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IN THE HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

REPUBLIC OF SOUTH AFRICA

 

(1)      NOT REPORTABLE

(2)      NOT OF INTEREST TO OTHER JUDGES

(3)      REVISED

Case Number: 69206/2015

17/7/2018

 

In the matter between:

 

GROWTHPOINT PROPERTIES LIMITED                                                First Plaintiff

ATTACQ RETAIL FUND (PTY) LTD                                                           Second Plaintiff

 

And

 

MIRCOS FOODS CC T/A CIAO RESTAURANT                                       First Defendant

NADINE MCKECHNIE                                                                                  Second Defendant

EMELIZE DU PREEZ                                                                                     Third Defendant

WILLIAM FREDERICK MCKECHNIE                                                      Fourth Defendant

WILLIAM PIETER MCKECHNIE                                                               Fifth Defendant

JUDGMENT

 

JANSE VAN NIEUWENHUIZEN J

[1]        The plaintiff filed an exception to the defendants' plea on the basis that the plea is vague and embarrassing alternatively does not disclose a cause of action.

 

Plaintiffs' claim

[2]        The plaintiffs' claim emanates from a written lease agreement entered into with the first defendant on 14 November 2006. The lease agreement commenced on 1 January 2007 and expired on 31 December 2011. In terms of the agreement, the parties could renew the agreement after its expiry date. Should there be no formal renewal of the agreement and the first defendant remains in occupation of the property, the occupation will be on the same terms and conditions as the written lease agreement.

[3]        The third, fourth and fifth defendants stood surety for the obligations of the first defendant in terms of written suretyship agreements and are sued in such capacity.

[4]        Upon expiry of the initial lease agreement, the plaintiffs and the first defendant entered into a further lease agreement for the period January 2012 to September 2014. The second, third and fourth defendants stood surety for the first defendant's obligations towards the plaintiff. The plaintiffs allege that the first defendant breached the terms of the agreement in that it failed to pay the monthly rental and other charges. As a result the first defendant is indebted to the plaintiff in the amount of R 1 722 238, 62.

[5]        The plaintiffs further allege that the first defendant, in breach of the agreement, absconded from the premises on or about October 2014. This act constituted a repudiation of the agreement, which repudiation was accepted by the plaintiffs and led to the cancellation of the agreement.

[6]        The plaintiffs pleaded several alternative causes of action in respect of the first defendant's continued occupation of the property, which alternatives will be referred to if and when applicable to the exception.

 

Plea

[7]       Save for admitting the citation of the parties, the defendants denied the contents of all the paragraphs in the plaintiffs' particulars of claim. Contrary to the aforesaid denial the first defendant admitted entering into both the first and second lease agreements, admitted that it remained in occupation of the property and avers that it tendered to pay any rent that may be due to the plaintiffs. The first defendant, furthermore, relies on a partly written, partly oral agreement in respect of a new rental amount that was agreed upon by the parties.

[8]       In respect of the second lease agreement, the first defendant avers that the agreement was, for various reasons a simulated agreement. According to the first defendant it remained in possession of the property in terms of a temporary lease agreement.

[9]       The second, fourth and fifth defendants admitted the first suretyship agreement. The second, third and fourth defendants pleaded, in accordance with the first defendant's allegation, that the second lease agreement was a simulated agreement, and that the second suretyship agreements were consequently simulated agreements.

 

Exception

[10]     The plaintiffs' first cause for complaint reads as follows:

 

"1

1.1       The nett effect of the Defendants' plea is that the second lease agreement was never entered into as it only amounts to a simulation and is deemed void and accordingly the First Defendant remained in possession of the premises on the surviving terms of the first lease agreement.

