Gumede and Others v Maqubela (14201/16) [2016] ZAGPJHC 401 (24 June 2016)
- Citation
- [2016] ZAGPJHC 401
- Status
- Judgment
- Jurisdiction
- South Africa
- Court
- South Gauteng High Court, Johannesburg
- Panel
- P L Carstensen
- Case number
- 14201/16
More details
- Court
- South Gauteng High Court, Johannesburg
- Panel
- P L Carstensen
- Case number
- 14201/16
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The court found that there was a material conflict between the proposal, which was made in the name of the company, and the lease agreement, which was signed by the Defendant personally. The lease agreement defined the tenant as the Defendant personally and omitted any reference to the company or supporting documents such as a resolution or suretyship. However, the Defendant provided evidence of the company's existence and argued that he acted as a director. The court held that this conflict could not be resolved without oral evidence and that the Defendant had raised a triable issue. Accordingly, summary judgment was refused and the Defendant was granted leave to defend.
Court disposition
Summary judgment refused; Defendant granted leave to defend.
Orders
- The Defendant is granted leave to defend the Plaintiffs' action.
- The costs of the application for summary judgment are reserved for determination by the trial court.
02
Material facts
Parties
Nyangeni Saul Gumede N.O.
Plaintiff Counsel: J G DobieBrigitte De Bruyn N.O.
Plaintiff Counsel: J G DobieIsak Smolly Petersen N.O.
Plaintiff Counsel: J G DobieBrian Hilton Azizollahoff N.O.
Plaintiff Counsel: J G DobieSakhumzi Lungelo Maqubela
Defendant Counsel: T J MachabaAmounts and remedies
- Claimed Arrear Rental and Charges: ZAR 819,903.68
03
Procedural history
Posture
Summary Judgment Application / Application for Summary Judgment; Leave to Defend
04
Questions and positions
Legal issues
- 01
Whether the Defendant concluded the lease agreement in his personal capacity or on behalf of a company.
- 02
Whether the Defendant has raised a bona fide defence to the Plaintiffs' claim for arrear rental and charges.
- 03
Whether summary judgment should be granted or the Defendant should be granted leave to defend.
Party arguments
- Applicant
- The Plaintiffs argue that the Defendant personally signed the lease agreement and is liable for arrear rental and charges. They contend that the Defendant's assertion regarding representation by Bezuidenhout is irrelevant, as the Defendant signed the lease himself. They further submit that the use of 'trading as' in the summons and particulars of claim is consistent with the wording in the signed lease agreement.
- Respondent
- The Defendant contends that he did not conclude the lease agreement in his personal capacity but acted as a director of Safana Panel Beaters and Spray Painters (Pty) Ltd, a registered company. He provides a CIPC certificate showing the company's registration and directors. He refers to a proposal to reinstitute the lease in the company's name and maintains that any obligations under the lease should be attributed to the company, not to him personally.
05
Court’s reasoning
Legal principles
- 01
Arend v Astra Furnishers (Pty) Ltd, 1974 (1) SA 298 (C) at 303H–304A
If there is a genuine dispute of fact as to whether a defendant contracted in a personal or representative capacity, summary judgment should not be granted and the matter should proceed to trial.
06
Ratio, limits and disposition
Ratio decidendi
The court found that there was a material conflict between the proposal, which was made in the name of the company, and the lease agreement, which was signed by the Defendant personally. The lease agreement defined the tenant as the Defendant personally and omitted any reference to the company or supporting documents such as a resolution or suretyship. However, the Defendant provided evidence of the company's existence and argued that he acted as a director. The court held that this conflict could not be resolved without oral evidence and that the Defendant had raised a triable issue. Accordingly, summary judgment was refused and the Defendant was granted leave to defend.
Obiter and limits
- The use of 'trading as' in the lease agreement and summons does not, in itself, constitute a bona fide defence.
- The deletion of annexures relating to suretyship and resolution suggests an intention not to contract on behalf of the company.
Court disposition
Summary judgment refused; Defendant granted leave to defend.
- The Defendant is granted leave to defend the Plaintiffs' action.
- The costs of the application for summary judgment are reserved for determination by the trial court.
