IN THE HIGH COURT OF SWAZILAND
CASE NO. 487/2010
HELD AT MBABANE
HENRY TUM DU PONT T/A
TUMS GENERAL SUPPLIES... PLAINTIFF
MKHIWA CLINIC (PTY) LIMITED… DEFENDANT
CORAM AGYEMANG J
FOR THE PLAINTIFF/APPLICANT: M. NKOMONDZE ESQ.
FOR THE DEFENDANT/RESPONDENT: B. NGCAMPHALALA ESQ.
DATED THE 14TH DAY OF MAY 2010
This is an application by the plaintiff praying the court to enter summary judgment against the defendant in respect of his claim.
The claim is for:
The payment of the sum of E134,368.05
Interest calculated at the rate of 9% per annum a tempora morae and collection commission;
Costs of suit at attorney and own client scale;
Further and/or alternative relief.
The plaintiff/applicant (referred to hereafter as the plaintiff) is a businessman of Manzini and owner of immovable property described as Lot 1247, Extension 12, Manzini.
The defendant/respondent (referred to hereafter ad the defendant), is a company incorporated under the laws of Swaziland carrying on a medical practice in Manzini.
The matters giving rise to the present claim are these: In or about March 2009, the parties herein entered into an agreement for the plaintiff to lease the property described as Lot 1247 Extension 12, Manzini, to the defendant. The lease was for a period of three years certain: commencing on April 1 2009 and determining on 31st March 2012. Rental payable was the sum of E22,000 payable monthly in advance. The said monthly rent was to be increased to the sum of E24,200 in the second year. A further increase bringing the monthly rental to E26,620 was payable in the third year.
Among the various clauses contained in the contract document, were the following: in clause 21, the parties agreed that in circumstances of damage by fire or other cause not being attributable to the negligence of the lessee which made the premises partially or fully inhabitable, the lessor would in the former circumstance, repair the premises and rent would be adjusted accordingly for the period of the lessee’s deprivation. In the second circumstance, he would elect either to repair the premises the rent being in total remission during the period of repair, or terminating the lease.
In clause 22 of the lease agreement, the parties agreed that the lessee, having received the premises in good repair would keep the interior of the premises in such good state of repair fair wear and tear excepted. Any damage caused to the premises and such remedying fell to the lessee, he would do so within seven days. Failure to do this would entitle the lessor to have the repairs done at the expense of the lessee who would pay any sum so expended by the lessor on demand.
It was the case of the plaintiff, contained in his pleading and adopted in his affidavit in support of the present application, that the defendant without giving reasonable notice, terminated the lease agreement by letter of 28th October 2009 (this was amended in a subsequent letter dated 28th November 2009). The defendant also allegedly delivered up the premises to the plaintiff in a “dilapidated and damaged state and/or condition”.
The plaintiff then in apparent compliance with the said Clause 22 of the lease agreement by letter of 28th December 2009, called upon the defendant to effect repairs to the premises. The defendant allegedly failed to do this, leaving the plaintiff with the option of repairing the premises at his own cost, for due reimbursement by the defendant. The costs of repair the plaintiff said, was the sum of E68, 368.05. The plaintiff alleged that the period of repair was such that it was not until March 2010 that a new tenant could take up occupation. The plaintiff commenced the instant action when the defendant failed to pay the sum of E68, 368.05 expended for the repair works as well as rental for the period December 2009 until March 2010 – a total sum of E134, 368.05.
The plaintiff then brought this application for summary judgment.
In its affidavit resisting summary judgment, the defendant set out the following matters as defences to the action for which reason summary judgment ought to be refused. Regarding the claim for repairs, the defendant alleged that it had delivered up the property in good condition and not in a damaged state. In the same breath however, the defendant alleged that there was in fact damage which had been caused by the act of a third party. The defendant alleged that in June 2009, common criminals had broken into the premises and caused damage thereto. The deponent alleged that even though the defendant had offered without prejudice to effect some repairs, the plaintiff’s unreasonable demands had brought about a stalemate.
