Pangbourne Properties Ltd v Pulse Moving CC and Another

• Jurisdiction: South Africa
• Citation: 2013 (3) SA 140 (GSJ)

Pangbourne Properties Ltd v Pulse Moving CC and Another
2013 (3) SA 140 (GSJ)

2013 (3) SA p140

Citation	2013 (3) SA 140 (GSJ)
Case No	2009/30282
Court	South Gauteng High Court, Johannesburg
Judge	Wepener J
Heard	November 4, 2010
Judgment	November 19, 2010
Counsel	J Both SC for the applicant.; AJ Venter for the respondents.

Flynote : Sleutelwoorde G

H Practice — Applications and motions — Affidavits — Late filing — Both parties failing to comply with Uniform Rules of Court — Neither party bringing application for condonation for late filing — Insistence on compliance formalistic exercise in futility — No allegation of prejudice to either party if matter disposed of on merits, despite late filings — Interests of justice require that affidavits be considered and additional costs avoided.

Headnote : Kopnota

I Applicant served and filed two applications seeking the ejectment of the first respondent from certain premises and the payment of a portion of a deposit. Second respondent was surety for the first respondent. Respondents filed answering affidavits approximately nine days after the time prescribed in the rules for the filing of answering affidavits had lapsed. Applicant filed its J reply some 10 months later. The matter was set down for hearing. Neither

2013 (3) SA p141

party brought an application for condonation for the late filing of the answer A or the reply, nor availed itself of the remedies contained in rule 30 to have the irregular filing of the affidavits set aside — the latter step was open to the respondents to utilise within 10 days of receiving the replying affidavit. Respondents argued that the replying affidavit was filed some eight months out of time and therefore fell to be disregarded.

Held: It was unnecessary for either of the parties to have brought a substantive B application for condonation. All the papers were before court and the matter was ready to be dealt with. To uphold the argument that the replying affidavit — and consequently also the answering affidavit — fell to be disregarded because they were filed out of time, was too formalistic and an exercise in futility, and would have left the parties to commence the same proceedings on the same facts de novo. There was no allegation of prejudice C to any party nor was the court referred to any such prejudice were the matter to be disposed of on its merits, despite the late filing of the answering and replying affidavits. It was in the interests of justice that the affidavits were taken into account and that this matter was finalised and unnecessary additional costs avoided. (Paragraphs [18] – [19] at 147G – 148I.)

Cases Considered

Annotations D

Case law

Alphedie Investments (Pty) Ltd v Greentops (Pty) Ltd1975 (1) SA 161 (T): referred to

Anglo Operations Ltd v Sandhurst Estates (Pty) Ltd2007 (2) SA 363 (SCA): considered E

Brenner's Service Station and Garage (Pty) Ltd v Milne and Another1983 (4) SA 233 (W): distinguished and criticised

Federated Trust Ltd v Botha1978 (3) SA 645 (A): considered

Hart and Another v Nelson2000 (4) SA 368 (E): considered

Hessel's Cash and Carry v SA Commercial Catering and Allied Workers Union1992 (4) SA 593 (E): considered F

In re Application for the Issuing of a Letter of Request (GNP case No 3771/07, 14 September 2007): considered

Khunou and Others v M Fihrer and Son (Pty) Ltd and Others1982 (3) SA 353 (W): considered

MacDuff and Co Ltd (in Liquidation) v Johannesburg Consolidated Investment Co Ltd1924 AD 573: referred to G

Malan v Dippenaar1969 (2) SA 59 (O): applied

McGill v Vlakplaats Brickworks (Pty) Ltd1981 (1) SA 637 (W): considered

Sealed Africa (Pty) Ltd v Kelly and Another2006 (3) SA 65 (W): distinguished

Standard Bank of SA Ltd v Sewpersadh and Another2005 (4) SA 148 (C): distinguished H

Szedlacsek v Szedlacsek and Others2000 (4) SA 147 (E): considered

Trans-African Insurance Co Ltd v Maluleka1956 (2) SA 273 (A): considered

Venter v Van Wyk (GNP case No 30323/04, 27 June 2005): considered

Walker's Fruit Farms Ltd v Sumner 1930 TPD 394: dictum at 401 applied

Waltloo Meat and Chicken SA (Pty) Ltd v Silvy Luis (Pty) Ltd and Others2008 (5) SA 461 (T): criticised. I

Case Information

J Both SC for the applicant.

