Petersen and Others v CPLM Exports CC [2023] ZAGPJHC 747; 2023 (5) SA 555 (GJ) (30 June 2023)

The case involves four plaintiffs who are trustees of the MERGENCE AFRICA PROPERTY INVESTMENT TRUST and two defendants, CPLM EXPORTS CC trading as "Roots" and LINDA MARIA DE SOUZA FERNANDES. The plaintiffs entered into a lease agreement with the first defendant on 15 June 2016 for commercial premises in Nquthu Plaza, Kwazulu-Natal. The second defendant signed a suretyship agreement for the first defendant's debts. The lease agreement included monthly rental payments, annual escalation, and additional charges for rates, taxes, and security.

The plaintiffs alleged that the first defendant breached the lease by not paying rent and charges, leading to the property being vacated on 31 August 2019. The plaintiffs then issued a summons in August 2019, claiming arrear rentals and damages. Default judgment was granted in November 2019, but the defendants applied for rescission in July 2020, which was granted without reasons in January 2021.

The plaintiffs later amended their claim amounts, reducing the arrear rental claim. The defendants filed a plea in response, and the plaintiffs then applied for summary judgment in May 2022. The defendants resisted, arguing they had a bona fide defence based on the rescission order granting them leave to defend.

The defendants disputed the rental amounts claimed, alleging payments made and errors in the reconciliation statement. The plaintiffs argued that the defendants' objections were unfounded, as the rental amounts were correctly calculated, and certain payments were considered deposits, not settlements. The court found the defendants failed to prove a bona fide defence, granting summary judgment for a reduced amount.

The court ordered the first and second defendants to pay R133,178.74, plus interest and costs on an attorney-client scale.

The core legal principle underlying the decision is that the granting of a rescission of default judgment and leave to defend in a prior application does not automatically preclude a plaintiff from seeking summary judgment in a subsequent application. The court clarified that the existence of a bona fide defence is just one factor in a rescission application and not the primary focus. The court stressed that the purpose, scope, and nature of a rescission application differ from that of a summary judgment application. Therefore, a defendant cannot rely solely on a prior rescission order as a defence against a subsequent summary judgment application. The court must assess the specific circumstances of the case, including any amendments to the claim and the defences raised by the defendant, to determine whether summary judgment is appropriate.

The court referred to the case of First National Bank SA Ltd v Myburgh 2002 (2) All SA 176 (C) which is cited as authority for the principle that the granting of a rescission of default judgment and leave to defend in a prior application does not automatically prevent a plaintiff from seeking summary judgment in a subsequent application. The neutral citation for this case is.