IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, JOHANNESBURG)
CASE NO : 090349/2024
(1) REPORTABLE : NO
(2) OF INTERES T TO O THER JUDGES NO
(3) REV ISED NO
SIGNATURE
20/10/2025
DATE
MELROSE ARCH INVESTMENT HOLDINGS (PTY) LTD
LIBERTY PROPCO (PTY) LTD
2 DEGREE PROPERTIES (PTY) LTD
And
AVE NG CORPORA TE (PTY) LTD
JUDGMENT
NTHAMBELENI AJ
First App licant
Second Applicant
Third Applicant
R espondent
Introduction
[1] This is an application for summary judgment brought by the applicants against
the respondent for payment of the amount of R536 022.34, together with interest
thereon and costs on the attorney-and-client scale. The applicants allege that the
amount claimed represents monthly rental and other charges due and payable
by the respondent in terms of a written lease agreement concluded between the
parties in respect of certain office premises situated at Melrose Arch,
Johannesburg.
[3] The respondent entered an appearance to defend and subsequently filed a plea
in the main action. The applicants thereafter launched this application for
summary judgment in terms of Rule 32(1) of the Uniform Rules of Court,
contending that the respondent has no bona fide defence, and that the plea
discloses no triable issue.
The pleadings
[4] In its plea, the respondent alleges, inter alia, that the parties agreed to an early
termination of the lease on 30 June 2024 , alternatively that the applicants are
estopped from denying that the lease terminated on that date.
[5] The relevant averments appear at pages 030-9 to 030-12 of the plea, paragraphs
18–20, 27–30, and 32, where the respondent specifically denies that any further
rental or other charges are due to the applicants following such termination.
[6] In opposition to the summary judgment application, the respondent filed an
affidavit under Rule 32(3)(b), elaborating on these defences and maintaining that
the alleged termination agreement was concluded between duly authorised
representatives and acted upon by both parties.
The applicable legal principles
[7] Rule 32(1)(a)–(d) permits a plaintiff to apply for summary judgment where the
defendant has delivered a notice of intention to defend in respect of a liquidated
amount, a liquidated demand, or for delivery of specified movable property.
[8] The purpose of the rule is to prevent defendants from delaying the plaintiff’s claim
by raising sham or bogus defences, while ensuring that a defendant who has a
bona fide defence is not shut out from presenting it at trial.1
[9] In determining whether summary judgment should be granted, the court must
assess whether the defendant has disclosed a defence that is bona fide and
raises a triable issue. The defence need not be proven at this stage but must be
set out with sufficient particularity to satisfy the court that the issue merits
ventilation at trial.2
Claims sounding in money per liquid document
[10] A claim is liquidated if the amount is fixed by agreement or can be ascertained
by calculation from the terms of the agreement or some other fixed standard. It
is not liquidated if the court must determine the amount based on evidence or
estimation.3 To this end, the essence of a liquidated claim is that the court is not
required to assess or estimate the quantum. The amount must be objectively
determinable.4
[11] Rule 32(1)(a) explicitly provides that summary judgment may be granted where
the plaintiff’s claim is on a liquid document, or for a liquidated amount in money,
or for delivery of specified movable property, or for ejectment. Thus, the rule
assumes that the claim must be ascertainable ex facie the document and not
subject to factual dispute.
[12] The respondent’s obligation to pay rental and other charges are dealt with in
various clauses of the Lease. Clause 18.1 provides that the monthly rent payable
by the Tenant shall be the rental set out in the Schedule. Clause 19.1 provides
that the Tenant shall pay all electricity, water and gas consumed at the Premises.
Clause 20 provides that the Tenant shall pay the chilled water charges in clause
1 See Maharaj v Barclays National Bank Ltd 1976 (1) SA 418 (A) at 423A –C; Breitenbach v Fiat SA
(Edms) Bpk 1976 (2) SA 226 (T) at 228B –229C; Joob Joob Investments (Pty) Ltd v Stocks Mavundla
Zek Joint Venture 2009 (5) SA 1 (SCA) at paras 31–33.
2 Maharaj Footnote 1 above at 426A–C.
3 Herbstein & Van Winsen, The Civil Practice of the High Courts and the Supreme Court of Appeal of
South Africa (6th ed.), Vol. 1 at 656.
4 Cilliers, Loots & Nel, The Civil Practice of the High Courts of South Africa (5th ed.) at 593.
8.6 of the Schedule. Clause 21 provides that the Tenant shall pay assessment
rates, taxes and POA levies in terms of clause 8.3 and 8.4 of the Schedule and
clause 22 provides for the payment by the Tenant of operating costs as set out
in clause 8.2 of the schedule.
