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IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
JUDGMENT
In the matter between:
V & A WATERFRONT HOLDINGS (PTY) LTD
And
KA T VAN DUIN EN DESIGN (PTY) LTD t/a
KAT VAN DUINEN
KATARSYNA VAN DUINEN
Coram:
Heard on:
Delivered on:
DA SILVA SALIE, J
27 November 2025
27 November 2025
Not Reportable
Case No: 22439/2024
Plaintiff
1 st Respondent
2nd Respondent
ZI P age
Summary:
Summary judgment-Rule 32-Lease arrears-Plaintiff limiting relief to undisputed
portion - Addendum and termination date in dispute - CPA-based defences and
counterclaim raising triable issues - No defence raised to reconciled core rental debt
- Partial summary judgment appropriate.
ORDER
1. Summary judgment is granted in favour of the plaintiff in the amount of
R425 042.81.
2. Summary judgment is refused in respect of the balance of the plaintiff's claim,
and the respondents are granted leave to defend the remainder.
3. The costs of this application shall be costs in the cause of the main action.
JUDGMENT
DASILVA SALIE J:
Introduction:
[1] This is an application for summary judgment in terms of Rule 32. The plaintiff
seeks payment of arrear rental and related charges (that being the operating costs)
3IPage
arising from a written lease agreement and addendum . While the summons reflects a
higher amount, the plaintiff now limits its claim for purposes of this application to
R425 042.81, contending that this represents the undisputed and correctly reconciled
portion of the debt. The plaintiff accepts that the remainder of the claim should proceed
to trial.
[2] The respondents oppose the application and contend that they have raised
bona fide defences which cannot be summarily dismissed. These relate to the correct
termination date, the legal effect of the addendum , alleged non-compliance with the
Consumer Protection Act 68 of 2008 ("the CPA "), and a counterclaim for damages.
[3] This matter was argued before me today and the issues were fully ventilated
during submissions. This judgment is delivered ex tempore and is of necessity brief.
Rule 32 and the applicable test
[4] The purpose of summary judgment is not to shut out genuine defences. As held
in Maharaj v Barclays National Bank Ltd 1976 (1) SA 418 (A), the plaintiff must
meet the procedural requirements, and the defendant must satisfy the Court that the
defence is bona fide.
[5] In Breitenbach v Fiat SA (Edms) Bpk 1976 (2) SA 226 (T), the Court stressed
that the defendant must disclose facts which, if proven at trial, would constitute a
defence in law. The Court is not concerned with probabilities but only whether a bona
fide triable issue is raised.
[6] Recent decisions reaffirm that summary judgment is appropriate only where the
defence is palpably implausible or a sham , and not where the dispute merits ventilation
at trial. Against this legal framework, I turn to the parties' competing positions.
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The plaintiffs claim and the reduced relief
[7] The plaintiff's original claim included several components. In argument the
plaintiff expressly confines the relief sought to R425 042.81, representing rental
arrears and operating costs, reconciled as being due for a specific undisputed period.
[8] The plaintiff concedes that the balance of the claim relating to damages, and
other charges as well as amounts flowing from the disputed termination date should
be determined at trial.
Respondents' defences
(a) Quantification and termination date
[9] The respondents dispute the termination date applied by the plaintiff, alleging
that the addendum altered the period of liability and that the plaintiff's calculation is
consequently flawed. These contentions raise factual disputes that cannot be resolved
on affidavit and relate primarily to the balance of the claim, not to the reconciled sum
now sought.
(b) Addendum - new lease or renewal
[1 O] The respondents contend that the addendum constituted a new lease requiring
fresh signatures and that its legal effect must be determined with reference to evidence
beyond the written documents. The plaintiff disputes this and relies on the non
variation clause. The proper characterisation of the addendum is a triable issue
reserved for trial.
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(c) CPA defence
(11] The respondents allege non-compliance with the CPA and unfair trading
practices by the plaintiff. The plaintiff denies that the CPA applies. These allegations
are intertwined with disputed facts and cannot be determined now , being the
summary-judgment stage.
(d) Counterclaim
(12] The respondents have instituted a counterclaim premised on the CPA
allegations and alleged financial losses. Its viability is likewise a matter for trial.
However, clause 4.6.3 of the lease agreement states that rental is payable without set
off. A claim for damages must proceed by way of adjudication to trial.
Assessment
[13] The decisive question is whether the respondents have disclosed a bona tide
defence to the reduced amount of R425 042.81, being the portion the plaintiff now
seeks. During argument the respondents' counsel handed up a schedule of the
calculation of the claims of unpaid rental and other amounts as alleged by the plaintiff
and argued that a simple arithmetic calculation of a reduced claim amount does not
permit the granting of summary judgment in terms of Rule 18(4) and on the facts of
this case.
[14] The respondents' opposing affidavit, when examined closely, does not
articulate any factual or legal basis that challenges the rental charges comprising the
reduced sum of R425 042.81. They do not contend that the rental for that period was
wrongly levied, incorrectly computed, charged at an incorrect rate, or unrelated to their
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occupation. The correction of the certificate of balance by the plaintiff to adjust the
period to when the respondents vacated earlier is a simple arithmetic calculation. It is
not a triable issue and no evidence need to be led at trial to correct the certificate of
balance. The concerns the respondents advanced including the dispute about the
correct termination date, the contention that the addendum constituted a new lease
requiring fresh signatures, challenges to charges allegedly arising after they say
liability ceased, their CPA-based complaints, and their counterclaim for damages all
relate to events or charges occurring after the period from which the reconciled arrears
are drawn. Even if those defences ultimately succeed at trial, it would not negate or
diminish the reconciled arrears which accrued during the undisputed period. Stated
differently, even if the respondents succeed at trial in establishing those contentions,
it will not extinguish the rental that accrued during the period reflected in the reduced
amount. Consequently, the respondents have not disclosed a bona fide defence to the
reduced amount. The respondents have blown hot and cold between defences set
out in its plea and its answering affidavit. In the absence of an explanation for the
inconsistency, I further cannot find that the defences are bona fide.
[15] It follows that the plaintiff has established a clear basis for partial summary
judgment, while the balance raises triable issues that must be ventilated in the ordinary
course. In other words, the balance of the plaintiffs claim raises genuine dispute that
cannot be determined on affidavit and must be tried in the ordinary course.
[16] Rule 32 permits the granting of summary judgment in part on a lesser amount
given the nature of the defences raised and given the aforesaid findings, this is an
appropriate case for doing so.
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Order
[17) In the result, the following order is made:
1. Summary judgment is granted in favour of the plaintiff in the amount of
R425 042.81.
2. Summary judgment is refused in respect of the balance of the plaintiff's
claim, and the respondents are granted leave to defend the remainder.
3. The costs of this application shall be costs in the cause of the ma in action.
Appearances
For Applicant: Adv. W Jonker
Instructed by: GVS Law
G. DASILVA SALIE
JUDGE OF THE HIGH COURT
WESTERN CAPE
For Respondent: Adv. H Beviss-Challinor
Instructed by: Scherman & Associates
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