Government Employees Pension Fund v Phemelo Ontla (Pty) Ltd t/a #Braai and Pizza - Rustenburg and Others (1752/2023) [2025] ZANWHC 134 (5 August 2025)

SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

IN THE HIGH COURT OF SOUTH AFRICA

NORTH WEST DIVISION - MAHIKENG

Case No: 1752 / 2023

Reportable: YES / NO

Circulate to Judges: YES / NO

Circulate to Magistrates: YES / NO

Circulate to Regional Magistrates: YES / NO

In the matter between:

THE GOVERNMENT EMPLOYEES PENSION FUND PLAINTIFF and PHEMELO ONTLA (PTY) LTD T/A #BRAAI AND PIZZA – RUSTENBURG FIRST DEFENDANT GAADISE GODFREY DITSELE SECOND DEFENDANT KELEBOGILE JACQUELINE KOBOYANKWE THIRD DEFENDANT

CORAM: MAODI AJ

Date judgment reserved: 24 April 2025

The judgment was handed down electronically by circulation to the parties’ representatives via email. The date and time for hand-down is deemed to be 5 August 2025 at 10H00am.

ORDER

1. Summary judgment is granted against the first, second and third defendants, jointly and severally the one paying the others to be absolved, for payment of the sum of R 467 201, 20.

2. Interest on the said sum at the rate of prime plus 5% per annum from 24 August 2023 to date of payment.

3. Costs to the plaintiff as between attorney and client.

JUDGMENT

MAODI AJ

Introduction

[1] This is an opposed application for summary judgment.

Combined Summons (plaintiff’s version)

[2] The plaintiff is a pension fund with juristic personality in terms of section 2 of the Government Employees Pension Law and owner of the immovable property forming the subject matter of this case. The first defendant is a company with domicilium citandi et executandi at Shop […], M[…] and M[…] Streets, Rustenburg. The second defendant is an adult male person whose domicilium citandi et executandi is at 9[…] L[…] Street, Tlhabane Wes X2, Rustenburg. The third defendant is an adult female person whose domicilium citandi et executandi is at 3[…] Dilwane Section, Lekgalong. All these issues are admitted by the first, second and third defendants in their Plea.

[3] According to the particulars of claim, paragraphs 4 to 12 thereof state as follows:

“4. On or about 15 March 2022 and at Pretoria, a written lease agreement was entered into between the plaintiff as lessor and the first defendant as lessee.

5. In concluding the agreement the plaintiff was represented by Cynthia Ranjapedi, while the first defendant was represented by the second defendant.

6. A true copy of the lease agreement is annexed hereto as “A” and the plaintiff pleads the content thereof as if specifically set out.

7. The salient express, alternatively, implied, further alternatively tacit terms of the lease agreement were:

7.1 the plaintiff lets to the first defendant Shop […], M[…] and M[…] Street, Rustenburg (“the premises”).

7.2 The lease would commence on 1 October 2021 and terminate on 30 September 2024.

7.3 The initial monthly rental, payable monthly in advance, shall be R 23 046, 00 (Excl VAT), escalating at 7% per annum.

7.4 The first defendant will be liable for:

7.4.1 monthly rates in the amount of R 257, 85 (excl VAT);

7.4.2 operating costs of R 4 008, 00 (excl VAT) escalating at 7% per annum;

7.4.3 pro rata refuse charges;

7.4.4 marketing fund in the amount of R 1 670, 00 (excl VAT) escalating at 7%.

7.5 If the first defendant fails to pay an owing amount on due date, interest shall be charged on overdue sums at a nominal annual rate, compounded monthly, of (X) + 5% where X is the nominal annual rate quoted for the time being by the plaintiff’s principal bank as its prime rate of interest for unsecured overdraft to the private sector.

7.6 Should the plaintiff be required to refer any matter to its attorneys arising from this agreement it shall be entitled to recover all legal costs incurred by it, including attorney and own client charges.

8 The plaintiff complied with its obligations in terms of the agreement and gave the first defendant undisputed use and enjoyment of the premises. The first defendant has breached the agreement in that it has failed to make proper payment of monthly rentals and other charges as allowed in terms of the lease.

9 The first defendant, as at 1 July 2023, is indebted to the plaintiff in the amount of R 467 201, 20. A reconciliation of the aforementioned amount is attached hereto marked.