[13] There are numerous charges under the Lease which could make up the amount
the plaintiff allege to be due. There is however no way to discern ex facie from
the particulars of claim exactly which rental, charges and costs the plaintiff’s
allege remain unpaid, as this detail has simply not been set out in the particulars
of claim and it should not be expected from this Court and the defendant to try
and discern this from annexure B which this Court was directed to by Counsel of
the applicant.
[14] The consequence of this failure to particularise the alleged unpaid rental, costs
and charges, and clearly identify the specific month/s to which the claim relates,
is that the plaintiff’s claim can never constitute a claim that is capable of easy
and prompt ascertainment without using evidence aliunde. In an application of
this nature, the applicant ought at the very least to have identified the month/s in
respect of which they allege the amount due has not been paid, and to break the
amount up into i ts constituent parts, stating separately the rental amount and
each charge or cost making up the “other amounts” without this detail, it is not a
matter of ‘mere calculation’ to comprehend how the claimed amounts were put
together.
[15] In Hersman v Shapiro & Co5 the court held:
“A liquidated amount in money is an amount which is either agreed upon or which
can be determined by a calculation or in terms of a fixed formula without any further
enquiry.”
[16] The abovementioned statement has been repeatedly cited for the proposition
that the court must be able to determine the amount ex facie the contract or
5 1926 TPD 367 at 379.
document relied upon. In Harrowsmith v Ceres Flats (Pty) Ltd 6 Coetzee J
elaborated:
“If evidence is required to establish the amount of the debt — beyond mere
calculation — the claim is not liquidated.”
[17] This means that if the court would need to hear witnesses or examine accounts
to establish the precise amount, the claim is unliquidated.
Analysis
[18] The respondent’s principal defence is that the lease agreement was mutually
terminated by agreement on 30 June 2024. In the alternative, it pleads estoppel,
contending that the applicants, by their conduct and representations, led the
respondent to believe that no further rental or ancillary charges would accrue
after that date.
[19] The applicants, on the other hand, deny that any such termination agreement
was concluded and maintain that rental and other charges remained due for the
period claimed.
[20] The existence, validity, and effect of an alleged agreement to terminate a lease
are matters of fact and law that require oral evidence and full ventilation at trial.
Such issues cannot be properly determined in summary judgment proceedings.
[21] In Tesven CC v South African Bank of Athens Ltd7 the Supreme Court of Appeal
held that if the defence raised is based on a factual dispute that cannot be
determined on affidavit, the defendant must be given leave to defend. Similarly,
in Arend and Another v Astra Furnishers (Pty) Ltd 8 it was held that where a
defendant discloses facts which, if proved at trial, would constitute a defence,
summary judgment must be refused.
[22] On the papers before me, the respondent has advanced a defence that is not
inherently implausible or mala fide. Whether the alleged termination agreement
6 1979 (2) SA 722 (T) at 724G–H.
7 2000 (1) SA 268 (SCA) at 276G–H.
8 1974 (1) SA 298 (C) at 303–304.
w as indeed concluded, and w hether the applicants are estopped from denying
its effect, are matters that require oral testimony , through viva voce evidence and
documen tary proof.
[23] It is also important to note that w hat is presented as a liquid documen t before
this court by the applicants does not pass the threshold as required by the rules
and the case authorities in this matter. An orange and a grapefruit are similar in
colour, but their taste is different on the tongue and w hat is before the court is
not a liquid documen t.
Conclusion
[24] Having considered the pleadings and affidavits, I am satisfied that the
respondent has disclosed a bona fide defence that raises a triable issue w ithin
the mean ing of Rule 32.
[25] The applicants have accordingly failed to show that the respondent's defence is
unsustainable or that there is no genuine dispute of fact requiring determination
at trial.
Order
[26] In the result, the follow ing order is made :
1. The Respondent is granted leave to defend the ma in action.
2. The application for summary judgment is dismissed.
3. The costs of the summary judgment application are aw arded to the
Respondent on a party-to-party scale B.
4. Costs shall include costs of two Counsel.
RR NTHAMBELENI , AJ
ACTING JUDGE GAUTENG DIVISION
JOHANNESBURG
APPERANCES
For the applicant: WF Wanneberg
Instructed by: Fourie Van Pletzen Inc Attorneys
For the Respondent: A Subel SC with him H Pretorious
Instructed by: Dingiswayo, Du Plessis, Van Der Merwe
Date of Hearing: 08 October 2025
Date of Judgment: 20 October 2025
Delivered: This judgment was prepared and authored by the Judge whose name is
reflected and is handed down electronically by circulation to the Parties /their legal
representatives by email and by uploading it to the electronic file of this matter on Case
Lines. The date for hand-down is deemed to be 20 October 2025