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IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case number: 2024-052608
(1) REPORTABLE: No.
(2) OF INTEREST TO OTHER JUDGES: No.
(3) REVISED.
Date 8 August 2025
Signature
In the matter between:
BELCOTECH (PTY) LTD Applicant
and
PLACEA 80 CC t/a CAFÉ 41 First Defendant
ANGELOS CHRISTOU ANGELIDES Second Defendant
JACQUELINE LEONIE BENTO SCHUBACK Third Defendant
VASILOIS AVRAKOTOS Fourth Defendant
JUDGMENT – 8 AUGUST 2025
WILLIAMS, AJ
[1] This is an application for summary judgment. Counsel for the Fourth
Defendant, a surety, has raised arguments which contest the liability of the
First Defendant, and thus of the sureties.
[2] The Plaintiff owns the Eastwood Village Shopping Centre, where the First
Defendant rented Shop 0[…] to conduct a restaurant business. R1,313,815.41
is claimed (Claim A) for arrear rental allegedly due, plus interest and costs.
The Second to Fourth Defendants are sureties. The application for summary
judgment thus seeks joint and several liability of all four Defendants for the
rent. The sureties’ liability, arising from the respective Deeds of Suretyship, is
not in issue.
[3] In the Lease Agreement concluded on 30 April 2019, the erstwhile owner of
the shopping centre let to the First Defendant the said premises on the basis
that a change of ownership in the land will not have any effect on the
continued validity of the Lease (clause 36.1.1). The First Respondent agreed
that it had fully acquainted itself with the premises and accepted the condition
and layout of the premises (clause 28.1). It was agreed that the leased
premises are fit for the purposes for which they were let (clause 28.2.1). The
Agreement was stated to constitute the entire Agreement and that there were
no warranties or representations, express nor implied, which would bind the
parties henceforth (clause 29.1). It is in terms of this agreement that the
Second to Fourth Respondents committed themselves as sureties and co -
principal debtors. The Agreement was incorporated into and attached to the
Particulars of Claim.
[4] The Plaintiff says that on 9 September 2021 it acquired the property from the
Government Employees Pension Fund (the erstwhile owner), and pleaded
further that on the principle of “ huur gaat voorkoop” the First Defendant
became its tenant. The Title Deed is attached proving that Applicant is the
owner. No cession was needed. The cession clause the Defendants say was
owner. No cession was needed. The cession clause the Defendants say was
not complied with, contemplates something else. T here is no merit in the
Defendants’ contention that it did not become the Plaintiff’s tenant under the
Lease.
[5] The Lease demanded advance payment on the first day of each month for that
month (clause 4.2.1). This is relevant to the issue of reciprocity dealt with
hereunder. The First Defendant agreed to pay the rental in advance, “ without
deduction …”.
[6] The Plaintiff has attached as annexure “C” to its Particulars of Claim, a
document entitled “Tenant/debtor transaction” indicating for the financial period
March 2019 to February 2024. It shows that the First Defendant was indebted
for an amount of R1,313,815.41 (the amount claimed in Claim A in the
Particulars of Claim and the amount claimed in the summary judgment). The
entries show when payments were and were not made.
[7] Other than plead why it did not pay rental, the Defendant did not in paragraph
7 of its Plea (in answer to paragraphs 11 to 18 of the Particulars of Claim)
deny the document and its content. Defendant has focused on its reasons for
not paying much of the rental.
[8] The First Defendant was a longtime tenant. It c ontends that on 28 November
2017, some two years before the Defendants concluded this Lease
Agreement, the previous landlord had let adjacent premises to the Heritage
Restaurant and allowed the Heritage Restaurant to erect a deck in front of the
premises which First Defendant was renting.
[9] In the Plea the First Defendant contends that this deck created a physical
obstacle, making it difficult for prospective patrons to enter First Defendant’s
premises ( it also allegedly confused patrons as to which restaurant was
which). The deck also reduced parking space in front of the premises .
Moreover, the Heritage Restaurant cooked on open fires and the smoke drove
away potential patrons from the First Defendant’s business.
