Peterson and Others v Umkhome Tourism Transport CC (2017/45102) [2018] ZAGPJHC 36 (2 March 2018)

Peterson and Others v Umkhome Tourism Transport CC (2017/45102) [2018] ZAGPJHC 36 (2 March 2018)

The court found that the defendant had disclosed the nature and grounds of its defence, specifically disputing the calculation of rental and ancillary charges based on the area occupied. The defence was not so far-fetched as to be rejected out of hand and was supported by the defendant’s consistent payment of rental, albeit less than invoiced. The issues raised required factual determination that could not be resolved at the summary judgment stage. Applying the principles of Rule 32, the court held that the defendant had demonstrated a bona fide defence and was entitled to leave to defend the action.

Citation
[2018] ZAGPJHC 36
Parties
Plaintiff: Peterson, Isak Smolly N O; Gumede, Nyangeni Saul N O; Asmal, Ridwaan N O; Azizollahoff, Brain Hilton N O (Trustees of Dipula Property Investment Trust); Defendant: Umkhome Tourism Transport CC
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
2 March 2018
Case Number
2017/45102
Procedural Posture
Summary Judgment Application / Application for Summary Judgment; Order on Leave to Defend
Outcome
Leave to defend granted to the defendant; costs reserved for the main action.
Judges
L Adams
Legal Topics
Summary Judgment, Commercial Lease, Breach of Contract, Arrear Rentals, Ejectment
Civil Procedure Commercial and Corporate Summary Judgment Commercial Lease Breach of Contract Arrear Rentals Ejectment

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Parties

Peterson, Isak Smolly N O; Gumede, Nyangeni Saul N O; Asmal, Ridwaan N O; Azizollahoff, Brain Hilton N O (Trustees of Dipula Property Investment Trust)

Plaintiff

Umkhome Tourism Transport CC

Defendant

Procedural Posture

Summary Judgment Application / Application for Summary Judgment; Order on Leave to Defend

Legal Issues

  1. 1 Whether the defendant was in arrears with rental and ancillary charges at the relevant time.
  2. 2 Whether the defendant has disclosed a bona fide defence to the plaintiffs' claim for cancellation of the lease.
  3. 3 Whether summary judgment should be granted or leave to defend should be allowed.

Ratio Decidendi

The court found that the defendant had disclosed the nature and grounds of its defence, specifically disputing the calculation of rental and ancillary charges based on the area occupied. The defence was not so far-fetched as to be rejected out of hand and was supported by the defendant’s consistent payment of rental, albeit less than invoiced. The issues raised required factual determination that could not be resolved at the summary judgment stage. Applying the principles of Rule 32, the court held that the defendant had demonstrated a bona fide defence and was entitled to leave to defend the action.

Court Disposition

Leave to defend granted to the defendant; costs reserved for the main action.

Orders

  • The defendant is granted leave to defend the action.
  • The cost of the application for summary judgment shall be in the cause of the main action.