Growthpoint Properties Limited and Another v Mircos Foods CC t/a Ciao Restaurant and Others (69206/2015) [2018] ZAGPPHC 560 (17 July 2018)

Growthpoint Properties Limited and Another v Mircos Foods CC t/a Ciao Restaurant and Others (69206/2015) [2018] ZAGPPHC 560 (17 July 2018)

The court found that the defendants' plea was vague and embarrassing and failed to disclose a defence in law. The plea did not clarify whether the first defendant admitted or denied liability for the rental claimed, nor did it specify the period of occupation or the amount for which liability was accepted. The alleged oral variation of the rental amount was inadmissible due to the non-variation clause in the written lease agreement. The plea also lacked a prayer for relief. Consequently, the plea did not sustain a defence to the plaintiffs' claim and was struck out.

Citation
[2018] ZAGPPHC 560
Parties
Plaintiff: Growthpoint Properties Limited; Plaintiff: Attacq Retail Fund (Pty) Ltd; Defendant: Mircos Foods CC t/a Ciao Restaurant; Defendant: Nadine McKechnie; Defendant: Emelize du Preez; Defendant: William Frederick McKechnie; Defendant: William Pieter McKechnie
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
17 July 2018
Case Number
69206/2015
Procedural Posture
Civil Procedure / Exception to Plea
Outcome
Exception upheld; defendants' plea struck out and set aside; defendants granted ten days to file an amended plea.
Judges
N Janse Van Nieuwenhuizen
Legal Topics
Lease Agreement, Suretyship, Exception to Plea, Non Variation Clause, Repudiation, Striking Out Plea
Civil Procedure Commercial and Corporate Lease Agreement Suretyship Exception to Plea Non Variation Clause Repudiation Striking Out Plea

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Parties

Growthpoint Properties Limited

Plaintiff

Attacq Retail Fund (Pty) Ltd

Plaintiff

Mircos Foods CC t/a Ciao Restaurant

Defendant

Nadine McKechnie

Defendant

Emelize du Preez

Defendant

William Frederick McKechnie

Defendant

William Pieter McKechnie

Defendant

Procedural Posture

Civil Procedure / Exception to Plea

Legal Issues

  1. 1 Whether the defendants' plea is vague and embarrassing or fails to disclose a defence in law.
  2. 2 Whether the first defendant remained liable under the first lease agreement after the alleged simulation of the second lease agreement.
  3. 3 Whether the sureties remained liable under the first deed of suretyship.

Ratio Decidendi

The court found that the defendants' plea was vague and embarrassing and failed to disclose a defence in law. The plea did not clarify whether the first defendant admitted or denied liability for the rental claimed, nor did it specify the period of occupation or the amount for which liability was accepted. The alleged oral variation of the rental amount was inadmissible due to the non-variation clause in the written lease agreement. The plea also lacked a prayer for relief. Consequently, the plea did not sustain a defence to the plaintiffs' claim and was struck out.

Court Disposition

Exception upheld; defendants' plea struck out and set aside; defendants granted ten days to file an amended plea.

Orders

  • The exception is upheld with costs.
  • The defendants' plea is struck out and set aside.