Gumede NO and Others v Denysschen t/a Chelsea Seafood & Grill (2012/29190) [2012] ZAGPJHC 274 (26 October 2012)

Gumede NO and Others v Denysschen t/a Chelsea Seafood & Grill (2012/29190) [2012] ZAGPJHC 274 (26 October 2012)

The court found that the deponent to the summary judgment affidavit, as Portfolio Manager, had sufficient personal knowledge of the records and facts to verify the claim. The defendant's assertion that only Susan Swanepoel had the requisite knowledge was not supported by the evidence, as other individuals were involved in correspondence. The defence of interference with commodus usus was rejected because the lease agreement expressly permitted the landlord to lease adjacent premises to competitors. The defendant's allegations of mala fides were unsupported by any factual or legal basis. Accordingly, the plaintiffs were entitled to summary judgment for the arrear rental claimed.

Citation
[2012] ZAGPJHC 274
Parties
Plaintiff: Gumede, Nyangeni Saul N.O.; Plaintiff: De Bruyn, Brigitte N.O.; Plaintiff: Petersen, Isak Smolly N.O.; Defendant: Denysschen, Hermen Stephen t/a Chelsea Seafood & Grill
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
26 October 2012
Case Number
2012/29190
Procedural Posture
Summary Judgment Application / Application for Summary Judgment
Outcome
Summary judgment granted in favour of the plaintiffs for arrear rental, interest, and costs.
Legal Topics
Summary Judgment, Lease Agreement, Commodus Usus, Arrear Rental, Contractual Defences
Civil Procedure Land and Property Summary Judgment Lease Agreement Commodus Usus Arrear Rental Contractual Defences

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Parties

Gumede, Nyangeni Saul N.O.

Plaintiff

De Bruyn, Brigitte N.O.

Plaintiff

Petersen, Isak Smolly N.O.

Plaintiff

Denysschen, Hermen Stephen t/a Chelsea Seafood & Grill

Defendant

Procedural Posture

Summary Judgment Application / Application for Summary Judgment

Legal Issues

  1. 1 Whether the deponent to the summary judgment affidavit had sufficient personal knowledge to verify the cause of action and amount claimed.
  2. 2 Whether the defendant was denied commodus usus of the premises due to the landlord leasing adjacent premises to a competitor.
  3. 3 Whether the express terms of the lease agreement permitted competition from other tenants.

Ratio Decidendi

The court found that the deponent to the summary judgment affidavit, as Portfolio Manager, had sufficient personal knowledge of the records and facts to verify the claim. The defendant's assertion that only Susan Swanepoel had the requisite knowledge was not supported by the evidence, as other individuals were involved in correspondence. The defence of interference with commodus usus was rejected because the lease agreement expressly permitted the landlord to lease adjacent premises to competitors. The defendant's allegations of mala fides were unsupported by any factual or legal basis. Accordingly, the plaintiffs were entitled to summary judgment for the arrear rental claimed.

Court Disposition

Summary judgment granted in favour of the plaintiffs for arrear rental, interest, and costs.

Orders

  • The defendant is ordered to pay the sum of R83,861.36.
  • Interest on the above amount at the rate of 10.5% per annum from 2 August 2012 to date of payment.