HIGH COURT OF SOUTH AFRICA,
GAUTENG DIVISION, PRETORIA
!
I DELETE WHICHEVER IS NOT APPUCA8LE
(1) REPORTABLE: YF,i/NO
(2) OF INTEREST TO OTHERS JUDGES: Yfi/NO
[3) REVISED
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DATE
In the application between:
ALDO GIOVANNI CHIODAROLI N.O
DORA ELKE BANTZ N.O
MARK-COLIN LAHNER N.O
And
YEBOPROP 7 INVESTMENT (PTY) LTD
And
E10 PETROLEUM SA (PROPRIETARY) LTD Case No: 18020/2022
FIRST APPLICAN T
SECOND APPLICANT
THIRD APPLICANT
FIRST RESPONDENT
SECOND RESPONDENT
E10 PETROLEUM AFRICA (PROPRIETA RY) LTD THIRD RESPONDENT
LEAVE TO APPEAL JUDGMEN T
BAQWAJ :
Introduction
1. This is an application for leave to appeal to the Supreme Court of Appeal against
the whole judgment of Baqwa J handed down on 4 October 2024.
2. The responde nts oppose the application, and such opposition finds support in the
Supreme Court of Appeal in the matter of S. v Smith1 where it was held:
"what the test for reasonable prospects of success postulates is a dispassionate
decision, based on the facts and the law, that a court of appeal could reasonably
arrive at a conclusion different to that of the trial court. In order to succeed,
therefore, the appellant must convince this court on proper grounds that he has
prospects of success on appeal and that those prospects are not remote but have
a realistic chance of succeeding. More is required to be established than that there
is a mere possibility of success, that the case is arguable on appeal or that there
is a mere possibility of success, that the case cannot be categorised as hopeless.
There must, in other words, be, a sound, rational basis for the conclusion that there
are prospects of success on appeal."
1 2012 (1) SACR 567 (SCA) at para 7.
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3. The respondents hold the view that the applicant's case is hopeless as there is no
sound, and rational basis for the submissio n that there are prospects of success
on appeal.
The Law
4. Section 17 (1) (a) (i) of the Superior Courts Act 10 of 2013 (the Act) provides that
leave to appeal may be granted where the judge concerned is of the opinion that:
11.1 The appeal would have a reasonable prospect of success (S. 17 (1) (a) (i)).
11.2 There are some other compelling reasons why the appeal should be heard
(s.17 (1) (a) (ii)).
The Test
5. In MEG for Health, Eastern Cape v Mkhitha and Anothei2 the Supreme Court of
Appeal expressed the test for granting leave to appeal as follows:
"[16] Once again it is necessary to say that leave to appeal, especially to this court
must not be granted unless there truly is reasonable prospect of success. Section
17 (1) (a) of the Superior Courts Act 10 of 2013 makes it clear that leave to appeal
may only be given where the judge concerned is of the opinion that the appeal
would have a reasonable prospect of success, or there are some other compelling
reasons why it should be heard.
[17] An applicant for leave to appeal must convince the court on proper grounds
2{2016} ZASCA 1 76 at para 1 7.
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that there is a reasonable prospect or realistic chance of success, an arguable
case or one that is not hopeless, is not enough. There must be a sound, rational
basis to conclude that there is a reasonable prospect of success on appeal."
6. A similar view was expressed by the SCA in Ramakatsa and Others v African
National Congress and Another. 3
Grounds of Appeal
The lease agreement
7. 7.1 Central to this application for leave is clause 14 of the Agreement and the
correct interpretation thereof. If provides as follows:
14.1 The lessee shall (save as provided in clause 12.6) have no claim for
damages against the lessor and may not withhold or delay any payment due to
the lessor by reason directly or indirectly of
14.1.1 a breach by the lessee of any of its obligations under this lease
occasioned due to any event of vis major or any other cause beyond the
reasonable control of the lessor.
14. 1. 5 any interruption of, or interference with, the enjoyment or
beneficial occupation of the premises , unless proven by the lessee to
have been occasioned by the wilful or grossly negligent conduct of the
lessor or its employees and /or agents.
3 {2021 J ZASCA 3 • at para 10.
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14.2 The lessor shall not, however be excused from specific performance of
any of its obligation under this lease, whether express or implied, and
particularly (but not only) its obligations to afford the Jessee occupation and
employment of the premises ....
8. The applicant raised the defence of deprivation of beneficial occupation of the
property for a period of 22 Months due to a provincial road on which is located
being completely shut down and diverted for road construction.
