IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)

Case No:14109/2024

In the matter between:

PARETO LIMITED First Applicant / Plaintiff

MOMENTUM METROPOLITAN LIFE LIMITED Second Applicant / Plaintiff

and

RIKUS DIRK JANSEN KOTZE Respondent /Defendant

Court: Justice J Cloete

Heard: 5 August 2025

Delivered electronically: 8 August 2025


JUDGMENT

Cloete J:

Introduction

[1] This is an opposed application for summary judgment in which the plaintiffs
seek orders against the defendant for payment of R 2 865 335.56 plus interest at the
legal rate a tempore morae and costs on the scale as between attorney and client.
The plaintiffs are the joint registered owners of the Tyger Valley Centre in Bellville ,
Western Cape. On 12 March 2017 the plaintiffs, duly represented by Ms T Heiman,
and Thumbnail Advertising (Pty) Ltd (‘Thumbnail’), duly represented by the
defendant, concluded a written lease agreement (‘the agreement’) in respect of Shop
LL019 in the Tyger Valley Centre . Earlier on 12 January 2017 the defendant in
writing bound himself as surety and co -principal debtor to the plain tiffs for the due
fulfilment of all the obligations of Th umbnail in terms of the agreement. Thumbnail
operated a restaurant from the leased premises. From what can be gleaned from
the papers, Thumbnail took occupation on 1 May 2017. It vacated on or about 28
February 2023. It was placed in final liquidation on 28 November 2023. The plaintiffs
sue the defendant in his capacity as surety and co-principal debtor.

[2] In terms of clause 3 of the s chedule to the agreemen t, the lease period was
for 5 years commencing on 1 May 2017 and terminating on 30 April 2022. Clause
2.3 of the general conditions in the agreement provides as follows:

‘If the TENANT remains in occupation of the Leased Premises after the expiry
of this Lease, then the Tenant’s occupation …shall be deemed to be on a
monthly tenancy, subject to a 12.5% escalation …per annum Increase in the
Monthly Rental and Promotional Costs and a 14% [increase] in respect of the
Operating Costs on the expiry date and on the anniversary of such expiry date
of each year thereafter while the Tenant remains in occupation of the Leased
Premises, but subject in all other respects to the terms and conditions of this
Contract.’

[3] In terms of clause 11.1 of the general conditions, Thumbnail was obliged ‘to

[3] In terms of clause 11.1 of the general conditions, Thumbnail was obliged ‘to
trade in and keep the Leased Premises continuously open to the public during the
business hours as determined from time to time by the Landlord as being beneficial
to the Shopping Centre …[t]he aforegoing obligations shall be suspended however
on such days during which strikes, lock-outs or other similar circumstances beyond

the TENANT’s control render it unreasonable for the TENANT to trade from the
Leased Premises.’

[4] Clause 25 of the general conditions deals with force majeure and provides in
relevant part that:

‘In the event that the LANDLORD or the TENANT shall be delayed or
hindered in or prevented from doing or performing any act or thing required
hereunder by reason of … governmental regulations …then the LANDLORD
shall not be responsible for such delays and the doing or performing of such
act or thing shall be excused for the period of the delay … and extended for a
period equivalent to the period of such delay.’

[5] The consequences of Thumbnail being prevented from, or hindered in, trading
by inter alia governmental regulations were thus contractually regulated in the
agreement. Clause 25 notwithstanding, as a result of the Covid -19 lockdown which
commenced on 26 March 2020, the plaintiffs provided Thumbnail with the following
relief: (1) 100% rental relief for the months of April and May 2020; (2) 85% rental
relief for the months of June and July 2020; and (3) 50% rental relief for the month of
August 2020. The defendant’s own schedule annexed to his plea reflects the
lockdown levels for the corresponding periods as follows: (1) March and April 2020
at level 5; (2) May 2020 at level 4: and (3) 1 June 2020 to 17 August 2020 at level 3 .
Thereafter, and apart from adjusted level 4 for the period 28 June until 25 July 2021,
the levels, again on the defendant’s version, ranged between level 1 and adjusted
level 3.