10 On or about 3 June 2021 and at Rustenburg, the second and third defendants bound themselves as sureties and co-principal debtors in solidium with the first defendant for all and any sum of money from whatever cause, owed by the first defendant to the plaintiff. Copies of the deeds of suretyship are attached hereto marked “C” and “D”. The plaintiff pleads the contents of annexures “C” and “D” as if specifically set out herein.

11 The prime interest of the plaintiff’s principal bank is currently 11,75%.

12 Consequently the plaintiff is entitled, as the plaintiff herewith does, to claim payment from the defendant in the amount of R 467 201, 20 together with interest thereon, which amount, notwithstanding demand, fails to pay.”

Plea (first, second and third defendants’ version)

[4] The first, second and third defendants raised a special plea as follows:

“1.1 This dispute emanates from a written lease agreement as entered into between the plaintiff as the lessor and the first defendant as the lessee, on or about the 15th March 2022 in Pretoria which lease agreement is annexed to plaintiff’s particulars of claim.

1.2 In terms of clause 38 of the agreement, any dispute that arises out of or in connection with the lease agreement or related thereto, whether directly or indirectly, must first be resolved by way of negotiation and in the event of that failing, by way of arbitration.

1.3 The above precondition which is binding to all parties, must commence first with the aggrieved party demanding compliance in writing which has to be complied with within a period of Seven (7) of receipt thereof failing which the defaulting party would have been considered as having waived its right to arbitration.

1.4 Plaintiff has failed to send a written notice to declare a dispute and the defendants has not waived their right to have this matter arbitrated.

1.5 The matter is therefore prematurely been referred to the above Honourable Court.”

[5] In their Plea, the first, second and third defendants plead as follows:

“1. “Ad paragraph 1 – 3

The contents herein are noted and admitted.

2. Ad paragraph 4 – 7:

3. Ad paragraph 8:

Save to admit that the plaintiff afforded the defendants with undisturbed use and enjoyment of the premises. The rest of the contents are categorically denied and the plaintiff is put to the proof. In amplification hereof, defendants pleads that they have complied with terms of the lease agreement until to a point where defendants started negotiating to have the lease agreement terminated by mutual agreement.

Ad paragraph 9:

Contents are denied and the plaintiff is put to the proof. Defendants further plead that there was no reconciliation statement attached to the plaintiff’s particulars of claim. The defendant further pleads that the plaintiff failed to attach a signed certificate attesting to the amount owed to it by the defendant in terms of clause 25.10 the lease agreement, and the reconciliation does not constitute the said certificate.

4. Ad paragraph 10:

Contents herein can neither be admitted nor denied, plaintiff is put to proof. Defendants further plead that there was no deed of sureties attached to the plaintiff’s particulars of claim.

5. Ad paragraph 11:

Contents herein can neither be admitted nor denied, plaintiff is put to proof. Defendants further pleads that he is not responsible for plaintiff’s damages.

6. Ad paragraph 12:

Contents herein are denied as no demand has been made, in amplification hereof defendants further pleads that there was no reconciliation of any amount owing to the plaintiff and that until such time that a reconciliation is done, defendants are willing to engage into negotiations, mediation and/or arbitration as per the lease agreement.

Summary judgment

[6] On the 15 November 2023 the plaintiff delivered a summary judgment application wherein it requested an order for payment of R 467 201, 20 plus interest and costs as between attorney and client. The deponent to the affidavit for summary judgment is Umehaan Bibi Khan who sets out the issues referred to at Rule 32(2). Paragraphs 1 to 11 state as follows:

“1. I am an adult female, employed by Mowana Properties (Pty) Ltd (“Mowana”) as Regional Property Manager.

2. Mowana Properties, situated at 1[…] R[…] Road, Rivonia, Sandton is an agent employed by the plaintiff to manage its properties.

3. I am duly authorised by the applicant to depose to this affidavit and to give instructions to Gildenhuys Malatji Attorneys to apply for Summary Judgment to be entered against the defendants.

4. What is stated herein falls within my personal knowledge and I can swear positively to the facts relating to the plaintiff’s claims against the defendants by virtue of the following:

4.1 I have the defendants’ file is in my custody and have studied the documents (Lease agreement, tenant transaction history and correspondences exchanged between the parties) and I have verified the amounts claimed by the plaintiff. The amounts are correct.