[10] The First Defendant ’s case is that Plaintiff failed to provide undisturbed
possession and occupation of these premises, for purposes of conducting a
restaurant. Because of this breach, First Defendant had no option other than
to reduce the amount it paid for rent. The First Defendant contends in the Plea
that it was paying approximately 50% of the rental due . It is common cause
that later the First Defendant has vacated the premises. It is not clear whether
this was before or after expiry of the Lease period. Nothing turns on that. The
allegation in the Plea that the First Defendant had paid 50% of the rent, shows
that this was only for a while.
[11] The affidavit resisting summary judgment incorporates what is alleged in the
Plea. The bare contention is repeated that the First Defendant and the Plaintiff
did not enter into a Lease Agreement. The implication is that the Plaintiff is not
entitled to sue the First Defendant as its lessee. As indicated, there is no merit
in this angle.
[12] The affidavit contends that the deponent to the affidavit in support of the
application for summary judgment “ cannot have any personal knowledge of
this matter prior to the purchase of the property on 9 September 2021 …” ,
when the Plaintiff became the owner. It is thus argued that on this account
summary judgment cannot be granted.
[13] Mr Cilliers, a director of the Plaintiff, says that he has dealt with attorneys who
have been the attorneys of record for the Plaintiff throughout (i.e. since
inception of the dispute with First Defendant ). He has had access to all
relevant documents (which documents are under his control) . He says he is
thus able to verify the causes of action and the amounts claimed on the
grounds set out in the Particulars of Claim. He attached the Title Deed proving
that the Plaintiff became owner of the Centre . He attached the Lease and
pointed out that the First Defendant signed this Lease on 30 April 2019 , long
after the discussions with the previous owner about the deck.
[14] The Lease schedule referred to above, is also attached and confirmed under
oath. As stated, the content of this schedule is not in dispute. In my view
oath. As stated, the content of this schedule is not in dispute. In my view
Mr Cilliers does have the requisite knowledge of the facts to be able to confirm
the amount and cause of action.
[15] Returning to the defence s, Mr Cilliers points out that the deck was erected
over only two of the parking bays , as far back as November 2017 ( some
17 months prior to the First Defendant concluded this Lease Agreement). The
First Defendant was thus fully aware of the layout of the premises and aware
of the deck, the adjacent tenants and their modus operandi. Indeed, the First
Defendant had occupied the premises for long, before entering into the Lease
Agreement wherein the First Defendant expressly recorded its satisfaction of
the premises, specifically too that it was fit for a restaurant business.
[16] The First Defendant’s affidavit confirms that the deck was already constructed
during November 2017 . It entered into negotiations with the erstwhile
owner/landlord (the Government Employees Pension Fund), in the hope of
resolving its complaint about the deck. A meeting was held during September
2018 ( some months before First Defendant entered into the Lease
Agreement). The First Defendant says that at such meeting it became
confident “… that the various issues could be resolved and that consideration
could be given to ente ring into a further Lease … on behalf of the First
Defendant”. Emails exchanged between the respective attorneys during
November 2018 are attached to the affidavit resisting summary judgment .
These were exchanged some months before the First Defendant ultimately
entered into the written Lease Agreement, wherein the parties agreed that the
written Lease constitutes the entire Agreement.
[17] No warranties or representations, whether express or implied, which are not
recorded on the Lease, were binding on the parties (clause 29.1). One of the
warranties was that the landlord did not warrant that the leased premises are
fit for the purposes for which they are let, and that the First Defendant , as
prospective tenant, had fully acquainted itself with the premises and accepted
the condition and layout of the premises (clause 28.1).
the condition and layout of the premises (clause 28.1).
[18] I do not see any basis upon which the Defendants can contend that it is
entitled to withhold or reduce the amount of rental to be paid.
[19] The First Respondent’s obligation to pay rental and the Defendant’s obligation
to give full occupation (without the smoke nuisance and fewer parking bays),
are not reciprocal . The Lease furthermore demands that rent is payable
“without deduction ”. The owner/landlord is also indemnified for damages
caused by adjacent tenants.
[20] Clause 11.4 of the Lease precludes a claim against the landlord for
compensation for losses arising from the temporary interference with tenancy
or beneficial occupation. The First Defendant argues that this means that such
a claim is thus still possible if there is a permanent interference with the
tenancy or beneficial occupation of the premises. This interpretation, so it is
argued, would override the clause in the Lease that the landlord is indemnified
and overrides the clause that rent is payable “ without deduction” . The
argument is also that the non -reciprocity difficulty is also overcome.
