SA Retail Properties (Pty) Limited v Viroshen Trading Enterprises CC and Another (2021/12217) [2021] ZAGPJHC 775 (3 December 2021)

SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, JOHANNESBURG

Case number: 2021/12217

REPORTABLE: No

OF INTEREST TO OTHER JUDGES: No

REVISED: No

Date: 03 Dec 2021

In the matter between:

SA RETAIL PROPERTIES (PTY) LIMITED

Applicant

and

VIROSHEN TRADING ENTERPRISES CC

First Respondent

(Registration No: 2004/004478/23)

NAVEEN KRISHENDUTH

Second Respondent

(Identity Number: [....])

JUDGMENT

ADAM AJ

Introduction

[1] This is an application for summary judgment brought by the Applicant against the First and Second Respondents (the Respondents) in which the Applicant claims from the First Respondent amounts owing by it to the Applicant in terms of a lease agreement, and from the Second Respondent in his capacity as surety and co-principal debtor for such amounts.

[2] The relief sought in the summary judgement is firstly the arrear rentals in the amount of R455 844.38 (claim A of the particulars of claim), and secondly for damages for holding over in the amount of R28 538.47 (claim B of the particulars of claim).

[3] The Respondents have raised a dispute with regard to the size of the leased premises and claim that the First Respondent was overcharged and does not owe the amount of R455 844.38. In essence, the Respondents claim that the premises is only 78 square meters in size, wherein the lease agreement specifies that the premises is “approximately 100 square meters in size”. The Respondents amended their plea seeking, inter alia, rectification of the lease agreement in accordance with the size as alleged by them. The Respondents also dispute claim B arguing that damages cannot be sought in a summary judgment application.

[4] The Respondents amended their plea in July 2021 two days before the summary judgment application was scheduled to be heard. The Respondents also filed a supplementary affidavit without the leave of the court and thereafter filed supplementary heads of argument. The Applicant objected to the supplementary papers and the Respondents sought leave to have the documents admitted.

[5] In view of the amended plea and the disputes raised by the Respondents as well as the Applicant’s very own suggestion that the Respondents be given leave to defend in respect of the disputed portion of the premises i.e. 22 square meters, the decision whether to allow the supplementary papers remained academic as the dispute on the size of the premises and the rectification of the agreement was mentioned in the Affidavit Opposing Summary Judgment deposed to in July 2021.

[6] However, it must be mentioned that the Respondents conducted themselves in an unsatisfactory manner and such conduct is not encouraged by litigants in this court.

The Facts

[7] It is common cause that the Applicant and the First Respondent entered into a lease agreement which is attached to the particulars of claim. A deed of suretyship by the Second Respondent was signed binding the Second Respondent as principal guarantor and co-principal debtor together with the First Respondent in solidum in favour of the Applicant for the due and punctual payments of all monies and the performance of all obligations which may become due, owing or payable to the Applicant by the First Respondent, arising out of the First Respondent’s occupation of the premises.

[8] The defences raised by the Respondents are:-

[a] That the lease agreement attached to the particulars of claim is not the whole agreement as the whole agreement comprises of the offer to lease, together with the lease agreement;

[b] The size of the premises has been misrepresented and thus the Respondents were overcharged for rentals and are in credit;

[c] That the Deed of Suretyship relied upon by the Applicants, being signed on 6 June 2017 is without cause or effect between the parties;

[d] That the Respondents were unable to perform due to supervening impossibility of the COVID-19 Lockdown Regulations;

[e] Applicant levied impermissible charges; and

[f] That the damages claimed, as claim B, are not liquid and therefore incapable of being determined by way of summary judgment.

[9] The Applicant avers that these defences are not bona fide and are bad in law for the following reasons:

[a] The First Respondent has been in arrears from as far back as August 2019.

[b] It is common cause that the parties entered into the lease agreement attached to the particulars of claim. The offer to lease relied upon by the Respondents is unsigned by the Applicant.

[c] Clause 30 to the lease agreement expressly provides that the lease agreement replaced all previous agreements and the Respondents are bound to the lease agreement and cannot claim that it is not the whole agreement.

[d] Further still, the Respondents allegation is bald and unsubstantiated that the size of the leased premises was misrepresented and that the premises is 78 square meters and not 100 square meters. The schedule of the lease agreement specifies that the lease premises is “approximately 100 square meters.” Further clauses 56.1 and 56.2 of the lease agreement clearly states that should the parties dispute the size of the leased premises and the Landlord, being the Applicant, elect not to make an adjustment, the Tenant, being the First Respondent, is obliged to continue paying all its rentals and other charges.

[e] The Deed of Suretyship upon which the Respondent relies is an annexure to the offer to lease which is unsigned by the Applicant. The Deed of Surety upon which the Applicant relies is an annexure to the lease agreement, which is common cause, and was signed on the same day as the lease agreement, as both documents were signed by the Second Respondent. Further clause 30 to the lease agreement expressly provides that the lease agreement (and by extension all annexures thereto) replaced all previous agreements.

[f] Clause 4.1 of the lease agreement expressly provides for rental payments being made in advance, without deduction or set off. The First Respondent, at the time the lockdown took effect, was already late in performance, as he had been in arrears since August 2019, is liable for the arrears and damages for holding over. Accordingly, as reasonable in the circumstances, and the First Respondent has failed to perform within that time, that they are regarded as being late and cannot rely on the doctrine of supervening impossibility.