4.2 I authorised to institution of action against the defendants.

5. Apart from stating the facts, I also make certain legal submissions on the strength of the advice which I have received from the plaintiff’s attorneys. I accept their advice as being correct and I do not necessarily repeat this fact in every instance.

6. The plaintiff and the first defendant concluded a written Lease Agreement in terms of which the plaintiff lets its property known as Shop […], M[…] & M[…] street, Rustenburg (“the premises”) to the first defendant.

7. The first defendant did not pay its monthly rentals and other charges allowed for in terms of the lease agreement.

8. The second and third defendants signed as sureties and co-principal debtors in solidium with the first defendant for all amounts owing by the first defendant to the plaintiff.

9. The purpose of this application is to ask the above honourable court to grant summary judgment in favour of the plaintiff in respect of its claim, namely for payment of the sum of R 467 201, 20 by the

defendants. The amount reflects the arrear rentals and other charges owed by the defendants to the plaintiff as at 1 July 2023.

10. A reconciliation of the defendants’ indebtedness owed to the plaintiff is attached to the plaintiff’s particulars of claim and marked as annexure “B”. I verify that the amount reflected on the statement is correct and as being owed by the defendants to the plaintiff. The defendants have not disclosed a defence to the amounts claimed therein and I attach a certificate of indebtedness hereto in confirmation thereof, marked “UK1”.

11. The plaintiff believes that the defendants do not have any defences to the claims for payment of arrears rentals and other charges and that Notice of Intention to Defend has been entered solely for purposes of delay.”

[7] On the 23 January 2024 the first, second and third defendants gave notice to oppose summary judgment. The affidavit resisting summary judgment was delivered on the 12 February 2024. The deponent to the first, second and third defendants’ affidavit resisting summary judgment is the second defendant himself. The affidavit resisting summary judgment states as follows:

“1. I am an adult male with ID No. 8[…], currently residing at Tlhabane West X2, Rustenburg, North West Province.

2. I depose this affidavit on behalf of the respondents by virtue of my position as the co-director of the first respondent and by virtue of the fact that I have unlimited access to the records relating to this

matter.

3. The facts contained herein are save where the contrary appears, within my personal knowledge and are to the best of my belief both true and correct.

4. Where I make legal submissions and references to the law I do so on the advice of my legal representatives that I believe to be sound and correct.

5. My failure to deal with any particular allegation or submission must be seen in light of this affidavit as a whole and not necessarily as an acceptance of the correctness thereof.

6. The applicant has brought this application requesting the following relief from the court:

6.1 Payment to the sum of R 467 201, 10.

7. This answering affidavit is essentially structured as follows:

8. At the onset, the respondents raise a point in limine, for premature summons issued.

9. And lastly, the respondents will succinctly respond to the allegations raised herein.

Ad point in limine: premature summons

10. As a starting point, the plaintiff brought a claim for damages against the respondents to the sum of R 467 201, 20 arising out of unpaid rental amounts emanating from a lease agreement concluded by the parties on the 15th of March 2022.

11. In terms of the provisions of the lease agreement more specifically clause 38 read with clause 38.4, in the event of a dispute arising out of noncompliance with the provisions of the lease agreement whether directly or indirectly, parties must refer the dispute for resolution by way of negotiation and failure of that a resolution by arbitration will be sought.

12. Clause 38.4 further provides that an aggrieved party should in writing direct the other party to comply with the specified provisions and in the event the other party fails to respond within 7 business days they will waive their right to arbitration. The demanding party will then have an option to elect to proceed with litigation.

13. In light of the above mentioned, the aggrieved party has failed to send a written request for an alternative dispute resolution as per the lease agreement. We therefore submit that the summons issued against the respondents are premature. A plea outlining our defences is hereby attached marked as “GGD1”.

14. I am advised that the onus on the respondents is not to satisfy the court that their defense will probably succeed, but merely that the facts sketched in the plea, if proved at trial, would constitute a possible defense to the plaintiff’s claim.

15. In other words, at the summary judgment stage, the court is not interested in whether the plaintiff’s or respondents’ version of events is more probable. As long as the respondents’ version if proved true, would amount to a valid defense to the claim. It qualifies as a bona fide defence.

