SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
Case number: 2024/059936
In the matter between:
INVESTEC PROPERTY (PTY) LIMITED Plaintiff
and
WEST PACK LIFESTYLE FRANCHISE (PTY) LIMITED
(registration no. 2012/152219/07) (in business rescue)
t/a WEST PACK LIFESTYLE First Defendant
JOSE CHRISTOVAO PERREIRA DA SILVA
(id no. 8[…]) Second Defendant
JUDGMENT
DALRYMPLE AJ:
BACKGROUND
[1] The plaintiff applies for summary judgment against the second defendant.
[1] REPORTABLE: NO
[2] OF INTEREST TO OTHER JUDGES: NO
[3] REVISED: NO
SIGNATURE DATE: 10 FEBRUARY 2026
2
[2] The plaintiff and the first defendant were parties to a written agreement of
lease (“the lease”) in terms of which the plaintiff let certain commercial
premises to the first defendant . In terms of a written deed of suretyship, the
second defendant bound himself as surety for the first defendant’s obligations
under the lease. The plaintiff alleged that the first defendant breached the
provisions of the lease when it failed to make payment of the monthly
amounts due to the plaintiff and fell into arrears. As a result of the first
defendant’s breach, on 24 May 2024, the plaintiff had made a demand in
respect of the arrears and cancelled the lease.
[3] The plaintiff t hereafter instituted action against the first and second
defendants. Prior to institution of the action, the first defendant was placed in
business rescue and as such the only relief sought against it was ejectment
from the premises. As against the second defendant, the plaintiff claim ed the
arrear rental , a proportionate share of the tenant installation allowance as
provided for in the lease and damages. The first defendant did not oppose the
action and does not feature in this application.
[4] In his plea, the second defendant admitted conclusion of the lease, the terms
thereof, compliance therewith by the plaintiff, that the first defendant enjoyed
and continued to enjoy beneficial occupation of the premises, that the plaintiff
had cancelled the lease on 23 May 2024 and that he had signed the
suretyship in the plaintiff’s favour. However, the second defendant raised the
following defences in his plea:
3
[4.1] He denied the validity of the resolution by the first defendant
authorising him to sign the lease and put the plaintiff to the proof
thereof.
[4.2] He denied that the plaintiff’s representatives were authorised to act
in terms of the resolution attached to the lease and put the plaintiff to
the proof thereof.
[4.3] He asserted that the lease and the suretyship were unenforceable
because the negotiations and entering into the lease contravened
the provisions of sections 40, 48, 49, 51 and 52 of the Consumer
Protection Act 68 of 2008.
[4.4] He challenged the accuracy of annexure “C” to the particulars of
claim which annexure comprised the plaintiff’s account to the
defendant. He contended that it had duplications and gave an
example of one for December 2022. He pleaded that annexure “C”
was not a true calculation of the arrears, that it did not take into
account all payments , that the arrears could not be calculated
because there were no running balances and that the rental charged
to the first defendant was exorbitant.
[4.5] In addition to the above, the second defendant denied the first
defendant had breached the lease, contended that the plaintiff was
not entitled to cancel the lease as the first defendant was in business
rescue and that the plaintiff could not claim both damages in addition
to the proportional part of the installation allowance.
4
[5] The plaintiff took the view that the various defences raised by the second
defendant were mutually destructive and without merit . It brought an
application for summary judgment against the second defendant for:
[5.1] Payment of the amount of R583 170,81 (plaintiff’s claim 1 in respect
of the arrear rental);
[5.2] Payment of the amount of R141 526,65 (plaintiff’s claim 3 in respect
of the pro rata portion of the tenant installation allowance);
[5.3] Interest on both sums at a rate of 13. 75% per annum compounded
monthly from 2 May 2024 to date of payment; and
[5.4] Costs of suit on the scale as between attorney and client.
[6] The plaintiff did not seek summary judgment in respect of its claim 2, being its
damages claim.
[7] The second defendant opposed the application for summary judgment. In his
affidavit opposing summary judgment, he raised a point in limine to the effect
that the plaintiff’s deponent had not complied with Rule 32 in that the plaintiff
had failed to verify the actual causes of action in respect of its claims for
arrear rental and the proportionate share of the tenant installation allowance
and had failed to verify such amounts in its affidavit. He also contended that
the amount claimed in relation to the proportionate share of the tenant’s
allowance did not constitute a liquidated amount in money and thus fell
outside the ambit of summary judgment.
