Redefine Retail (Pty) Ltd v Vintage Black (Pty) Ltd and Others (2017/11425) [2018] ZAGPPHC 201 (10 April 2018)

IN THE GAUTENG DIVISION OF THE HIGH COURT OF SOUTH AFRICA PRETORIA

In the matter between: -

CASE NO.: 2017/11425

REDEFINE RETAIL (PTY) LTD

APPLICANT

And

VINTAGE BLACK (PTY) LTD

FIRST RESPONDENT

JABULANI H MASHABA

SECOND RESPONDENT

NONHLANHLA H MASHABA

THIRD RESPONDENT

JUDGMENT

TSATSAWANE AJ

Introduction

1 The applicant seeks summary judgment against the respondents in the amount of R 481 814, 64 in arrear rentals "and related charges.'

2 This application came before me in the unopposed motion Court and I reserved judgment to enable the applicant to file heads of argument to address whether the application complies with Rule 32.

The applicant's claim against the respondents

3 The applicant instituted its claim against the respondents in February 2017. In its particulars of claim, the applicant seeks an order in terms of which the respondents are ordered to make payment "of the sum of R 481 814, 64 towards arrear rental and related charges." It seeks the same order in this summary judgment application.

4 It would appear from the applicant's particulars of claim that the claim against the first respondent is based on a lease agreement (as amended by an addendum). The claim against the second and third respondents is based on suretyships.

5 The lease agreement upon which the applicant relies provides that the first respondent shall pay monthly rental to the applicant in the amounts stated therein. In addition to monthly rental the first defendant agreed to make a monthly contribution towards, amongst others, municipal and utility charges[1] "levied upon the building and site, calculated on the basis of the ratio that the entire leased premises bears to the occupied building' and a marketing fund[2]

6 Having pleaded the terms of the lease agreement in its particulars of claim, the applicant then says the following -

Combined with the addendum to the lease agreement , the Plaintiff and First Defendant also signed an underta king, attached hereto as ANNEXURE ' E '. The undertaking was aimed at assisting the First Defendant with repayment of the arrear amounts due and payable to the Plaintiff. In terms of clause 1.1.1 of the undertaking, the First Defendant had to pay an amount of R 40 848. OJ on or before 1 March 2016. The First Defendant failed to make the payment and thus breached the signed undertaking. During this time, the First Defendant also failed to pay its normal monthly rental.

20.1 An application was made to the above Honourable High Court for an order seeking eviction against the First Defendant under case number: 27429/2016.

20.2 Judgment was granted in favour of the Applicant on 2 August 2016. The court order is attached hereto marked as ANNEXURE 'F.

'

21

A writ of execution for the amount of R 449 971, 78 was issued on 19 August 2016, attached hereto marked as ANNEXURE 'G '. A sale in execution was held at the premises on 16 September 2016 and an amount of R 430 395. 00 was raised. After sheriff's costs were deducted, an amount of R 408 816. 10 was paid to the Plaintiff in three instalments ...

22

The First Defendant remains indebted to the Plaintiff for the amount of R 481 814. 64 in respect of rental and other related costs. Attached hereto find the tenant transactions list reflecting this amount, marked as ANNEXURE 'I "'

7 The relevance of the amounts referred to in paragraph 21 of the applicant's particulars of claim is not clear from the applicant's papers. If the writ of execution referred to therein has been executed, fully or partially, it cannot be relevant for purposes of these proceedings. If partially executed, the applicant must take the necessary steps to obtain full execution and cannot rely upon it for purposes of these proceedings.

8 The amount which the applicant claims in these proceedings is exactly the same as that referred to in paragraph 22 of the applicant's particulars of claim, i.e. the amount of R 481 814, 64. The applicant says that this amount is' in respect of rental and other related costs" and it relies on "the tenant transactions list reflecting this amount" being Annexure I to its particulars of claim.

9 Insofar as the amount claimed is 'in respect of rental and other related costs' , it follows that the months in respect of which the rental is claimed and the composition of the amount must be clearly stated in the particulars of claim. As far as "other related costs" are concerned, it must also appear from the particulars of claim as to what they are for and how they have been arrived at. This is more so when these amounts are claimed in summary judgment proceedings in terms of Rule 32. The applicant's particulars of claim are not clear on these issues.

