SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case number: 2024 -059610
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO THE JUDGES: YES/NO
(3) REVISED.
DATE: 7/3/2025
SIGNATURE:
In the matter of:
BAGON INVESTMENT HOLDINGS (PTY) LTD Applicant
and
RAN HADAR First Respondent
(Identity No: 7 […])
HOWARD JOSELOWITZ Second Respondent
(Identity No: 7 […])
t/aPALMS INTERNET LOUNGE
PALMS INTERNET LOUNGE Third Respondent
JUDGMENT
DE BEER AJ
Introduction
1. This is an application for an order declaring the lease agreement ("the lease'')
concluded between the parties on 29 March 2021, attached to the founding affidavit
marked "MSJ2"1 has terminated in consequence whereof relief is sought to eject the
respon dents from the leased premises situated at Shop No's 8 and 9, Palm Centre,
35 Main Road, Newlands, Johannesburg on Erf 1 […], Newlands Township (" the
property '').
2. The application concerns the lease agreement pertaining to the commercial
property. The lea se commenced on 1 May 2021. Clauses 5.1 and 5.2 are applicable
to the controversy of whether the applicant is entitled to the relief sought. The
respondents opposed the relief sought, the grounds are detailed in the answering
affidavit and are dealt with i n the heads of argument prepared on behalf of the
respondents.
Opposition to the main application
3. The respondents raised a point in limine , arguing that the main application
stands to be dismissed with costs due to the applicant's failure to deal with Rule 41A,
i.e. that the matter be subjected to mediation which could have offered expeditious
relief to both parties. This point in limine was not persisted with save for what was
stated in the papers. Events and time have taken over whether a consensual
mediation was possible; reference is made to a letter dated 1 April 2022,2 wherein
the applicant demanded the respondents to vacate the property during 2022 for the
reasons dealt with therein. It is common cause that any reference to 2022 is
erroneous; the lease only expired as per clause 5.1 on 30 April 2024 by virtue of the
1 Caselines pages 02 -25 to 02 -40.
2 Caselines pages 02 -130 to 02 -133.
handwritten amendment. Be that as it may, it is difficult to envisage consensual
mediation between the parties. The respondents wish to remain, the applicant seeks
an ejectment. The point in limine is consequently dismissed.
4. On the merits, the respondents contend that the lease was timeously and
validly renewed six (6) months prior to expiry on 30 April 2024, pro vided in clause
5.2.
Renewal of the lease
5. The salient controversy between the parties concerns whether the
respondents exercised their right to renew the lease in terms of the applicable clause
and, if so, whether the renewal was effected for 1 (one) o r 3 (three) years. The
respondents seek a rectification of clause 5.2 of the lease to record that the renewal
period constituted 3 (three) years, not one.
6. As contended, the renewal was effected by way of an email dated 25 October
2023.3
7. To consider a nd decide whether the lease was renewed, if any, reference
must be made to the written recordal as detailed in paragraph 5 which is quoted
herein verbatim for ease of reference:
"5. COMMENCEMENT, DURATION AND RENEWAL
5.1. Notwithstanding the date of signature of this agreement by all the parties
hereto, this Lease shall be deemed to have commenced on the 1st May 2021
and shall endure for (one) [amended by hand to read three ] year (hereinafter
called the "the initial period' ) until 30st April 2022 [ amended by hand to read
2024 ].
3 Annexure RS, Caselines pagination 02 -94.
5.2 Provided that the Lessee is not in breach of, or in arrear with any
obligation in terms of this Lease, same shall be renewable by the Lessee for a
further period of 1 (one) year reckoned from the end of the initial period of
Lease, by written notice to the Lessor by the Lessee given by not later than 6
(six) calendar months prior to the termination of the initial period and upon the
same terms and condi tions as this Agreement, save and except that the
rentals shall be agreed upon."
8. To consider whether respondents renewed the lease, the email referred to
above regarding whether the lease renewal was duly exercised must be interpreted
and applied in acc ordance with the specific wording. For ease of reference, the email
is quoted herein verbatim :
"From: Ran Hadar <r […]>
Sent: Tuesday, October 25, 2023 9:29 PM
To: Cili bao <i […]>
Subject: Renewal of lease agreement
Hi Linda I would like to renew the lease agreement for Palms Internet Lounge
for a further period as contained in the lease agreement, with the rental
amount to escalate by 10% per year. Let me know when we can meet to
discuss further should you wish to do so.