16. In the circumstances, I submit that there is a bona fide defence to the applicant’s claim. Nonetheless the amount that the applicant is even claiming in his particulars of claim is not ascertainable and therefore,

17. Wherefore, we pray that the point in limine be upheld and this application be dismissed with costs.

AD CONDONATION:

18. I am aware that condonation is not to be heard for the mere taking, and that a party seeking condonation must make out a case entitling them to the court’s indulgence and show sufficient cause. It is on this premises that I state the following:

18.1 The summary judgment application was served on the 15/11/2023.

18.2 The respondents delivered their notice to oppose on the 23/01/2024.

18.3 The respondents were to serve their answering affidavit on the 08/02/2024.

18.4 The respondents only served their answering affidavit on the 12/02/2024 which is late by 3 days.

18.5 In light of the above mentioned, we submit that the delay in finalising opposing papers was occasioned by numerous factors namely:

18.5.1 The respondents still had to gather funds to give instructions to the on record to defend the summary judgment.

18.5.2 Secondly, the deponent is a full time resident of Gauteng Province thus it was inherently difficult to obtain his availability to initialise and sign the answering affidavit.

19. Wherefore, we humbly submit that there is good cause that exists and we further implore the honourable court to exercise its discretion in granting condonation for the late delivery of the answering affidavit.

AD PARAGRAPH 1 TO 56 INCLUSIVE THEREOF:

20. The allegations contained in these paragraphs are hereby admitted.

AD PARAGRAPH 6 – 8 INCLUSIVE THEREOF:

21. The allegations contained in these paragraphs are hereby admitted.

AD PARAGRAPH 9 – 10 INCLUSIVE THEREOF:

22. Save to admit that the Plaintiff afforded the Defendants with undisturbed use and enjoyment of the premises. The rest of the contents are categorically denied and plaintiff is put to the proof. In amplification thereof, the defendants plead that thy have complied with the lease agreement until to a point where defendants started negotiations to have the lease agreement terminated by mutual agreement.

AD PARAGRAPH 11 THEREOF:

23. The allegations contained herein are denied and plaintiff is put to the proof thereof.

AD PARAGRAPH 12 TO 12.3 INCLUSIVE THEREOF:

24. The allegations contained in these paragraphs are hereby admitted.

AD PARAGRAPH 13 THEREOF:

25. The allegations contained in these paragraphs are hereby noted.

AD PARAGRAPH 14 THEREOF:

26. The allegations contained herein are denied and plaintiff is put to proof thereof.

AD PARAGRAPH 15 THEREOF:

27. The allegations contained in these paragraphs are hereby denied as if specifically traversed and plaintiff is put to proof.

28. Having regards to the aforegoing, deponent humbly requests that the application be dismissed with costs.”

[8] The second defendant submits that the plaintiff has failed to send a written request for alternative dispute resolution as per the lease agreement and therefore the summons are prematurely issued. The defendants state that this is the bona fide defence to the plaintiff’s claim.

[9] It is clear that the defendants admit paragraphs 1 to 8 of the summary judgment. The second defendant states that the plaintiff has provided the defendants with undisturbed use and enjoyment of the property, but that the defendants have complied with the lease agreement until a point where the defendants started negotiations to have the lease agreement terminated by mutual agreement.

[10] The defendants further sought condonation for the late delivery of the affidavit resisting summary judgment.

Condonation for the late filing of the affidavit resisting summary judgment

[11] As to why condonation has been sought in this matter and how the defendants arrived at timelines stipulated in their affidavit, remains a mystery. I find that the defendants were not out of time of delivery of the affidavit resisting summary judgment. Be that as it may, rule 32(3)(b) of the uniform rules requires that the affidavit resisting summary judgment be delivered five (5) days before the date on which the application is to be heard. Therefore, condonation is not necessary in this matter.

The authorities and reasons for Judgment

[12] Summary judgment is governed by Rule 32 of the Uniform Rules of Court. At this stage, it is important to point out that the defendants seem to place in dispute the provisions of Rule 32(1)(b).