[6] The plaintiffs allege that Thumbnail breached the agreement by failing and/or
refusing to pay arrear rental and other charges (as detailed on annexure POC 2 to
their particulars of claim ) for the period 1 August 2020 to 28 February 2023 in the
sum claimed (after deduction of the deposit paid by Thumbnail of R 538 411). In
terms o f clause 19.1 of the general conditions, in the event of such default, the

terms o f clause 19.1 of the general conditions, in the event of such default, the
plaintiffs are entitled to claim payment, and in the event of inst ituting proceedings for
recovery, costs on the scale as between attorney and client in terms of clause 19.3.

[7] Clause 23 of the general conditions is a no-variation clause. It provides that:

‘23.1 This lease and the Annexures thereto constitute the entire agreement
between the parties and no warranties or representations, whether express or
implied, not recorded herein and the Annexures hereto shall be binding on the
parties.

23.2 No variation of, or addition to, this lease and Annexures hereto shall be
binding on the parties unless reduced to writing and duly signed by them or on
their behalf.’

Procedural history and condonation

[8] After service of the summons and after having entered appearance to defend,
the defendant delivered both a plea and counterclaim on 2 October 2024 , the latter
for debatement of annexure POC 2. The plaintiffs delivered an exception to the
counterclaim on 24 October 2024 (ie, on the 16 th court day ther eafter but within the
period allowed therefor) and the defendant subsequently withdrew the c ounterclaim
on 14 November 2024. By the time the exception was delivered , and the
counterclaim subsequently withdrawn, the period of 15 court days stipulated in
uniform rule 32(2)(a) for the delivery of an application for summary judgment had
expired (on 23 October 2024) . The application was delivered on 5 December 2024 ,
thus on the 15 th day after the defendant withdrew his counterclaim. The plaintiffs
submitted that, given their exception to the counterclaim, they were unable to apply
for summary judgment within the period in rule 32(2) (a); alternatively, they seek
condonation for the late delivery thereof.

[9] The defendant, relying on Pareto Limited and Another v Theron and Another 1
(‘Theron’) submitted that because the subrule rule is ‘peremptory’, condonation
should be refused. I take a different view, principally for two reasons. First, in terms
of rule 24(1), a defendant is obliged to deliver a counterclaim simultaneously with his
or her plea . In the present matter the defendant’s counterclaim pertained directly to

or her plea . In the present matter the defendant’s counterclaim pertained directly to

1 [2024] ZAWCHC 249 (6 September 2024) at paras 15 to 24

the sum claimed by the plaintiffs in their particulars of claim . Accordingly, had the
plaintiffs proce eded with an application for summary judgment in the face of that
counterclaim there is little doubt it would have been refused, since rule 32 does not
permit a litigant to apply for summary judgment in respect of a counterclaim. If the
defendant’s submission is to be accepted, it would have the illogical consequence
that any defendant may avoid the entir e summary judgment procedure by simply
delivering a spurious counterclaim (along with a plea ) directly related to a plaintiff’s
claim, only to withdraw it upon expiry of the 15 day period prescribed in rule 32(2)(a).

[10] Second, the court in Theron proceeded from the premise that the summary
judgment procedure is of a ‘drastic nature’. While this was the approach of our
courts in the past, since 2009 the Supreme Court of Appeal has adopted a different
view. In Joob Joob Investments (Pty) Ltd v Stocks Mavundla Zek Joint Venture 2 it
was stated that:

‘[32] …After almost a century of successful application in our courts, summary
judgment proceedings can hardly continue to be described as extraordinary
…

[33] Having regard to the purpose and its proper application, summary
judgment proceedings only hold terrors and are “drastic” for a defendant who
has no defence . Perhaps the time has come to discard these labels and to
concentrate rather on the proper application of the rule…’

[11] To this I would add that rule 27(1), which permits a court to grant condonation
on notice and good cause shown, specifically provides that it applies to all the rules
of the High Court (thus including r ule 32); rule 27(2) permits condonation to be
granted even if sought only after the expiry of a stipulated time period ; and given the
amendment to rule 32 on 31 May 2019 (some 10 years after Joob Joob) to provide
for summary judgment after delivery of a plea as opposed to a notice to defend,

for summary judgment after delivery of a plea as opposed to a notice to defend,
there seems to be a compelling argument to be made that a plaintiff should not be
ousted on technicalities, particularly where a defendant fails to raise a triable issue in

2 2009 (5) SA 1 (SCA)

a plea, provided that the requirements of rule 27 are met.3 This is consistent with the
very purpose of the summary judgment procedure, namely to avoid the delay and
cost of going to trial where a defence lacking in substance (ie , one which does not
raise a triable issue) can be disposed of at an earlier stage.

[12] During argument I was referred by counsel for the plaintiff to certain
authorities which, although he candidly informed me were not directly in point,
appear to fortify my view. They deal with rule 32 after its amendment in 2019. In
Mncube v Wesbank a Divi sion of FirstRand Ltd4 the plaintiff bank had issued
summons against the defendant based on alleged breach of an instalment sale
agreement. The defendant delivered a notice of intention to defend and thereafter a
plea. The bank did not apply for summary judgment within the prescribed 15 day
period as a result of the defendant having delivered two notices of intention to
amend his plea , both within the 15 day period . The amended plea was duly
delivered outside of the 15 day period and the bank applied for summary judgment
within 15 days of such delivery. The defendant brought an application to have it set
aside as an i rregular step in terms of rule 30. The court held that the bank was
entitled to have done so. As I understand the court’s reasoning5, this was in essence
because the bank was a party affected by the am endment, and it would have been
artificial to compel it to launch an application for summary judgment in respect of a
plea which it knew was going to be amended.

[13] In King Price Insurance Company Ltd v Integritas Risk Solutions (Pty) Ltd6 the
plaintiff delivered a replication and plea to the defendant’s counterclaim after having
launched its application for summary judgment. The defendant contended that the
plaintiff, in doing so, had ‘waived’ its right to proceed with the summary judgment
application. The court referred to Mncube as well as Quattro Citrus (Pty) Ltd v F & E

application. The court referred to Mncube as well as Quattro Citrus (Pty) Ltd v F & E

3 In Erasmus: Superior Court Practice 2 nd ed at Vol 2, D1 Rule 32 -6 (Service 26 of 2025) it is stated,
with reference to a long line of authorities at fn 3, that ‘while courts have often emphasised the need
for strict compliance with the rule …this does not mean that technical defects in procedure will not be
condoned’.
4 [2023] ZAGPJHC 895 (10 August 2023)
5 Referring to the authorities cited at paras 24 t0 32
6 [2024] ZAGPPHC 274 (25 March 2024)

Distributors (Pty) Ltd t/a Cape Crops 7 and relied on both to find the defendant’s
contention to be without merit.

[14] In Quattro Citrus the court reasoned that the silence on the issue in the
recommendations of the Superior Courts Task Team of the Rules Board for Courts
of Law ‘leaves the door open to the plaintiff to file a replication without waiving its
rights to apply for summary judgment, as long as it files [both] timeously and in
accordance with the rules of court …[a]ccordingly, the filing of a replication will in no
way compromise “ the speediness of the remedy” afforded by rule 32, which was the
issue for consideration by the Task Team when delibera ting the timing of the
application. In my opinion [counsel for the applicant] was correct in arguing that , if
the Task Team had intended for the applicant to be compelled to pick a course of
action, a provision would have been incorporated dealing with the issue’.8 Quatro
Citrus, a decision in this Division, was carefully considered and followed by another
court in this Division, namely in Ingenuity Property Investments (Pty) Ltd v Ignite
Fitness (Pty) Ltd 9, which in turn was cited with approval and followed in Reef
Caterers (Pty) Ltd v Vaal Christian School.10

