van den Berg and Another v Junkoon N.O. and Others (2020/33237) [2022] ZAGPJHC 379 (6 June 2022)

van den Berg and Another v Junkoon N.O. and Others (2020/33237) [2022] ZAGPJHC 379 (6 June 2022)

The court found that the defence now raised by the defendants regarding the survival of clauses 14.1 and 14.2 was not foreshadowed in any of their papers and was not argued in the main hearing. The affidavits, which serve as both pleadings and evidence in motion proceedings, did not disclose any material facts or grounds for this defence. The defendants failed to plead their case adequately, which is fatal to their application for leave to appeal. Furthermore, the purported improvement lien would have arisen prior to the termination of the lease, at which time clause 14 was operative and effective in waiving any right of retention or monetary claim for improvements. The court held that a...

Citation
[2022] ZAGPJHC 379
Parties
Applicant: Dawid Stefanus van den Berg CC t/a Ballbreakers; Applicant: Dawid Stefanus van den Berg; Respondent: Jujdeeshin Junkoon N.O.; Respondent: Ridwaan Asmal; Respondent: Petersen, Isak Smolly; Respondent: Azizollahoff, Brian Hilton
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
6 June 2022
Case Number
2020/33237
Procedural Posture
Leave to Appeal / Application for Leave to Appeal Following Summary Judgment
Outcome
Application for leave to appeal dismissed with costs.
Judges
VM Movshovich
Legal Topics
Summary Judgment, Eviction, Contractual Waiver, Lease Agreement, Right of Retention
Civil Procedure Land and Property Summary Judgment Eviction Contractual Waiver Lease Agreement Right of Retention

Case Brief

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Parties

Dawid Stefanus van den Berg CC t/a Ballbreakers

Applicant

Dawid Stefanus van den Berg

Applicant

Jujdeeshin Junkoon N.O.

Respondent

Ridwaan Asmal

Respondent

Petersen, Isak Smolly

Respondent

Azizollahoff, Brian Hilton

Respondent

Procedural Posture

Leave to Appeal / Application for Leave to Appeal Following Summary Judgment

Legal Issues

  1. 1 Whether the defendants can raise a new defence regarding the survival of clauses 14.1 and 14.2 of the lease at the leave to appeal stage.
  2. 2 Whether the right of retention and compensation for improvements was contractually waived and if such waiver survived the termination of the lease.
  3. 3 Whether oral evidence or further contextualisation is required to interpret the survival of the waiver clauses.

Ratio Decidendi

The court found that the defence now raised by the defendants regarding the survival of clauses 14.1 and 14.2 was not foreshadowed in any of their papers and was not argued in the main hearing. The affidavits, which serve as both pleadings and evidence in motion proceedings, did not disclose any material facts or grounds for this defence. The defendants failed to plead their case adequately, which is fatal to their application for leave to appeal. Furthermore, the purported improvement lien would have arisen prior to the termination of the lease, at which time clause 14 was operative and effective in waiving any right of retention or monetary claim for improvements. The court held that a...

Court Disposition

Application for leave to appeal dismissed with costs.

Orders

  • The leave to appeal application is dismissed with costs.