Rega rds Ran"
9. From the above documents, it is common cause between the parties that the
lease would endure for 3 (three) years until 30 April 2024, as recorded and amended
by hand in clause 5.1 of the lease.
10. However, clause 5.2 is not common cause in it s import, which is the part of
the lease the respondents seek to rectify. This clause records that the lease shall be
renewable for a period of one year, which right must be exercised 6 (six) calendar
months prior to its determination of the initial period on 30 April 2022. Clause 5.2
also states that the renewal will be " upon the same terms and conditions as this
Agreement, save and except that the rentals shall be agreed upon ."
11. Interpretation is the duty of the court.4 Duly formulated, interpretation entails
the following:
"Interpretation is the process of attributing meaning to the words used in a
document, be it legislation, some other statutory instrument, or contract,
having regard to the context provided by reading the particular provision or
provisions in the light of the document as a whole and the circumstances
attendant upon its coming into existence. Whatever the nature of the
document, consideration mus t be given to the language used in the light of
the ordinary rules of grammar and syntax; the context in which the provision
appears; the apparent purpose to which it is directed and the material known
to those responsible for its production. Where more th an one meaning is
possible each possibility must be weighed in the light of all these factors. The
process is objective, not subjective. A sensible meaning is to be preferred to
one that leads to insensible or unbusinesslike results or undermines the
appar ent purpose of the document. Judges must be alert to, and guard
against, the temptation to substitute what they regard as reasonable, sensible
or businesslike for the words actually used. To do so in regard to a statute or
statutory instrument is to cross the divide between interpretation and
legislation; in a contractual context, it is to make a contract for the parties
other than the one they, in fact, made. The 'inevitable point of departure is the
language of the provision itself', read in context and h aving regard to the
purpose of the provision and the background to the preparation and
production of the document.5
The words and concepts used in a contract and their relationship to the
external world are not self -defining. The meaning of a contested ter m of a
4 AmaBhungane Centre for Investigative Journalism NPC v President of the Republic of South Africa
(CCT 385/21) [2022) ZACC 31; 2023 (2) SA 1 (CC); 2023 (5) BCLR 499 (CC) (20 September 2022);
Natal Joi nt Municipal Pension Fund v Endumeni Municipality (920/2010) [2012) ZASCA 13; [2012] 2
All SA 262 (SCA); 2012 (4) SA 593 (SCA) (16 March 2012).
5 Natal Joint Municipal Pension Fund v Endumeni Municipality [2012] 2 All SA 262 (SCA), 2012 (4) SA
593 (SCA).
contract (or provision in a statute) is properly understood not simply by
selecting standard definitions of particular words, often taken from dictionaries,
but by understanding the words and sentences that comprise the contested
term as they fit in to the larger structure of the agreement, its context and
purpose. Meaning is ultimately the most compelling and coherent account the
interpreter can provide, making use of these sources of interpretation. It is not
a partial selection of interpretational materials directed at a predete rmined
result .6
12. Clause 5.1 was amended by hand, clause 5.2 directly underneath was not.
Put differently, clause 5.2, which succeeds 5.1, was not amended. The parties did
not ex-facie the document amend the renewable period from 1 (one) to 3 (three)
years, which pertains to the second issue to be resolved if the first is resolved in
favour of the respondents.
13. Concerning the first issue, the email dated 25 October 2023 seemingly
indicates that the author " would like to renew the lease agreement ... f or a further
period as contained in the lease agreement , ... " and further invited the applicant to
"Let me know when we can meet to discuss further should you wish to do so .".
14. Nothing on the papers suggests that the parties met or discussed this aspec t
before the cut -off date of 31 October 2023 and whether the applicant accepted this
invitation " to discuss … to do so ".
15. The aspect of the escalation as recorded in the email does not constitute a
renewal exercised by the respondents, alternatively it does not seem to be a renewal
duly effected and finalised. The word ing suggests an invitation and negotiation, not a
renewal duly exercised and effected.
