Material Dispute Of Facts Regarding A Lease Agreement Cannot Be Heard In Motion Proceedings

On the 21st April 2011 in the Cape Town High Court it was held in Dormell Properties 282 CC v Edulyn (Pty) & Alwyn Gideon Bamberger  that at the hearing of Motion Court proceedings, a dispute of fact on an affidavit cannot be settled without the hearing of oral evidence, thus the court may, in its discretion, dismiss the application or order oral evidence to be heard on the specified issues or order the parties to trial.

In this case the Applicant (Lessor) and Respondent’s(Lessee’s) entered into a Lease Agreement in September 2008. Certain material term’s and condition’s of the Lease agreement was that the Lessee’s would  pay a monthly rental during the five year period of the lease, escalating periodically, on or before the first day of every month, free of deduction, set off or exchange. Should the Lessee’s fail to pay the rental or any other due amount the Lessor would have the right to cancel the agreement and to resume possession of the leased premises. The Lessee’s failed to make rental payments thus falling into arrears, resulting in the commencement of Eviction Proceedings by the Lessor.

The Lessee’s raised various defences, namely that were entitled to a reduced rental as the Lessor had made fraudulent misrepresentations which induced them to enter into the Lease Agreement and that had those representations not been made they would not have entered into the Agreement on those same terms. The Lessor denied that any representations were made.

The court held that there were many disputed facts and that the existence of a disputed fact doesn’t necessarily preclude it from granting a final interdict but it depends whether the dispute is real and bona fide and whether the court is persuaded of the inherent credibility of the factual allegations relating to disputed matters by the Applicant. The Court looked at the decision in the case of Dhladhla v Erasmus  in which the court held that it should not lightly settle a factual dispute solely by weighing up the probabilities emerging from the papers, without the advantage of viva voce evidence.

Therefore E. Steyn J ordered that the Eviction Application be dismissed with costs as the court was unable to decide on the affidavits filed, whether the Applicant had breached its obligations and made material misrepresentations as these disputes of facts are material and need to be scrutinized and that the appropriateness of Motion Proceedings should be beyond doubt, before a Court will make an order and here it was not the method of obtaining ejectment relief.