Liberty Group limited and Another v LA Kandyan Trading (Pty) Limited t/a Mayur Indian Cuisine (2020/44118) [2021] ZAGPJHC 414 (13 September 2021)

Liberty Group limited and Another v LA Kandyan Trading (Pty) Limited t/a Mayur Indian Cuisine (2020/44118) [2021] ZAGPJHC 414 (13 September 2021)

The court found that the applicants had discharged their onus for summary judgment in respect of claim A (acknowledgment of debt) and claim B (lease agreement), except for rental and charges for April and May 2020, where the respondents raised a triable issue due to impossibility of performance during the COVID-19 lockdown. The defence of lis pendens was rejected as the causes of action and periods differed between the two actions. The respondents' challenge to the authority and personal knowledge of the deponent was dismissed as unduly formalistic. The court held that the acknowledgment of debt constituted a separate enforceable obligation, and the lease agreement required rental payment...

Citation
[2021] ZAGPJHC 414
Parties
Applicant: Liberty Group Limited; Applicant: Two Degrees Properties (Pty) Limited; Respondent: LA Kandyan Trading (Pty) Limited t/a Mayur Indian Cuisine; Respondent: Fathima Areeza Mohamed Nizar
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
13 September 2021
Case Number
2020/44118
Procedural Posture
Summary Judgment Application / Application for Summary Judgment After Delivery of Plea
Outcome
Summary judgment granted in favour of the applicants for the majority of the claims; respondents granted leave to defend in respect of rental and charges for April and May 2020.
Judges
A. De Wet
Legal Topics
Summary Judgment, Lease Agreement, Acknowledgment of Debt, Suretyship, Impossibility of Performance, Lis Pendens
Civil Procedure Commercial and Corporate Summary Judgment Lease Agreement Acknowledgment of Debt Suretyship Impossibility of Performance Lis Pendens

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Parties

Liberty Group Limited

Applicant

Two Degrees Properties (Pty) Limited

Applicant

LA Kandyan Trading (Pty) Limited t/a Mayur Indian Cuisine

Respondent

Fathima Areeza Mohamed Nizar

Respondent

Procedural Posture

Summary Judgment Application / Application for Summary Judgment After Delivery of Plea

Legal Issues

  1. 1 Whether the applicants are entitled to summary judgment for the amounts claimed under the acknowledgment of debt and lease agreement.
  2. 2 Whether the respondents have disclosed a bona fide defence to the claims.
  3. 3 Whether the COVID-19 lockdown constitutes impossibility excusing performance under the lease agreement.

Ratio Decidendi

The court found that the applicants had discharged their onus for summary judgment in respect of claim A (acknowledgment of debt) and claim B (lease agreement), except for rental and charges for April and May 2020, where the respondents raised a triable issue due to impossibility of performance during the COVID-19 lockdown. The defence of lis pendens was rejected as the causes of action and periods differed between the two actions. The respondents' challenge to the authority and personal knowledge of the deponent was dismissed as unduly formalistic. The court held that the acknowledgment of debt constituted a separate enforceable obligation, and the lease agreement required rental payment...

Court Disposition

Summary judgment granted in favour of the applicants for the majority of the claims; respondents granted leave to defend in respect of rental and charges for April and May 2020.

Orders

  • Summary judgment is entered against the first and second respondents, jointly and severally, for payment of R953,972.60 with interest at 7% per annum a tempore morae in respect of claim A.
  • Summary judgment is entered for payment of R1,581,588.08 with interest at 9% per annum a tempore morae in respect of claim B.