IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO: 115186/23
I 1) REPORTABLE: NO
/2) OF INTEREST TO OTHER JUDGES: NO
/3) REVISED.
06 / t, / Zu2s
r r
DA TE
In the matter between:
ITALITE INVESTMENTS (PTY) LIMITED
and
ZIZ WELL TRADE (PTY) LTD t/a VOICE AFRICA
JUDGMENT
MBONGWEJ:
INTRODUCTION
Applicant
Respondent
[1] This is an application for summary judgment in terms of Rule 32 of the Uniform
Rules of Court. The plaintiff seeks payment of R390 261 .74 from the
defendants, jointly and severally, arising from unpaid rental obligations.
2
[2] The plaintiff and the first defendant entered into a written agreement of lease
of commercial premises commencing on 1 April 2018 and terminating on 31
March 2021 by effluxion of time.
[3] The second defendant executed a deed of suretyship in favour of the plaintiff,
binding himself as surety and co-principal debtor for the due performance of
the first defendant's obligations to the plaintiff under the lease.
[4] Despite the termination of the lease, the first defendant remained in
occupation and continued to trade on the premises, resulting, by law, in a
relocation occurring. The first defendant's occupation of the premises from 1
April 2021 was on a month-to-month basis and terminated when the first
defendant vacated the premises on 31 August 2023. The first defendant was
liable to pay the monthly rental, which it did until October 2021, on the terms
and conditions of the initial agreement.
[5] The first defendant failed to pay the monthly rental from November 2021 to
August 2023. The plaintiff issued a summons against both the first and the
second defendants claiming the outstanding accumulated rental amount of
R390 261. 7 4, for that period.
[6] The defendants delivered a notice of intention to defend and filed a special
plea, a plea raising two defences as well as three counterclaims, which they
contended constitute triable issues.
[7] The defendants have further filed an affidavit resisting summary judgment
setting out their two defences and the three counterclaims.
3
[8] The plaintiff now seeks summary judgment, contending that the defendants
have no bona fide defence and that the appearance to defend was entered
solely for the purpose of delay. Concerning the counterclaims, the plaintiff has
responded thereto contending that the same lack of merit in law and on the
facts and constitute no barriers to the granting of summary judgment.
Legal Framework and Purpose of Summary Judgment
[9] The purpose of summary judgment is to allow a plaintiff with a clear,
unanswerable case to obtain a speedy judgment without the need for a full
trial, where the defendant has failed to demonstrate a bona fide, triable
defence. Compliance with the prescripts of the amended Rule 32 of the
Uniform Rules of Court is mandatory. The defendant is required to fully
disclose the nature and grounds of any defence it raises, and the material
facts relied upon, explaining briefly why the pleaded defence constitutes a
triable issue.
[1 O] The summary judgment procedure is designed to prevent abuse of the judicial
process by defendants who raise sham defences merely seeking to delay the
inevitable.1
[11] The test is whether the defendant has disclosed facts which, if proved at trial,
would constitute a defence to the claim. In the Joob Joob matter, supra, the
court emphasised that the defendant must set out facts in sufficient detail to
1
See Joob Joob Investments (Pty) Ltd v Stocks Mavundla Zek Joint Venture (2009] ZASCA 23; 2009
(5) SA 1 (SCA) ; (2009] 3 All 407 (SCA ) and Maharaj v Barclays National Bank Ltd 1976 (1) SA 418
(A ) at 423A-E .
4
persuade the court that there is a triable issue. Mere conclusions or vague
allegations do not suffice.
[12] In McCarthy Retail Ltd v Short Distance Carriers CC 2, the Supreme Court of
Appeal reiterated that summary judgment is appropriate where the
defendant's opposition is contrived or lacking in substance.
The defendants' special plea (points in limine)
[13] The defendants have challenged the eligibility of the deponent to the Founding
Affidavit to attest thereto on the ground that she had received invoices from
Broll and the absence of a supporting affidavit from Broll confirming the
correctness of the reconciliation of the amount claimed.
[14] Broll is a property management company employed to manage the property
concerned, including the issuing of monthly rental invoices and the service
thereof to the tenants, such as the first defendant. The re is, in my view , nothing
disqualifying a person involved with the accounts of the company , attesting to
the invoices of the rental due by the tenants.
[15] The defendants dispute that the claim is a liquid claim entitling it to summary
judgment, contending that the claim arose from the unlawful occupation of the
plaintiff's store by the first defendant, and that, therefore, the plaintiff's claim
ought to be for damages requiring the plaintiff to prove the market value of the
property on wh ich the amount claimed was calculated. This contention by the
defendants is misplace d for two reasons; firstly, the plaintiff has not alleged
2 2001 (3) SA 482 (SC A) at 487E -F.
5
that the first defendant had been in unlawful occupation of the premises, nor
sought its eviction, and, secondly, the plaintiff has alleged the occurrence of a
relocation when the first defendant remained in occupation of the premises,
thirdly, the first defendant had accepted or acquiesced in that it continued to
pay the monthly rental from 1 April 2021 until October 2021 and began
defaulting from November 2021 to August 2023. In my view, there had been
at least, an agreement on the further occupation of the premises by the first
defendant and the corresponding payment of the agreed rental amount, which
the first defendant paid in full until October 2021. The defendants' point in
limine is, consequently, dismissed.
Defences Raised
[16] The defendant has raised the following defences:
16.1 Lis alibi pendens.
The defendant alleges that the plaintiff's claim for the rental is still
pending in an action that the plaintiff instituted in the Magistrates' Court,
Vhembe , in Limpopo.