6 Capitec Bank Holdings Limited and Another v Coral Lagoon Investments 194 (Pty) Ltd and Others
[2021] 3 All SA 647 (SCA), 2022 (1) SA 100 (SCA) para. 50; Novartis v Maphil [2015] 4 All SA 417
(SCA), 2016 (1) SA 518 (SCA); City of Tshwane Metropolitan Municipality v Blair Atholl Homeowners
Association [2019] 1 All SA 291 (SCA) (also reported as Tshwane City v Blair Atholl Homeowners
Association 2019 (3) SA 398 {SCA)) paras 56 -69.
16. It therefore does not comply with the manner in which to renew the lease as
recorded in clause 5.2.
17. Interpretation is a matter of law and not of fact; it is acco rdingly a matter for
the court and not for witnesses.7
18. Procedurally, this email had to be sent to the domicilium address detailed in
clause 25 of the lease; the email does not confirm or record the commensurate
details stipulated in clause 25. This cla use has, therefore, not been complied with.
19. On a conspective of the evidence detailed above and the common cause
facts, the court finds that the lease was not renewed in terms of clause 5. In the
premises, it becomes irrelevant to consider whether the lease should be rectified to
record the rene wal period from 1 (one) to 3 (three) years, which is the basis of the
respondents' request to refer the matter to oral evidence and rectification of the lease.
20. Even if the court is wrong on whether the renewal was duly effected, seeking
a rectification will prove to be problematic for the following reasons:
20.1. The controversy regarding whether the renewal period was erroneously
recorded as 1 (one) year instead of 3 (three) years was raised for the first time
in the answering affidavit deposed to on behalf of the respondents on 25 July
2024.8
20.2. The same was not mentioned or recorded in a letter prepared on behalf
of the respondents by their attor ney of record some 6 (six) months earlier on
31 January 2024. This letter9 stipulates the following:
"6. In terms of clause 5.2, thereof our clients are entitled to have the lease
agreement renewed for a further period of 1 (one) year as from 1 May 2024
onwards.
7 KPMG Chartered Accountants v Securefin Ltd [2009] 2 All SA 5 23 (SCA), 2009 (4) 399 (SCA).
8 Caselines page 02 -86.
9 Caselines page 02 -48.
7. …
8. Our clients herewith provide your client with notice that they shall not be
vacating the premises on 30th (sic) of April 2024 and they shall continue
occupying the lease premises for a further year in terms of the renewal
clause."
20.3. The l etter corresponds and accords with the wording of clause 5.2 in
that the period of the renewal clause is 1 (one) year, not 3 (three) years.
20.4. In the answering affidavit, paragraph 19.10, the respondent's deponent
stipulates that:
"At the time of the si gning of the agreement this was picked up by us and our
business brokers Starogard, we all stated to the Applicant that this should be
amended to read that the initial period of the lease agreement should be for
three years renewable for a period of three years."
20.5. At paragraph 22.3, the deponent states that:
"It must be noted Vardakos letter to the Appl icant's agent was based on the
lease agreement that was provided with him on 31 January 2024. It is only
when the Respondents consulted with him on the application for eviction that
was brought by the Applicant, we established that the lease agreement
incorrectly reflected the renewal period as a year and not three years as was
orally agreed by the parties, which we are now seeking rectification of the
agreement."
20.6. Reference is made to " the Applicant " being a company, the deponent
does not state the i dentity of the representative that had to amend the
renewable period, as alleged. It is also not therein detailed which one of " the
Respondents " consulted with the attorney when this took place, nor does it
specify particulars that were apparently conveyed .
20.7. Seeing that this issue was raised in the answering affidavit without
providing specific details referred to above, the court is left with what is stated
on the papers in this regard and has to make a consequent finding.
21. It is reiterated that th e rectification of the renewal period will only become
applicable if the contract was renewed, for the reasons detailed above, the contract
was not renewed in accordance with clause 5.2. It is therefore unnecessary to
venture further as to whether th is application should be referred to oral evidence.
