THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

JUDGMENT

Case number: 217/08
No precedential significance

In the matter between:

A S NARAINSINGH

APPELLANT

v

KUAR SINGH

1st RESPONDENT
KRUSHEEDA SINGH

2nd RESPONDENT

Neutral citation:
Narainsingh
v
Singh
(217/2008)
[2008] ZASCA
(2 December 2008)

Coram:
Streicher JA, Jafta JA et Kgomo AJA

Heard:
13 November 2008

Delivered: 2 December  2008

Summary:
Summary judgment.

ORDER

On appeal from: High Court, Pietermaritzburg (Ndlovu J and
Murugasen AJ), sitting on appeal from the Magistrate’s Court of Lower
Tugela (Stanger).

In the result the following order is made:
[1] Claim one

The appeal is upheld and the order by the court a quo is set
aside and replaced with the following order:

‘The appeal is dismissed with costs.’

[2] Claim two

The appeal is upheld in so far as it relates to the claim for
payment of the agreed occupational consideration and the
municipal rates and dismissed in so far as it relates to the
claim for payment of the purchase price, interest on the
purchase price and the legal fees in respect of the deed of
sale. The order by the court a quo is set aside and replaced
with the following order:

(a)
‘The appeal is upheld to the extent that it relates to the
claim for payment of the purchase price, interest on the
purchase price and the legal fees in respect of the deed of
sale. Save as aforesaid the appeal is dismissed. The order by
the court a quo is set aside and replaced with the following

order:

“Summary judgment is granted as follows:

(i)
Payment of the sum of R11 751,91.
(ii)
Payment of the sum of R19 575,95.
(iii)
Costs.

Save as aforesaid the application for summary judgment is
dismissed and the defendants are granted leave to defend the
action.”

(b)
The respondent is ordered to pay the costs of the
appeal in so far as it relates to claim two.’

[3] Claim three

The appeal is upheld. The order by the court a quo is set
aside and replaced with the following order:

‘The appeal is dismissed with costs.’

[4] The respondents are ordered to pay the costs of the appeal.

JUDGMENT

KGOMO (STREICHER JA, JAFTA JA concurring)

[1] This is an appeal against a judgment in the Pietermaritzburg  High
Court (‘the court a quo’) in terms of which a summary judgment in the
magistrate’s court for the district Lower Tugela held at Stanger, was set
aside on appeal. The appeal is with the leave of the court a quo. The
respondents did not oppose the appeal.

[2] The summons in terms of which the appellant instituted action
against the respondents in the magistrate’s court contained three claims.
The first claim was for the payment of rental in respect of a commercial
building for the period 1 June 2002 to 31 December 2003 in terms of an
oral agreement of lease, mora interest and attorney and client costs. The
second claim was for the payment of (i) R100 000, being instalments in
respect of the purchase price payable in terms of a deed of sale; (ii)
interest on that amount; (iii) R11 751,91, being an agreed amount payable
in respect of the occupation of the premises sold; (iv) R19 575,95 being
the rates and taxes payable in respect of the premises sold for the period
of occupation; (v) legal costs in respect of the deed of sale; and (vi) costs
of suit on the attorney and client scale. The third claim was for the
ejectment of the respondents from the premises that formed the subject
matter of the deed of sale, on the basis that it had been cancelled, and for
the payment of damages.

[3] When the respondents entered an appearance to defend the action
the appellant applied for summary judgment in respect of all the amounts

claimed in terms of the first and the second claims and in respect of the
claim for ejectment in terms of the third claim.

[4] The respondents opposed the application for summary judgment
but the magistrate held that they had failed to disclose a bona fide defence
and granted summary judgment to the appellant for the amounts claimed
in the first and second claim and for ejectment as claimed in the third
claim with costs. On appeal the court a quo set the judgment aside but
granted leave to the appellant to appeal to this court.