5
[8] Insofar as the merits are concerned, the second defendant averred that he
had bona fide defences that were set out in his plea. The defences referred to
in his affidavit opposing summary judgment were summarised in the second
defendant’s counsel’s heads of argument as follows:
[8.1] The amounts claimed in the particulars of claim were incorrect
and/or not due and payable;
[8.2] The first defendant had continued to make intermittent payments to
the plaintiff that had not been taken into consideration;
[8.3] The statement provided by the plaintiff consists of several
duplications and exorbitant charges that were never agreed to;
[8.4] The plaintiff was not entitled to cancel the lease in the circumstances
where the first defendant went into voluntary business rescue on 15
May 2024;
[8.5] The plaintiff provided no substantiation in relation to the alleged
installation allowance that was provided, which was denied, and was
accordingly not entitled to reclaim such allowance or any portion
thereof;
[8.6] In addition, the plaintiff was not entitled to claim payment of a portion
of the tenant installation allowance in circumstances where the first
defendant went into voluntary business rescue on 15 May 2024 and
the plaintiff elected to cancel the lease in order to proceed with the
enforcement action proceedings.
6
[9] The second defendant also relied upon the defences in his plea as to the
validity of the resolutions.
[10] In the heads of argument and oral submissions, counsel for the second
defendant confirmed that the second defendant abandoned reliance on
allegations as to non- compliance with the Consumer Protection Act and
conceded that it did not apply in the circumstances of the current matter.
Nothing more need be said about such defences.
REQUIREMENTS FOR SUMMARY JUDGMENT
[11] Amended Rule 32 of the Uniform Rules of Court , in relevant part provides as
follows:
“(2)(a) Within fifteen days after the date of deliver y of the plea, the
plaintiff shall deliver a notice of application for summary
judgment, together with an affidavit made by the plaintiff or any
other person who can swear positively to the facts.
(b) The plaintiff shall, in the affidavit referred to in subrule (2)(a),
verify the cause of action and the amount, if any, claimed, and
identify any point of law relied upon and the facts upon which
the plaintiff’s claim is based, and explain briefly why the defence
as pleaded does not raise any issue for trial.
…
(3) The defendant may –
(a) give security to the plaintiff to the satisfaction of the court
for any judgment including costs which may be given; or
(b) satisfy the court by affidavit (which shall be delivered five
days before the day on which the application is to be
heard), or with the leave of the court by oral evidence of
such defendant or of any other person who can swear
positively to the fact that the defendant has a bona fide
defence to the action; such affidavit or evidence shall
7
disclose fully the nature and grounds of the defence and
the material facts relied upon therefor.
…
(6) If on the hearing of an application made under this Rule it
appears –
…
(b) That the defendant is entitled to defend as to part of the
claim, the court shall –
(i) give leave to defend to a defendant so entitled
thereto and give judgment against the defendant
not so entitled; or
(ii) give leave to defend to the defendant as to part of
the claim and enter judgment against the
defendant as to the balance of claim, unless such
balance has been paid to the plaintiff;
… ”
[12] In respect of the contents of the affidavit which must support an application for
summary judgment under the amended Rule 32, in Tumileng Trading CC v
National Security and Fire (Pty) the court held as follows:
“[21] The requirement that the plaintiff’s supporting affidavit should
explain briefly why the pleaded defence ‘does not raise an issue
for trial’ is of more interest…the plaintiff is not required to explain
that the plea is excipiable. It is required to explain why it is
contended that the pleaded defence is a sham.
[22] What the amended Rule does seem to do is to require of a
plaintiff to consider very carefully its ability to allege a belief that
the defendant does not have a bona fide defence. This is
because the plaintiff’s supporting affidavit now falls to be made
in the context of the deponent’s knowledge of the content of a
delivered plea. That provides a plausible reason for the
requirement of something more than a ‘formulaic’ supporting
affidavit from the plaintiff. The plaintiff is required to engage with
the content of the plea in order to substantiate its averments that
8
the defence is not bona fide and has been raised merely for the
purposes of delay.”1
[13] A defendant is required, in an affidavit opposing summary judgment to
disclose fully the nature and grounds of the defence and the material facts
relied upon.
2 The Rule requires a defendant set out in the affidavit sufficient
facts which, if proven at trial, would constitute an answer to the plaintiff’s
claim. The court must be appraised of the facts upon which the defendant
relies with sufficient particularity and completeness so as to be able to hold
that if such statements of fact are found at trial to be correct, judgment should
be given for the defendant.
3
[14] In Breitenbach v Fiat SA (Edms) Bpk 4 the court held that bald, vague and
sketchy defences should not be countenanced. In Joob Joob Investments
(Pty) Limited v Stocks Mavundla Zek Joint Venture
5 the Supreme Court of
Appeal explained that summary judgment procedure is not intended to
deprive a defendant with a triable issue or a sustainable defence or of his or
her day in court. In considering whether a defendant does indeed have a
triable issue or sustainable defence, the court should first consider whether
there was a sufficient disclosure by the defendant of the defence sought to be
relied upon. Second, it should be considered whether the defence so
disclosed is bona fide and good in law.
6
1 2020 (6) SA 624 (WCC) at paras [21] to [22]
2 Rule 32(3)(b); PCL Consulting (Pty) Limited t/a Philips Consulting SA v Tresso Trading 119 (Pty)
Limited 2009 (4) SA 68 (SCA) at para [8]
3 Marsh and Another v Standard Bank of SA Limited 2000 (4) SA 947 (W) at 949A
4 1976 (2) SA 226 (T) at 229 F to H
5 2009 (5) SA 1 (SCA)
6 Joob Joob Investments (Pty) Limited supra, at paras [31] and [32]
9
[15] When considering a summary judgment application, the court’s role is not to
evaluate the merits of the defence raised by the defendant or the likelihood of
it succeeding. Instead, the court’s task is to determine whether the defence
presented is genuine and not simply a device intended to cause delay.
7 As to
the method by which a court should determine whether the defence disclosed
is bona fide, Binns-Ward J in Tumileng put it thus:
“The assessment of whether a defence is bona fide is made with
regard to the manner in which it has been substantiated in the
opposing affidavit; viz upon a consideration of the extent to which ‘the
nature and grounds of the defence and the material facts relied upon
therefore’ have been canvassed by the deponent.”8
[16] In NPGS Protection and Security Services CC and Another v FirstRand Bank
Limited9 the Supreme Court of Appeal confirmed again that summary
judgment applications require an opposing affidavit to disclose fully the nature
and grounds of the defence and the material facts relied upon therefore. To
stave off summary judgment, a defendant cannot content him or herself with
bald denials, for example, that it is not clear how the amount claimed was
made up. Something more is required. If a defendant disputes the amount
claimed, he or she should say so and set out a factual basis for such denial.
10
EVALUATION
Compliance with Rule 32
7 Tumileng Trading CC v National Security and Fire (Pty) Limited supra at para [23]
8 Tumileng Trading CC v National Security and Fire (Pty) Limited supra at para [25]
9 2020 (1) SA 494 (SCA)
10 NPGS at para [11]
10
[17] Our courts have consistently held that strict compliance with Rule 32 is
required for a summary judgment application to succeed. 11 It is thus apposite
that I start with the second defendant’s allegation that the plaintiff’s affidavit
was non- compliant with Rule 32 , since non- compliance will bring an end to
the application for summary judgment.
[18] As to compliance with Rule 32, the second defendant ’s counsel’s argument
boiled down to the following:
[18.1] The plaintiff’s mere statement of verification of the cause of action
and the amounts was not a proper verification;
[18.2] A complete cause of action in relation to claim 3 had not been
identified in the affidavit in support of summary judgment and thus
could not be verified;
[18.3] The amounts in respect of claims 1 and 3 had not been verified by
the deponent;
[19] Identification requires the deponent to refer to the facts set out in the
particulars of claim .
12 The deponent to the affidavit in support of summary
judgment averred that the plaintiff’s claim was based on the lease and
suretyships agreements, the first defendant’s breach of the lease and the
falling into arrears which had caused the plaintiff to cancel the lease and
become entitled to repayment of the proportionate share of the tenant
11 Shackleton Credit Management (Pty) Limited v Micro Zone Trading 88 CC and Another 2010 Vol
5, SA 112 (KZP) at para [25]; Sanlam Life Assurance Limited v Africhick Trading (Pty) Limited and
Others 2024 JDR 1615 (KZD) at paras [17] to [18]; DB Fine Chemicals (Pty) Limited and Another v
Sparta Pharmaceuticals CC 2023 JDR 3745 (GJ) at paras [51] to [55]
12 Saglo Auto (Pty) Limited v Blackshades Investments (Pty) Limited 2021 (2) SA 587 (GP) at para
[45]
11
installation allowance (and damages – the latter not being pursued in the
application for summary judgment) . I am satisfied that this constitutes an
identification of a complete cause of action on which the claim is based.
[20] Verification is done by referring to the facts set out in the summons. It is
unnecessary to repeat the particulars. 13 In paragraph 5 of the affidavit in
support of summary judgment the deponent averred that she was able to and
did swear positively to and verify the facts, causes of action and the amounts
claimed in the summons and the particulars of claim. The second defendant is
thus incorrect in his assertion that the plaintiff’s deponent had not verified the
causes of action and the amounts claimed. The deponent had done so in
precise terms. It was not necessary for the plaintiff’s deponent to repeat the
amounts in the affidavit nor repeat the allegations made in the particulars of
claim.
[21] In the circumstances, I find that the plaintiff’s affidavit does comply with Rule
32. I turn to address the defences raised in this plea.
Defences Raised
[22] The second defendant disputes the validity of the plaintiff’s and the first
defendant’s resolutions in authorising conclusion of the lease. In relation to
both resolutions, in his plea, the second defendant’s challenge was advanced
by way of bald denials and putting the plaintiff to the proof thereof. In his
affidavit opposing summary judgment, the second defendant did not take
13 Saglo Auto (Pty) Limited v Black Shades Investments (Pty) Limited 2021 (2) SA 587 (GP) at para
[50]; Tumileng Trading CC v National Security and Fire (Pty) Limited, supra at para [20]; Standard
Bank of SA Limited v De Waal [2025] 3 All SA 276 (NCK) at para 23
12
these denials any further. He said nothing further about the validity of the
resolutions but simply averred that he stood by his plea.
[23] The second defendant thus did not advance any facts in support of the
denials. No information was provided in his affidavit as to why it was
contended that the two resolutions were invalid. When I put this to the second
defendant’s counsel, she argued that the second defendant was simply not in
a position to admit or deny the validity of the plaintiff’s resolution and hence
put the plaintiff to the proof thereof. It is however insufficient for a defendant in
summary judgment proceedings to simply put the plaintiff to the proof of its
case. If it was, it would be far too easy to avoid summary judgment.
14 In order
for the denial of the validity of the resolution to found a bona fide defence, the
second defendant was required to place adequate information before the
court so as to satisfy it that the defence was bona fide. But on its own version,
the defendant could not do so, it was conceded the second defendant had
nothing to support the challenge.
[24] In contrast to the position vis -à-vis the plaintiff’s resolution, the second
defendant was most certainly in a position to do more than merely put the
plaintiff to the proof of the validity of the first defendant’s resolution. As was
pointed out by the plaintiff’s counsel in argument, the resolution of the first
defendant attached to the particulars of claim indicates on the face of it that
the second defendant was a director of the first defendant and that he was a
signatory to the lease. In these circumstances, at the very least one would
have expected the second defendant to give an explanation in his affidavit as
14 Vetpac Animal Health CC v Tantus Trading 274 CC 2012 JDR 0190 (KZP) at para [10]
13
to why he contended the first defendant’s own resolution was not valid
especially when the countervailing evidence would be within his knowledge. 15
The second defendant did not do so and failed to place sufficient information
before the court to raise a bona fide defence.
Claim 1
[25] In response to the plaintiff’s allegation, in relation to its claim 1, that the first
defendant had failed to make payment of the agreed monthly rental and other
charges and was in arrears in an amount of R583 170,81, the amount of
which was set out and calculated on annexure “C” to the plaintiff’s particulars
of claim, in his plea, the second defendant denied that the first defendant had
breached the lease, that annexure “C” was a true calculation of the alleged
arrears (which were in any event denied), that the arrear amount, if any, could
not be ascertained from annexure “C” in the absence of a running balance,
that all the payments made by the first and/or second defendant were
correctly reflected on annexure “C” or at all and denied that the amount
claimed was due, owing and payable. Once again, he put the plaintiff to the
proof thereof.
[26] In relation to annexure “C” , the second defendant contended that it was
“evident” therefrom that the plaintiff had charged the first defendant exorbitant
rental and other charges, that the plaintiff duplicated “many” charges
including, but not limited to a generator diesel refund for December 2022 and
that payments made to the plaintiff since April 2024 had not been included on
annexure “C”.
15 Wright v Wright and Another 2015 (1) SA 262 (SCA) at para [15]
14
[27] In its affidavit in support of summary judgment, the plaintiff explained that the
first defendant had indeed made certain payments subsequent to annexure
“C” being issued, but those payments had been utilised and allocated to
holding over charges in accordance with the provisions of the lease. These
had in no manner or form decreased the amount owing by the first defendant
to the plaintiff and that this could be seen from an updated statement of
account annexed to the summary judgment application. The plaintiff explained
that any duplications that had been charged were also credited and the
amount as set out in annexure “C” to the plaintiff’s particulars of claim was
accordingly correct. In addition, the plaintiff attached a certificate of balance in
accordance with the provisions of the lease certifying the amount due.
[28] A plaintiff is entitled to attach a certificate of balance to an affidavit in support
of summary judgment and such a certificate may even be handed up at the
hearing of the matter. Such a certificate is not hit by the provisions of Rule
32(4).
16
[29] Once the plaintiff furnished a certificate of balance, which constituted prima
facie proof of the amount owing by the first and second defendants as it did ,
the second defendant was required to provide evidence which, if proven at
trial, would be destructive of the prima facie proof and thus prevent it from
becoming conclusive proof. Merely to cast suspicion on the correctness of the
facts and mere theories and hypothetical suggestions will not avail a
defendant.
17
16 Rossouw v FirstRand Bank Limited 2010 (6) SA 439 (SCA) at 454A to C
17 Trust Bank of Africa Limited v Senekal 1977 (2) SA 587 (W) at 593 and the cases cited there
15
[30] In Jacobsen van den Berg SA (Pty) Limited v Tri ton Yachting Supplies 18 the
court referred to the fact that in Nichas and Son (Pty) Limited v Pappenfu s19
had held that a denial as to the correctness of the amount claimed was not
sufficient to comply with the requirements of Rule 32(3)(b). The court also
referred to Traut v Du Toit
20 in which it had been held that the defendant’s
allegations in an opposing affidavit for an amount outstanding for goods sold
and delivered to the effect that he did not know how much he owed the
plaintiff because he had not yet received “volle beshonderhede” of his account
and that certain items in respect of the claim were not received by him did not
constitute sufficient compliance with the subrule either.
[31] Erasmus J held further:
“It should also be noted that the present defendant by implication
admits that he owes some money to the plaintiff, but his affidavit does
not reveal what this amount is, neither does it reveal any intention on
his part to pay his admitted debt. He has not stated the extent of his
alleged defence so that the court could give judgment for a certain
amount and leave to defend in respect of the balance claimed. Such a
course would have been proper for a defendant with a bona fide
defence to take. See Caltex Oil (SA) Limited v Webb and Another 1965
(2) SA 914 (N) at p918.
Every cause of action has peculiar characteristics as to its background,
time, value, makeup, knowledge, conduct and attitude of the parties
and so forth and every defence thereto must have corresponding
features of its own. A defence without more to a summons based on an
account of the nature before the court under Rule 32(3)(b) that the
plaintiff did not credit the defendant with some payments made and
charged him with goods he did not receive, could, if upheld, become
common to all somewhat similar causes of action and I do not think a
18 1974 (2) SA 584 (O) at p587E to F
19 1969 (2) SA 494 (O) at p496
20 1966 (1) SA 69 (O) at p71
16
court should be satisfied that it is bona fide made. Something more in
respect of the peculiar characteristics of the claim itself or the alleged
defence should be stated. If a defendant is not able to give any further
information, he as buyer or one of the parties to the account should say
so and give reasons why he cannot do so. It is only when adequate
information is placed before the court that the court can be satisfied
that the defence is bona fide.”21
[32] In SA Taxi Securitisation (Pty) Limited v Mbatha and T wo Similar Cases22 the
court held that a denial by the defendant that he was in default, that he was in
breach of the credit agreement and was in arrears with his payment fell
significantly short of the standard required by Breitenbach v Fiat SA (Edms)
Beperk23 and that for the denial to be effective, the defendant would have
been required to state that he had made all of his payments, when he had
made those payments, and the amount of each payment.