[15] There is a decision I have found which takes the opposite view, namely Arum
Transport CC v Mkhwenkwe Construction CC and Another 11, and which was
considered but not followed in Ingenuity Property. In Arum Transport the court relied
on a number of authorities , all of which pre -date the amended rule 32 , as well on
what was stated at the time in Civil Procedure in the Superior Courts 12 and
Erasmus Superior Courts Practice 13 in relation to the amended rule. In the first
reference the court cites the author (relying in turn on a pre-amendment decision) as
expressing the view that ‘if a plaintiff takes a further procedural step after delivery of
a notice of intention to defend he may thereby waive his right to apply for summary

a notice of intention to defend he may thereby waive his right to apply for summary
judgment’. In the second reference, the court cites the author as expressing a more
definitive view , namely that ‘if the plaintiff takes a further procedural step after the

7 [2021] JOL 49833 (WCC)
8 At paras 8 -9.
9 2023 (5) SA 439 (WCC)
10 Unreported FB case no 1645/2024 dated 7 November 2024 at para 9
11 2022 (2) SA 503 (KZP).
12 D Harms SC (August 2020), Service issue 71) para B32.5
13 Service issue RS15, 2020 at D1-387 to D1-388

delivery of a plea, i.e. an exception or a replication …he thereby waives his right to
apply for summary judgment’. I have not been able to locate the service editions of
these to ascertain which other authorities were referred to in support of these
opinions. However, Erasmus now holds a different view.

[16] In the latest service edition 14 this view is expressed as follows : ‘[i]t is
submitted that under rule 32 in its amended form, and contrary to what was decided
in the Arum case, a plaintiff is entitled to deliver a replication before the delivery of an
application for summary judgment (provided both are delivered within the time
periods stipulated in the rules ) and does not thereby waive its right to apply for
summary judgment… ’ although the author considers the position where a plaintiff
delivers an exception to a plea (not a counterclaim as in the matter before me) as
being more complicated, and suggests that a plaintiff should, if necessary, timeously
seek an extension for delivery of an application for summary jud gment, or a
postponement of such an application if already brought, pending determination of the
exception.

[17] To my mind, and by parity of reasoning, what was held in Citrus Quatro and
Ingenuity Property, by which I am bound unless convinced they are wrong (which in
my view they are not) , should apply in the instant matter . It is accordingly my finding
that the plaintiffs were entitled to apply for summary judgment within 15 court days
after the defendant withdrew his counterclaim , but even if I am wrong, good cause
nonetheless exists for granting condonation as sought by t he plaintiffs in the
alternative. It follows that the application for summary judgment is properly before
the court.

[18] There is another procedural aspect which I deal with briefly. On 18 July 2025
the defendant delivered a further affidavit opposing summary judgment. After the
plaintiffs objected in writing the defendant requested the withdrawal of that affidavit in

plaintiffs objected in writing the defendant requested the withdrawal of that affidavit in
an email dated 30 July 2025. His request was granted at the commencement of
argument, and I will accordingly have no regard to it.


14 Service 26, 2025 at D1 Rule 32-21 to 22

Defences raised

[19] The defendant raised 4 defences , which may be categorised as: (1) the
unliquidated amount in money defence; (2) the Covid -19 defence; ( 3) the
renegotiated rental/fraudulent misrepresentation defence; an d (4) the ambiguity in
deed of suretyship defence.