[13] Rule 32(2) is clear that the plaintiff shall deliver, together with the notice of application for summary

judgment, an affidavit made by the plaintiff or by any other person who can swear positively to the facts, in which the plaintiff

verifies the cause of action and the amount, if any, and identify any point of law relied upon and the facts upon which the plaintiff’s

claim is based, and an explanation briefly why the defence as pleaded does not raise any issue for trial.

[14] Rule 32(3) states that the defendant may give security to the plaintiff to the satisfaction of the court for any judgment including costs which may be given, or satisfy the court by affidavit, or with leave of the court by oral evidence of such defendant or of any other person who can swear positively to the fact that the defendant has a bona fide defence to the action. Such affidavit or evidence shall disclose fully the nature and grounds of the defence and the material facts relied upon thereof.

Point in limine by defendant – premature summons

[15] The point in limine is centred around clause 38 and its sub-clauses. Clause 38 of the agreement between the parties reads as follows:

“38.1 If any dispute arises out of or in connection with this Agreement, or related thereto, whether directly or indirectly, the parties must refer the dispute for resolution firstly by way of negotiation and in the event of that failing, by way of arbitration.

38.2 Subject to 38.4, the reference to negotiation is a precondition to the parties having the dispute resolved by arbitration.

38.3 A dispute within the meaning of this clause exists once one party notifies the other in writing of the nature of the dispute and requires the resolution of the dispute in terms of this clause.

38.4 A party (“demanding party”) demanding in writing the other party to comply with the specified provisions of the lease and the other party does not respond in writing within 7 (seven) business days of the sending of the demand to comply will result in the other party waiving its right to arbitration of the issues referred to in the demand to comply. The demanding party will have an option to elect whether to proceed with arbitration or litigation via the court system.

38.5 Within 10 (ten) business days following the notification in clause 38.3, the parties shall seek an amicable resolution to such dispute by referring such dispute to representatives of each of the parties for their negotiation and resolution of the dispute. The representatives shall be authorised to resolve the dispute.

38.6 In the event of the negotiation between the representatives not resulting in an agreement signed by the parties resolving the dispute within 10 (ten) business days thereafter, the parties must refer the dispute for resolution by way of arbitration in accordance with the then current rules of the Arbitration Foundation of Southern Africa (“AFSA”).

38.7 The period for negotiation may be shortened or lengthened by written agreement between the parties.

38.8 Each party agrees that the arbitration will be held as an expedited arbitration in Sandton in accordance with the then current rules for expedited arbitration of AFSA by 1 (one) arbitrator appointed by agreement between the parties.

38.9 The parties agree that the arbitrator’s decision shall be final and binding and there shall be no appeal against the arbitrator’s decision.

38.10 If the parties cannot agree on the arbitrator within a period of 5 (five) business days after the referral of the dispute to arbitration, the arbitrator shall be appointed by the Secretariat of AFSA.

38.11 The parties shall pay any fees in equal shares, but the arbitrator may make such award to costs as it deems fair and reasonable.

38.12 This clause 38 shall be severable from the remaining provisions of this lease and shall continue to be of application notwithstanding the termination or purported cancellation of this lease.

38.13 Without limiting the generality thereof the provisions of this clause 38 shall not preclude any party from access to an appropriate court of law for –

38.13.1 Interim or urgent relief in the form of an interdict, spoliation

order or order for specific performance pending the outcome of an arbitration in terms hereof or in respect of such arbitration.

38.13.2 For an order of ejectment or spoliation.

38.13.3 Any other form of relief on the basis of facts which are not

disputed.

38.13.4 Payment of any amount due in terms of this lease; or

38.13.5 An order for the payment of a liquidated amount in money on the basis of facts which are not bona fide in dispute at the commencement of such proceedings.”

[16] It is not in dispute that a referral of the dispute for negotiation as required by clause 38.1 was not done by the parties, and this is the core defence raised by the defendants. The test in summary judgment is whether a bona fide defence has been established and if successful at trial, will constitute a defence. On the other hand, summary judgment is intended to avoid delay and frustration of the plaintiff in a case where the defendant does not have any defence but the notice to defend and plea are entered solely for the purposes of delay.

