Pareto (Pty) Ltd and Another v Theron and Another

The first and second plaintiffs (Pareto (Pty) Ltd and Momentum Metropolitan Life Ltd) were co-owners and landlords of premises at the Tyger Valley Shopping Centre. They entered into a commercial lease with Monclair Trading CC (Monclair) for three years from 1 July 2019. The defendants, Mr. and Mrs. Theron, bound themselves as sureties and co-principal debtors for Monclair’s obligations. Monclair fell into arrears, and in August 2020 sublet the premises to a Mr. Greyling, who also failed to pay. The plaintiffs successfully applied for Monclair's liquidation (finalised on 25 January 2022) and thereafter claimed R602,790.26 from the defendants as sureties. The defendants defended the action and the plaintiffs applied for summary judgment.

• Whether the plaintiffs’ application for summary judgment was delivered within the time limits prescribed by Uniform Rule 32(2)(a).
• Whether the plaintiffs’ claim constituted a liquidated amount for purposes of Uniform Rule 32(1)(a)–(d).
• Whether the inclusion of untaxed legal fees rendered the amount claimed unliquidated.
• Whether the defences raised by the defendants disclosed a bona fide defence to the claim.

The application for summary judgment was refused. The defendants were granted leave to defend the action, with costs to be costs in the cause.

For a summary judgment application to succeed, there must be strict compliance with the procedural requirements of Uniform Rule 32. The claim must be for a liquidated amount — one that is either agreed upon or capable of prompt and precise ascertainment through a simple calculation or reference to agreed contractual terms. A claim that includes an unexplained opening balance, untaxed legal fees, and charges that cannot be easily linked to contractual provisions does not constitute a liquidated amount and cannot be the subject of a summary judgment application.

The court noted that the line between 'serve' and 'deliver' as contemplated in the Rules is often blurred in practice, particularly due to technological developments. However, because summary judgment jurisprudence has consistently required strict compliance, the court would insist on strict compliance unless rule 27 (condonation) is properly invoked and the definitions are formally adapted. The court also expressed reluctance to allow the plaintiffs to launch a condonation application from the bar given the long lapse of time.

This case reinforces the principle that summary judgment, as a drastic remedy, demands strict compliance with Uniform Rule 32, both procedurally and substantively. It clarifies that a claim for arrear rental and related charges under a commercial lease will not qualify as a liquidated amount for summary judgment purposes where the statement of account contains unexplained items, untaxed legal fees, and no clear correlation between the charges and the underlying lease provisions. The case also confirms that untaxed legal fees are not due and cannot form part of a liquidated claim.