Unliquidated amount in money defence

[20] The defendant in his plea and opposing affidavit alleged that POC 2 included
legal fees charged by the plaintiff in respect of which a court had not yet pronounced
upon and which had not been taxed. A similar contention was successfully raised in
Theron15. However, in the instant case it became common cause during argument
that in POC 2 the plaintiffs had deducted the full amount of legal fees from their
calculation of the total amount owed. The defendant further confirmed that he only
took issue with his indebtedness to the plaintiffs on the grounds of the other
defences raised, and that the auxiliary charges reflected in POC2 were not in issue.
In addition, on the defendant’s own recalculation in annexure K3 to his plea, he used
the same amounts charged by the plaintiffs in respect of rental up to and including
April 2022 and auxiliary charges levied by the plaintiffs for the entire period of
Thumbnail’s occupation. It is thus clear that what the plaintiffs claim is a liquid ated
amount in money as provided in rule 32(1)(b).

Covid-19 defence

[21] It is the defendan t’s stance that due to the Covid -19 regulations which
prevailed from 26 March 2020 until 4 April 2022, and depending on the applicable
alert level, Thumbnail was either not entitled to use the leased premis es to trade, or
its capacity to trade was effectively limited to only 50% due to size and social
distancing requirements. This, the defendant submits , entitled Thumbnail to a
proportionate remittal in rental , not only for the period April to August 2020 but also
for the period September 2020 to 4 April 2022. The defendant also submitted in

15 At paras 26 to 30

argument that had Thumbnail not complied with the regulations it would have traded
unlawfully and therein lay the impossibility (or partial impossibility) of performance.

[22] The defendant relied on Aludar 233 CC v Unlocked Properties 28 (Pty) Ltd
(‘Aludar’)16 where the parties had entered into a lease for the appellant to operate a
nightclub and for that purpose only. After the implementation of the hard lockdown in
March 2020, the appellant took the view that the lease had been t erminated by
supervening impossibility of performance. It stopped paying rental in March 2020
and vacated the leased premises at a point thereafter. Its stance was that it would be
contrary to public policy to hold it to the terms of the lease where it had
unforeseeably become impossible to use the premises as both parties had agreed it
must be used. The respondent maintained that notwithstanding this impossibility, the
appellant remained liable for rental. In contradistinction to the facts before me, the
lease excluded any claim by the appellant arising from vis major or casus fortuitus.

[23] The court held that:

‘7. …I do not think that [ the exclusion clause] completely answers the claim
that the whole contract was voided because it could no longer be performed
by either party. The effect of the regulations was not just that Aludar could not
operate a nightclub . It was that Unlocked Properties could not rent t he
property for that purpose. Given that this was the only purpose for which the
parties agreed the property could be used , the effect of the regulations may
well have been to void the whole contract. If that is so, the exclusion clause
upon which Unlocked Properties relied was voided too….

9. Mr Paige-Green, who appeared for Unlocked Properties, referred us t o the
decision of the Supreme Court of Appeal in Butcher Shop and Grill CC v
Trustees for the time being of Bymyam Trust 2023 (5) SA 68 (SCA) but I do

Trustees for the time being of Bymyam Trust 2023 (5) SA 68 (SCA) but I do
not think that decision helps us. The main issue before the court in that case
was whether a remission of rent could be claimed by a tenant where their sub-
tenant had suffered loss because they could not run a restaurant during the

16 [2023] ZAGPJHC 1297 (14 November 2023)

period for which the regulations applied. The situation in this case is different
…’

[24] The defence before me is not that the agreem ent was voided due to
supervening impossibility of performance, and Aludar is thus distinguishable.
However, in Butcher Shop the issue before the Supreme Court of Appeal which is
relevant for present purposes (there were others) was whether the lease agreement
excluded a claim for remission of rental in circumstances simi lar to the matter before
me (a restaurant was also conducted from the leased premises). After scrutinising
the lease, the court held that its t erms did not preclude a claim for remission of rent
in terms of the common law.17

[25] I have already referred to clause 25 of the general conditions of the lease
between the parties before me. That clause specifically regulates what must happen
in the event that either party is prevented or hindered from performing in terms of the
lease due to force majeure. Although the clause stipulates that the plaintiffs will not
be responsible for such prevention or hinderance ‘the doing or performance of such
act or thing shall be excused for the period of the delay , and the period for the
performance of any such act or thing shall be extended for a period equivalent to the
period of such delay ’. This clause must be read together wi th clause 11 of the
general conditions which impose d an obligation on Thumbnail to trade in and keep
the restaurant operated by it continuously open to the public during the business
hours determined by the plaintiffs as being beneficial to the shopping centre, but that
the obligation was suspended in circumstances beyond Thumbnail’s control that
‘render it unreasonable for the tenant to trade from the leased premises’. It was
presumably with this in mind that the plaintiffs afforded Thumbnail the renta l relief it
did during the period March to August 2020.

[26] In their particulars of claim the plaintiffs specifically pleaded clause 25 of the

[26] In their particulars of claim the plaintiffs specifically pleaded clause 25 of the
general conditions but made no attempt to calculate their claim based on th at same
clause. The only deductions made in POC 2 were in respect of the rental relief which
the plaintiffs unilaterally decided to afford Thumbnail. Similarly in the affidavit filed in

17 At para 9 and 13 to 28.

support of the s ummary judgment application , and despite the contents of the
defendant’s plea on this score, no attempt was made to squarely engage the issue ,
save to contend that the rental relief was provided despite there having been no
obligation on the plaintiffs to do so, and that for all alert levels subsequent to August
2020 ‘other than alert levels 5 and 4, Thumbnail was provided with the use and
enjoyment of the leased premises by the Plaintiffs. The hard lockdown did not persist
after 30 April 2020 as restrictions imposed by the regulations were progressively
eased. Thumbnail was entitled and did occupy the leased premises after the hard
lockdown period …[i]t will be argued …that the period subsequent to the hard
lockdown did not give rise to a super vening impossibility of performance…’. To my
mind this overlooks the specific reference to ‘hinderance’ in clause 25 which is a
separate qualification for relief to that of ‘prevention’.

[27] It is perhaps as a result of th is stance that in argument the plaintiff placed
reliance on Freestone Property Investment (Pty) Ltd v Remake Consultants CC and
Another18 where it was held that:

‘23. I do not suggest that a lessee’s commercial inability or diminished
commercial inability to pay rentals because of an inability to trade during the
“hard lockdown” may excuse the lessee from making payment. Our law is
settled that a vis major or casus fortuitus that makes it uneconomical or no
longer commercially attractive for a party to carry out its payment obligations
cannot constitute a basis to be excused from performance19…’

[28] It is of course not necessary for me to make a definitive determination for
purposes of this summary judgment application whether Thumbnail was entitled to a
remission or partial remittal in rental as the defendant contends. I only have to be
persuaded that this defence raises a triable issue. Having considered the parties’

persuaded that this defence raises a triable issue. Having considered the parties’
respective submissions as well as the aforementioned authorities, I have concluded
that, in respect of this defence, the defendant has met the required threshold.

18 2021 (6) SA 470 (GJ)
19 Referring to Unibank Savings and Loans Ltd (formerly Community Bank) v ABSA Bank Ltd 2000(4)
SA 191 (W) at 198D/E, applying Macduff & Co Ltd (in liquidation) v Johannesburg Consolidated
Investment Co Ltd 1924 AD 573 at 606 -607. See also Lilfam Holdings (Pty) Ltd v Mike and Ian
Consulting (Pty) Ltd and Another [ 2024] ZA GPJHC 108 (8 February 2024) and Hennops Sport (Pty)
Ltd v Luhan Auto (Pty) Ltd [ 2022] ZAGPPHC] (2 December 2022)

Renegotiated rental/fraudulent misrepresentation defence

[29] The defendant maintains that Thumbnail was induced to remain in occupation
of the leased premises after the lease expired in April 2022, based on
representations by the plaintiffs’ agents that ‘a lease renewal was forthcoming ’ at an
agreed market related rental of R92 000 per month plus VAT. However, the very
email from the plaintiffs’ leasing man ager relied upon by the defendant in support of
this defence (which he also confirmed in argument) , annexed to his opposing
affidavit and dated 24 March 2022, does not bear this out. It reads in relevant part as
follows:

‘We had another session with the co -owners …and again discussed the
proposal you previously put forward.

