Win Twice Properties (Pty) Ltd v Capitulo Entertainment (Pty) Ltd t/a Galaxy World and Others (33426/2017) [2019] ZAGPJHC 461 (25 October 2019)

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA,

GAUTENG LOCAL DIVISION,

JOHANNESBURG

CASE NO.:33426/2017

In the matter between:

WIN TWICE PROPERTIES (PTY) LTD Plaintiff / Respondent

And

CAPITULO ENTERTAINMENT (PTY) LTD

T/A GALAXY WORLD First

Defendant / First Excipient

WOLF-DIETRICH FRITZ SEITZ Second

Defendant / Second Excipient

LESLIE COHEN Third

Defendant / Third Excipient

JUDGMENT

E DREYER AJ:

1. The Defendants delivered an exception to the Plaintiff’s Amended Particulars of Claim on the ground that the Amended Particulars of Claim lack averments which are necessary to sustain an action, alternatively is vague and embarrassing.

2. The Defendants previously delivered an exception to the Plaintiff’s Particulars of Claim, which exception was heard on 15 June 2018 by Mahalelo J. Mahalelo J delivered judgment on 7 September 2018.

3. Subsequent to the judgment the Plaintiff amended its Particulars of Claim and effected the amendment on 28 September 2018.

4. The Plaintiff’s claim is for damages in respect of a breach of the Agreement of Lease (“the Lease Agreement”) by the First Defendant in that the First Defendant failed to deliver the leased premises to the Plaintiff in the same good order and condition as existed at the beneficial occupation date and failed to reinstate the leased premises on vacating of the premises as set out in Annexure “E” to the Lease Agreement and clause 12.2.7 of the Lease Agreement.

5. The first ground of the Defendants’ exception is that the Plaintiff failed to plead compliance with clause 12.3 of the Lease Agreement. Clause 12.3 provides as follows:

“In the event of the Tenant’s failing or refusing to maintain or repair the Leased Premises or part thereof as provided for in terms of this clause and remain in default for a period of 7 (seven) days after despatch by the Landlord of a written notice calling on the Tenant to rectify such default, then the Landlord shall be entitled to effect the necessary maintenance or repairs and to claim the costs so incurred from the Tenant, who shall be obliged to pay such claim forthwith.”

6. The Plaintiff contend that the entitlement to reinstate the leased premises and to claim the reasonable costs of doing so is found in clause 12.2.7, read with clause 12.2, which provides as follows:

“12.2 The Tenant shall, at its own cost, keep the Leased Premises in a clean and sanitary condition and, in addition thereto, at its own cost, keep and maintain the interior of the Leased Premises in good order and condition. Without derogating from the generality of the aforegoing, the Tenant shall:

12.2.7 at the expiration or earlier termination of this Lease and in the event only that the Tenant shall fail to restore the Leased Premises to the Landlord in the same good order and condition as they were at the Beneficial Occupation Date of this Lease, pay to the Landlord, on demand, the reasonable cost of restoring the Leased Premises to the same order and condition in which they were at the Beneficial occupation date. Without derogating from the generality of the aforegoing, the cost of restoring the Leased Premises shall include the cost of redecoration and the cost of replacing flooring and the cost of steam cleaning any carpeting in the Leased Premises.”

7. The Plaintiff also contend that clause 12.3 relates to maintenance and repairs, as opposed to restoration, to be carried out during the subsistence of the lease agreement and clause 12.2.7 contemplates restoration after the lease agreement has ended.

8. In order for the first ground to be upheld, it has to be determined whether the Plaintiff was required to give notice in terms of clause 12.3 of the Lease Agreement calling upon the First Defendant to remedy its default. This concerns the interpretation of the Lease Agreement on exception.

9. Part of the Plaintiff’s claim for damages pertains to the First Defendant’s failure to “remove the ceiling”.

10. The second ground of the Defendants’ exception is that in respect of the failure by Firs Defendant to remove the ceiling, the Defendants are unable to ascertain what is being alleged and / or its relevance and will be embarrassed if required to plead thereto.

11. In paragraph 13 and 14 of its Amended Particulars of Claim the Plaintiff avers as follows:

“13. Having concluded discussions with the representatives of the First Defendant, on or about 10 May 2017 and at Illovo, the Plaintiff

orally elected to have the First Defendant remove the ceiling upon the First Defendant vacating, which the First Defendant failed to do.

14. The Plaintiff confirmed in correspondence dated the 14th of June 2017 that the First Defendant is to have the ceiling removed. Attached hereto as Annexure “F” is a copy of the said correspondence.”

12. Item D 2 of Annexure “E” to the Lease Agreement provides as follows:

“2. Ceilings: This is to be discussed and confirmed with the Landlord.”

13. Annexure “F” to the Amended Particulars of Claim provides that “The Landlord has confirmed that the ceilings are to be removed as per meeting held on 10th May 2017 with our Project Manager, Ian Dunn.”

14. The second ground also concerns the interpretation of the Lease Agreement on exception.

15. This is also a matter that can be clarified by the leading of evidence at the trial.

16. The third ground of the Defendants’ exception is that the Plaintiff is seeking to impose obligations on the Defendants that are not borne out of the Lease Agreement.

17. In paragraph 12 of its Amended Particulars of Claim the Plaintiff avers that the First Defendant failed, inter alia, to:

17.1 Remove the door and frame;

17.2 Break out and remove the ceilings / bulkheads;

17.3 Remove the mirrors;

17.4 Hack off and remove the wall tiling;

17.5 Strip out and remove the granite vanity;

17.6 Remove the shutter door at the entrance;

17.7 Demolish the brick walls;

17.8 Paint the leased premises; and

17.9 Patch the wall with plaster.

18. Item D of Annexure “E” to the Lease Agreement specifies the extent of the First Defendant’s obligation to reinstate the leased premises on vacating same.

19. The third ground also concerns the interpretation of the Lease Agreement on exception.

20. This is a matter that can be clarified by the leading of evidence at the trial.

21. The fourth ground of the Defendants’ exception is again that the Plaintiff is seeking to impose obligations on the Defendants that are not borne out of the Lease Agreement.

22. The Plaintiff is claiming and amount of R42 850.00 in respect of the drainage and plugging of the sprinklers.

23. Item D 9 of Annexure “E” to the Lease Agreement provides as follows:

“8. Sprinklers: Tenant to inform the Landlord of the works program to enable the landlord to drain the sprinklers if needed.”

24. The fourth ground also concerns the interpretation of the Lease Agreement on exception and is a matter that can be clarified by the leading of evidence at the trial.

25. As a rule, Courts are reluctant to decide upon exception questions concerning the interpretation of a contract (See Sun Packaging (Pty) Ltd v Vreulink [1996] ZASCA 73; 1996 (4) SA 176 (A)).

26. Further, in order to succeed an excipient has the duty to persuade the Court that upon every interpretation which the pleading in question, and in particular the document on which it is based, can reasonably bear, no cause of action or defence is disclosed; failing this, the exception ought not to be upheld. It is also trite law that an exception which can be cured by evidence at the trail will not succeed (See: Sanan v Eskom Holdings Ltd 2010 (6) SA 638 (GSJ).)

27. I make the following order:

27.1 The exception is dismissed with costs.

__________

E DREYER

ACTING JUDGE OF THE HIGH COURT

GAUTENG LOCAL DIVISION, JOHANNESBURG

Appearance for Applicant:

Adv S Britz

Instructed by:

Leslie Cohen & Associates

Appearance for Respondent:

Adv. J D Brewer

Instructed by:

Vining Camerer Inc.

Date of hearing:

27 August 2019

Date of Judgment:

_____ October 2019