[33] It is in the light of these authorities that the second defendant’s challenges to
the plaintiff’s claim are to be assessed. In his affidavit opposing summary
judgment, the second defendant did not address the certificate of balance nor
provide evidence to gainsay it. He contended that no overcharges had been
credited to the account since June 2023 but gave no detail of what
overcharges should have been so credited. His complaint that the credit for an
overcharge was neutralised by a fresh debit had no roots because he did not
identify actual debit or credit.
[34] The second defendant made no attempt at explaining why it was contended
that the first defendant had not breached the lease, nor did he elaborate on
the allegedly exorbitant rentals, which, in any event, had been agreed to in the
21 Jacobsen van den Berg SA (Pty) Limited v Triton Yachting Supplies, supra at 588C to H
22 2011 (1) SA 310 (GSJ) at paras [15] to [16]
23 1976 (2) SA 266 (T)
17
lease. Just as in Jacobs en, the second defendant’s plea impliedly admitted
the first defendant ( and thus he as surety) owed money to the plaintiff but did
not take the court into his confidence as to this amount nor reveal any
intention to pay this admitted debt. He did not state the extent of the
indebtedness. The second defendant was the one in a position to say what
had been paid and what had not been paid and identify every duplication or
debit complained of. He did not need a running balance to do so. The second
defendant provided no answer to the plaintiff’s assertion that the total amount
outstanding substantially exceeded the amount claimed in the summary
judgment proceedings and did not reduce the arrear amount claimed. The
second defendant thus failed to fully set out the grounds upon which his
defence was based.
[35] Besides the above, the second defendant attacked the plaintiff’s right to utilise
payments made by the first defendant as holding over charges in
circumstances where the first defendant was in business rescue. He
suggested that all payments should have been credited to reduce the amount
in arrears and that it was unfair that this did not occur.
[36] The first difficulty is that the second defendant did no more than make this
complaint. He did not identify any payment that should have been credited to
reduce the arrears.
[37] But more fundamentally, even if he had, the second defendant’s complaint is
legally flawed. As the plaintiff’s counsel pointed out, the Companies Act
makes provision for the business rescue practitioner to suspend any
obligation of the company under business rescue. But there was no evidence
18
that the business practitioner did so in the present circumstances. Moreover,
whilst the business rescue practitioner occupied the leased premises on
behalf of the first defendant, he was obliged to make payment s in respect of
such occupation. There is thus no basis to suggest that these payments
should have been used to settle the arrears. This is all the more so in
circumstances where the lease provided that the plaintiff was entitled to
appropriate and reappropriate amounts to such indebtedness as it deemed fit.
The issue of fairness does not come into it.
[38] Furthermore, a surety is not released from liability in circumstances of
business rescue.
24
[39] In the circumstances I am not satisfied that the second defendant has a bona
fide defence in respect of the plaintiff’s claim 1 and the plaintiff is entitled to
summary judgment in respect of its claim 1.
Claim 3
[40] I now address the plaintiff’s claim 3. This was the plaintiff’s claim for
repayment of the first defendant’s pro- rata portion of the tenant installation
allowance. The second defendant opposed the plaintiff’s claim for summary
judgment for this amount on various bases, one of which was premised on the
argument that the claim was not a liquidated amount.
[41] I disagree that the amount claimed is not for a liquidated amount. The
authorities relied upon by both parties
25 make it clear that a liquidated amount
24 Van Zyl v Auto Commodities (Pty) Limited 2021 (5) SA 171 (SCA); New port Finance Co. (Pty)
Limited and Another v Nedbank Limited 2016 (5) SA (503) (SCA)
19
is, inter alia , an amount that is capable of prompt ascertainment or
ascertained by a simple or mere calculation. As was argued on behalf of the
plaintiff, the lease clearly provides for a formula by which the amount is to be
ascertained and as such the amount and the ascertainment thereof is easily
calculable. In the circumstances, I agree that an amount claimed in respect of
the plaintiff’s claim 3 is a liquidated amount. But that is the problem with the
plaintiff’s claim 3.
