Waterberg Boulevard (Pty) Ltd v Smulhoekie Tuisnywerheid (Pty) Ltd and Another

Waterberg Boulevard (Pty) Ltd concluded a written lease with Smulhoekie Tuisnywerheid (Pty) Ltd in March 2016 for business premises, with Mr Boshoff binding himself as surety. Rental was payable monthly with escalations, together with utilities. Smulhoekie ceased trading in October 2016 and fell into arrears. Waterberg instituted two magistrates’ court actions: the first for arrear rental up to October 2016, which succeeded, and a second (case 108/2020) for further arrear rental after expiry of the lease, ultimately claiming R442 493.00 plus interest and costs. The magistrates’ court dismissed a jurisdictional point in limine but dismissed the claim on the basis that Waterberg failed to mitigate damages. On appeal, the Limpopo High Court held that the magistrates’ court lacked jurisdiction because the claim was allegedly for specific performance without an alternative damages claim and exceeded the monetary jurisdiction. Waterberg sought special leave to appeal to the Supreme Court of Appeal.

The appeal was upheld with costs. The high court order was set aside and replaced with an order upholding Waterberg’s appeal. The magistrates’ court order was replaced with an order directing Smulhoekie and Mr Boshoff to pay Waterberg R442 493.00 jointly and severally, together with interest a tempore morae from 25 April 2023 and attorney-and-client costs.

The judgment clarifies South African law on the jurisdiction of magistrates’ courts in claims for arrear rental, confirming that monetary claims are not ‘specific performance’ under s 46(2)(c) of the Magistrates’ Courts Act. It resolves uncertainty created by conflicting authorities and high court decisions, affirms the distinction between ad pecuniam solvendam and ad factum praestandum claims, and provides guidance on how multiple monetary claims are assessed for jurisdictional limits.