaintiffs have explained
what this amount constitutes. It only contains the reference “Balance
B/f”.
30.2 The statement includes legal fees amo unting to an amount of
R 185 000,00. This amount is evidently not taxed and is therefore not
due. There is also no indication how the amount of the legal fees is
calculated. Although the main lease agreement at clause 40 does
entitle the landlord to hold he lessee liable for legal fees and associated
costs, the plaintiffs still had to tax the legal fees19.
30.3 Since, the legal fees cannot be due the interest charge on the legal
fees also cannot be due. Further, clause 40 of the main lease d id not
entitle the plaintiffs to interest on the legal fees.
30.4 Clause 9.1 – 9.13 with subclauses of the main lease agreement contain
a multitude of charges the tenant would be liable for. However, when
one considers the statement on which the plaintiff relies there is no
connection between the amounts in the statement and the basis o r the
rates explained in these paragraphs. By way of example the main lease
at paragraph 9.10.1 provides that “the TENANTS contribution of
sewerage and effluent disposal charges levied against the PROPERTY
calculated in accordance with the local supply authorities tariffs, if
metered, alternatively the TENANT’s pro rata share of such charges;”
The statement in turn does contain a line item with a charge for
sewerage but does not indicate the basis for the rate levied or the
globular amount against which the rate is calculated. There are also no
allegations in the particulars of claim to give context to the relevant line
item on the statement and connecting it to a charge as provided for in
the main lease.
19 Tredoux par 18
30.5 The criticism in respect of sewerage is similarly applicable against all
the other items on the statement. There are no allegations in the
particulars of claim tha t explains how the rates in the main lease
agreement result ed in the amount on the state ment. This means
evidence will have to be led on how this was done.
30.6 Furthermore, although there appears to be the possibility that on closer
scrutiny of the provisions of the main lease agreement one can ‘figure
out’ the globular amount and work backwards to work it against the rate
provided for in the main lease, such an exercise is not comparable in
this instance to a situation of a simple calculation based on the ter ms of
the agreement.
31. Therefore, the plaintiffs have not persuaded me that the amount claimed
constitutes a liquidated amount for the purposes of summary judgment. The
unexplained opening balance, the inclusion of untaxed legal fees, and the
failure to clearly link the various charges in the statement to the provisions of
the main lease agreement all contribute to uncertainty regarding the accuracy
of the amount claimed. The test for a liquidated amount requires that the sum
be readily ascertainable, either through a simple calc ulation or by reference to
agreed contractual terms. In this case, such a determination is not possible for
the reasons mentioned.
32. It has been held that summary judgment should be refused if it is arguable
whether the existence and quantum of the amount cl aimed is easily and
promptly ascertainable. In this case I am of the view that the amount is at best
arguable.
Conclusion
33. In light of the foregoing, the plaintiffs have failed to make out a case for
summary judgement. For the reasons foreshadowed the application did not
comply with the peremptory requirements of the subrule. In the alternative, the
claim is not one of the claims contemplated by rule 32(1)(a – d).
34. In the circumstances I make the following order:
The application for summary judgement is refused , costs to be costs in
the cause.
The defendants are granted leave to defend the action.
____________________________
A MONTZINGER
Acting Judge of the High Court
Appearances:
Plaintiffs’ counsel: Mr. J Bence (in person)
Plaintiff’s attorney: Rubenstein Attorneys
Defendants’ counsel: Mr. A Engelbrecht
Defendants’ attorney: R Allom Attorneys