[42] The plaintiff pleaded that it had made payment to the first defendant in
amount of R568 000,00 (including VAT) and set out in its particulars of claim
the formula by which it calculated that amount. However, as was pointed out
by the second defendant’s counsel, there was an error in the calculation. After
applying the formula utilising the amount of R568 000,00 which, as pleaded
by the plaintiff was VAT inclusive, the plaintiff arrived at a figure of
R123 066,66. However, contrary to its earlier pleading, the plaintiff alleged
that that amount was exclusive of VAT and then proceeded to add VAT onto
the amount to claim the amount of R141 526,65. The difficulty is that it is not
clear what amount is correct and in fact what the plaintiff is entitled to claim
for. Indeed the plaintiff’s particulars of claim are excipiable in this respect.
[43] In Gulf Steel v Rack -Rite BOP (Pty) Limited
26 the court held that even before
considering whether the defendant has established a bona fide defence, the
court must be satisfied that the plaintiff’s claim has been clearly established
and that his pleadings are technically in order; if either of these two
25 Oosrandse Bantu Sake Administrasieraad v Santam Versekeerings Matskappy Beperk (2) 1978
(1) SA 164 (W) at 168G to H; Lester Investments (Pty) Limited v Narshi 1951 (2) SA 464 (C) at
469; Fatti’s Engineering Co (Pty) Limited v Vendico Spares (Pty) Limited 1962 (1) SA 736 (T) at
738E to F
26 1998 (1) SA 679 (O) at 683H to 684B
20
requirements is not met, the court is obliged to refuse summary judgment
even if the defendant has failed to put up any defence or has put up a defence
which did not meet the standard required to resist summary judgment.
[44] Gulf Steel was approved of in this Division, by the full court, in Liquor Network
Agency CC and Another v Skylim Beverages CC.
27 The court held that a
plaintiff seeking summary judgment must establish a valid, competent claim
before the court considers whether the defendant has a bona fide defence. A
defective application cannot be remedied by the defendant’s response: it is
either valid on its own merits or it is not. If it is not, then it is not necessary for
the court to consider whether a bona fide defence has been established.
28
The court held that the view in Buttertum Property Letting (Pty) Limited v
Dihlabeng Local Municipality
29 that this sets the bar too high for plaintiffs, and
that prejudice to the defendant is a material factor to be considered by a court
faced with a defective application for summary judgment is contrary to binding
precedent.
30
[45] Thus the problem for the plaintiff in relation to claim 3 is that its pleadings are
not technically correct. The plaintiff has thus not established its right to
summary judgment for the amount of R141 526,65. The cause of action in
relation to claim 3 was defective.
[46] The plaintiff is thus not entitled to summary judgment in respect of claim 3. It
is thus not necessary for me consider the other defences raised by the
27 2025 (2) SA 507 (GJ) at paras [24] to [25]
28 Liquor Network Agency CC and Another supra paras [16] to [25]
29 [2016] 4 All SA 895 (FB)
30 Liquor Network Agency CC and Another supra paras [16] to [25]
21
second defendant including that of cancellation insofar as they pertain to
claim 3.
[47] The lease relied upon by the plaintiff entitles it to costs on an attorney and
client scale. The plaintiff has been successful in respect of claim 1. Costs in
respect of claim 1 should follow the result on the scale provided for.
[48] In the result, the following order is made:
[1] Summary judgment is granted in respect of the plaintiff’s claim 1 against the
second defendant for:
[1.1] payment of the amount of R583 170,81;
[1.2] interest on the aforesaid sum at the rate of 13.75% per annum
compounded monthly from 2 May 2024 to date of payment;
[2] The plaintiff’s application for summary judgment in respect of claim 3 is
dismissed.
[3] The second defendant is granted leave to defend claim 3 with effect from date
of this order.
[4] The second defendant is to pay the costs of the application on the scale as
between attorney and client.
22
_____________________________
T DALRYMPLE
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION, JOHANNESBURG
This judgment was handed down electronically by circulation to the parties’ and/or
parties’ representatives by email and by being uploaded to CaseLines. The date for
hand-down is deemed to be 10 February 2026
DATE OF HEARING: 15 OCTOBER 2025
DATE OF JUDGMENT: 1 0 FEBRUARY 2026
APPEARANCES:
COUNSEL FOR THE PLAINTIFF: G Dobie
COUNSEL INSTRUCTED BY: Reaan Swanepoel Inc
COUNSEL FOR THE DEFENDANT: B Delport
COUNSEL INSTRUCTED BY: TL Attorneys Inc