9. In the judgment it is stated that such road closure was an event contemplated in
clause 14 of the lease agreement in that it was beyond the reasonable control of
the respondents. Consequently , the applicant is directed not to withhold payment
in those circumstances.
10. What is patently clear from the judgment is that applicant's defenses are totally
unsustainable. This inescapable conclusion in the judgment is firmly based in
clause 5 and 7 of the lease agreement which provide.
"5 Rent
5. 1 The rental for the premises ............. shall be paid monthly, in advance, by
no later than 1st day of each and every month, without deduction or set-off
whatsoever
7 Payments
7. 2 The lessee shall not withhold, defer, or make any deduction from any
payment due to the lessor, whether or not the lessor is indebted to Jessee or in
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breach of any obligation to the lessee."
11. The applicant also dismally failed to make out a case for the matter to be referred
for oral evidence. On its own version, it admitted several breaches. In the
circumstances, there is no dispute of facts which requires the hearing of oral
evidence and the applicant's reliance on Plascon-Evans is misconstrued and
misplaced.
Alleged Misdirection re-renewal of lease
12. This court found that applicant forfeited its right to a renewal of the lease based
on the breaches in respect of which the applicant made continuous late payments
during 2016 to 2017 and paid no rent from February 2020. Its allegations of having
paid monies but producing no evidence regarding when he paid, to whom he paid
and how much he paid lay bare its mendacity.
13. The applicant submits incorrectly that this court misconstrued OK Bazaars4 and
its relevance to this matter. I cannot demonstrate better how wrong the applicant
is than quoting directly from Ok Bazaars at 361 para C where Hoexter AJ, in
assessing a similar renewal clause and the lessee's breach said: "It seems to me,
with respect, that in requiring the appellant to establish that it had never been guilty
of any breach whatever, the learned Judge prescribes too exacting a test. It
appears to me that 'faithful' performance by a lessee in the position of the appellant
cannot predicate the total absence of even a single breach of the many and often
burdensome terms and conditions of a complex contract. So to interpret clause 3
• 1994 (2) SA 347 (A).
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would be to import an unrealistic standard of near perfection hardly capable of
attainment of tenants. Such a construction would render the option to renew
practically worthless . In my opinion it cannot be supposed that such was the
intention of the parties. On the other hand, the words in which the first proviso is
couched are , I think, naturally and reasonably susceptible of indicating a test less
onerous to the applicant. That less stringent test requires the making of a value
judgment as to the broad merits and demerits of the appellant as a lessee based
on an objective assessment of the appellant's whole conduct and overall
performance of its contractual obligations during the currency of the lease. Such
an appraisal must take into account the length of the appellant's tenancy and the
full range of its obligation as a lessee. In weighing the significance of such
breaches as may have occurred relevant considerations will include the nature
and extent of any breach, the frequency of its occurrence , and the appellant's
response or lack of response to the respondents ' complaints and its insistence
upon strict compliance by the appellant. "
14. If one were to attempt to make an appraisal of appellant's conduct as suggested
by by Hoexter AJ, to coin a phrase, is that 'its conduct was long on default and
short on performance' The appellant was far from being a model lessee and
correspondence presented by the respondent exchanged during the existence of
the lease confirms the undesirable conduct of the appellant.
15. Having regard to all its breaches and more particularly where it failed to make any
payment of rentals since February 2020 as stated in the judgment , the nature,
extent and frequency of the breaches justifies the forfeiture of the applicant's rights
of renewal.
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16. There are no grounds which would justify the application of a "less stringent test"
as the applicant tries to claim from the OK Bazaars dictum.
17. The intervening parties are not parties before this court in the application for leave
to appeal and that puts an end to the applicant's case in that regard.
Conclusion
18. In light of the above, the threshold contemplated in section 17 (1) (a) (I) of the act
has not been met by the applicant and there are no reasonable prospects that
another court would arrive at a different conclusion.
19. In the result the application for leave to appeal is dismissed with costs including
costs including costs of counsel.
SELBY BAQWA J
JUDGE OF THE HIGH COURT,
GAUTENG DIVISION, PRETORIA
Date of Hearing:
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Judgment delivered: 31 MARCH 2025
APPEARANCES:
Counsel for the Applicant
Instructed by
Counsel for the Respondent
Instructed by Adv ACJ Van Dyk
jaco@clubadvocates.co.za
Coetzee Martinuzzi Inc
Adv Jaco Du Plessis
Raees Chothia Attorneys
raees. choth ia@rcalegal.com
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