Emira Property Fund Limited and Another v Bramlou Projects Solutions (Pty) Ltd and Another (28935/2021) [2023] ZAGPPHC 755 (28 August 2023)

Emira Property Fund Limited and Another v Bramlou Projects Solutions (Pty) Ltd and Another (28935/2021) [2023] ZAGPPHC 755 (28 August 2023)

The application for summary judgment is dismissed because there are triable issues regarding the amendment of the lease agreement and the entitlement to remission of rent due to the Covid-19 lockdown. The plaintiffs failed to demonstrate that the deponent had sufficient direct knowledge of the amendment to the lease agreement. The defendants raised factual disputes about the nature of the amendment, the agreed discount, and the right to remission of rent, which require determination at trial. The interpretation of the non-variation and remission clauses, as well as the impact of the Covid-19 regulations, cannot be resolved on summary judgment and must be considered with contextual...

Citation
[2023] ZAGPPHC 755
Parties
Applicant: Emira Property Fund Limited; Applicant: Pilot Peridot Investments 1 (Pty) Ltd; Respondent: Bramlou Projects Solutions (Pty) Ltd; Respondent: Willem Johannes Hendrik Coetzee
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
28 August 2023
Case Number
28935/2021
Procedural Posture
Summary Judgment Application / Application for Summary Judgment; Opposition and Counterclaim; Order on Condonation and Dismissal
Outcome
Application for summary judgment dismissed; defendants granted leave to defend; costs in the cause.
Judges
E van der Schyff
Legal Topics
Summary Judgment, Lease Agreement, Remission of Rent, Force Majeure, Contractual Interpretation
Civil Procedure Land and Property Summary Judgment Lease Agreement Remission of Rent Force Majeure Contractual Interpretation

Case Brief

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Parties

Emira Property Fund Limited

Applicant

Pilot Peridot Investments 1 (Pty) Ltd

Applicant

Bramlou Projects Solutions (Pty) Ltd

Respondent

Willem Johannes Hendrik Coetzee

Respondent

Procedural Posture

Summary Judgment Application / Application for Summary Judgment; Opposition and Counterclaim; Order on Condonation and Dismissal

Legal Issues

  1. 1 Whether the plaintiffs are entitled to summary judgment based on the lease agreement.
  2. 2 Whether the deponent to the plaintiffs' affidavit has sufficient personal knowledge of the amendment to the lease agreement.
  3. 3 Whether the defendants are entitled to remission of rent due to the Covid-19 lockdown and regulatory restrictions.

Ratio Decidendi

The application for summary judgment is dismissed because there are triable issues regarding the amendment of the lease agreement and the entitlement to remission of rent due to the Covid-19 lockdown. The plaintiffs failed to demonstrate that the deponent had sufficient direct knowledge of the amendment to the lease agreement. The defendants raised factual disputes about the nature of the amendment, the agreed discount, and the right to remission of rent, which require determination at trial. The interpretation of the non-variation and remission clauses, as well as the impact of the Covid-19 regulations, cannot be resolved on summary judgment and must be considered with contextual...

Court Disposition

Application for summary judgment dismissed; defendants granted leave to defend; costs in the cause.

Orders

  • The late filing of the affidavit resisting summary judgment is condoned.
  • The application for summary judgment is dismissed, and the defendants are granted leave to defend the action.