IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO: 2024-049477
In the matter between: 1
KERJA (PTV} LTD Applicant/ Respondent a quo
and
MILGA PROPERTIES (PTV} LTD Respondent/ Applicant a quo
J U D G M E NT (Leave to Appeal)
MAIER-FRAWLEY J:
1. The applicant seeks leave to appeal against the judgment and order
delivered on 25 March 2025 in terms of which I ordered that Kerja (Pty)
Ltd (Kerja) be evicted from commercial property owned by Milga
Properties (Pty) Ltd (Mi/go). The order was, amongst others, premised on
the valid cancellation by Milga of a written lease in terms of which Kerja
had occupied the property.
2
2. The judgment found that Kerja was not entitled to exercise an option to
purchase1 the leased property, as sought in Kerja's counter application, in
view of Kerja's admitted failure to meet its financial commitments in
terms of the lease.
3. In terms of the judgment, Milga's eviction application succeeded whilst
Kerja's counter-application was dismissed with costs.
4. Milga opposed the application for leave to appeal.
s. As appears from the judgment, it was common cause between the parties
that Kerja had fallen into arrears with its payment obligations under the
lease. As the breach had not been rectified by Kerja, Milga canelled the
lease agreement, entitling it to repossess its property.
6. Kerja has not sought to appeal the finding in the judgment that the failure
by Kerja to comply with its payment obligations under the lease
disentitled it to exercise the conditional pre-emptive right to purchase the
property. The order dismissing the counter-application is also not sought
to be appealed against.
7. The grounds upon which leave to appeal is sought are that I erred:2
(i) in finding that the lease had been validly cancelled, in that I failed
to consider that 'a second settlement agreement, although with the
proviso to determine the outstanding amount' was to be 'seen as a
counter- offer to the written agreement,' and in failing to give effect
to s 48 of the Consumer Protection Act;
1 The option to purchase encompassed a conditional pre-emptive right and was contained in clause 2
of the lease.
2 Some grounds were duplicated in the 'Notice of Appeal' filed of record and as such, need not be
considered separately.
3
(ii) in finding that Kerja had failed to meet its obligations without
considering the 'copious amounts' it had spent on improvements it
effected to the property, with the result that Milga was unduly
enriched at the expense of Kerja, and further, without considering
that Kerja did not owe the monies as claimed by Milga 'based on
the property improvements, applying the set-off principle';
(iii) in entertaining the eviction application in circumstances where an
interested party had not been joined, which interested party had
launched a joinder application after judgment was reserved but
before judgment was delivered;
(iv) By failing to reflect a date of eviction in the order and in not
providing a reasonable time-frame for Kerja to vacate the premises.
8. I provided full and detailed reasons for the orders I made in the judgment,
which I abide by.
9. I intend to deal only with certain novel points raised in the application for
leave to appeal. As to the first ground listed above, the provisions of the
Consumer Protection Act were not relied on by Kerja in the eviction
application and also did not feature in any of the papers that served
before court, such as to enable the point to be canvassed fully in the
affidavits.3 This ground was in any event not pursued in oral argument at
the hearing of this application. The judgment dealt fully with the
settlement agreement concluded between the parties, including its
breach and cancellation. No second settlement agreement came into
being for reasons provided in the judgment.
3 See Minister of Safety & Security v Slabbert (668/2008) [2009] ZASCA 163 (30 November 2009) at
paras 11 & 12.
4
10. As to the second ground listed above, as indicated in the judgment, Kerja
did not pursue a claim for improvements in the matter, nor was a case of
undue enrichment advanced by it a quo. Kerja admitted being in arrears
with payment in its answering affidavit. A Judgment had also been
obtained against it in the Magistrates Court on account of such arrears,
which judgment was duly executed upon by Milga.
11. As to the third ground listed above, the point of non-joinder was
considered in the judgment and dismissed for reasons given therein. The
issue of joinder having already been finally adjudicated upon, it could not
be reconsidered by means of a further joinder application.
12. As to the fourth ground listed above, as indicated in the judgment, the
lease and settlement agreements were respectively cancelled on 17 April
2024 and 8 January 2024.4 Kerja's occupation became unlawful pursuant
to the cancellation, notwithstanding which, it remained in occupation of
the premises. The eviction application was launched on 6 May 2024.
Judgment was delivered on 25 March 2025, when an order was granted
obliging Kerja to immediately vacate the premises. Kerja had had an entire
year to make arrangements to vacate the premises or to have contingent
plans in place in the event that its opposition to the eviction application
was not upheld. Kerja has remained in occupation pursuant to its
application for leave to appeal. It filed a 'Notice of Appeal' on 28 March
2025, despite the fact that it had not yet been granted leave to appeal.
The application for leave to appeal was heard in May 2025.
4 Per annexures 'TA 19' (cancellation of lease) and 'TA17' (cancellation of settlement agreement) to
the founding affidavit.
5
13. At the hearing of the matter, further novel points were raised in argument
from the bar, which were not contained in the 'Notice of Appeal' and
which were also not covered by the pleadings in the eviction application.
The respondent, Milga, did not contend for any unfairness to it if the court
were to consider same.5
14. Further novel points raised in oral argument pertain to the import of
clause 37 of the lease and Milga's own non-compliance with the lease in
not providing a property that was fit for purpose; and reliance on the
integration rule in support of the contention that the intentions of the
parties, which were not contained in the written lease, ought to have
been considered by the court.
