IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
In the matter between:-
FLAGSTAFF SQUARE (PTY)LTD
(REG NO: 2013/173514/07)
And
NELSON JARDIM CANECA
CASE NUMBER: 2025-041944
Reportable: NO
Circulate to Judges: NO
Circulate to Magistrates: NO
Circulate to Regional Magistrates NO
Plaintiff
1st Defendant
VINCENTE SACRAMENTO FERREIRA 2nd Defendant
JUAN MANUEL SOUSA DE FREITAS 3rd Defendant
Disclaimer: This judgment is handed down electronically by uploading it on
CaseLines. The date of the judgment is deemed to be 22 May 2026.
TROMPAJ
Introduction:
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[1] This is an opposed application for summary judgment in which the
Plaintiff is applying for a monetary judgment with regard to arrear rentals,
interest on that amount and costs.
[2] The First, Second and Third Defendants (hereinafter referred to
collectively as the "Defendants") are opposing this application. The
Plaintiff issued Summons herein during April 2025.
[3] The cause of action of the Plaintiff's claim is based upon arrear rental in
terms of the lease agreement, on the part of the close corporation
Caesium Investments 2020 CC (in liquidation) (hereinafter referred to as
the "close corporation"), for whom the Defendants stood surety as co
principal debtors.
[4] In this matter, the Plaintiff relies upon the fact that there is a written lease
agreement, entered into between the Plaintiff and the close corporation,
for the lease of commercial property. The written lease agreement was
for a fixed term of 5 years, commencing on the 1st of November 2021
and terminating on the 31st of October 2026. The written lease
agreement is attached to the Particulars of Claim as Annexure "B". The
lease agreement and its content, is admitted by the Defendants.
[5] In terms of the lease agreement, the close corporation, and therefore the
Defendants, will be liable to pay the monthly payments of the rental, and
any operating costs associated with the property and/or building, which
would include, but not limited to, any electricity, water, gas,
sewerage/effluent and other similar services actually used on or in
respect to the leased premises for any cause whatsoever.
[6] These charges would include any and/or all other charges or amounts in
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respect of the leased premises, as well as any rubbish removal I special
refuse removal charges and/or any other utility, service or encroachment
charges on the property, which may be levied by the local authority or
any other responsible authority, as well as a pro rata share of any
electricity, water, gas, sewerage/effluent and other services used on or
in respect to common areas as may be levied by the local authority or
any other responsible authority, and a pro rata share of the rates and
taxes which are payable by the Plaintiff from time to time, including all
increases thereon, including its pro rata share of any new property levies,
charges or taxes which may be imposed by the local or any other
responsible authority in respect of the property and/or building.
[7] The Plaintiff also relies upon the fact that there are two written
addendums to the lease agreement, entered into between the Plaintiff
and the close corporation which are also not disputed.
[8] The Plaintiff further relies upon the fact that there is a Deed of Suretyship
entered into between the Plaintiff and the First, Second and Third
Defendants, wherein the Defendants bound themselves as surety and
co-principal debtors for the debts of the close corporation, owed to the
Plaintiff. The deed of suretyship and the terms thereof is not disputed.
[9] The Plaintiff claims that the Defendants are in breach of the lease
agreement, together with the close ·corporation in liquidation, in that the
Defendants, and the close corporation, failed to pay the monthly
amounts in terms of the lease, and that the Defendants are in arrears in
the amount of R443 732.03.
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Points in limine
[1 OJ Three points in limine were raised by the Defendants. The first point in
limine is authority to act, the second is lack of personal knowledge and
the third is that there is no liquid claim.
10.1 The Defendants challenge the deponent to the affidavit in support of
summary judgment's authority to act. Rule 32(2)(a) specifically provides
for the following: "Rule 32(2)(a) Within 15 days after the date of delivery
of the plea, the plaintiff shall deliver a notice of application for summary
judgment, together with an affidavit made by the plaintiff or by any other
person who can swear positively to the facts. "
10.2 Rule 32 (2)(a) does not require specific authority to act. It is clear from
the papers as well as the correspondence attached to the affidavit
resisting summary judgment that correspondence relating to this matter
was with the deponent, Mr Paul himself, indicating that he indeed had
personal knowledge of the facts of the matter and that he is, indeed a
person who can swear positively to the facts as is required in terms of
the Rule. I find that the first and second points in limine hold no water.
10.3 With regards .to the third point in limine: No Liquid claim. The plaintiff
relies on the tenant transaction statement, as attached to the Particulars
of Claim, and which is confirmed by Mr Paul in the affidavit in support of
summary judgment.
10.4 From the statement provided, it is clear how the amount claimed by the
Plaintiff is derived at or calculated, and therefore the Plaintiff's claim is
clearly a liquidated claim. The items that are being claimed for were
agreed upon contractually between the parties.
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710.5 A liquidated amount of money is an amount which is either agreed upon
or which is capable of speedy and prompt ascertainment. As a result,
the third point in limine also does not succeed.
Arguments of the parties
[11] The core factual dispute in this matter is whether the lease agreement
was terminated during December 2024.