AJ Venter for the respondents.

Two applications seeking ejectment and payment of a portion of a deposit. Order granted in terms set out in para [25]. J

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Judgment

Wepener J: A

[1] There are two applications before me in terms of which the applicant seeks the ejectment of the first respondent from premises and payment of a portion of a deposit pursuant to a written agreement entered into between it and the first respondent. The second respondent is a surety B for the first respondent.

[2] Pursuant to a written lease agreement which was cancelled, the applicant and the first respondent entered into a reinstatement agreement (referred to as the lease agreement) in terms of which a deposit of C R200 000 was payable in four instalments to be secured by way of four postdated cheques of R50 000 each, such cheques to be dated 1 July 2009, 30 July 2009, 1 September 2009 and 10 October 2009, respectively. It was further agreed that should any of the four instalments not be paid on due date, the full amount of the deposit would forthwith become due, owing and payable by the first respondent in one sum.

D [3] The respondents do not challenge the conclusion of the lease agreement or any of its terms. The first respondent duly furnished the applicant with the four postdated cheques and thereupon took occupation of the premises.

E [4] Prior to the first instalment falling due the first respondent advised the applicant that it was not in a financial position to honour its commitment regarding the first cheque of R50 000. It also acknowledged that it was unable to comply with its obligation to pay the deposit of R200 000. Nevertheless the applicant presented the first cheque for payment on due date and it was dishonoured and returned. Having F regard to the terms of the lease agreement the full deposit of R200 000 then became due and payable on 1 July 2009.

[5] As a result of the first respondent's failure to pay the sum of R200 000 the applicant cancelled the lease agreement on 22 July 2009 — a right which is specifically provided for in the lease agreement. G The cancellation of the lease was communicated by service of the application on the first respondent who thereafter vacated the premises and no order in that regard needs to be made. The parties are at loggerheads as to the date of vacation and according to the first respondent it vacated the premises on 14 August 2009. A person who H vacates a property but remains in possession of the keys remains in legal possession of such property. See Malan v Dippenaar1969 (2) SA 59 (O) at 62H – 63A and the authorities there cited. The keys were handed to the applicant on 1 September 2009, resulting in the first respondent being liable for the rental for occupation of the premises for August 2009.

I [6] It was a term of the lease agreement that in the event of the first respondent failing to return the premises in a condition that it was obliged to do, it would be liable for the costs of restoration of the premises to that condition.

[7] It is clear from the wording of the lease agreement that the deposit J would have been available to the applicant for purposes of recovering

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Wepener J

rental, the costs of reinstating the premises, as well as for damages for A holding-over or other charges payable by the first respondent.

[8] The applicant has reduced the amount of its claim for payment of the full deposit of R200 000 to a lesser amount, which amount includes claims for payment of the sum of R45 951,32 as rental for August 2009, as stated by Mr Both on behalf of the applicant, which applicant alleges B had accrued to it at the time of the cancellation of the agreement, and payment of the sum of R64 879,04 into an interest-bearing trust account, pending its claim for damages arising from the reinstatement of the premises, which claim is the subject-matter of an action instituted by the applicant against the respondents. I do not agree that any rental for C August 2009 had accrued to the applicant as at the date of cancellation, as the agreement was cancelled prior to rental for August 2009 becoming due and payable. But that is immaterial by virtue of the fact that the payment of the deposit had accrued to the applicant on 1 July 2009. The applicant will be entitled to claim damages from the first respondent for D unlawfully holding over the premises after the cancellation of the lease agreement. See Alphedie Investments (Pty) Ltd v Greentops (Pty) Ltd1975 (1) SA 161 (T) at 164H – 165A. Indeed the claim under case No 09/37649, one of the applications before me, is for payment of the amount of R45 951,32 for the unlawful holding-over of the premises by the first respondent, and not for rental, as argued by Mr Both. E

[9] The total amount claimed is therefore less than the amount of the agreed deposit of R200 000 which the applicant would otherwise have been entitled to claim. The applicant is entitled to hold the deposit (or such lesser amount) until a complete discharge of the first respondent's...