[17] The defendants’ point in limine is a procedural one than substantive. Arbitration cannot just be sought where there is no dispute to the plaintiff’s claim, but for the need for arbitration. The defendants must show that there is a dispute or defence to the plaintiff’s claim itself. If I send the matter to the main action and the trial court sends the matter to arbitration, what will the defendants’ defence at arbitration be? From the papers I do not find any defence. The defendants have not set out any substantive defence to the plaintiff’s claim except the need to go to arbitration. I will deal later with the defendants’ plea of the plaintiff’s claim not being liquidated.

[18] I do not see what purpose it will serve to refer the matter to arbitration except dilatory and costly, given the fact that the matter is already at court. Be that as it may, once the seven (7) days required by clause 38(4) has been issued, there is nothing compelling the parties to go to arbitration. Either party can still choose to approach the court.

[19] This approach finds support in the case of PCL Consulting (Pty) Ltd t/a Phillips Consulting SA v Tresso Trading 119 (Pty) Ltd [2007] JOL 19482 (SCA) at paragraph 7 where it is stated as follows:

“(7) The mere fact that parties have agreed that disputes between them shall be decided by arbitration does not mean that court proceedings are incompetent. If a party institutes proceedings in a court despite such an agreement, the other party has two options:

(i) it may apply for a stay of the proceedings in terms of section 6 of the Arbitration Act 42 of 1965; or

(ii) it may in a special plea (which is in the nature of dilatory plea) pray for a stay of the proceedings pending the final determination of the dispute by arbitration.

The definitive statement of the law in this regard is to be found in The Rhodesian Railways Ltd v Mackintosh where Wessels ACJ said:

‘All that s 6(1) lays down is that you cannot adopt the cheaper and speedier procedure therein provided when once you have delivered pleadings or taken any other step in the proceedings. If you have taken any step in the proceedings, then you can no longer adopt the speedier and less costly procedure of applying to the court to stay proceedings but you must file your pleadings in the ordinary way. In pleading, however, you can raise the defence that the case ought to be decided by arbitration; this can be done by a special preliminary plea”.

In the present proceedings, the defendant has simply pointed out that the lease contains an arbitration clause in wide terms. That is not sufficient. The defendant was obliged to go further and set the terms of the dispute. As Didcott J succinctly pointed out in Parekh v Shah Jehan Cinemas (Pty) Ltd:

‘Arbitration is a method for resolving disputes. That alone is its object, and its justification. A disputed claim is sent to arbitration so that the dispute which it involves may be determined. No purpose can be served, on the other hand, by arbitration on an undisputed claim. There is then nothing for the arbitrator to decide. He is not needed, for instance, for a judgment by consent or default. All this is so obvious that it does not surprise one to find authority for the proposition that a dispute must exist before any question of arbitration can arise.”

[20] I disagree with paragraph 11 of the defendants’ affidavit where it states that “…parties must refer the dispute for resolution by way of negotiation and failure of that a resolution by arbitration will be sought.” From the reading of the agreement as a whole that is not what the agreement and parties intended. While negotiation is a precondition to any party taking any further step, clause 38.4 read with clause 38.13 are clear that once negotiations have failed, the parties can choose arbitration or court system.

[21] When it comes to arbitration or court, either one may be approached. The agreement does not place preference of one over the other. Procedure should not trump substance. The plaintiff has issued a rule 41A notice to which the defendants have not said anything. The defendants, at paragraph 3 of their plea and paragraph 22 of their affidavit resisting summary judgment, refer to negotiations which were commenced between the parties, but do not tell me what happened to those negotiations. I find that the said negotiations read with the rule 41A issued by the plaintiff and the fact that the defendants have not set out any substantive defence to the plaintiff’s claim, makes up for compliance with the requirement in terms of clause 38.1 read with clause 38.4

[22] The point in limine is therefore dismissed.

Bona fide defence

[23] The defendants’ contention is that the plaintiff has failed to provide a reconciliation of the amount owing and therefore they have a bona fide defence to the plaintiff’s claim. I find the defendant’s approach to a bona fide defence very flawed.

[24] Nowhere in their papers do the defendants state that they have made payments towards the plaintiff’s claim. At paragraph 3 of their plea, the defendants admit breach, but they don’t state when and how much they are in breach for. The fact that negotiations were started to terminate the contract does not mean the contract was indeed terminated and does not absolve the defendants from complying with the terms of the contract, chief amongst which is to pay the monthly rental. That obligation can only be relinquished if the parties have agreed and terminated the contract, of which there is no information before me.