Regarding the claim for rental, the defendant contended that having handed the premises to the plaintiff in or about December 2009, he was not liable for the payment of the rental claimed by the plaintiff for December to March 2010. He contended that the matters regarding the cause of the damage in relation to its liability, whether or not the defendant gave reasonable notice to the plaintiff, and whether or not it should be liable for the three months claimed by the plaintiff in the circumstances were disputes of fact which ought to be determined upon evidence led.
Upon receipt of the said affidavit, the plaintiff by leave of the court filed a replying affidavit in which he reiterated matters contained in his prior affidavit.
Adding thereto, the plaintiff confirmed that the premises were indeed broken into by unknown persons who stole two geysers, four air-conditioners and curtain blinders and also damaged the pine shelvings and ceiling and dirtied the walls. The plaintiff alleged that this occurred because the defendant who had been given vacant possession of property in good condition, left it unoccupied, unguarded and unsecured. The plaintiff alleged that although the defendant did not resist the claim for repairs and gave him a verbal undertaking to be responsible for the cost thereof, it failed to reduce it into writing in spite of having been called upon to do so and failed to pay what was due.
In argument learned counsel for the plaintiff made the following arguments: firstly that the amount claimed was a liquidated amount in money as the sum was easily ascertainable upon mere calculation. Relying upon Clause 22 aforesaid, learned counsel contended that by agreement, the defendant had undertaken to pay for the cost of such damage as was found on the premises, in any sum that would be demanded as such by the plaintiff. He alleged also that although the sum claimed was reasonable as set out in the affidavit in support of the application, in fact, the defendant’s undertaking was to pay whatever sum was demanded by the plaintiff as representing the cost of repair works once it neglected to effect the repairs in seven days.
Regarding the rental learned counsel contended that following the breach of contract occasioned by the defendant’s unilateral termination of the lease, the plaintiff had elected to claim damages for loss of rental rather than avail himself of other remedies such as specific performance. The damages he said were to be calculated by way of rent due for the period of the repair works which was easily ascertainable from calculation. Thus did he apply for summary judgment to be entered for the plaintiff for the sum claimed.
In reply, learned opposing counsel contended that the damage that was caused to the premises having been caused by criminals who broke into the premises, payment of the cost of such repairs were not to be borne by the defendant. He contended that the circumstance of the damaged state of the premises, fell squarely within Clause 21 of the lease agreement rather than Clause 22 aforesaid.
He contended also that even in the event that the defendant was liable to reimburse the plaintiff for repair works, the reasonableness of the amount as alleged by the plaintiff in pleading, was to be determined by evidence.
Learned counsel also averred, relying on an exposition on the subject contained in W.E Cooper’s Landlord and Tenant 2nd Ed. 65, that the defendant had given adequate notice to the plaintiff of its intention to vacate the premises. In the circumstance, the defendant who vacated the premises after due notice, could not be liable for rental from December to March 2010. All these matters, he contended, were disputes of fact regarding which a resolution was needed upon the leading of evidence. He this contended that the defendant ought to be heard in the action and not have the door closed to its case by the grant of summary judgment.
Having read the affidavits of the plaintiff (both the founding and the replying affidavits), the affidavit of the defendant resisting summary judgment, and having heard the arguments of both counsel, it is my view that summary judgment ought not to be granted for the claims herein.
I say so for the following reasons:
The power of this court to grant summary judgment and by it to truncate proceedings in a suit by avoiding a trial is provided for under Rule 32 (2) of the High Court Rules. Rule 32 (4)(a) provided the guidelines for the granting of an application for summary judgement in the following terms:
“Unless on the hearing of an application under sub-rule (1) either the court dismisses the application or the defendant satisfies the court with respect to the claim or part of the claim to which the application relates that there is an issue or question in dispute which ought to be tried or that there ought for some other reason to be a trial of that claim or part, the court may give such judgment for the plaintiff against that defendant on that claim or part as may be just having regard to the nature of the remedy or relief claimed”.
