Sayelo (Pty) Ltd v Gemini Trust and Others (20928/22) [2025] ZAGPPHC 898 (12 August 2025)

Case Note

Sayelo (Pty) Ltd v The Gemini Trust and Others (Case No 20928/22) [2025] ZAGPPHC ___ (12 August 2025) – High Court of South Africa, Gauteng Division, Pretoria

Reportability

This judgment is reportable because it deals squarely with the perennial tension between contractual autonomy and delictual liability. It clarifies, at High-Court level, the circumstances in which a lessee who has suffered loss after a casualty event (here, a fire) may not sidestep contractual exclusions by re-casting the complaint as a delictual “duty-of-care” claim. By upholding the exception, the court contributes meaningfully to the growing post-Beadica jurisprudence that seeks to balance pacta sunt servanda with public-policy considerations grounded in the Constitution. The decision is consequently of practical importance to property, commercial and insurance practitioners and is of evident interest to other judges confronted with exceptions raising mixed contractual-delictual causes.

Cases Cited

Salzman v Holmes 1914 AD 152
Minister of Safety and Security v Hamilton 2001 (3) SA 50 (SCA)
Oceana Consolidated Co Ltd v The Government 1907 TS 786
Stols v Garlick & Bousfield Incorporated 2012 (4) SA 415 (KZP)
Drummond Cable Concepts and Advance Net (Pty) Ltd 2020 (1) SA 546 (GJ)
Naidoo v Dube Tradeport Corporation 2022 (3) SA 390 (SCA)
Theunissen v Transvaalse Lewendehawe Koop Bpk 1988 (2) SA 493 (A)
Pretorius v Transport Pension Fund 2019 (2) SA 37 (CC)
Nel and Others NNO v McArthur 2003 (4) SA 142 (T)
Ghallagher Group Ltd v IO Tech Manufacturing (Pty) Ltd 2014 (2) SA 157 (GNP)
Brocsand (Pty) Ltd v Tip Trans Resources 2021 (5) SA 457 (SCA)
Koth Property Consultants CC v Lepelle Nkumpi Local Municipality 2006 (2) SA 25 (T)
Du Preez v Boetsap Stores (Pty) Ltd 1978 (4) All SA 184 (NC)
D.E. and Another v C.E. and Others (3991/19) [2019] ZAWCHC 142; [2020] 1 All SA 123 (WCC)
Murray & Roberts Construction Ltd v Finat Properties (Pty) Ltd 1991 (1) SA 508 (A)
Beadica 231 CC and Others v Trustees for the Time Being of Oregon Trust and Others [2020] ZACC 13; 2020 (5) SA 247 (CC)
Sasfin (Pty) Ltd v Beukes 1989 (1) SA 1 (A)
De Beer v Keyser and Others 2002 (1) SA 827 (SCA)
Brisley v Drotsky 2002 (4) SA 1 (SCA)
Devland Cash & Carry (Pty) Ltd v G4S Cash Solutions SA (Pty) Ltd (2020/16910) [2023] ZAGPJHC 754
G4S Cash Solutions SA (Pty) Ltd v Zandspruit Cash & Carry (Pty) Ltd and Another [2022] ZAGPJHC 7
Trustees, Two Oceans Aquarium Trust v Kantey & Templer (Pty) Ltd 2006 (3) SA 138 (SCA)
Trio Engineered Products Inc v Pilot Crushtec International (Pty) Ltd 2019 (3) SA 580 (GJ)
Feldman NO v EMI Music SA (Pty) Ltd; Feldman NO v EMI Music Publishing SA (Pty) Ltd 2010 (1) SA 1 (SCA)
Barkhuizen v Napier 2007 (5) SA 323 (CC)

Legislation Cited

Constitution of the Republic of South Africa, 1996 (especially the foundational values of freedom, dignity and contractual autonomy as recognised in Beadica and Barkhuizen)

Rules of Court Cited

Uniform Rule 23 (Exception and application to strike out)

HEADNOTE

Summary

This is an exception raised by The Gemini Trust and its three trustees against the particulars of claim filed by their lessee, Sayelo (Pty) Ltd. The lessee seeks R500 000 for loss allegedly suffered after a fire damaged the leased shop and consequent construction activities impeded trade. Sayelo relies exclusively on a delictual “duty-of-care” foundation, asserting negligence on the part of the landlord in failing to prevent or contain the fire and in allowing construction workers to obstruct the business.

The defendants excepted on the footing that the pleaded facts, even if accepted as true, reveal no delictual cause of action because the written lease contract expressly allocates the risk of fire damage to the tenant and absolves the landlord from liability. They contend that contractual autonomy precludes the imposition of any inconsistent delictual duties and that the plaintiff has not pleaded an alternative contractual cause.

Khumalo J held that, given the explicit clauses 11.3 and 11.4 of the lease, any claim for damages arising from fire or construction was contractually excluded. The attempt to circumvent the contract by framing the matter in delict therefore disclosed no sustainable cause of action. The exception was upheld, but the plaintiff was granted 15 days to amend failing which the action may be dismissed. Costs followed the result.