I disagree. Clause 11.4 is a subclause of a clause dealing with the landlord’s
rights to do repairs and alterations (correctly accepted by the Defendants to
preclude claims for temporary interference or diminution). But clause 11.4 has
to yield to the clauses that the First Respondent, having inspected the
premises and found them suitable for a restaurant business. It has to yield too
the reciprocity principle and the clause that demands payment without
deduction.
[21] That brings me to the conditional counterclaim. The First Respondent argues
in its papers that it suffered damages, which can be set -off against the arrear
rent. Indeed, a cogent illiquid counterclaim can serve as a defence to an
application for summary judgment. The counterclaim has a difficult legal
premise, as indicated above. But even if I am wrong, the counterclaim is too
tenuous to stave off summary judgment.
[22] It is alleged that the Plaintiff has breached its obligations under the Lease, as
[22] It is alleged that the Plaintiff has breached its obligations under the Lease, as
contended for in paragraphs 7.2 to 7.7 of the Plea. Paragraph 7.7 alleges that
the difficulties caused by the deck, and the other tenant, w as brought to the
attention of the Plaintiff on numerous (unspecified) occasions. The most we
however have, is the correspondence about the deck, before the Lease was
entered into. The First Defendant had other options (aliter what is pleaded in
paragraph 7.8 of its Plea ) than to unilaterally reduce the rental payable. It
could and should have cancelled and claimed damages. It could also have sat
it out and claimed damages after expiry of the Lease. It did neither. In fact,
there is no evidence, other than say-so, that it complained.
[23] Also, the damages as presently formulated in the conditional counterclaim, are
vague. For the first time the First Defendant now claims that it experienced a
loss during the currency of the Lease. It say s that was at least R180,000.00
per month. The bona fides of this defence would have been enhanced if First
Defendant did not keep this to itself for so long. Also, if it did not p ut up a
vague version of “at least” so much loss. No detail or formulation is ventured
of how and when these losses were suffered. One would expect more detail
of the losses suffered in each individual month.
[24] My scepticism of the damages claim as presently alleged, does not mean that
First Defendant will not succeed with its conditional counterclaim in due course
(the counterclaim would then no longer be “conditional”) – see Soil
Fumigation Services v Chemfit Technical Products .1 Fourth Defendant’s
counsel has certainly raised a spirited defence, but alas, I cannot find that it is
bona fide.
[25] The First Defendant has not put up cogent facts from which I can discern a
bona fide defence. I have had regard to the authorities attached to the Fourth
Defendant’s Heads of Argument (which indirectly serve as Heads of Argument
for the other Defendants). Neither the Baynes Fashion (Pty) Ltd t/a Jurani ,
nor the Tudor Hotel Basseri and Bar (Pty) Ltd -judgments preclude the
findings that I have come to.
[26] The argument that payment of rental could be withheld because of so-called
anticipatory breach, encounters the same logic , and is refuted thereby. I have
1 2004 (6) SA 29 (SCA) at para [11].
read Datacolor Industrial (Pty) Ltd v Int amerket (Pty) Ltd 2 quoted by the
Fourth Defendant’s counsel. In my view it does not assist the Defendants
here.
[27] I thus grant summary judgment on Claim A , against the First to Fourth
Defendants, jointly and severally, the one paying the other to be absolved, for:
27.1. Payment of R1,313,815.41;
27.2. Interest on the amount in paragraph 1 at the prescribed rate of interest
from time to time, calculated from date of service of summons to date of
payment;
27.3. Costs of suit insofar as it relates to claim A, on the scale as between
attorney and client , including the costs of the application for summary
judgment.
[28] It is noted that Claim B, as formulated in the Particulars of Claim, and the First
Defendant’s conditional counterclaim, as formulated after the Defendant’s
Plea, remain to be determined by this Honourable Courtin due course.
J O WILLIAMS AJ
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
Date heard : 4 August 2025
Date of judgment : 8 August 2025
Representation for the Applicant: Adv W J Scholtz
Instructed by Fourie van Pletzen Inc.
Representation for the Defendants: Adv S Mulligan
Nixon & Collins Attorneys
2 (2/1999) [2000] ZASCA 81 (30 November 2000).