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REPUBLIC OF SOUTH AFRICA

 

IN THE HIGH COURT OF SOUTH AFRICA

(GAUTENG LOCAL DIVISION, JOHANNESBURG)

 

CASE NO: 49594/2021

REPORTABLE: NO

OF INTEREST TO OTHER JUDGES: NO

REVISED

8 AUGUST 2022

 

In the matter between

 

MENLYN MAIN INVESTMENT

HOLDINGS (PTY) LTD                                                            FIRST PLAINTIFF

 

GOVERNMENT EMPLOYEES PENSION FUND                    SECOND PLAINTIFF

 

and                                                                                              

 

CHRISTO MENLYN (PTY) LTD

t/a TURN & TENDER CENTRAL SQUARE                            FIRST DEFENDANT

 

PETER CHRISTOFORAKIS                                                    SECOND DERENDANT

 

MYRON CHRISTOFORAKIS                                                   THIRD DEFENDANT

 

ANTHONY CHRISTOFORAKIS                                              FOURTH DEFENDANT

 

CHRISTOS TZELLIOS                                                            FIFTH DEFENDANT

 

J U D G M E N T

(LEAVE TO APPEAL)

VAN OOSTEN J:

[1] The unsuccessful defendants, in the application for summary judgment, now seek leave to appeal against the whole of my judgment and the order granted. For ease reference, the parties will be referred to as in the action.

[2] At the outset, I consider it necessary to clarify, what seems to be a misunderstanding, having emerged from counsel for the defendants’ argument before me, concerning my approach, as set out in para 20 of the judgment. The approach adopted was specifically in respect of the summary judgment application, and not in regard to the plaintiffs’ claim, in particular, the amount in respect of which judgment was sought and granted. It was in my consideration of the defendants’ defence, that the defendants’ version was accepted, in order to establish whether their version that a reduced rental was payable, constituted a bona fide, sustainable defence. The defendants did not challenge the plaintiffs’ calculation of the claim amount, but merely contended that on the 7% formula, they in fact were in credit. On the basis of my finding that, on their version, the defendants were in arrears, the defence did not assist them and I proceeded to a separate determination of the plaintiffs’ claims.

[3] The grounds, on which the application for leave to appeal is premised, have all been dealt with in my judgment. In argument counsel for the defendants submitted that, at worst, summary judgment should have been granted for payment of the admitted portion of the claim amount, with leave to defend on the remaining portion. Counsel for the plaintiffs, in response thereto, submitted that the ejectment order should in any event stand, as it is common cause that the defendants were in arrears.

[4] Although counsel for the plaintiffs’ contention is not without merit, considerations such as, the importance of this matter, the nature of the disputes raised, and lastly, the finality of summary judgment, have persuaded me to refer the matter as a whole for reconsideration by a court of appeal. This matter does not warrant the attention of the Supreme Court of Appeal, and it follows that leave to appeal to the Full Court of this Division, ought to be granted.

Order

[5] In the result, I grant the following order:

1.         Leave to appeal to the full court of the Gauteng Local Division of the High Court of South Africa, is granted.

2.         The costs of the application for leave to appeal are costs in the appeal.

 FHD VAN OOSTEN

JUDGE OF THE HIGH COURT

GAUTENG LOCAL DIVISION

 

COUNSEL FOR PLAINTIFFS                               ADV JG DOBIE

 

PLAINTIFFS’ATTORNEYS                                   REAAN SWANEPOEL INC 

 

COUNSEL FOR DEFENDANTS                           ADV MC ERASMUS SC

 

DEFENDANTS’ ATTORNEYS                              MARK EFSTRATIOU INC

 

DATE OF HEARING                                             8 AUGUST 2022

DATE OF JUDGMENT                                         8 AUGUST 2022

 

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