Although the line of cases decided in the superior courts of Swaziland seem to have followed the position in South Africa, in requiring the demonstration of a bona fide case by the applicant, this position was changed in Moses N. N. Dlamini v. National Motor Company Ltd App. Case No. 9/1994 (Unreported). The said decision clearly recognises a shift from the position that obtains in South Africa which requires the demonstration of a bona fide case, to the demonstration of a triable issue which Rule 32 (4) provides for. In the consideration of whether in casu, the application for summary judgment should be granted, I have opted to follow the Moses Dlamini case in spite of the reliance of the Court of Appeal on the contrary South African position of the demonstration of a bona fide case in the recent case of Fikile Thalitha Mthembu v. Standard Bank Swaziland Ltd Civ. App. No. 3/09. This is because in my view, the former is more reflective of Rule 32(4) aforesaid.
Has the defendant demonstrated that there is exists a triable issue which ought to be resolved by evidence? It seems to me that it has.
I consider it needful at this point to set out the relevant provisions of the lease agreement which have sparked the contentions of the parties in the instant application: I reproduce the said clauses hereunder:
Clause 21: “In the event of the premises being damaged or partly destroyed by fire or any other cause this lease shall not on that account determine but the lessor shall remedy such damage or partial destruction and the lessee shall be entitled shall be entitled to a remission of rent in respect of the period during which he may be deprived of the use and occupation of the premises...unless such damage or partial destruction shall have occurred through the negligence of of the lessee or any of his employees...”
Clause 22: “Save in respect of such defects (if any) as are indicated in writing by the lessee to the lessor within fourteen (14) days after the lessee takes occupation of the premises...the lessee is deemed to have acknowledged that the interior of the premises is in good order and condition at the date upon which he tales occupation thereof, and the lessee agrees to maintain such interior in the like good order and condition during the currency of this lease, fair wear and tear alone excepted. In the event that any damage is caused to the premises the remedying of which the lessee is responsible under this clause, the lessor shall be entitled to give written notice to the lessee requiring him to effect all necessary repairs and, in the event that the lessee fails to cause such repairs to be commenced within seven (7) days after receipt of such notice...such repairs may be commenced or pursued as the case may be by the lessor at the expense of the lessee and any amount expended by the lessor in this regard shall be paid by the lessee to the lessor on demand”.
The case of the plaintiff appears to be based on clause 22 of the lease agreement which governs the relationship between the parties. The plaintiff contended that the lessee being satisfied that the interior of the premises was in good tenantable repair before he went into occupation, had the responsibility to maintain same. This circumstance he contended, made the defendnat liable for damage now found at the premises. The present application is thus predicated upon the premise that the lessee unreservedly assumed the costs of repairs for damage under clause 22 of the lease agreement. Indeed as aforesaid, learned counsel for the plaintiff submitted that although the quantum of the said claim was unknown to the defendant before a demand therefor was made, clause 22 which recorded the agreement of the parties that the defendant would be responsible for the payment of the cost of repair work in any sum, made same readily ascertainable and awardable as liquidated damages.
The same argument was offered in respect of the claim for rental, for it was contended for the applicant that as the rent for the period was provided for in the lease, the loss of three months’ rent: from December 2002 to March 2010 was capable of calculation or was readily ascertainable and awardable as a liquidated amount in money upon an application for summary judgment.
If these matters had not been in controversy, the said sums allegedly ascertainable from the agreement of the parties or capable of easy calculation would indeed qualify as liquidated amounts in money and the plaintiff’s case would be made, see:Commercial Bank of Namibia Ltd v. Trans-Continental Trading 1992 (2) SA 66; also Leymac Distributors Ltd v. Hoosen 1974 (4) SA 525 (D).
But the defendant who resisted the application and who as aforesaid, had the duty to demonstrate the existence of triable issues or disputes upon which the court must make determination upon evidence led, raised certain matters that ought to be given due consideration. The defendant in the discharge of its duty was required to bring to the fore, “facts which if proved would give rise to a valid legal defence...” see per Watermeyer AJ in Chambers v. Jonker 1952 (4) SA 634 (C) at 637. It had to“... as far as possible deal specifically with the plaintiff’s claim and... state clearly and concisely what the defence (was) and what facts (were) relied upon to support it...” National Motor Company Ltd v. Moses Dlamini 1987-1995 (4) SLR at 124
In this enterprise, the defendant filed an affidavit resisting summary judgment. Denying liability for the damage to the house which was found to be on the premises upon the inspection of both parties, the defendant further stated that the cause of the damage was the act of criminals who broke into the house. It was canvassed on behalf of the defendant, that such act of a third party was made the responsibility of the lessor and not the lessee under clause 21 of the lease agreement, shifting the liability for the repair works in casu, from the lessee to the lessor and invoking the application of clause 21, rather than clause 22 relied on by the plaintiff for his claim and the present application.
