Minty NO and Another v Exclusive Marble Merchants and Others (8337A/2010) [2010] ZAGPPHC 57 (7 July 2010)

Minty NO and Another v Exclusive Marble Merchants and Others (8337A/2010) [2010] ZAGPPHC 57 (7 July 2010)

The court held that the defendants' alleged oral cancellation of the lease agreement was ineffective due to the presence of a non-variation clause requiring any cancellation to be in writing and signed by both parties. The facts relied upon by the defendants amounted to an oral cancellation, not a waiver of a provision solely for the plaintiffs' benefit or a waiver of remedies for a past breach. The defendants' defence was therefore not bona fide, and summary judgment was granted in favour of the plaintiffs for the claimed amount, interest, and costs.

Citation
[2010] ZAGPPHC 57
Parties
Plaintiff: Mohamed Minty N.O; Plaintiff: Rashida Minty N.O; Defendant: Exclusive Marble Merchants; Defendant: Carlos Alberto Ancarnacao Martins; Defendant: R McKechnie; Defendant: M J Joelofsen; Defendant: Jaco Swart
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
7 July 2010
Case Number
8337A/2010
Procedural Posture
Summary Judgment Application / Application for Summary Judgment Under Rule 32
Outcome
Summary judgment granted against the third, fourth, and fifth defendants, jointly and severally, the one paying the other to be absolved.
Judges
Van der Byl
Legal Topics
Summary Judgment, Lease Agreement, Suretyship, Non Variation Clause, Oral Cancellation, Waiver
Civil Procedure Commercial and Corporate Summary Judgment Lease Agreement Suretyship Non Variation Clause Oral Cancellation Waiver

Case Brief

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Parties

Mohamed Minty N.O

Plaintiff

Rashida Minty N.O

Plaintiff

Exclusive Marble Merchants

Defendant

Carlos Alberto Ancarnacao Martins

Defendant

R McKechnie

Defendant

M J Joelofsen

Defendant

Jaco Swart

Defendant

Procedural Posture

Summary Judgment Application / Application for Summary Judgment Under Rule 32

Legal Issues

  1. 1 Whether the defendants have a bona fide defence to the summary judgment claim based on an alleged oral cancellation of the lease agreement.
  2. 2 Whether the non-variation clause in the written lease agreement precludes oral cancellation or amendment.
  3. 3 Whether the defendants' reliance on waiver or pactum de non petendo constitutes a valid defence.

Ratio Decidendi

The court held that the defendants' alleged oral cancellation of the lease agreement was ineffective due to the presence of a non-variation clause requiring any cancellation to be in writing and signed by both parties. The facts relied upon by the defendants amounted to an oral cancellation, not a waiver of a provision solely for the plaintiffs' benefit or a waiver of remedies for a past breach. The defendants' defence was therefore not bona fide, and summary judgment was granted in favour of the plaintiffs for the claimed amount, interest, and costs.

Court Disposition

Summary judgment granted against the third, fourth, and fifth defendants, jointly and severally, the one paying the other to be absolved.

Orders

  • Payment of R92,575.94 by the third, fourth, and fifth defendants, jointly and severally, the one paying the other to be absolved.
  • Interest at the rate of 15.5% per annum a tempora morae.