[12] The plaintiff contends the following:
12.1 That the notice of termination of the lease agreement was sent to the
Defendants on 3 February 2025 in the form of a final demand.
12.2 That at the time of issuing summons, the close corporation was still
occupying the property as per the particulars of claim.
12.3 That at the date of the transaction statement being 13 March 2025, for
the period up to and including 7 March 2025, no new tenant for the
premises in question was obtained and the premisses remained empty
and unoccupied.
12.4 That the Defendants are liable for the full term of the lease agreement,
or until another tenant can be obtained.
12.5 The plaintiff argues that the summary judgment should be granted on the
following grounds:
12.5.1 That the defendants raise no triable issues or valid defence.
12.5.2 That the payments made as alleged by the Defendants have already
been taken into account and is reflected on the tenant statement, but that
the amounts paid do not cover the total arrears in terms of the lease
agreement and addendums thereto.
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12.5.3 That the amount claimed does not constitute damages as alleged by
the Defendants but that it is the arrears due to the plaintiff, calculated
in terms of the lease agreement and the addendums thereto.
12.6 The plaintiff therefore claims:
12.6.1 payment of the sum of R443 732.03
12.6.2 Interest on the amount of R443 732.03 calculated at 2% compounded
per month from 1 March 2025, alternative from date of service of
Summons, until date of final payment;
12.6.3 Costs on an attorney and own client scale as is provided for in the lease
agreement.
12.6.4 That the plaintiff's claim for damages be postponed sine die.
[13] The Defendants contend the following:
13.1 That the close corporation is no longer in occupation of the property and
that the premises was vacated upon cancelation of the lease agreement
on 11 December 2024 and that all charges after the cancellation date no
longer constituted normal charges in terms of the lease agreement, but
damages post cancellation.
13.2 That all amounts due up to date of cancellation was paid.
13.3 The accuracy and validity of the amounts claimed in terms of the tenant
statement is challenged regarding the security charges, cleaning charges,
refuse removal. Sewage, electricity, water and all other charges which
were charged after the close corporation vacated the premises and
terminated the lease agreement. These consumption charges should
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have effectively been reduced to nil after the property vas vacated.
13.4 The Defendants claim that the application for Summary judgment should
be dismissed with costs on scale C.
Legal position
[14] The principles governing summary judgment applications are well
established. In Maharaj v Barclays National Bank Ltd 1976 ( 1) SA 418
(A)at 426A-C, the Appellate Division held that the defendant need not
prove his defence on a balance of probabilities. It is sufficient if the
defendant sets out facts which, if proved at trial, will constitute a defence
to the plaintiff's claim.
[15] The full court in Breitenbach v Fiat SA (Edms) Bpk 1976 (2) SA 226 (T)
at 228F-G further clarified that the defendant must swear to a defence
"valid in law" which is "not inherently and seriously unconvincing". At
page 277 8-E the following is said:
"The purpose of the procedure known as summary judgment is well
recognised. It is, indeed, implicit in the portion of Rule 32 which
prescribes the contents of the affidavit which must be filed on behalf of
the plaintiff. It is a procedure aimed at the defendant, who, although he
has no bona fide defence to the action brought against him, gives notice
of intention to defend solely in order to delay the grant of judgment in
favour of the plaintiff. In a case where that is what the defendant has
done, the summary judgment procedure serves a socially and
commercially useful purpose. The relevant Rule should, therefore, not
be interpreted with such liberality to defendants that purpose is defeated.
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It is, however, even more important to guard against injustice to the
defendant, who is called upon, at short notice, and without the benefit of
further particulars, discovery or cross-examination, to satisfy the Court
in terms of sub-rule (3) (b). If the requirements of that sub-rule are too
stringently applied, a defendant who has a defence to the action brought
against him may be denied, unjustly, an opportunity of establishing that
defence by the ordinary procedure of a civil suit."
[16] The summary judgment procedure is a drastic remedy, intended to
enable a plaintiff with an unassailable claim to obtain swift relief. It was
never intended to shut the doors of the court for a defendant who raises
a genuine dispute of fact or law. Where there is a reasonable possibility
that the defence advanced may succeed at trial, the court should
exercise its discretion in favour of granting leave to defend.
[17] In Maharaj v Barclays National Bank Ltd 1976 (1) SA 418 (A) the Court
of Appeal (as it was then known) held as follows at 426A-C:
[18] "Accordingly, one of the ways in which a defendant may successfully
oppose a claim for summary judgment is by satisfying the Court by
affidavit that he has a bona fide defence to the claim. Where the defence
is based upon facts, in the sense that material facts alleged by the
plaintiff in his summons, or combined summons, are disputed or new
facts are alleged constituting a defence, the Court does not attempt to
decide these issues or to determine whether or not there is a balance of
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probabilities in favour of the one party or the other. All that the Court
enquires into is: (a) whether the defendant has 'fully' disclosed the nature
and grounds of his defence and the material facts upon which it is
founded, and (b) whether on the facts so disclosed the defendant
appears to have, as to either the whole or part of the claim, a defence
which is both bona fide and good in law."