[25] Clause 25.5 of the lease agreement is clear on this and reads as follows:

“25.5 In the event of the tenant’s right to occupy the leased premises expiring or terminating for whatsoever reason, or the landlord cancelling this lease, and should the tenant dispute the landlord’s right to cancel this lease, or the expiry or other termination of its tenancy or this lease, as claimed by the landlord, and should the tenant remain in occupation and/or possession of the leased premises, the tenant shall, pending the determination of such dispute, continue promptly to fulfil all of its obligations as recorded in this lease as if the lease was still in full force and effect, including but not limited to payment of all amounts due to the landlord in terms of this lease on the due date thereof.”

[26] This is amplified by paragraphs 20 and 21 of the affidavit resisting summary judgment, specifically paragraph 21 thereof. At paragraph 21 the defendants admit the contents of paragraphs 7 and 8 of the plaintiff’s affidavit in support of summary judgment. Paragraphs 7 and 8 state that the defendants did not pay their monthly rental and also that the second and third defendants signed and bound themselves as surety to the first defendant’s liabilities. The defendants have also admitted that the plaintiff has afforded them undisturbed use and enjoyment of the property. Therefore, what then is the bona fide defence to the plaintiff’s claim when the defendants have clearly admitted the claim, unless it is solely for delaying purposes.

[27] The issue of illiquid claim does not arise as clause 25.10 of the agreement provides for a certificate of balance to be issued by the plaintiff which constitutes prima facie evidence of what is contained therein. The plaintiff has attached a certificate of balance to its papers. Therefore this defence cannot stand. The defendant does not state whether the debt in full or part thereof has been paid. Nothing is said about the outstanding debt except to deny the attachment of a certificate of balance. The second and third defendants have admitted to being surety as co-principal debtors with the first defendant as per paragraph 21 of their affidavit resisting summary judgment.

[28] Paragraph 14 of the affidavit resisting summary judgment states that “I am advised that the onus on the respondents is not to satisfy the court that their defence will probably succeed, but merely that the facts sketched in the plea, if proved at trial, would constitute a possible defence to the plaintiff’s claim.” While I agree with the statement, unfortunately for the defendants, their alleged bona fide defence does not constitute a bona fide defence as is required by the authorities governing summary judgment.

[29] I am in agreement with the authorities that are clear on the fact that this procedure, (summary judgment), should no longer be referred to as a drastic remedy. See Joob Joob Investments (Pty) Ltd v Stocks Mavundla Zek Joint Venture 2009 (5) SA 1 (SCA) at paragraphs 32 to 33 where it is stated as follows:

“[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. 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.

[33] Having regard to its purpose and its proper application, summary judgment

proceedings only hold terrors and are ‘drastic’ for a defendant who has no defence. Perhaps the time has come to discard

these labels and to concentrate rather on the proper application of the rule, as set out with customary clarity and elegance by Corbett JA in the Maharaj case at 425G-426E.”

Conclusion

[30] I find that the defendants have not established a bona fide defence. I am of the view that the issues raised by the defendants are only to delay the matter. I am satisfied that the plaintiff has made out a case for summary judgment. Costs should also follow the cause.

Order

[31] I therefore make an order as follows:

1. Summary judgment is granted against the first, second and third defendants, jointly and severally the one paying the others to be absolved, for payment of the sum of R 467 201, 20.

J. T. MAODI

ACTING JUDGE OF THE HIGH COURT OF SOUTH AFRICA,

NORTH WEST DIVISION, MAHIKENG

APPEARANCES

FOR THE PLAINTIFF: ADV. L. KOTZE

Instructed by:

GMI ATTORNEYS

C/o Labuschagne Attorneys

19 Constantia Drive, Riviera Park

MAFIKENG

Ref: Riana v Heerden/GGL/GW1912

TEL: 018 381 6828

Email: litigation2@labuschagneatt.co.za

FOR 1st; 2nd and 3rd

DEFENDANTS: ADV. T. P. MOLOTO

Instructed by:

PULE ATTORNEYS

C/o Motshabi and Associates

12 Havenga Street

Golf View, MAHIKENG

Ref: Madubela

Tel: 018 381 8187

Email: info@motshabi.com