Ahmr Hospital (Pty) Ltd v Da Silva
| Jurisdiction | http://justis.com/jurisdiction/166,South Africa |
| Judge | Kusevitsky J |
| Judgment Date | 15 August 2023 |
| Citation | 2023 JDR 3060 (WCC) |
| Hearing Date | 15 August 2023 |
| Docket Number | A161/2022 |
Kusevitsky J:
This is an appeal against a summary judgment which was granted against the Appellant on or about 25 April 2022 in the Wellington Magistrate’s Court. The Appellant also further seeks condonation from this court for the late filing of the notice of appeal in the Magistrate’s court. The Respondent (Plaintiff in the court a quo) has filed a notice to abide this court’s decision.
2023 JDR 3060 p2
Kusevitsky J
Condonation
It is common cause that Appellant failed to file its notice of appeal within the requisite 20 days after receiving the judgment. There was thus non-compliance with Rule 51(3) of the Magistrates’ Courts Rules. As motivation for the application for condonation from this court, the Appellant inter alia argues that the delay was a mere seven days out of time and did not prejudice the Respondent nor the administration of justice. It was stated that the delay was occasioned by the death of the founder and owner of the Appellant, who was the Defendant in the court a quo. I can see no reason why condonation in these circumstances should not be granted.
The merits
Turning to the merits underlying the appeal. In the main action, the Respondent’s claim was formulated as follows: On 23 November 2019 and at Green Point, the Respondent entered into a written venue hire agreement with the Appellant to host a wedding at their venue known as the Bakenhof Winelands Venue, situated on the R45 in Wellington. The material terms of the agreement were inter alia that the Respondent would hire the venue from the Appellant for her wedding on 2 May 2020 and in order to reserve the date, the Respondent was required to pay a deposit of R 50 000 (Fifty Thousand Rand). The deposit was duly paid to the Appellant, with the tacit, alternatively express term of the contract that the Appellant would be able to perform the functions so required by the Respondent.
As we know, the Covid-19 pandemic struck and during March 2020, the South African Government declared an Alert Level 5 lockdown, which meant that inter alia, all forms of social gatherings were prohibited. In light of these developments, the
2023 JDR 3060 p3
Kusevitsky J
parties agreed to postpone the event to 3 October 2020, the date being dependant, according to the Respondent, on the status of international air travel and event restrictions and social gatherings which were already imposed. However, on 15 May 2020, the Respondent sent the Appellant an email which stated the following:
“Unfortunately at this point we do not think it will be possible to go ahead with our wedding, as majority of our guests are from outside Cape Town and the prospect of travel does not look promising. We are looking at likely having a very small church ceremony only (and we are not sure when this would happen). Because of this we want to cancel our booking.”
Furthermore, as a gesture of goodwill, the Respondent requested the Appellant to provide her with a schedule of costs already incurred by the Appellant and to refund the balance of the deposit to her. The Appellant neither provided the requested schedule nor attended to the refund of the deposit.
In the court a quo, the Respondent argued that the payment of the deposit was to prevent the Appellant from suffering loss should the Respondent fail to perform or proceed with the booking. The Respondent averred that she was however forced to cancel due to the Appellant’s inability to perform as required. She also averred that she confirmed the cancellation well in advance when no substantial services whatsoever had yet to be rendered by the Appellant. She also argued that in any event, the Appellant was not able to render the required services in light of the National Lockdown restrictions imposed at the time. She finally averred that there was no basis upon which the Appellant was entitled to retain the deposit paid by her under those circurstances.
2023 JDR 3060 p4
Kusevitsky J
The Appellant defended the matter and in its plea, averred the following; it admitted that an agreement was entered into on 29 November 2019; they denied that the terms listed were the only material terms of the agreement; they admitted that on 19 March 2020 the parties agreed to postpone the date of the wedding to 03 October 2020 and also admitted the quoted content of the correspondence as received from the Respondent on 15 May 2020. The Appellant also admitted demand, but denied that it was liable to refund the Respondent any amounts or that any amounts were outstanding.
It is common cause that the matter proceeded to summary judgment and the Magistrate found in Respondent’s (Plaintiff) favour. In the notice of appeal, the Appellant argues that the court a quo erred in the following respects:
That the court failed to give regard to the express provisions of clause 2.1 of that agreement that provides that:
“the initial deposit including VAT (or any other percentage deposit agreed upon) becomes non-refundable 14 days (fourteen) days after the initial deposit has been paid.”
The Appellant is of the view that the express provisions of clause 2.1 excluded the Respondent’s entitlement to a refund and that the Appellant’s reliance on this clause constituted a bona fide defence to the Respondent’s claim at summary judgment stage.
The Appellant...
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