22. Procedurally, the respondents did not prosecute a counterapplication for the
rectification. In paragraph 19.1710 the deponent states that "... the Respondents will
seek a rectification of the lease ag reement by way of a counter application to reflect
the common intention of the parties …". Notwithstanding this intention, counter -relief
was not instituted as intended or undertaken. The Court can still condone this aspect
if the underlying facts existed to grant such relief, for reasons detailed above, the
papers are devoid of such facts.
23. A further defence raised revolved around whether alleged improvements give
rise to an improvement lien as a valid defence to eviction. During argument, this
issue w as not persisted. The court's prima facie view on the facts of the matter is that
such an ostensible lien does not constitute a valid defence to eviction. The contents
of clause 13.2, perhaps also read with clause 14.5 of the lease, negates such
defence, w hich is therefore bad in law.
Motion proceedings
24. The basic principle in motion proceedings is that the affidavits define the
issues between the parties and the affidavits embody evidence. An applicant who
seeks relief from a court must make out a case in its notice of motion and founding
affidavit.11
10 Caselines page 02 -78.
11 Molusi and Others v Voges NO and Others 2016 (3) SA 370 (CC) at [27 ].
25. In Betlane v Shelley Court CC,12 the Constitutional Court stated that it is trite
that an applicant ought to stand and fall by the notice of motion and the averments
made in its founding affidavit.
26. In National Council of Societies for the Preventio n of Cruelty to Animals
Openshaw,13 the SCA referred with approval to Shakot Investments (Pty) Ltd v Town
Council of Borough of Stanger,14 Muller J stated:
"In proceedings by way of motion the party seeking relief ought in his founding
affidavit to disclos e such fact as would, if true, justify the relief sought …".
27. Because motion proceedings are concerned with the resolution of legal issues
based on common cause facts, where there are disputes of fact in proceedings in
which final relief is sought, those disputes are to be determined in accordance with
the Plascon -Evans rule.15
28. The accepted approach to deciding factual disputes in motion proceedings
requires that subject to " robust " elimination of denials and " fictitious " disputes, the
Court must deci de the matter on the facts stated by the respondent, together with
those the applicant averse and the respondent does not deny. On the accepted test
for fact -finding in motion proceedings, where disputes of fact arise, it is the
respondent's version that w ill prevail.16
29. In this regard, it is further apposite to refer to guiding principles enunciated by
the court in the Venmop judgment, which stated the following:17
12 2011 (1) SA 388 (CC) at 2. See also Brayton Carlswald (Pty) Ltd and Another v Brews 2017 (5) SA
498 (SCA) at [29].
13 2008 (5) SA 339 (SCA) at [29] - [30].
14 1976 (2) SA 701 (D) at 704F -G.
15 National Director of Public Prosecutions v Zuma 2009 (1) SA 277 (SCA) at [26].
16 Plascon -Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 632 (A) at page 634E -635J;
Fakie NO v CCI Systems (Pty) Ltd 2006 (4) SA 326 (SCA) at [63] to [64]; Snyders v De Jager and
Others 2017 (3) SA 545 ( CC) at 566, [71].
17 Venmop 275 (Pty) Ltd and Another v Cleverland Projects (Pty) and Another (2014/14286) 2016 (1)
SA 78 (GJ ).
'[7] The efficient conduct of litigation has as its object the judicial resoluti on of
disputes optimising both expedition and economy. The conduct and
finalisation of litigation in a speedy and cost -efficient manner is a collaborative
effort. The role of witnesses is to testify to relevant facts of which they have
personal knowledge. The role of legal representatives has two key aspects.
First is the supervision, organisation and presentation of evidence of the
witnesses and secondly, the formulation and presentation of argument in
support of a litigant's case. The diligent observation of those roles facilitates
the role of the judicial officer, which is to arrive at a reasoned determination of
the issues in dispute, in favour of one or other of the parties. Where
practitioners neglect their roles, it leads to the protracted conduct of t he
litigation in an ill -disciplined manner, the introduction of inadmissible evidence
and the confusion of fact and argument, with the attendant increase in costs
and delay in its finalisation, inimical to both expedition and economy.