Key Issues

The judgment addresses, first, whether a delictual duty of care can arise where the parties have comprehensively regulated risk by contract. Secondly, it examines the test to be applied when deciding an exception based on “no cause of action”, reinforcing the principle that allegations in the pleading must be assumed true but measured against every reasonable interpretation of the contract. Thirdly, it revisits the circumstances in which concurrent contractual and delictual remedies may co-exist, and the limits placed on such concurrency by clear exclusionary clauses and pacta sunt servanda.

Held

The court held that the risk-allocation clauses of the lease are “inflexible” and leave no room for a superimposed delictual duty of care regarding fire damage or construction-related loss. Because the plaintiff did not attack those clauses on public-policy grounds nor plead any coherent contractual breach, its particulars of claim fail to disclose a valid cause of action. The exception was therefore upheld with leave to amend within fifteen days; costs awarded to the excipients.

THE FACTS

Sayelo (Pty) Ltd concluded a five-year written lease on 27 June 2019 with The Gemini Trust, represented by its three trustees. The premises, located at the B….. View Shopping Centre in The Reeds, Centurion, were let for use as a laundry business. The lease commenced on 1 July 2019 and contained detailed provisions dealing with insurance, fire damage and the allocation of risk.

On 9 July 2020 a fire broke out elsewhere in the shopping centre and spread to the leased shop, destroying goods and rendering the premises unfit for trading for several months. Between July 2020 and December 2021 repairs were undertaken, during which construction workers allegedly obstructed access and created a nuisance, further impeding Sayelo’s operations. Sayelo claims that, as a result, it lost stock, income and future profits totalling R500 000.

Crucially, clauses 11.3 and 11.4 of the lease obliged the lessee to insure its own stock and fittings and expressly absolved the lessor from liability for any theft, fire or related loss, while also denying any entitlement to a remission of rent. Despite this, the particulars of claim advanced only a delictual cause centred on negligence and an alleged duty of care owed by the landlord.

THE ISSUES

The principal question was whether, on the assumed facts, the lessee’s particulars disclose any legally recognisable cause of action. That enquiry turned on two subsidiary issues:
(a) Can a landlord who has been contractually indemnified against fire-related loss nonetheless owe a delictual duty of care to the tenant in respect of precisely that risk?
(b) Absent any pleaded attack on the validity of the exclusionary clauses, does the lease foreclose a concurrent delictual remedy, leaving the particulars of claim fatally defective?

Because the matter was argued on exception, the court was required to accept the factual allegations as true yet construe the lease to determine whether, in law, any duty or breach remained cognisable.

ANALYSIS

Khumalo J began by restating the classical test for an exception that a pleading discloses no cause of action: the excipient must persuade the court that, on every reasonable interpretation, the pleading fails in law. Reference was made to Salzman v Holmes, Theunissen and subsequent authorities emphasising the stringent onus resting on an excipient.

Turning to the contractual framework, the court quoted in full clauses 11.3 and 11.4 which shift all responsibility for fire damage to the tenant and exempt the landlord from any consequent loss. These clauses, described as “inflexible”, were found to be squarely applicable to the plaintiff’s pleaded loss. The attempt to circumvent the lease by invoking a nebulous “duty of care” was held to be incompatible with pacta sunt servanda and with the constitutional preference for certainty in commercial dealings, as illustrated in Beadica.

The court rejected the plaintiff’s reliance on concurrent delictual liability, citing Devland, Trio, and Trustees, Two Oceans Aquarium Trust. While acknowledging that delictual duties may sometimes coexist alongside contractual obligations, Khumalo J stressed that such duties cannot be recognised where they would directly contradict or undermine express contractual terms. In the absence of any plea that the contractual exclusions were contrary to public policy, the delictual claim was untenable.

Finally, the court noted that the particulars contained vague references to “breach” but failed to identify any clause breached or to plead a contractual cause in the alternative. The result was an embarrassing pleading that could not support a judgment in the plaintiff’s favour.

REMEDY

The exception was upheld. However, consistent with the modern reluctance to dispose of matters on technicalities, the court granted Sayelo leave to file amended particulars within fifteen days of the order. Should the plaintiff fail to do so, the defendants may apply to have the action dismissed. Costs of the exception were awarded against the plaintiff, reflecting the principle that a party who compels the other to raise an exception should bear the cost when the pleading is indeed excipiable.

LEGAL PRINCIPLES

First, where a contract expressly allocates a particular risk and excludes liability, a plaintiff cannot circumvent that allocation by crafting a delictual claim that is inconsistent with the agreed terms. Pacta sunt servanda, buttressed by constitutional values of autonomy and certainty, will generally prevail unless public-policy considerations dictate otherwise.

Secondly, the concurrence doctrine allows contractual and delictual remedies to coexist only where the delictual duty is complementary, and not repugnant, to the contract. The mere existence of a contract does not automatically extinguish delictual duties, but neither does it invariably permit them; each case turns on the content of the contract and the nature of the alleged duty.

Thirdly, an exception based on “no cause of action” must be upheld where, even accepting all pleaded facts as correct, the law affords the plaintiff no remedy. Pleadings must therefore set out a lucid and intelligible cause—whether in contract, delict or both (pleaded in the alternative)—and may not rely on vague assertions that contradict clear contractual provisions.

These principles, reaffirmed and applied in the present judgment, strengthen the boundaries between contractual risk allocation and delictual liability in South African private law.