Smolly N.O and Others v 4F Fashion (Pty) Limited t/a 4F Fashion and Another (2022/062550) [2023] ZAGPJHC 1139 (9 October 2023)

Smolly N.O and Others v 4F Fashion (Pty) Limited t/a 4F Fashion and Another (2022/062550) [2023] ZAGPJHC 1139 (9 October 2023)

The court found that the defendants failed to disclose any bona fide defence to the claim for outstanding rental and associated payments under the lease agreement. The calculation of the amount claimed was not disputed, and the certificate of indebtedness was valid and enforceable. The alleged oral variation of the lease was not supported by evidence and was precluded by the non-variation clause requiring written agreement. The National Credit Act does not apply to leases of immovable property, nor does it apply to the suretyship in this context. The Consumer Protection Act was not shown to apply, as the respondents failed to provide evidence that their asset value or turnover was below...

Citation
[2023] ZAGPJHC 1139
Parties
Applicant: Izak Smolly Petersen N.O.; Applicant: Ridwaan Asmal N.O.; Applicant: Brian Hilton Azizollahoff N.O.; Applicant: Jujdeeshin Junkoon N.O.; Respondent: 4F Fashion (Pty) Limited t/a 4F Fashion; Respondent: Mohmednaim Mohmed Israr Kalfati
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
9 October 2023
Case Number
2022/062550
Procedural Posture
Summary Judgment Application / Application for Summary Judgment Following Institution of Action; Opposed Hearing and Judgment Delivered.
Outcome
Summary judgment granted in favour of the applicants for claim 1; leave to defend granted to respondents for claim 2.
Judges
W G La Grange
Legal Topics
Lease Agreement, Summary Judgment, Suretyship, Consumer Protection Act, National Credit Act, Variation of Contract
Land and Property Civil Procedure Commercial and Corporate Lease Agreement Summary Judgment Suretyship Consumer Protection Act National Credit Act +1 more

Case Brief

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Parties

Izak Smolly Petersen N.O.

Applicant

Ridwaan Asmal N.O.

Applicant

Brian Hilton Azizollahoff N.O.

Applicant

Jujdeeshin Junkoon N.O.

Applicant

4F Fashion (Pty) Limited t/a 4F Fashion

Respondent

Mohmednaim Mohmed Israr Kalfati

Respondent

Procedural Posture

Summary Judgment Application / Application for Summary Judgment Following Institution of Action; Opposed Hearing and Judgment Delivered.

Legal Issues

  1. 1 Whether the defendants have disclosed a bona fide defence to the claim for outstanding rental and associated payments under the lease agreement.
  2. 2 Whether the lease agreement and suretyship are governed by the National Credit Act or Consumer Protection Act.
  3. 3 Whether the terms of the lease were validly varied by oral agreement.

Ratio Decidendi

The court found that the defendants failed to disclose any bona fide defence to the claim for outstanding rental and associated payments under the lease agreement. The calculation of the amount claimed was not disputed, and the certificate of indebtedness was valid and enforceable. The alleged oral variation of the lease was not supported by evidence and was precluded by the non-variation clause requiring written agreement. The National Credit Act does not apply to leases of immovable property, nor does it apply to the suretyship in this context. The Consumer Protection Act was not shown to apply, as the respondents failed to provide evidence that their asset value or turnover was below...

Court Disposition

Summary judgment granted in favour of the applicants for claim 1; leave to defend granted to respondents for claim 2.

Orders

  • The defendants are ordered jointly and severally to pay the plaintiffs the sum of R184,808.68, the one paying the other to be absolved.
  • Interest on the aforesaid sum from the date of service of the summons until date of payment at the prevailing prime rate plus 2% per annum, compounded monthly in arrears.