[g] At most, the First Respondent was only unable to attend the premises for April and May 2020 and accessed the premises as from 1 June 2020. There is no obligation on the Applicant to provide rental relief to the First Respondent as a result of the COVID-19 lockdown.

[h] The impermissible charges complained of were removed from the amount claimed as set out in paragraph 9 of the particulars of claim.

[i] Finally, the amount claimed in Claim B is R28 538.47, is a liquidated amount in money as it is calculated easily and quickly by using the rate of R771.31 (being the monthly rental of R23 910.51, excl VAT, divided by 31 days in the month of March) and multiplying it by 37 days (being the number of days between 1 March and 6 April) amounting to R 28 538.47.

The law

[10] Caveat subscriptor or “let the signer beware” is a roman maxim that is trite in South African law that provides that even though the signer did not read the document and was not familiar with its contents, the signer is presumed to have assented to the terms in it, Afrox Healthcare Bpk v Strydom 2002 6 SA 21 (SCA) at 41.

[11] A plaintiff is entitled to seek summary judgment if his claim is based on a liquid document; for a liquidated amount in money, the amount of which is either agreed upon or is capable of speedy or prompt ascertainment; for delivery of a specified movable property; or for ejectment.

[12] A claim is liquid if it is contained in a liquid document, if it is admitted, or if the monetary value thereof has been ascertained or is susceptible to prompt ascertainment, First National Bank of SA Ltd v Myburgh and Another 2002 (4) SA 176 (C) at 181 F-H.

[13] A claim cannot be regarded as one for ‘a liquidated amount in money’ unless it is based on an obligation to pay an agreed sum of money or is so expressed that the ascertainment of the amount is a matter of mere calculation, Oos-Randse Bantoesake Administrasieraad v Santam Versekeringsmaatskappy Bpk (2) 1978 (1) SA 164 (W) at 168H.

[14] Rule 32(3)(b) requires an opposing affidavit to fully disclose the nature and grounds of the defence, and the material facts on which it is based- one which satisfies the court that there is a bona fide defence to the action, which, if proved at trial, will constitute an answer to the plaintiff ’s claim, Visser v Kotze 2013 JOL 29985 (SCA) par 11.

[15] A defendant must go beyond the mere formulation of disputes and must disclose the grounds upon which he disputes the plaintiff’s claim with reference to the material facts underlying the dispute raised, Chairperson, Independent Electoral Commission v Die Krans Ontspanningsoord (Edms) Bpk 1997 (1) SA 244 (T) at 249F-G.

[16] The Supreme Court of Appeal, in the case of Joob Joob Investments v Stocks Mavundla (2009) All SA 407 (SCA) at para 32 held that summary judgment is no longer “extraordinary” and that the Rule must be applied properly. The Rule requires of the Defendant to set out his defence, disclose fully the nature and grounds of his defence and the material facts on which it is based.

The rectification and the size of the leased premises

[17] The Respondents submit that the lease agreement attached to the particulars of claim is not the whole agreement as the whole agreement comprises of the offer to lease, together with the lease agreement. This allegation is what gives rise to the rectification.

[18] The principle of caveat subscriptor applies. However, the supporting documents attached if proved at the trial may constitute a defence.

[19] Further, even though the existence of the lease agreement and obligations flowing therefrom will remain intact notwithstanding the amendment, it will most likely affect the charges of rental and other dues. The Respondents state that the lower values set out in the offer to lease are the correct values upon which the Applicant ought to have invoiced them, and not upon the values set out in the lease agreement.

[20] The Respondents therefore claim that they were overcharged for rentals and the other dues as the correct size of the premises is 78 square meters. A confirmatory affidavit was filed by a professional shopfitter who measured the premises on the day the First Respondent vacated the premises. The Respondents have not filed an export report. However, this would not be required at the summary judgment stage.

[21] Further, an email dated 5 October 2020 from the Second Respondent to the Applicant’s attorneys, the Second Respondent states:

“I accept and acknowledge my indebtedness to your Client, albeit not for the full amount as present in their Agent’s (Broll) books".

[22] The Applicant’s counsel stated in argument that in the event that the court finds merit in the Respondents’ argument in respect of the dispute in the size of the leased premises, the Applicant then seeks summary judgment under claim A for an amount of R355 558.62, an amount based on 78 square meters. The calculation of R355 558.62 is calculated as 78% of the current claim under claim A (calculated at R455 844.38 for 100 square meters).

[23] The Respondents, on the other hand, submitted that the reduced amount should apply for the entire lease agreement and not just on the arrear amount.

[24] In the circumstances, the court requested the parties to calculate the amounts that the Respondents are liable for. However, the parties were not keen to entertain a new calculation and it does not appear to be a straightforward exercise.

[25] There is clearly a dispute on the amount claimed in the summary judgment application. Further, the defence raised by the Respondents together with the rectification strikes at the heart of the contract itself. In the circumstances, I am unable to find that the Respondents do not have an arguable defence.

[26] In light of the findings above, it is not necessary for the court to consider the remaining defences raised by the Respondents as the court cannot grant summary judgment in the circumstances that exist herein.

[27] I accordingly grant the following order:

(a) The application for summary judgment is refused.

(b) The Respondents are given leave to defend the action.

(c) Costs are to be costs in the cause.

______________________________________

N ADAM

Acting Judge of the High Court of South Africa

Gauteng Division, Johannesburg