10 Rule 32 provides for summary judgment to be granted "on each of such claims in the summons as is only" -

10.1 on a liquid document;

10.2 for a liquidated amount in money;

10.3 for delivery of specified movable property or

10.4 for ejectment.

11 If a claim is not one of those listed in Rule 32(1), summary judgment ought not to be granted in respect of such a claim. The applicant's claim is not based on a liquid document and it is clearly not for a liquidated amount in money.

12 Whilst the applicant's claim is said to be for rental and other related costs, it is not clear from Annexure I to the applicant's particulars of claim as to how it has been arrived at. In addition, Annexure I to the applicant's particulars of claim does not clearly tell as to which related charges are sought to be recovered from the respondents. Of importance, it is not easy to distinguish between the rental amount and the related costs sought to be recovered from the respondents and the rental period to which the amounts relate.

13 In the premises, I am not satisfied that the applicant's claim is for a liquidated amount in money as contemplated in Rule 32. A claim for a liquidated amount in money is one[3] -

13.1 the amount thereof has been agreed upon between the parties;

13.2 the amount thereof has been determined by a judgment of Court;

13.3 the ascertainment of the amount is a matter of simple calculation.

14. The applicant's claim does not meet the aforesaid requirements. Whilst there is an agreement to pay rental and other charges, it is not clear from the applicant' s papers as to how the amounts claimed have been arrived at and the ascertainment of the amount claimed is not a matter of a simple calculation when regard is had to the contents of Annexure I to the applicant's particulars of claim. Annexure I to the applicant's particulars of claim consists of four pages with numerous entries and amounts which one must take into consideration to come to the conclusion as to the correctness of the calculation of the amount claimed. It is not easy to understand all the entries therein and to easily ascertain the manner in which the amount claimed has been arrived at. In my view, this means that the applicant' s claim is not properly and clearly made out in its particulars of claim.

15. In Gulf Steel (Pty) Ltd v Rack-Rite Bop (Pty) Ltd 1998 (1) SA 679 (0) it was held that-

"In view of the nature of the remedy the Court must be satisfied that a plaintiff who seeks summary judgment has established its claim clearly on the papers and the defendants have failed to set up a bona fide defence as required in terms of the Rules of this Court. There are accordingly two basic requirements that the plaintiff must meet, namely a clear claim and pleadings which are technically correct before the Court. If either of these requirements is not met, the is obliged to refuse summary judgment. In fact. before even considering whether the defendant has established a bona fide defence. it is necessary for the Court to be satisfied that the plaintiff's claim has been clearly established and its pleadings are technically in order. Even if a defendant fails to put up any defence or puts up a defence which does not meet the standard required of a defendant to resist summary judgment, summary judgment should nevertheless be refused if the plaintiff's claim is not clearly established on its papers and its pleadings are not technically in order and in compliance with the Rules of Court." (Own emphasis).

16. In its heads of argument, the applicant simply says that "the amounts agreed to are reflected on the Tenant/Debtor Transaction list starting on paginated IO I of the Court bundle" being Annexure I to the applicant's particulars of claim. The contents of Annexure I to the applicant's particulars of claim are not set out in a manner which enables an easy ascertainment of how the amount claimed has been arrived at. This being the case, I am not satisfied that the amount claimed is one which falls under the provisions of Rule 32 and that I have jurisdiction to grant summary judgment.

17. In the result, the application for summary judgment is dismissed.

Kennedy Tsatsawane

Acting Judge of the Gauteng Division of the High Court of South Africa, Pretoria.

[1] Paragraph 10 of the applicant's particulars of claim.

[2] Paragraph 11 of the applicant's particulars of claim.

[3] See Van Niekerk et al at paragraph 3.3.l (page 3-7). See also Oos Randse Bantoesake Administrasieraad v Santam Versekeringsmaatskappy

BPK (2) 1978 (1) SA 164 (W).