15. I terms of Clause 37 of the lease:
"The parties acknowledge and agree that they have undertaken to each other to do
all such things, take all such steps and to procure the doing of all such things and
the taking of all such steps as may be necessary, incidental or conducive to the
implementation of the provisions, terms, conditions and import of this lease"
16. Clause 37 must be read in the light of the whole agreement, including
clauses 33 and 24 thereof. In terms of clause 33 (i):
"The Lessor does not warrant, and this lease is not made on the basis: i. that the
leased Property is or will at any time be fit for the use set out in clause 9 of the
lease or for any other purpose whatsoever"
In terms of clause 24:
"The Lessee shall have no claim any damages, remission of rent or otherwise,
against the Lessor, for any failure of or interruption in the supply of water, gas,
5 See Moroka v Premier of the Free State Province and Others (295/20) [2022] ZASCA 34 (31 March
2022) at paras 36-38.
6
electricity or other amenities provided to the leased Property, whether such
interruption arises from the negligence of the Lessor, the Lessor's servants, viz.
major, casus fortuitus, or any other cause whatsoever."
17. Kerja contended that clause 37 was a 'pivotal' clause so much so, that
clause 37 'overrides' other clauses, such as clause 20,6 as well as the
'unilateral termination by Milga of the lease' under clause 27 of the lease
agreement. That the clause has such overriding effect, is certainly a novel
proposition for which no authority was provided and which, in my view,
has no cognizable foundation in law. Issues that Kerja had experienced
with electricity metres and a lack of electricity supply and certain
municipal accounts, all pointed, so it was contended, to Milga's non
compliance with clause 37. Therefore, so it was further contended, Kerja
was within its rights to withhold payments under the lease for as long as
Milga did not perform. Suffice it to say that none of these contentions
hold merit in the light of the provisions of clauses 33 and 24 of the lease.
18. In Johnson v Leal 1980(3) SA 927 (AD) at 943 B-C, the integration rule was
explained as follows:
"Dealing first with the integration rule, it is clear to me that the aim and effect of
this rule is to prevent a party to a contract which has been integrated into a single
and complete written memorial from seeking to contradict, add to or modify the
writing by reference to extrinsic evidence and in that way to redefine the terms of
the contract."
6 In terms of clause 19, the lessee was not entitled to make any structural or other alterations on the
property without written authorisation by the lessor. In terms of clause 20, "in the event where the
Lessor made alterations to, additions to, or installations on the Property with the written authorisation
of the Lessor and not exercise his right to purchase the property at the end lease or if the lease is
legally terminated or cancelled during the term thereof, such alterations to, additions to, or
installations on the Property shall at the time of the termination of the agreement, become the
property of the Lessor and the Lessee shall not be entitled to any compensation in respect thereof."
7
19. The integration rule is of no assistance to Kerja. Clause 36 of the lease
expressly provided that "no alteration, variation, amendment or purported
consensual cancellation of this lease or any addition thereto or deletion therefrom
shall be of any force or effect unless reduced to writing and signed by or on behalf
of the parties hereto."
20. In terms of section 17{1)(a)(i) of the Superior Courts Act, 10 of 2013, 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 in terms
of s 17{1)(a)(ii), where there is some other compelling reason why the
appeal should be heard, including conflicting judgments on the matter under
consideration. As was made plain in In Kruger v s,7 in order to meet the test
for the grant of leave to appeal, 'more is required than the mere 'possibility'
that another court might arrive at a different conclusion.' Quoting from 5 v
Smith,8 the court went on to state that it is not enough that the case is
arguable on appeal or not hopeless, instead the appeal must have 'a realistic
chance of succeeding.'
21. Having regard to the aforegoing, and having dispassionately considered my
judgment, I remain unconvinced that Kerja has met the required threshold
for being granted leave to appeal. In my view, none of the grounds listed in
the 'notice of appeal' or argued from the bar enjoy any reasonable
prospects of success on appeal.9 No submissions were made in relation to
7 2014 (1) SACR 647 (SCA) at paras 2-3.
8 2012 (1) SACR 567 (SCA) para 7.
9 As per the test was set out in cases such as Ramakatsa and Others v African National Congress
and Another (724/2019) [2121]ZASCA 31 (31 March 2021) at par 10 and MEG for Health, Eastern
Cape v Ongezwa Mkhitha & The Road Accident Fund [2016] ZASCA 176 (25 November 20160 at
paras 16-17.
In Mkhitha at par 17, quoting from S v Smith, par 7, the following was said: 'An applicant for leave to
appeal must convince the court on proper grounds that there is a reasonable prospect or realistic
chance of success on appeal. A mere possibility of success. an arguable case or one that is not
8
section 17(1)(a)(ii) of the Act and no compelling reasons were either
advances for allowing an appeal.
22. The general rule is that costs follow the result. I see no reason to depart
therefrom.
23. Accordingly, the following order is granted:
ORDER
1. The application for leave to appeal is dismissed with costs.
AVRILLE MAIER-FRAWLEY
JUDGE OF THE HIGH COURT,
GAUTENG DIVISION, JOHANNESBURG
Date of hearing:
Judgment delivered 9 May 2025
16 May 2025
This judgment was handed down electronically by circulation to the parties' legal
representatives by email, publication on Caselines and release to SAFL/1. The date and time
for hand-down is deemed to be have been at 10h00 on 16 May 2025.
APPEARANCES:
Counsel for Applicant(Kerja):
Counsel for Respondent (Milga):
Instructed by: Adv L. Marx (Trust Account Advocate)
together with Adv GA Ferris
Adv M Joubert
Ronel Hill Attorneys
hopeless. is not enough. There must be a sound. rational basis to conclude that there is a reasonable
prospect of success on appeal.' (footnote omitted) (emphasis added).