The feedback is still that they are not prepared to reduce the rental to the level
suggested below [ referring to the proposal made by the defendant in this
regard] , as the rental is far below the premises’ market value They will
however consider an all-in rental (only excl . metered water and electricity) of
R 92 000 (excl. VAT) …

In terms of arrears, the Landlord is not able to write off all arrear s… [p]lease
propose a suitable payment arrangement or a revised proposal….’

[30] The defendant accepted during argument that the aforementioned email
contains nothing more than a proposal. On a proper reading thereof that proposal, as
submitted by counsel for the plaintiffs, was a composite one which included a
suitable arrangement in respect of the arrears. That did not eventuate and moreover
the plaintiffs proceeded to generate invoices to Thumbnail in accordance with clau se
2.3 of the general conditions, which the se parties had agreed would apply in the
event of Thumbnail remaining in occupation on expiry of the lease , on a monthly
tenancy basis. But in any event , when regard is had to annexure POC 2, the
payments made by Thumbnail thereafter were not in accordance with the

payments made by Thumbnail thereafter were not in accordance with the
‘agreement’ upon which the defendant r elies. There is furthermore nothing on the

papers to indicate that the plaintiffs’ agents fraudulently mis represented anything to
Thumbnail, and there was no suggestion by the defendant that the non -variation
requirements contained in clause 23 of the gen eral conditions were met. The
defendant has thus failed to raise a triable issue in respect of this defence.

Ambiguity in deed of suretyship defence

[31] The deed of suretyship states in express terms that it constitutes ‘a continuing
covering security without any limitation until such time as all the obligations of the
Tenant to the Landlord in terms of the Lease (or any renewal, amendment, breach or
cancellation thereof) have been duly and properly fulfilled ’. The defendant contends
that because earlier in the deed of sur etyship he is recorded as having bound
himself for the obligations of Thumbnail ‘arising from or out of or in terms of a Lease
...between the Landlord and Tenant commencing on 1 May 2017 for the period of 5
YEARS’, it is ambiguous and must be interpreted narrowly to mean that his
obligations as surety are restricted to the initial 5 year period.

[32] In m y view the interpretation advanced by the defendant is strained and
incorrect when regard is had to clause 2.3 of the general conditions , which makes
clear that in the event of Thumbnail remaining in occupation of the premises after
expiry of the fixed pe riod of 5 years, the annual percentage increases in rental and
auxiliary costs will change but such occupation shall be ‘ subject in all other respects
to the terms and conditions’ of the agreement. One of these conditions is contained
in clause 30 of the general conditions , which required the defendant to execute the
deed of suretyship in which he remains liable for any amounts owed by Thumbnail ,
including those following upon expiry of the fixed per iod. I am accordingly of the
view that the defendant has failed to raise a triable issue in respect of this defence
as well.

Costs

as well.

Costs

[33] Of the four defences raised, only one raises a triable issue, but it took up most
of the time in argument and is clearly important to the parties . Rather than burden
the trial court with having to determine the costs of this application it seems to me

that in all the circumstances the appropriate costs order to make is the one that
follows.

[34] The following order is made:

1. The application for summary judgment is refused;

2. The defendant is granted leave to defend; and

3. Each party will pay their own costs incurred in this application.


___________________
J I CLOETE
Judge of the High Court


Appearances:

Counsel for Applicant / Plaintiff Adv Jean Bence
Instructed by PPM Attorneys (P McEnery)

Respondent / Defendant: Appeared In person