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IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE Number: 2024 -065062
(1) REPORTABLE: NO
(2) OF INTEREST TO THE JUDGES: NO
(3) REVISED : YES
DATE: 22 May 2025
SIGNATURE:
In the matter s between:
FRENCH RIVIERA INVESTMENTS (PTY) LTD Applicant
and
FTX INVESTMENT S(PTY)LTD Respondent
JUDGMENT
H F JACOBS AJ:
[1] On or about 15 May 2019, FTX1 sold Erf 6[...]2, on which the Wilgeheuwel
Shopping Centre is situated, to Riviera3, as a going concern. At the time of the sale,
1 The Respondent
there were lease agreements,with the tenants of Wilgeheuwel Shopping Centre. On
12 June 2024, R iviera instituted this application, claiming the following relief in its
notice of motion:
"TAKE NOTICE that FRENCH RIVIERA INVESTMENTS (PTY) LTD
(hereinafter called the Applicant) intends to make application to this court for a
declaratory order to the following effect:
(1) That the Applicant be paid Tenants deposits by the Respondent within
3 calendar days of date of the order and
(2) Costs of suit."
[2] FTX delivered its answering affidavit, deposed to by Mr Moodley, on 8 July
2024. On 20 August 202 4, Riviera delivered its replying affidavit and a notice in
terms of Rule 28 recording its intention to amend its notice of motion, the body of
which reads as follows:
"1.By deleting prayer 1 of the Notice of Motion and replacing same with the
following pr ayer:
1. It is declared that clause 11.3 of the Sale Agreement read with clause
1.4.2.3 of the Adjustment Account Annexure to the Sale Agreement does not
permit the set off of any tenant's arrear indebtedness against any other
deposit than such arrear ten ant's own deposit."
[3] FTX objects to the proposed amendment on the following terms:
"1. The Applicant seeks to amend the relief sought in its Notice of Motion
without supporting such relief with the requisite a llegations in the Founding
Affidavit;
2. The proposed amendment sought by the Applicant does not disclose a
cause of action alternatively the propo sed amendment sought seeks to
introduce a new cause of action."
2 Erf 6[...] Strubensvalley, Extension 3 and Erf 1[...] Wilgeheuwel, corner Kruggerand Road and Florin
Road, Wilgeheuwel
3 The Applicant
[4] Riviera's notice of motion and notice of amendment claim declaratory relief.
I first refer to the legal princip les applicab le to dec laratory orders.
DECLARATORY ORDERS
[5] Section 21(1)(c) of the Superior Courts Act, 1O of 2013, reads as follows:
"21 Persons over whom and matters In relation to which Divisions have
jurisdiction
(1) A Division has jurisdiction over all persons residing or being in, and in
relation to all causes arising and all offences friable within, its area of
jurisdiction and all other matters of which it may according to law take
cognisance, and has the power -
(a)
(b)
(c) in its discretion, and at the instance of any interested person, to enquire
into and determine any existing, future or contingent right or obligation,
notwithstanding that such person cannot claim any relief consequential upon
the determination. " 4
[6] It has been held that the two -stage approach should be applied when a court
is asked to issue a declaratory order. First, the court must be satisfied that the
applicant is a person interested in an "existing, future or contingent right or
obligation", and then, if satisfied on that point, the Court must decide whether the
case is a pr oper one for the exercise of the discretion. During the first stage, the
focus is solely on establishing that the necessary conditions precedent for exercising
the discretion exist. Once satisfied that those jurisdictional conditions have been
proved, it h as to exercise the discretion by deciding whether to refuse or grant the
4 The section differs little from Section 19(1)(a)(iii) of the Supreme Court Act, 59 of 1959
order sought. The second stage involves consideration whether or not to grant the
order.5
AMENDMENTS OF A NOTICE OF MOTION
[7] The principles governing the granting or refusal of amendments have been
established in several cases. The general practical rule is that amendments will
always be allowed unless the amendment is made mala tide or unless it will cause
an injustice to the other side that cannot be cured by an appropriate order for costs.
It must be determined what the interests of justice demand.6
THE FACTS
[8] I will now turn to the facts. The agreement of sale between FTX and Riv iera is
not in dispute. The interpretation of that agreement and its application, particularly
clauses 11.3 and 1.4.2.3, along with the Adjustment Account, are in dispute. FTX
contends that the founding affidavit of FTX is so scant that, if the amendment i s
allowed, there will not be a case made for the relief sought.
[9] In my view, the common cause facts demonstrate a legal connection between
Riviera, FTX, and the tenants that could lead a court to conclude that Riviera has
established itself as an "inter ested person" within the meaning of that term in section
21 of the Superior Courts Act. The discretion a court may have to exercise regarding
the balance of the dispute, including the issue of extinctive prescription for which
FTX bears the burden, necessi tates that FTX be permitted to present evidence in
response to the notice of motion that Riviera seeks to introduce after FTX has filed
its answering affidavit. I therefore concur with Mr Ferreira SC that, should the
amendment be permitted, a postponement should ensue to allow FTX to respond.
Mr Potgieter SC may be correct in asserting that the entire issue hinges on a mere
5 See Cordiant Trading CC v Daimler Chrysler Financial Services 2005 (6) SA 205 SCA at [17] - [18];
Competition Commissio n v Hosken Consolidated Investments Ltd and Another 2019 (3) SA 1 (CC) at
(27); Pasiya and Others v Lithemba Gold Mining (P ty) Ltd and Others 2024 (4) SA 118 (SCA) at [43]
6 See Affordable Med icines Tr ust and Others v Minister of Health and Others 2006 (3 ) SA 247 (CC) at
[9]; Devonia Shipping Ltd v MV Luis (Yeoman Shipping Co Ltd Intervening) 1994 (2) SA 363 (C) at
369; Sebenza Forwarding & Shipping Consultancy (P ty) Ltd v Petroleum Oil and Gas Corporation of
SA (P ty) Ltd t /a Petro SA and Another 2006 (2) SA 52 (C) at 57 -58
interpretation of written instruments, which can be resolved by applying common
sense, and that the position taken by FTX amounts to sheer opportunism. Both
counsels' submissions have merit. In my view, it is in the interest of justice to grant
the o rder set out below, which will enable the court dealing with the matter to
exercise unfettered discretion when considering the substantive relief and the issue
of costs.
[10] Under the circumstances, I grant the following order:
[10.1] The applicant's ame ndment set out in its notice dated 2 August 2024 is
grante d, and the application is postponed sine die ;
[10.2] The costs of the amendment and the costs of the enrolment and
hearing during the week of 12 May 2025 are reserved for determination with
the ma in application; and
[10.3] The respondent is granted leave to deliver a further affidavit to deal
with the amendment, if so advised, within 15 days from the date of this order.
HF JACOBS
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
Heard on : 14 May 2025
For the Applicant : Adv T A L L Potgieter SC
Email: pottie@rsabar.com / vickis@law.co.za
Instructed by : Carrim Attorneys
Email: carrimattorneys@gmail.c om
For the Respondents : Adv Etienne Ferreira SC
Email: efereira@law.co.za
Instructed by : WDT Attorneys
Email: elsie@wdtatt.co.za
Date of Judgment : 22 May 2025