The plaintiff admitted knowledge of the fact that the damage was caused by burglars. Indeed in his replying affidavit, the plaintiff set out more particularly, the extent of damage and items that were stolen from the premises. I must also point out that the extent of damage and the items stolen admitted by the plaintiff appear to be the subject of the works for which a receipt was issued for E68,368.05 marked Annexure T2 which sum is included in the instant claim. In spite of this knowledge, the plaintiff maintained that clause 22 rather than clause 21 of the lease was applicable. The reason he gave for this stance was that the persons who broke into the premises could do so because the plaintiff left the premises unoccupied, unsecured and unguarded.
The relationship of the parties is not governed by common law but by express written agreement. The agreement of the parties provided for liability to repair in two different circumstances: in Clause 21, where damage occurred by fire, or other cause not being the fault of the defendant/lessee for which the lessor was responsible; and in Clause 22 where there was a delivery up of the premises in a state of disrepair or with damage, for which the defendant/lessee was responsible.
It seems to me that the validity of the plaintiff’s claim for cost of repairs hinged upon a finding that the defendant was indeed liable under clause 22 in spite of it being common cause that the damage was caused by persons other than the defendant or his privies. But whether or not in the peculiar circumstances of this case, the conduct of the defendant alleged to be the cause of the damage: leaving the premises unguarded, unoccupied, and unsecured obtained in the first place, or was the cause of the burglary that led to the damage, and whether or not it imputed fault to the defendant thus removing the liability to repair damage from clause 21 to clause 22 of the lease as the plaintiff contends, or whether it is the responsibility of the lessor under Clause 21 as contended by the lessee, are issues that can only be resolved by the leading of evidence.
Regarding the payment of rental for the time used up during the repair work, it seems to me that the basis of this claim must be proven by evidence. The plaintiff in his replying affidavit asserted that the parties agreed that the lease be terminated at the end of January 2010 provided that the defendant would bear the cost of rehabilitation. He further averred that although the defendant agreed to pay for the cost of repair works, he failed to put same in writing or sign what was furnished him by the plaintiff. In face of the defendant’s contention that it vacated the premises in or about December 2009 after giving reasonable notice, and furthermore, that the payment of rental for such period was not provided for under the lease agreement, the matters relied on by the plaintiff in making his claim were placed in issue and must be resolved by the leading of evidence.
Even in the event of the said defence failing, in the absence of agreement regarding claims for the period of repair works where the defendant is no longer in occupation, and where the damage was caused by the act of third parties, it seems to me that any damages that may be due the plaintiff must be awarded upon evidence regarding inter alia inconvenience, loss and hardship. This will hardly qualify as liquidated damages for which summary judgment may be entered.
There is also the issue of the reasonableness of the charge. It has been contended on behalf of the plaintiff that the lessee agreed in clause 22 of the lease, to be responsible for any amount disbursed. Even so, the plaintiff pleaded that the sum he expended on the repairs was reasonable. It is trite that where one party claims expenditure which he considers reasonable, the reasonableness must be in relation to what obtains in the market place or in the trade vv.
It seems to me that even if the defendant were liable in casu for all amounts expended, they had to be within a range that was acceptable to both parties; a wide departure from what obtained in the marketplace it seems to me could be successfully challenged. I find then that the very assertion by the plaintiff that what he had expended was reasonable and recoverable from the lessee under clause 22 of the lease calls for determination by the court from evidence adduced in that regard.
It is for these reasons that I do not consider the present claim one in respect of which summary judgment ought to be granted.
The application of summary judgment is hereby refused with costs.