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[2023] ZAGPJHC 73
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Chloorkop Motor City CC v Mybuya Africa Panel Beating and Mechanical CC (2021/20343) [2023] ZAGPJHC 73 (31 January 2023)
IN
THE HIGH COURT OF SOUTH AFRICA,
GAUTENG
DIVISION, JOHANNESBURG
CASE
NO: 2021/20343
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES
31/1/2023
In
the matter between:
CHLOORKOP
MOTOR CITY CC
Plaintiff
and
MYBUYA
AFRICA PANEL BEATING AND MECHANICAL CC
Defendant
JUDGMENT
MOORCROFT
AJ:
Summary
Summary
judgment – not a suitable remedy when claim not clearly
established – Rule 30 application – non-compliance
with
time periods in Rule 32 – rendered moot by judgment on the
summary judgment application
Order
[1]
In this matter I make the following order:
1.
The application for summary judgment is
dismissed;
2.
The plaintiff is granted leave to defend
and to file a replication, if so advised, as well as a plea to the
counterclaim within
fifteen (15) days from the date of this order;
3.
The application in terms of Rule 30 is
dismissed;
4.
The costs of both applications shall be
costs in the cause of the action.
[2]
The reasons for the order follow below.
Introduction
[3]
The plaintiff seeks summary judgment and relies
on an oral lease agreement entered into in May 2018 in terms of which
the plaintiff
would let property to the defendant for a monthly
rental consideration of R12 500.00 payable in advance on the first
day of every
month. The lease commenced on 1 May 2018 on a
month-to-month basis.
[4]
It is alleged that the defendant breached the
lease by failing to pay monthly rental and charges, and that the
defendant was in
arrears in the sum of R402 935.56 as at March 2021.
In substantiation of the allegation the plaintiff relies on a
statement listing
outstanding invoices totalling R402 935.56.
[5]
The plaintiff then terminated the lease
agreement but the defendant refused to vacate the property. The
plaintiff has however since
obtained an eviction order in the
Magistrates’ Court and the only relief sought in this
application is the money judgment
for arrear rental.
[6]
In the plea the defendant relies on an oral
lease agreement entered into in 2012 in terms of which the defendant
took occupation
on 1 May 2012, which was superseded in May 2013 by a
sale agreement in terms of which the property was sold to the
defendant. A
copy of this agreement is annexed to the plea and
counterclaim. It is alleged that the plaintiff breached the agreement
of sale
and the defendant in its counterclaim prays for judgment in
the amount of R755 000.00, being the amount allegedly paid towards
the purchase price.
[7]
In
the affidavit in support of the summary judgment application the
plaintiff’s deponent (the sole member of the plaintiff)
purports to verify the causes of action contained in the summons. The
deponent deals with the draft agreement of sale of 2018
[1]
that it is common cause was never signed but fails to deal with
comprehensively with the agreement of sale signed in 2013.
[8]
It is also alleged that the plaintiff’s
claim is founded upon liquid documents
2
but a perusal of the pleadings indicate that the claim is not founded
on liquid documents.
[9]
The
plaintiff in its affidavit in support of the summary judgment
application makes the bald statement that the agreement of sale
of
2013 is invalid.
[2]
Questions relating to the validity and breach of the agreement of
sale of 2013 need not be decided in this application but the
failure
of the deponent to deal more fully with the agreement of 2013 is not
satisfactory.
[10]
The plaintiff also relies on a ‘letter
annexed to the plea.’ This letter is in fact a letter written
by the plaintiff’s
attorneys setting out the plaintiff’s
instructions. It does not constitute evidence of anything more than
that.
[11]
The defendant also refers to and attaches the
draft deed of sale dated in 2018, and alleges that the defendant
coerced the defendant
into signing the agreement. This allegation is
at odds with the document itself: The document was signed by the
plaintiff as seller
but not by the defendant as purchaser. It is
therefore common cause on the papers that there is no valid agreement
of sale dated
in 2018.
[12]
The
authors of
Superior
Court Practice
[3]
state with reference to the remedy of summary judgement that: “
The
remedy should be resorted to and accorded only where the plaintiff
can establish his claim clearly and the defendant fails to
set up a
bona fide defence.”
The
plaintiff has not succeeded in establishing its claim clearly and
leave to defend should be granted.
[13]
The plaintiff launched its application for
summary judgment after expiry of the 15day period provided for in
Rule 32. This prompted
the defendant to bring an application in terms
of Rule 30, alleging that the summary judgment constituted an
irregular step. The
plaintiff countered by referring to
correspondence in support of the argument that the parties had
expressly agreed to hold time
periods in abeyance pending settlement
discussions that eventually failed. When the discussions failed the
plaintiff served its
application for summary judgment.
[14]
The summons was served on 4 October 2021 and
appearance to defend was entered on 15 October 2021. The plea,
special plea and counterclaim
was served on 18 October 2021 and in
November 2021 there were settlement discussions between the parties’
legal representatives.
It was agreed to hold over the time periods
pending settlement discussions.
[15]
The discussions broke down in January 2022 and
the summary judgment application was then delivered on 25 January
2022. The notice
in terms of Rule 30 followed on 21 February 2022.
[16]
When the Rule 30 application came before
Matsemela AJ on 16 May 2022 the learned Judge ordered that the Rule
30 application be heard
with the summary judgment application.
[17]
The issue of non-compliance with the notice
period in Rule 32 could have been raised in the summary judgment
application. There
was no need for a separate application in terms of
Rule 30. Because of the view I take of the summary judgment
application the
application in terms of Rule 30 has become moot.
[18]
I therefore make the order as set out above.
J
MOORCROFT
ACTING
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION
JOHANNESBURG
Electronically
submitted
Delivered:
This judgement was prepared and authored by the Acting Judge whose
name is reflected and is handed down electronically
by circulation to
the Parties / their legal representatives by email and by uploading
it to the electronic file of this matter
on CaseLines. The date of
the judgment is deemed to be
1 FEBRUARY 2023
.
COUNSEL
FOR THE PLAINTIFF: MS
N LATIF
INSTRUCTED
BY: STUPEL
& BERMAN INC
COUNSEL
FOR DEFENDANT: MS
A C ROESTORF
INSTRUCTED
BY: TENTE
I RASJNYALO INC
DATE
OF THE HEARING:
26
JANUARY 2023
DATE
OF ORDER:
1 FEBRUARY 2023
DATE
OF JUDGMENT: 1
FEBRUARY 2023
[1]
Paragraph 20 of affidavit. The reference to a proposed deed of sale
implies a reference to the 2018 draft rather than the 2013
deed of
sale that the defendant relies on.
2
Paragraph 35 of affidavit.
[2]
Paragraph 28 of affidavit.
[3]
Van Loggerenberg & Bertelsmann
Erasmus:
Superior Court Practice
RS 17, 2021, D1-383. See also the analysis by the Supreme Court of
Appeal in Joob Joob Investments (Pty) Ltd v
Stocks Mavundla Zek
Joint Venture
2009 (5) SA 1
(SCA)