Savana Property (Pty) Ltd v Brown and Another (28722/2012) [2013] ZAGPPHC 207 (26 June 2013)

Savana Property (Pty) Ltd v Brown and Another (28722/2012) [2013] ZAGPPHC 207 (26 June 2013)

The court found that the defence of lis pendens did not apply because the parties and causes of action in the South Gauteng High Court and the present application were not identical. The respondents' liability arose from the suretyship agreement, which was accessory to the lease but did not make them privies to the principal dispute. The allegations of fraudulent misrepresentation were not substantiated on the papers, and the written lease contained 'whole agreement' and 'warranties' clauses excluding prior representations. Humatech occupied and traded from the premises for two years without paying rent, and did not pursue threatened legal action to enforce its rights. The applicant was...

Citation
[2013] ZAGPPHC 207
Parties
Applicant: Savana Property (Pty) Ltd; Respondent: Dino Gideon Francois Brown; Respondent: Johan Steyn
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
26 June 2013
Case Number
28722/2012
Procedural Posture
Civil Application / Judgment After Opposed Application
Outcome
Application granted in part; respondents ordered to pay rental and interest; costs awarded against second respondent.
Judges
Tlhapi V V
Legal Topics
Lease Agreement, Suretyship, Fraudulent Misrepresentation, Lis Pendens, Non Joinder
Commercial and Corporate Land and Property Lease Agreement Suretyship Fraudulent Misrepresentation Lis Pendens Non Joinder

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Parties

Savana Property (Pty) Ltd

Applicant

Dino Gideon Francois Brown

Respondent

Johan Steyn

Respondent

Procedural Posture

Civil Application / Judgment After Opposed Application

Legal Issues

  1. 1 Whether the defence of lis pendens applies to bar the applicant's claim for rental against the respondents as sureties.
  2. 2 Whether the respondents are liable for rental arrears under the suretyship agreement despite allegations of fraudulent misrepresentation in the principal lease.
  3. 3 Whether there are bona fide disputes of fact justifying dismissal or referral to oral evidence.

Ratio Decidendi

The court found that the defence of lis pendens did not apply because the parties and causes of action in the South Gauteng High Court and the present application were not identical. The respondents' liability arose from the suretyship agreement, which was accessory to the lease but did not make them privies to the principal dispute. The allegations of fraudulent misrepresentation were not substantiated on the papers, and the written lease contained 'whole agreement' and 'warranties' clauses excluding prior representations. Humatech occupied and traded from the premises for two years without paying rent, and did not pursue threatened legal action to enforce its rights. The applicant was...

Court Disposition

Application granted in part; respondents ordered to pay rental and interest; costs awarded against second respondent.

Orders

  • The first and second respondent are directed to make payment to the applicant in the amount of R371 115.27, the one paying the other to be absolved.
  • The first and second respondent are directed to make payment of interest on the amount of R371 115.27 calculated at the rate of 15.5% from 7 July 2011 to date of payment, the one paying the other to be absolved.