Ingenuity Property Investments (Pty) Ltd v Ignite Fitness (Pty) Ltd (9845_2022) [2023] ZAWCHC 129; [2023] 3 All SA 458 (WCC); 2023 (5) SA 439 (WCC) (29 May 2023)

Ingeniuity Property Investments (Pty) Ltd (the plaintiff) instituted legal action against Ignite Fitness (Pty) Ltd (the defendant) to recover arrears in rental payments under three lease agreements that were concluded between the parties from June 2014 to February 2020. The outstanding rental amounts pertained to the period from October 2021 to June 2022.

After the defendant delivered a special plea and a plea on the merits, the plaintiff responded by replicating and simultaneously applying for summary judgment against the defendant. This action was based on the legal advice the plaintiff received following the decision in Quattro Citrus (Pty) Ltd v F & E Distributors (Pty) Ltd t/a Cape Crops, which suggested that such a simultaneous action was permissible. Both the replication and the application for summary judgment were delivered on the same day, 12 September 2022.

Subsequently, on 24 October 2022, the defendant applied under Rule 30 for an order to set aside the plaintiff’s summary judgment application as an irregular step. The defendant's position was that the Uniform Rules of Court do not allow a plaintiff to both replicate in terms of Rule 25(1) and apply for summary judgment in terms of Rule 32 simultaneously. The defendant argued that the plaintiff must choose one or the other as its next procedural step, and thus concluded that the summary judgment application should be set aside as an irregular step.

The Law

The ratio decidendi of the case is that under the South African Uniform Rules of Court, specifically Rule 32 as amended, a plaintiff is permitted to deliver a replication and simultaneously apply for summary judgment within the prescribed time limits, without this constituting an irregular step or a waiver of the right to apply for summary judgment. The court found that the simultaneous delivery of a replication and an application for summary judgment does not conflict with a proper interpretation of Rule 32 and does not result in prejudice to the defendant, who is still able to address the replication in its opposing affidavit to the summary judgment application.

The court emphasised that the purpose of Rule 32 is to provide a speedy remedy to a plaintiff who has an unanswerable case and where the defendant is abusing the process of the court by defending the action without a bona fide defense. The court also noted that the doctrine of precedent requires it to follow decisions made within its own territorial area of jurisdiction unless a decision previously made was clearly wrong, which the court did not find to be the case with the decision in Quattro Citrus (Pty) Ltd v F & E Distributors (Pty) Ltd t/a Cape Crops.

Therefore, the core legal principle underlying the decision is that the South African Uniform Rules of Court allow for the simultaneous delivery of a replication and an application for summary judgment, provided that both actions are taken within the time frame stipulated by the Rules, and that such simultaneous actions do not constitute an irregular step or a waiver of rights under the Rules.

In its reasoning process, the court referred to several cases. Here are some of the key cases cited along with their full citations:

1. Arum Transport CC v Mkhwenkwe Construction CC 2022 (2) SA 503 (KZP)

2. Quattro Citrus (Pty) Ltd v F & E Distributors (Pty) Ltd t/a Cape Crops [2021] JOL 49833 (WCC)

3. Hire-Purchase Discount Co (Pty) Ltd v Ryan Scholz & Co (Pty) Ltd 1979 (2) SA 305 (SE)

4. BW Kuttle & Association Inc v O'Connell Manthe & Partners Inc 1984 (2) SA 665 (C)

5. Ex parte Chairperson of the Constitutional Assembly: In re Certification of the Amended Text of the Constitution of the Republic of South Africa, 1996
 - 1997 (2) SA 97 (CC)

6. Robin Consolidated Industries Ltd v Commissioner for Inland Revenue 1997 (3) SA 654 (SCA)

7. Raumix Aggregates (Pty) Ltd v Richter Sand CC and similar matters 2020 (1) SA 623 (GJ)

8. Trans-African Insurance Co Ltd v Maluleka 1956 (2) SA 273 (A)

9. Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 593 (SCA)

10. Absa Bank Ltd v Meiring 2022 (3) SA 449 (WCC)

11. Vesta Estate Agency v Schlom 1991 (1) SA 593 (C)

12. Esso Standard South Africa (Pty) Ltd v Virginia Oils and Chemical Co (Pty) Ltd 1972 (2) SA 81 (O)

13. Zoutendijk v Zoutendijk 1975 (3) SA 490 (T)