Nkuna t/a Nkuna Attorneys v Octodec Investments - Olivetti House (A260/2020) [2023] ZAGPPHC 626 (2 August 2023)

Nkuna t/a Nkuna Attorneys v Octodec Investments - Olivetti House (A260/2020) [2023] ZAGPPHC 626 (2 August 2023)

The court found that none of the appellant's defences raised triable issues. The vis major defence was not pleaded and, even if considered, the facts did not support impossibility of performance or unforeseeability, as the addendum was signed during the pandemic when further lockdowns were foreseeable. The deponent to the respondent's affidavits had sufficient personal knowledge and authority as agent, satisfying procedural requirements. The arbitration clause allowed either party to elect court proceedings, and did not deprive the court of jurisdiction. The counter-claim was out of time, non-compliant, and lacked merit. The appellant conceded the agreement, the relevant clause, and the...

Citation
[2023] ZAGPPHC 626
Parties
Appellant: Vincent Nkuna t/a Nkuna Attorneys; Respondent: Octodec Investments - Olivetti House
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
2 August 2023
Case Number
A260/2020
Procedural Posture
Civil Appeal / Appeal Against Summary Judgment and Costs Order From Magistrate's Court
Outcome
Appeal dismissed with costs on attorney and client scale.
Judges
de Vos, MPN Mbongwe
Legal Topics
Summary Judgment, Lease Agreement, Vis Major, Locus Standi, Arbitration Clause, Counter Claim Procedure
Civil Procedure Commercial and Corporate Summary Judgment Lease Agreement Vis Major Locus Standi Arbitration Clause Counter Claim Procedure

Case Brief

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Parties

Vincent Nkuna t/a Nkuna Attorneys

Appellant

Octodec Investments - Olivetti House

Respondent

Procedural Posture

Civil Appeal / Appeal Against Summary Judgment and Costs Order From Magistrate's Court

Legal Issues

  1. 1 Does the defence of vis major raised by the appellant constitute a triable issue sufficient to resist summary judgment.
  2. 2 Did the respondent's affidavit deponent lack authority, thereby raising a triable issue of locus standi.
  3. 3 Does the presence of an arbitration clause in the lease agreement deprive the court of jurisdiction and raise a triable issue.

Ratio Decidendi

The court found that none of the appellant's defences raised triable issues. The vis major defence was not pleaded and, even if considered, the facts did not support impossibility of performance or unforeseeability, as the addendum was signed during the pandemic when further lockdowns were foreseeable. The deponent to the respondent's affidavits had sufficient personal knowledge and authority as agent, satisfying procedural requirements. The arbitration clause allowed either party to elect court proceedings, and did not deprive the court of jurisdiction. The counter-claim was out of time, non-compliant, and lacked merit. The appellant conceded the agreement, the relevant clause, and the...

Court Disposition

Appeal dismissed with costs on attorney and client scale.

Orders

  • The appeal is dismissed.
  • The appellant is to pay costs between the attorney and the client.