[8] In motion proceed ings, affidavits serve a dual function of both pleadings
and evidence; Radebe and Others v Eastern Transvaal Development Board
1988 (2) SA 785 (A) at 793 D - F; Minister of Land Affairs and Agriculture and
Others v D & F Weve ll Trust and Others 2008 (2) SA 184 (SCA) at 200 para
43, ABSA Bank Ltd v Kernsig 17 (Pty) Ltd 2011 (4) SA 492 (SCA) at 498 -
499 para 23; Foize Africa (Pty) Ltd v Foize Beheer BV and Others 2013 (3)
SA 91 (SCA) at 103 para 30. In Choice Holdings Ltd v Yabeng Inv Holding Co
Ltd 2001 (3) SA 1350 (W) at 1360 para 34, Goldstein J, in a judgment of the
full court, summed up the principal thus:
"In application proceedings the affidavits serve two purposes: first that of
pleadings, i.e. delineating the facta probanda or essential averments
necessary to found a cause of action or defence, and, secondly, the supply of
the facta probantia or evidence to support a f inding of the correctness of the
facta probanda."
[9] A consideration of these references reveals that the emphasis on the dual
function of affidavits in motion proceedings is highlighted where the affidavits
contain conclusions or a/legations of a depth that is sufficient for a declaration
but are deficient in evidence of the facts upon which those conclusions or
allegations are based. Deponents to the affidavits are testifying in the motion
proceedings. Save in urgent applications for interim relief to r estrain
irremediable injury and to keep matters in status qua, where otherwise
inadmissible hearsay might be permitted, Cerebos Food Corporation Ltd v
Diverse Foods SA (Pty) Ltd and Another 1984 (4) SA 149 (T) at 157E - G,
there is no authority that the ad missibility of the evidence of a witness in
motion proceedings is somehow different from that in a trial action."
Conclusion
30. Upon the evidence and common cause facts before this court, the question of
renewal does not involve an inquiry into the state of mind18 of "the Respondents ".
Rather it involves a consideration of the objective conduct of the parties hereto and
the conclusion to be drawn from the facts presented. Therefore, the court's finding is
that the only reasonable inference and concl usion to be drawn from a summary of
the evidence referred to above is that the lease was not renewed in terms of clause
5.
31. The lease therefore expired and terminated due to effluxion of time. The
respondents have not discharged the onus in proving that they exercised the option
to renew the terms of the lease.
32. The court is also not convinced that there is any basis for the respondents'
claim for rectification or that the matter should be referred for oral evidence in this
regard. The express non -variation clause, the entire contract and relaxation clause,
clauses 22 to 24 militates against such a finding.
33. Clause 20.3 addresses the aspect of costs, the parties agreed that legal costs
incurred is payable on the scale as between attorney and own cli ent.
Order
18 Venmop supra at [25].
34. For the reasons detailed above, the court hereby grants the following order:
34.1. The lease agreement concluded between the parties on 29 March
2021 and attached to the applicant's founding affidavit marked Annexure
"MSJ2" has terminated;
34.2. The respondents are to vacate and are ejected from the premises at
Shop No's 8 and 9, P alm Centre, 35 Main Road, Newlands, Johannesburg on
Erf 1 […] Newlands Township (" the property ");
34.3. The respondents and all who are occupying the property, by, through
or under them, are ordered to vacate the property within 30 (thirty) days from
the gr anting of this order, failing which the applicant may request the relevant
Sheriff to evict the respondents and all those occupying the property through
them, from the property;
34.4. The respondents shall pay the costs of this application jointly and
seve rally, the one paying, the other to be absolved on the scale as between
attorney and own client.
DE BEER AJ
Acting Judge of the High Court
Gauteng Division
Date of hearing: 3 March 2025
Judgment delivered/Uploaded: 7 March 2025
For the applicant: Pelser Attorneys
Tel: 012 -342-0006
Email: charlotte@pelserlaw.co.za
Ref: Pelser/CP0953
Counsel for the applicant: Adv JR Minnaar
Cell: 083 -409-8638
Email: jrminnaar@icloud.com
For the respondent: Vardakos Attorneys
Tel: 016 -454-0553
Email: va rdakos@worldonline.co.za
Ref: Mr V Vardakos/lf/VB503
Counsel for the respondent: Adv AP Allison
Cell: 083 -879-7040
Email: abeallison@gmail.com