[17] In reply, the plaintiff contends that it had instituted an action as alleged by the
defendant in Vhembe under case number 427/2021, which it withdrew after
the defendants had raised a special plea that the court had no jurisdiction to
entertain the matter. The defendants, later in their papers, admit that the action
was withdrawn by the plaintiff, but without tendering costs. This defence,
consequently, stands to be rejected.
6
[18] The defendants' second defence is that they had paid the plaintiff in full and
are not liable to the plaintiff for anything. The defendants further aver, in
substantiation of this defence, that the plaintiff had granted the first defendant
a 30% rebate on the monthly rental for the period September 2019 to
November 2019, and that the plaintiff was paid the monthly rental amount less
the rebate. They aver that the plaintiff failed to consider this fact in calculating
its claim.
[19] In reply, the plaintiff admits that it had granted the defendant the 30% rebate,
but states that the reduction was for the period September 2019 to November
2019 and was limited to that period only. The plaintiff contends further that the
reason for the reduction in monthly rental was to provide temporary COVID-
19 relief to the first defendant. In particular, the plaintiff avers that the period
of the rebate occurred while the initial written lease agreement was still extant,
while the amount currently claimed is in respect of the period August 2021 to
November 2023. It is my view on these facts that the second defence raised
by the defendants ought to be rejected.
Defendants' Counterclaims
(20] The defendants have raised three counterclaims:
20.1 Counterclaim A: The defendants allege that the plaintiff is indebted to
them in the amount of R33 099, 00 for restoration / improvement of the
plaintiff's building. To this end, the defendants have attached
Annexure ZIZ 7 as proof of the expense they allegedly incurred. On
perusal by the plaintiff, this Annexure relates to damages to the first
7
defendant's stock caused by the rain and has nothing to do with the
alleged restoration/ improvement to the plaintiff's building. The plaintiff
further alleges that, in any event, the first defendant was, in terms of
the lease agreement, to maintain and repair any damage to the interior
of the building and to have insurance for its stock. The agreement
further exonerates the plaintiff from liability for any damage that may
occur. In my view, this counterclaim by the defendants ought to be
dismissed.
20.2 Counterclaim B: The defendants seek a refund from the plaintiff of the
amount of R54 820,08, being the amount the first defendant was
obliged to pay, and had paid as a deposit for rent, and was retained
by the plaintiff as security. The plaintiff averred that it had appropriated
this deposit in reduction of the amount owed by the first defendant and
that its claim was , accordingly, reduced to the value of that deposit.
The plaintiff has further alleged that the defendants have failed,
despite requests, to furnish proof of payments of monthly rent for the
period September 2021 to August 2023. I find that the defendants'
failure negates their assertion that they paid the plaintiff in full and are
entitled to the refund of the deposit. The defendants' second
counterclaim stands to be dismissed.
20.3 Counterclaim C : The defendant alleged to have incurred expenses to
the tune of R120 000 in fitting shelves and other necessary equipment
in the plaintiff's store. The defendants averred that the plaintiff has not
compensated them for the expense incurred and, relying on the
8
condictio indebiti principle, the defendants seek payment of the
amount spent on the ground that the plaintiff was unjustly enriched,
and the defendants impoverished to that amount of R120 000,00.
[21] The plaintiff argued, in essence, that the defendants have not made out a case
for the alleged unjust enrichment. I am inclined to agree with the plaintiffs
contention as the defendants' claim falls short of meeting the requirements for
entitlement to a condictio indebiti claim as laid down by the Supreme Court of
Appeal in the matter of McCarthy Retail Limited v Short Distance Carriers CC 3.
[22] For a claimant to succeed in an undue enrichment claim, it must demonstrate
the existence of the undermentioned requirements aptly laid down by the
Supreme Court of Appeal in McCarthy Retail Limited v Short Distance Carriers
22.1 The payment to the debtor must have been made erroneously, and
22.2 was without legal cause.
22.3 the defendant was unduly enriched thereby, and
22.4 the plaintiff is impoverished.
By their failure to meet these requirements in full, the defendants are
therefore, not entitled to restitution against the plaintiff.
3 2001 SA 482 (SCA) 8489F - G .
• 2001 SA 482 (SCA) 8489F - G .
9
CONCLUSION
(23] I conclude that the plaintiff has successfully established:
• The existence of a lease agreement and its termination by the effluxion
of time on 31 March 2021.
• The occurrence of a relocation of the lease agreement following the
continued occupation of the leased premises by the first defendant post
termination.
• The second defendant's suretyship.
• The quantum of the arrears.
• The absence of any triable issue raised by the defendants to the
plaintiff's claim.
• The defendants have failed to meet the threshold set out in the amended
Rule 32. The plaintiff's application for summary judgment must
consequently be granted.
ORDER
[24] Resulting from the findings and conclusions above, I make the order:
1. The defendants are ordered to pay the plaintiff the amount of
R390 261,74 jointly and severally, the one paying the other to be
absolved.
2. The defendants are to pay interest on the amount in 1 at the rate of
10.25% per annum , calculated from the date of summons to the date of
payment.
10
3. The defendants are ordered to pay the costs on Scale C .
APPEAR A NCES
For the applicant:
Instructed by:
For the respondent:
Instructed by:
Date of hearing:
D ate of judgment:
Adv WJ Scholtz
JUDGE OF THE HIGH CO U RT
GAUTENG DIVISION , PRETOR IA
Fourie van Pletzen Inc
Adv RA Britz
Muthray and Associates Inc.
24 April 2025
06 November 2025