Source and reliance status
South Gauteng High Court, Johannesburg
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
South Gauteng High Court, Johannesburg
Judgment
SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy
REPUBLIC
OF SOUTH AFRICA
GAUTENG LOCAL DIVISION
JOHANNESBURG
CASE NO: 14201/16
In the matter between:
GUMEDE: NYANGENI SAUL (ID NO: … ) N.O. in his capacity as Trustee of MERGENCE AFRICA PROPERTY INVESTMENT TRUST (IT 11263/2003) First Plaintiff DE BRUYN: BRIGITTE (ID NO: … ) N.O. in her capacity as Trustee of MERGENCE AFRICA PROPERTY INVESTMENT TRUST (IT 11263/2003) Second Plaintiff PETERSEN: ISAK SMOLLY (ID NO: … ) N.O. in his capacity as Trustee of MERGENCE AFRICA PROPERTY INVESTMENT TRUST (IT 11263/2003) Third Plaintiff AZIZOLLAHOFF: BRIAN HILTON (ID NO: … ) N.O. in his capacity as Trustee of MERGENCE AFRICA PROPERTY INVESTMENT
TRUST (IT 11263/2003) Fourth Plaintiff and MAQUBELA:
SAKHUMZI LUNGELO (ID NO: … ) Defendant
JUDGEMENT
CARSTENSEN AJ:
1. The Plaintiffs seek summary judgement in the amount of R819 903.68 together with interest and costs in respect of arrear monthly rental and charges which arise out of an agreement of lease concluded between, the Plaintiff states, the Plaintiff and Defendant.
2. The Defendant raises a number of defences, including:
2.1. That he never authorised Johannes Jurgens Bezuidenhout to represent him in concluding the lease. (This appears to be irrelevant as it is common cause that the Defendant signed the lease and was not represented by Bezuidenhout).
2.2. Secondly, the Plaintiff states that the Plaintiff seeks to mislead the court by using the words “trading as” in the summons and particulars of claim. (I do not believe that this constitutes a bona fide defence as the signed agreement of lease also used the words “trading as”).
3. However, the Defendant states Safana Panel Beaters and Spray Painters is not his alter ego, but is actually a legal persona and attaches the CIPC certificate indicating that there is a company registered in the name of Safana Panel Beaters and Spray Painters (Pty) Ltd with registration number 2011/136859/07 and which has three directors.
4. The Defendant states that on the 21st January 2015 he approached the Plaintiff to reopen the business which resulted in the Defendant signing a proposal to JHI in re reinstitution of the lease agreement between Safana Panel Beaters and Spray Painters (Pty) Ltd and JHI.
5. This proposal, which appears on page 70 of the papers, indeed states that it is a “re reinstitution” of a lease agreement
between “Safana Panel Beaters and Spray Painters (Pty) Ltd and JHI”. The document is also signed by the Defendant “as director”, and “duly authorised representative”, as set out in the preamble and where the Defendant signs he also signs for and “on behalf of” Safana Panel Beaters and Spray Painters (Pty) Ltd.
6. He also states, however, in paragraph 7 that he will be running Safana as a “sole proprietor”. Despite THE
CONTENTS OF paragraph 7, it is my view that the proposal is clearly made in the name of the company and to reinstate the lease in the name of the company.
7. The Defendant states that he “ … did not conclude the lease agreement in his personal capacity. I have at all times acted as a director in the company”. This is contradicted by the lease agreement which records the Defendant’s name, ID number trading as Safana Panel Beaters and Spray Painters without the designation “(Pty) Ltd”. In addition, in paragraph 3 the tenant is defined as the Defendant personally. It is also noted that annexure C, being the suretyship, annexure D being the resolution are all deleted indicating that there was no intention to conclude the lease agreement on behalf of the company.
8. Nevertheless, I must bear in mind that if it turns out that the Defendant did not conclude the lease agreement personally but in the name of the company, that would constitute a defence at the trial. Arend v Astra Furnishers (Pty) Ltd, 1974 (1) SA 298 (C) at 303 H to 304 A.
9. At present, I am faced with a conflict between the proposal and the lease agreement and I am of the view that evidence would be required to show why the proposal was made in the name of the company, but the lease agreement was purportedly signed by the Defendant personally.
10. In the premises, I am not inclined to grant summary judgement.
11. Consequently, I make the following order:
11.1. the Defendant is granted leave to defend the Plaintiffs’ action and the costs of the application for summary judgement are reserved for determination by the trial court.
_____
P
L CARSTENSEN
ACTING
JUDGE OF THE
HIGH
COURT
HEARD: ___ JUNE 2016
DELIVERED: 24 JUNE 2016
COUNSEL FOR PLAINTIFFS: J G DOBIE
INSTRUCTED BY: REAAN SWANEPOEL ATTORNEYS
COUNSEL FOR DEFENDANT: T J MACHABA
INSTRUCTED BY: JERRY NKELI & ASSOCIATES INC.
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