1.2      The surviving terms of the first agreement include the following:

'4.    Temporary lease after expiration date where a tenant

 remains in occupation

4.1            In the event of any occupation of the leased premises by the tenant after expiration date stipulated in this lease, without the parties having properly renewed the terms of the lease agreement and without a formal agreement, signed by both the tenant and the landlord, having been concluded for any reason whatsoever and irrespective of any oral discussions, representations, negotiations and correspondence that may have been exchanged between the landlord and the tenant:

4.1.1        the tenant shall be deemed to lease the leased premises on a temporary basis subject to all the terms and conditions contained in this lease, provided that either party will be entitled to terminate such lease by giving one month's written notice of termination to the other party;

4.1.2        the tenant further agrees that in such circumstances, the monthly rental, operating costs and other charges payable in respect of the first month after the expiration of the lease shall not be less that the monthly rental, operating costs and other charges payable by the tenant during the last month of the leased period, escalated by 15% in respect of the monthly rental, operating costs, assessment rates, service charges and other costs with the exception of such service charges that are based upon the tenant's use as contemplated in 10 below. '

1.3       In the premise, the first lease agreement continued and was extended in terms of the provisions of clause 4 thereof and the First Defendant remained liable in respect thereof.

1.4       The Second, Fourth and Fifth Defendants remained liable as sureties in terms of the first deed of suretyship.

1.5        In the premise, the First Defendant sets out no defence in respect of the Plaintiff's claim.

1.6       Alternatively, the Defendants' plea is vague and embarrassing insofar as the Plaintiffs are unable to ascertain:

1.6.1      on what basis the First Defendant was not liable to continue with payment amounts due whilst the First Defendant continued to occupy the leased premises,·

1.6.2      whether the First Defendant admits or denies occupying until September of 2014,·

1.6.3      on what basis the Third, Fourth and Fifth Defendants are not liable under and in terms of the first deed of suretyship."

 

[11]       The second cause of complaint deals the partly oral, partly written agreement in respect of a new monthly rental, whereas the first written agreement contains a non-variation clause. The remainder of the complaints are aimed at averments in the plea that are clearly mutually destructive.

 

Legal principles and evaluation

[12]       In Erasmus, Superior Court Practice, second edition, Van Loggerenberg, at 0 1-305, the author states the following in respect of a plea that does not disclose a defence:

''A pleading lacks averments which are necessary to sustain a defence (i) where the pleading does not Justify the conclusions drawn therein,· or (ii) where the defence raised, although adequately pleaded, does not in law constitute a defence to the claim."

[13]      It is not clear from the plea as a whole what exactly, if any, the defence of the first, third, fourth and fifth defendants is. The first defendant admits that it was in occupation of the property, but fails to state when the property was vacated.

[14]      The amount due and owing in respect of rental for the property will depend on the date the first defendant vacated the property. It is unclear from the plea whether the first defendant admits or denies liability for the amount of rent claimed by the plaintiffs.

[15]      If the first defendant denies being liable, no averments that would justify a defence in law in support of its denial is pleaded. If the first defendant admits being liable, it is unclear for which amount it accepts liability.

[16]      To make matters worse, the defendants' plea does not contain a prayer indicating the relief sought against the plaintiffs.

[17]     Moreover, the allegation that new monthly rentals were agreed upon, without stating that the agreement was in writing and signed by both parties is inadmissible in view of the non-variation clause contained in the first written lease agreement. [See: Shifren v SA Sentrale Ko-op Graanmaatskappy Bpk 1964 (2) SA 760 A]

[18]      In the premises, I am satisfied that the defendants' plea does not disclose a defence in law and stands to be struck out.

Order

[19]       In the result, the following order is granted:

1.        The exception is upheld with costs.

2.        The Defendants' plea is struck out and set aside.

3.        The Defendants are afforded ten days to file an amended plea.

 

 

N. JANSE VAN NIEUWENHUIZEN J

JUDGE OF THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

 

 

DATE HEARD                                             11 June 2018

JUDGMENT DELIVERED                        17 July 2018

 

 

APPEARANCES

 

Counsel for the Plaintiffs:                              Advocate J G Dobie

(082 6000 8576)

Instructed by:                                                  Reaan Swanepoel Attorneys

(011 431 3834)

Ref: R SWANEPOEL (JHB)

 

 

Counsel for the Defendants:                           Advocate G.L. Van der Westhuizen

(011 722 9000/083 266 2050)

Instructed by:                                                  MacRobert Inc

(012 425 3400)

Ref: C Groenewald/E Ward

 

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