[19] The above principles were once again confirmed in the Supreme Court
of Appeal in Joob Joob Investments (Pty) Ltd v Stocks Mavundla Zek
Joint Venture 2009 (5) SA 1 (SCA) as follows:
[20] "[31] So too in South Africa, the summary judgment procedure was not
intended to 'shut (a defendant) out from defending', unless it was very
clear indeed that he had no case in the action. It was intended to
prevent sham defences from defeating the rights of parties by delay, and
at the same time causing great loss to plaintiffs who were endeavouring
to enforce their rights.
[32] The rationale for summary judgment proceedings is impeccable.
The procedure is not intended to deprive a defendant with a triable issue
or a sustainable defence of her/his day in court. After almost a century
of successful application in our courts, summary judgment proceedings
can hardly continue to be described as extraordinary. Our courts, both of
first instance and at appellate level, have during that time rightly been
trusted to ensure that a defendant with a triable issue is not shut out.
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In the Maharaj case at 425G - 426E, Corbett JA was keen to ensure,
first, an examination of whether there has been sufficient disclosure by
a defendant of the nature and grounds of his defence and the facts upon
which it is founded. The second consideration is that the defence so
disclosed must be both bona fide and good in law. A court which is
satisfied that this threshold has been crossed is then bound to refuse
summary judgment. Corbett JA also warned against requiring of a
defendant the precision apposite to pleadings. However, the learned
judge was equally astute to ensure that recalcitrant debtors pay what is
due to a creditor."
[21] In considering this application for summary judgment, cognisance must
be had that justice for an applicant (plaintiff) must be swift where the
defendant does not enter a bona fide defence and the defence is bad in
law. At the same time justice for a respondent (defendant) must also be
considered. Summary judgment should not be granted against a
defendant who has a bona fide defence which is good in law. The
defendant has a right to have his bona fide defence tested at trail.
[22] The summary judgment procedure requires swift justice and that a
judicial discretion be exercised in considering and balancing justice for
both parties.
Evaluation
[23] The critical question is whether the Defendants have disclosed a bona
fide defence that raises a triable issue.
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[24] The parties' versions as set out in the founding affidavit and affidavit
resisting summary judgment has already been dealt with.
[25] The existence of the lease agreement, addendums thereto as well as the
deed of suretyship are not disputed.
[26] The date of cancellation of the lease agreement and the amount due and
payable by the Defendants for arrears rental and other agreed expenses
are in dispute.
[27] This raises certain factual questions and a dispute that cannot properly
be resolved on the papers in these summary judgment proceedings.
[28] This Court is not required to determine where the probabilities lie at this
stage; it might be sufficient that the defendants have advanced a version
that is not inherently and seriously unconvincing.
[29] This is not a case where the defendants have merely advanced bald,
vague, or sketchy allegations. The defences advanced is coherent and,
if proven at trial, could constitute a defence to the plaintiffs claim.
Conclusion
[30] Summary judgment is a drastic remedy that should be granted only in
clearest of cases. This is not such a case.
[31] The defendants have, in my opinion, raised genuine triable issues
relating to the cancelation of the agreement and the amount payable to
the plaintiff for arrears rental and other expenses in terms of the lease
agreement. These issues can only be properly resolved after oral
evidence and cross-examination at trial.
[32] For the reasons set out above, I am persuaded that the defendants have
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disclosed a bona fide defence that raises a triable issue.
Order
[33] In the premise, the following order is made:
(i) The application for summary judgment is dismissed.
(ii) The defendants I respondents are granted leave to defend the
action.
(iii) The costs of this application shall be costs in the cause.
TROM J
ACTIN J GE OF THE HIGH COURT
GAUTEN DIVISION, PRETORIA
DATE OF HEARING: 03 FEBRUARY 2026
DATE OF JUDGMENT: 22 JUNE 2026
APPEARANCES:
FOR PLAINTIFF/APPLICANT:
INSTRUCTED BY:
ADV Z SCHOEMAN
SAVAGEJOOSTEANDAD AMS
Plaintiffs' Attorneys
Kings Gate
5, 10th Street
Cnr Brooklyn Road and Justice
Mahomed Street
Menlo Park
Pretoria
Tel: 012 452 8200
FAX: 012 452 8240
Po Box 745, Pretoria, 0001
Ref: Mrs Tina Kartoudes/ YVN81664
Email: tinak@savage .co.za /
yolandaa@savage.co.za
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FOR DEFENDANT/RESPONDENT: ADV IL POSTHUMUS
INSTRUCTED BY: PAGEL SCHULENBURG INC
Defendants' Attorneys
First Floor,
Hampton House (Block H)
Peter Place Office Park
54 Peter Place
BRYANSTON
Tel: (011) 463 1214
Email: lombard@page!inc.eo.za/
tayla@pagelinc.co.za
/lize@pagelinc.co.za
Ref: Lombard/tvw/R 13027
C/O JDB ATTORNEYS
221 Gordon Road
Hatfield
Pretoria
Tel: (012) 342-7861
Fax: (012) 430-6627
Email:justin@jdblaw.co.za
bonita@jdblaw.co.za