Aludar 233 CC v Unlocked Properties 28 (Pty) Ltd (A3148/2021) [2023] ZAGPJHC 1297 (14 November 2023)

Aludar 233 CC v Unlocked Properties 28 (Pty) Ltd (A3148/2021) [2023] ZAGPJHC 1297 (14 November 2023)

The court held that summary judgment was inappropriate because there were genuine factual disputes regarding whether the lease was terminated by supervening impossibility of performance due to Covid-19 regulations. The exclusion clause did not conclusively prevent Aludar from raising impossibility as a defence, especially since the sole permitted use of the premises was rendered illegal. The effect of the regulations may have voided the entire contract, and public policy considerations required evidence to be led at trial. The matter raised triable issues that should be determined at trial, not summarily.

Citation
[2023] ZAGPJHC 1297
Parties
Appellant: Aludar 233 CC; Respondent: Unlocked Properties 28 (Pty) Ltd
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
14 November 2023
Case Number
A3148/2021
Procedural Posture
Civil Appeal / Appeal Against Summary Judgment
Outcome
Appeal upheld; summary judgment set aside; appellant granted leave to defend.
Judges
S D J Wilson, A Crutchfield
Legal Topics
Lease Agreement, Supervening Impossibility, Summary Judgment, Public Policy, Remission of Rent
Commercial and Corporate Civil Procedure Lease Agreement Supervening Impossibility Summary Judgment Public Policy Remission of Rent

Case Brief

Summary, issues, holding and outcome

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Parties

Aludar 233 CC

Appellant

Unlocked Properties 28 (Pty) Ltd

Respondent

Procedural Posture

Civil Appeal / Appeal Against Summary Judgment

Legal Issues

  1. 1 Whether the lease agreement was terminated by supervening impossibility of performance due to Covid-19 regulations.
  2. 2 Whether the exclusion clause in the lease prevented the appellant from raising impossibility as a defence.
  3. 3 Whether summary judgment was appropriate given the factual disputes and public policy considerations.

Ratio Decidendi

The court held that summary judgment was inappropriate because there were genuine factual disputes regarding whether the lease was terminated by supervening impossibility of performance due to Covid-19 regulations. The exclusion clause did not conclusively prevent Aludar from raising impossibility as a defence, especially since the sole permitted use of the premises was rendered illegal. The effect of the regulations may have voided the entire contract, and public policy considerations required evidence to be led at trial. The matter raised triable issues that should be determined at trial, not summarily.

Court Disposition

Appeal upheld; summary judgment set aside; appellant granted leave to defend.

Orders

  • The appeal succeeds with costs.
  • The order of the court below is set aside and substituted with an order dismissing the application for summary judgment.