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[1] The first respondent was a lessee of commercial premises in respect of which the
applicant was the lessor. The applicant’s case is that, despite vacating the leased
premises in and during February 2024, the first respondent remains indebted to
the applicant for arrear rental and unpaid utilities in the sum of approximately
R180 000.00, together with interest and costs.
[2] Whilst judgment was initially sought against the second respondent as a surety
for, and co-principal debtor with, the first respondent for any debts owed to the
applicant; at the commencement of the hearing I was informed by Ms Beukes,
who appeared before me on behalf of the applicant, that the applicant no longer
persisted with its claim against the second respondent.
[3] The crisp issue for determination is whether there are material disputes of fact in
regard to either or both (i) the first respondent’s indebtedness to the applicant or
(ii) the calculation thereof, and if so whether such disputes are genuine and bona
fide.
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[4] If I find that there are genuine and bona fide disputes of fact in regard to either or
both the existence of the first respondent’s alleged liability or the calculation
thereof, the law effectively disentitles me from granting final relief unless the first
respondent’s allegations or denials are so far-fetched or clearly untenable that I
am justified in rejecting them on the papers. 2 Mr Nhutsve, who appeared before
me on behalf of the respondents, submitted that if I were to find that there are
genuine and bona fide disputes of fact, I should dismiss the application because
the answering affidavit pertinently disputed the first respondent’s liability to the
applicant.
[5] In any event, an applicant who presses for a decision on the papers in the face
of a factual dispute by necessary implication consents to the matter being decided
on the basis of the rule in Plascon-Evans. The reason for this is not because the
on the basis of the rule in Plascon-Evans. The reason for this is not because the
onus is on the applicant but because the applicant is dominus litis and must be
1 A further issue raised by the respondent is whether this Court has the requisite jurisdiction to hear the
matter by virtue of the fact that the amounts claimed by the applicant fall within the jurisdiction of the
Magistrate’s Court. There is plainly no merit in this point if regard is had to South African Human Rights
Commission v Standard Bank of South Africa Ltd and Others 2023 (3) SA 36 (CC)).
2 Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A).
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taken to know that a court cannot decide factual disputes on probabilities or on
onus in opposed motion proceedings.3
[6] It is settled law that, if a party has knowledge of a material and bona fide dispute
of fact, or should reasonably foresee its occurrence, and nevertheless proceeds
on motion, that party will usually find the application dismissed.4
[7] An application for the hearing of oral evidence must, as a rule, be made in
limine and not once it becomes clear that the applicant is failing to convince the
court on the papers or on appeal. The circumstances must be exceptional before
a court will permit an applicant to apply in the alternative for the matter to be
referred to evidence should the main argument fail.
5 The applicant did not apply
in limine for the mater to be referred for the hearing of oral evidence.
[8] The starting point in the present matter is the conclusion, on 17 October 2019, of
a lease agreement in respect of certain premises wherein the applicant was the
lessor and the first respondent was the lessee. The terms of the lease agreement
are common cause between the parties. For present purposes it suffices to state
the following:
(a) The first respondent would lease the premises for a n initial period of three
years.
(b) In the event of the first respondent remaining in occupation of the premises
after the expiry of the initial period, without the parties formalising a new or
extended lease, the first respondent would be deemed to lease the same
premises on a monthly basis on the same terms as those set out in the
“expired” lease agreement. Important for present purposes is clause 61.1.2
of the lease agreement, which provides as follows:
“…the Tenant further agrees that, in such circumstances, the Basic Monthly rental,
operating costs (if applicable) and any other charges payable by the Tenant as
contemplated in the Schedule hereto in respect of the first twelve month monthly
contemplated in the Schedule hereto in respect of the first twelve month monthly
3 See for example Absa Bank Ltd v Collier 2015 (4) SA 364 (WCC) and the authority referred to in footnote
42 therein.
4 See for example Lombaard v Droprop CC And Others 2010 (5) SA 1 (SCA) at [31].
5 Law Society, Northern Provinces v Mogami and Others 2010 (1) SA 186 (SCA) at [23].
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period after the expiration of the Lease Agreement shall not be less than the Basic
Monthly Rental, operating costs (if applicable) and any other charges payable by the
Tenant as contemplated in the Schedule hereto in the last month of the period of this
Lease, escalating by 15% ( fifteen percent). In addition to the aforegoing, the
Landlord shall be entitled to escalate the Tenant's rental by a further 15% (fifteen
percent) on the conclusion of each subsequent 12 (twelve month) period where the
Tenant continues to remain in the Leased Premises on the aforesaid monthly
tenancy basis.”
[9] The import of clause 61.1.2, according to the applicant, is that if the first
respondent remained in occupation after expiry of the initial lease, the applicant
would be within its right to escalate the monthly rental by 15%.
[10] It is not in dispute that the first respondent remained in occupation of the leased
premises after expiry of the initial lease. The applicant did not, however (at least
initially), escalate the rental owing by the first respondent in terms of the “monthly
tenancy” in accordance with clause 61.1.2 of the lease agreement, that is at the
rate of 15% after the expiry of the initial lease period.
[11] In its founding affidavit, the applicant states that:
(a) On 2 February 2024, it made demand for payment of the sum of
R167 358.27 “…in respect of arrear rentals and utilities.” I pause to mention
that, in terms of the relevant correspondence itself, demand is simply made
for payment of “…an arrears balance…” in respect of the first respondent’s
account.
(b) On 9 February 2024, having not received payment , it terminated the lease.
(c) It “appropriated” the deposit of the first respondent in the sum of
R34 436.83.
[12] It is common cause that, on 29 February 2024, the first respondent vacated the
premises.
[13] For its part, the first respondent disputes that it is indebted to the applicant and
contends that, in any event, there are material and bona fide disputes of fact in
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regard to the quantification of the applicant’s claim. In this latter regard, the first
respondent raises the following three-pronged attack:
(a) Firstly, the first respondent points out that, in terms of the initial lease, it paid
a “holding deposit” of R31 040.00 and a further “top up deposit” of
R34 436.83. Only the latter deposit is reflected in the applicant’s statement
of account and not the former. It is not stated by the applicant what was
done with the “holding deposit”, if anything. The deposit that it “appropriated”
is self-evidently the “top up deposit”.
(b) Secondly, the first respondent points out that, in terms of clause 7.5 of the
lease agreement, the deposit/s is/are meant to be refunded to the lessee
once it vacates the premises (assuming that the lessee has discharged all
of its obligations under the lease agreement), and that in the meantime
interest is to accrue on the deposit from the date thereof. The first
respondent submits that, in light of the applicant’s failure to disclose what it
did with the interest accrued on the deposit/s, if anything, the amounts
claimed from the first respondent are not liquidated.
(c) Thirdly, the first respondent highlighted that, once it queried the applicant’s
below-mentioned decision to retrospectively raise a 15% escalation on a
year’s worth of rentals already paid, amounts charged for utilities and other
imposts increased significantly without any explanation. By way of only one
example, whereas charges for “effluent” were typically between R1 000.00
– R2 000.00 per month, once the first respondent began querying the
aforementioned escalation, charges for “effluent” increased dramatically to
between approximately R5 000.00 to R10 000.00 per month.
[14] In my view, each of the aforesaid issues called for a detailed response by the
applicant. In reply, however, the applicant did little more than to disclose, for the
first time (in the proceedings at least), that due to an “administrative error” the
first time (in the proceedings at least), that due to an “administrative error” the
15% escalation in terms of clause 61.1.2 of the lease agreement was never
applied to the period following the expiry of the initial lease up until December
2023. It states that the first respondent was pertinently advised of this error in
correspondence dated 5 December 2023. Indeed, it turns out that approximately
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half of the amount claimed by the applicant is the retrospective 15% escalation
applied to the period following the expiry of the initial lease up until December
2023.6
[15] As far as the deposit/s, interest thereon and utilities are concerned, save for
reiterating that, in terms of clause 7.4 of the lease agreement, the applicant is
entitled to appropriate the deposit towards payment of, inter alia, the monthly
rental, the applicant did not respond to the first respondent’s allegations in any
meaningful manner. I confess that I was somewhat surprised that the applicant
chose not to do so and in particular that it did not provide a detailed response to,
or explanation of the aforementioned issues.
[16] In my view, the al legations and denials of the first respondent are not so far-
fetched, palpably untrue or implausible that they can be rejected on the papers.
Nor am I persuaded that such allegations or denials are not genuinely and bona
fide raised. Mr Nhutsve pointed out, for example, that not only did the first
respondent not breach the terms of the lease agreement during the initial period,
even after the disputes between the parties arose the first respondent continued
paying significant sums to the applicant.
[17] To the extent that the applicant relied on a certificate of balance affording prima
facie proof of the first respondent’s indebtedness, it is trite that same creates a
rebuttable presumption of such indebtedness only, and I find that for purposes of
these motion proceedings, the first respondent rebutted the presumption created
by the certificate.
[18] Whilst the respondents sought costs on an attorney and client scale in the event
of the application being dismissed, there is nothing so sinister that merits such
an award being made, nor in my view is the application vexatious in effect.
Order
[19] In the circumstances, I make the following order:
6 I digress to mention that the conclusion to which I come in this judgment must not to be construed as a
finding that, in principle, the applicant was not entitled to retrospectively claim a 15% escalation in terms
of the lease agreement
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(a) The application is dismissed with costs including the costs of counsel on
scale A.
_______________
DE OLIVEIRA AJ
ACTING JUDGE OF THE HIGH COURT
JOHANNESBURG
Counsel for the Applicant: C Beukes
Intstructed by: Shaie Zindel Attorneys
Counsel for the Respondents: E Nhutsve
Instructed by: Mahlobogoane M Attorneys Inc.
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