[5] The respondents had indeed failed to disclose a defence to the
appellant’s first claim for rental, mora interest and costs. However, the
court a quo set the summary judgment aside on the ground that the oral
agreement of lease alleged by the appellant ‘lacked some of the common
material clauses in a lease agreement’ such as who would be responsible
for maintenance and repairs and whether the appellants were allowed to
effect alterations. Another reason advanced by the court a quo was that
one of the paragraphs of the particulars of the claim was ambiguous.
There is no merit in any of these reasons. Whether or not the parties
agreed to the matters referred to is irrelevant to the relief claimed by the
appellant. The ambiguity referred to is also irrelevant because it relates to
an alleged undertaking by the respondents to pay certain fees in respect of
the drawing of the agreement of lease whereas such fees are not claimed
by the appellant. The court a quo should, therefore, have dismissed the
respondents’ appeal against the summary judgment granted in respect of
claim one.

[6] In respect of the second claim the respondents alleged that the
claim had been novated, that the deed of sale could ‘well be found to be

null and void due to’ non-compliance with the formalities prescribed in
Chapter II of the Alienation of Land Act 68 of 1981in respect of
agreements for the sale of land on instalments and also ‘because there has
been placed, so I am informed and believe, a bar on registration and
transfer of property including that forming the subject of the deed of sale,
by the Registrar of Deeds, due to pending land claims’. Chapter II applies
to land used or intended to be used mainly for residential purposes and
the respondents did not allege that that was the case. In so far as the bar
against transfer is concerned no particulars were given. Not even the
source of the information was disclosed. No case has therefore been made
out that the agreement of sale was invalid. However, the appellant
conceded that, in the light of the cancellation of the agreement of sale as
alleged in claim three, he was not entitled to payment of the instalments
that had become payable in respect of the purchase price. He furthermore
conceded that he was not entitled to the legal costs in respect of the
agreement of sale as no basis for such claim had been alleged. The
appellant’s right to the occupational consideration and the rates and taxes
for the period of occupation had already accrued and the respondents
disclosed no defence to these claims. It follows that the respondents’
appeal to the court a quo should only have succeeded in respect of the
R100 000 claimed in respect of the purchase price, the interest thereon
and the R5 130 claimed in respect of the legal costs relating to the deed of
sale.

[7] The respondents disclosed no defence to the claim for ejectment.
Summary judgment was, therefore, correctly granted in respect of that
claim and the court a quo should have dismissed the appeal against the
order.

[8] In the result the following order is made:
[1] Claim one

The appeal is upheld and the order by the court a quo is set
aside and replaced with the following order:

‘The appeal is dismissed with costs.’

[2] Claim two

The appeal is upheld in so far as it relates to the claim for
payment of the agreed occupational consideration and the
municipal rates and dismissed in so far as it relates to the
claim for payment of the purchase price, interest on the
purchase price and the legal fees in respect of the deed of
sale. The order by the court a quo is set aside and replaced
with the following order:

(a)
‘The appeal is upheld to the extent that it relates to the
claim for payment of the purchase price, interest on the
purchase price and the legal fees in respect of the deed of
sale. Save as aforesaid the appeal is dismissed. The order by
the court a quo is set aside and replaced with the following
order:

“Summary judgment is granted as follows:

(i)
Payment of the sum of R11 751,91.
(ii)
Payment of the sum of R19 575,95.
(iii)
Costs.

Save as aforesaid the application for summary judgment is
dismissed and the defendants are granted leave to defend the
action.”

(b)
The respondent is ordered to pay the costs of the
appeal in so far as it relates to claim two.’

[3] Claim three

The appeal is upheld. The order by the court a quo is set
aside and replaced with the following order:

‘The appeal is dismissed with costs.’

[4] The respondents are ordered to pay the costs of the appeal.

________________
F D KGOMO
ACTING JUDGE OF APPEAL

APPEARANCES:

FOR APPELLANT:

M S Khan

ATTORNEYS:

Jay Pundit and Company

Kwa Dukuza

Bezuidenhouts Attorneys

Bloemfontein

FOR RESPONDENT:

No appearance

ATTORNEYS: