IN THE HIGH COURT OF SOUTH AFRICA
FREE ST ATE DIVISION, BLOEMFONTEIN
In the matter between:
WD MOTORS (PTY) LTD
and Not Reportable
Case no: 5341/2024
APPLICANT
SHELL SOUTH AFRICA REFINING (PTY) LIMITED FIRST RESPONDENT
SHELL DOWNSTREAM SOUTH AFRICA (PTY) LIMITED SECOND RESPONDENT
ALL OTHER OCCUPIERS OF ERF 17098
CLAIMING TITLE UNDER THE FIRST RESPONDENT THIRD RESPONDENT
Neutral citation: WO Motors (Pty) Ltd v Shell South Africa Refining (Pty) Limited and
Others (5341/2024) [2025] ZAFSHC 179 (17 June 2025)
Coram: Daniso J
Heard: 6 February 2025
Delivered: This judgment was handed down electronically by circulation to the parties'
representatives by email and by release to SAFLII. The date and time for hand-down is
deemed to be 17 June 2025 at 14h00.
Summary: Eviction application founded on breach of lease agreement- no real, genuine
and bona fide defences of facts raised in rebuttal of alleged breach -claim for eviction
made out by applicant.
2
ORDER
1 The respondents and any other business occupying the premises under the auspices
of Wentzel Motors are ordered to, within 60 days from the date of this order to vacate the
commercial premises situated at erf 17098 Bloemfontein.
2 The first and second respondents shall pay the costs of this application jointly and
severally the one paying the other to be absolved including the costs of counsel on scale
C.
JUDGMENT
Daniso J
[1) The applicant seeks eviction of the respondents (Shell) from the business premises
situated at erf 17098 in Bloemfontein (the premises). Shell occupies the premises by
virtue of a lease agreement it concluded with the previous owners of the premises on 28
October 2009 and notarised on 15 September 2014 for use as a filling station under the
name and style Wentzel Motors for a period of 15 years with two renewable periods of five
years.
[2] On 24 January 2024, the applicant, relying on clause 20 of the lease agreement,
cancelled the lease on the grounds of Shell's breach of the terms of the lease agreement
pertaining to the use, subletting and maintenance of the premises including defaulting on
payment of the municipal charges relating to the premises. Clause 20 deals with
circumstances under which the lease agreement can be cancelled it provides thus:
'20 BREACH
20.1 In the event of:
20.1.1. Shell failing to pay the rent or any portion hereof on the due date and remaining in default
for a period of 21 days after receipt of written demand therefore; or
20.1.2. Shell committing a breach of any of the other material terms and conditions of this Lease
and failing to remedy such breach within 30 (thirty) days after receipt of written notice from the
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Lessor (or should the period of 30 days (thirty) days not be reasonably sufficient for remedying
the breach in question, then within such time as is reasonably required therefor)
The Lessor shall without prejudice to any·other remedies available to it have the right in law to
claim payment of such monthly rental or specific performance as the case may be (in the latter
case with an alternative claim for damages) or to cancel this agreement on written notice to Shell
and claim damages.'
[3] The terms of the lease agreement pertinent to Shell's right to use and sublet the
premises and its obligation to maintain and pay for the municipal charges provide thus:
'9 USAGE
9.1. Shell or its sub-tenant shall have the right to use the premises or nay (sic) portion thereof
as a filling station, convenient store, car wash, Automated Teller Machine and any other business
reasonable or ordinary ancillary thereto and which for the purposes hereof shall include the right
to sell from the premises such items as are customarily sold at Shell filing stations and
convenience stores in accordance with Shell's standard policy with the right to Shell and/or its
sub-tenant to carry on such businesses up to 24 hours per day at its discretion.
9.2. Shell shall not use or permit the premises to be used for any illegal or improper purpose,
nor shall Shell do or permit any act or thing, which may reasonably be considered to be an
annoyance or nuisance or cause damage or disturbance to the occupiers of adjoining properties.
11 ASSIGNMENT AND SUBLETTING
11.1 Shell shall be entitled to sublet the whole or any portion of the premises to any retailer of
its choice on the standard terms and conditions of its retail Business Agreement, without obtaining
the Lessor's consent, provided that Shell shall at all times remain primarily liable to the Lessor for
the due fulfilment of all the terms and conditions of this Lease. For the avoidance of any doubt it
is agreed that Shell shall provide the Lessor with notification of any sub-letting that has been
occasioned whether wholly or in part and further undertakes in favour of the Lessor that the
premises will largely be utlilized for the sale of petroleum fuels.
12 MAINTENANCE
Shell shall at its own expense maintain the structure and the interior and exterior of the
improvements , including (but without limitation) the roof, electrical wiring and sanitary and water
works in good order and in a proper state of repair and shall at its own expense carry out all
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repairs, replacements and renovations thereto that may be reasonably be required from time to
time.
16 PROPERTY EXPENSES
16.1. Shell shall pay during the subsistence of this Lease all rates, taxes and other charges
whatsoever levied in respect of property or the buildings and improvements erected thereon
(collectively "the imposts") with e~ect from the rental commencement date. If the rates and taxes
relating to the property are not at any time increased for any reason, Shell shall pay such increases
or imposition; provided that the Lessor gives Shell at least 30 days prior written notice of such
increases or imposition.'
[4] In the founding affidavit deposed to by the present owner Ms Denese Lups, it is
alleged that, contrary to the provisions of clause 9.1. and 9.2 read with clause 11.1 of the
lease agreement, Shell sublet a portion of the premises to Mr Koudia Diata (Mr Diata)
without giving the applicant the required notice. Shell also permitted Mr Diata to operate
an electronic store selling appliances and television sets, a business which is not an
ancillary to a filling station. The premises were also used for illegal purposes in that, Mr
Diata sold television sets in contravention of s 27 (4) of the Broadcasting Act 4 of 1999
(the Broadcasting Act).
[5] The applicant further avers that, in terms of clause 12 of the lease agreement, Shell
was also obligated to keep the interior and exterior structure of the premises in a good
state of repair however, Shell has consistently failed to maintain the premises, the
bullnose, walls and pillars of the premises needed to be repainted. Overall, the premises
were unkempt and derelict. The applicant's letter, dated 29 September 2022, in terms of
which Shell was requested to comply with its obligations to provide the applicant with a
copy of the notice of subletting and to attend to the maintenance of the premises was
ignored precipitating the applicant to serve Shell with a 30 days' demand to remedy the
breach on 16 August 2023 (the breach notice).
[6] Having undertaken to rectify the breach, on 14 September 2023, Shell forwarded
a letter to the applicant, together with photographs, stating that the required maintenance
work had been done except for the painting of the eastern wall as it required budget
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planning. In response, the applicant confirmed that the issue regarding maintenance of
the premises was resolved however, Shell has still not painted the eastern wall and it later
transpired that the roof also required maintenance. The premises remain in an abject state
of disrepair and neglect.
[7) In response to the applicant's query regarding the occupation and business
activities of Mr Diata's business on 31 October 2023, Shell simply provided the applicant
with Mr Diata's certificate of registration as a second-hand goods dealer in terms of s 3(3)
of the Second-Hand Goods Act 6 of 2009, insisting that that Mr Diata's business was not
trading illegally. The issue regarding the unilateral sub-letting of the premises and for
permitting Mr Diata to trade in activities not ancillary to a filling station were not addressed.
[8) It is the applicant's case that Shell has also been systematically contravening the
provisions of clause 16 since 2021 by failing to pay the municipal charges relating to the
premises despite the breach notice transmitted to Shell on 24 August 2023. As of 24
A':Jgust 2023, Shell was in arrears with payment of the municipal account in the amount
of R30 373.03 and, in terms of the breach notice, Shell was required to pay the arrears
within 21 days thereof.
[9) It is the applicant's case that Shell was served with a cancellation notice, on 24
January 2024, in terms of which Shell and its sub-tenants including those occupying the
premises under Shell (third respondent) were required to vacate the premises by 29
February 2024. Notwithstanding the cancellation, Shell and the third respondent remain
in occupation of the premises.
[10) Shell opposes the application on the grounds that the lease was terminated on
unlawful and on engineered grounds which are not even material to warrant the
cancellation of the lease and further states that there is a clear dispute of facts on this
issue which can only be resolved by oral evidence. The applicant should have foreseen
that a dispute of fact would arise and should have proceeded by way of action
proceedings and not application proceedings.
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[11] According to Shell, the true motive of the applicant's cancellation of the lease
agreement is to lease the premises to an entity known Astron Energy which had offered
to pay more rental than what Shell is paying. Astron Energy came to view the premises,
had discussions with Ms Lups regarding its aspirations to lease the premises, including
modifying the premises to accommodate its needs. Astron Energy also enquired about
the notice period required for Shell to vacate the premises. Shortly thereafter, the
applicant served Shell with the breach notice.
[12] Shell confirms that it concluded ·a sublease agreement with Mr Diata in 2020 to
operate an electronics store selling cellular phones and repairing television sets. The
applicant was notified of the sublease when Ms Lups and the landlord visited the store
when it opened in 2020. Since then, until two years later in September 2022, they regularly
interacted and greeted Mr Diata and his employees without raising any issues regarding
Mr Diata's occupation of the premises and his business activities thereby tacitly
representing to Shell that the applicant had no objection to the occupation of the premises.
Shell contends that. having overlooked the breach, the applicant is estopped from seeking
to cancel the lease on the basis of breach under these circumstances. Mr Diata's business
has since vacated the premises.
[13] Shell denies that the store was used for any illegal or improper purpose and points
out that the applicant's reliance to the provisions of s 27(4) of the Broadcasting Act is
misplaced as they only pertain to a prohibition against selling a television set to a
purchaser who does not possess a television licence and not to the dealer. In any event,
the electronic store did not sell television sets.
[14] As far as the breach relating to the maintenance of the premises is concerned,
Shell admits that pursuant to the applicant's demand on 16 August 2023 for the painting
of the walls, replacement of a damaged door and cleaning of the premises was attended
to. The applicant was satisfied about the work done and this fact was confirmed by the
applicant in its letter, dated 3 October 2023, stating the following:
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' ... Our letter dated the 16th August 2023 and to your email to us dated the 14th of September
2023 refers.
With regards to the maintenance issue, it seems that all the issues have been resolved.'
[15] Shell further states that the breach relating to maintenance of the premises does
not entitle the applicant to cancel the lease as clause 17 provides the applicant with a
remedy which involves repairing any defects in the premises and thereafter claim the
costs of such repairs from Shell.
[16] The validity of the breach notice relied upon by the applicant in support of its right
to cancel the lease agreement is also disputed. It is Shell's contention that the breach
notice does not state that the breach complained about arises from operating a business
not ancillary to a Shell filling station instead it makes non-sensical averments namely that,
Shell's is in breach of the lease due to 'the type of business being petroleum as shown is
not ordinary and ancillary to a Shell Petroleum Station as envisaged in this clause'. Shell
was therefore not placed in mora in respect of this alleged breach.
[17] As regards unpaid municipal charges, Shell admits receipt of the breach notice
dated 24 August 2023. Nonetheless, Shell avers that its obligation to pay, only arises
once the applicant has delivered the account to Shell, Shell has paid the account except
for an amount of R4 834 which is subject to a proper reconciliation of the statements and,
even if it is found that Shell has failed to pay a particular account in breach of the lease
agreement, the breach notice is invalid as Shell was not provided with 30 days to rectify
the breach as contemplated in clause 20.
[18] It is argued by counsel for Shell that 'clause 12 simply states that Shell shall pay
the rates, taxes and other charges. It does not state promptly or by when. It is clear that
time is not of the essence in so far as payment of these amounts is concerned'. Based on
these reasons, Shell contends that applicant is not entitled to the relief it seeks, the
application must be dismissed with costs.
8
[19] I agree with Shell's contentions that, on the facts germane to this matter, the breach
pertaining to subleasing the premises to be used illegally or improperly has not been
established. The applicant has clearly misconstrued the provisions of s 27(4) of the
Broadcasting Act as they only relate to:
'A dealer who sells or alienates a television set to a person who is not in possession of a television
licence and who is not exempted from the obligation to be in possession of a television licence, is
liable to pay a penalty of R3 000 or such higher amount as may be prescribed, but such penalty
may not exceed R10 000 in respect of each television set sold or alienated to such person.'
This issue is accordingly decided in favour of Shell.
[20] The remainder of Shell's defences are bereft of any merit. The provisions of clause
11.1 are peremptory:
'Shell shall provide the Lessor with notification of any sub-letting .. .'
Except to fleetingly aver that the applicant was notified about the subletting, Shell has
provided no specifics in terms of the exact date and manner in which the required notice
was provided to the applicant.
[21] Notwithstanding the inelegant manner in which the breach notice has been worded
in relation to the breach premised on the use of the premises for a business not ancillary
to a filling station its meaning is clear and unambiguous. In terms of clause 9.1 and 11.1,
the premises must be used to sell items that are customarily sold at Shell filing stations
and convenience stores including petroleum fuels. Electronics are not .listed as items
falling within the categories of items permitted to be sold at the premises accordingly, an
electronic store is not ancillary to a filling station.
[22] Regarding the maintenance of the premises, Shell conveniently ignores the fact
that pursuant to the breach notice, Shell informed the applicant that the painting of the
eastern wall was not done pending budget allocation . That aside, in the applicant's
pleaded case, it is in indisputable that the maintenance for the roof was discovered at a
later stage.
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[23] The obligation to pay the municipal charges is linked to the use of the premises
therefore, Shell's defence that it has not breached clause 16 because the lease
agreement does not state the time of payment is, in my view, unsound.
[24] Similarly, there is no merit to Shell's challenge of the validity of the cancellation of
the lease agreement. On the established facts, the applicant cancelled the lease
approximately four months after the respective breach notices were served on Shell on
16 August 2023 and 21 August 2023. At that time, the lease agreement was extant.
[25] On the papers, the background facts of this matter and the terms of the lease
agreement upon which the applicant's claim is predicated including Shell's nonfulfillment
of its obligations in terms of the lease agreement are indisputable. On the other side, the
defences raised by Shell are unpersuasive to constitute real, genuine and bona fide
defences of facts requiring a resolution by way of oral evidence. I am thus inclined to
reject them merely on the papers.1 I have thus come to a conclusion that Shell's conduct
constitutes a breach of clause 9.1, 11.1, 12 and 16.1 of the lease agreement.
[26] By virtue of the breach clause, the materiality of the breach to warrant a
cancellation of the lease is irrelevant. See in this regard, Oatorian Properties (Pty) Ltd v
Maroun, 2 where the following is stated regarding a cancellation clause:
'By this clause the respondent explicitly reserved to himself the right to cancel the lease on a
breach of a material condition of the lease. Once there is such a breach, the materiality of the
breach is irrelevant and the Court will not enquire into the conscionableness or
unconscionableness thereof.'
[27] Based on these reasons above, I am satisfied that the applicant .has made out a
case for Shell's eviction from the premises. The applicant's claim prevails.
1 Wightman tla JW Construction v Headfour (Ply) Ltd and Another [2008) ZASCA 6; 2008 (3) SA 371 (SCA)
para 12; see also National Director of Public Prosecutions v Zuma [2009] ZASCA 1; 2009 (2) SA 277 (SCA)
; 2009 (1) SACR 361 (SCA); 2009 (4) BCLR 393 (SCA); [2009] 2 All SA 243 (SCA) para 26.
2 Oatorian Properties (Ply) Ltd v Maroun 1973 (3) SA 779 (A) at 7858-C, citing with approval North Vaal
Mineral Co. Ltd. v Lovasz, 1961 (3) SA 604 (T) at 606; see also Human v Rieseberg, 1922 T.P.D. 157 at
163.
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Costs
[28] There is no reason why the costs should not follow the result
Order
[29] In the circumstances, I make the following order:
1 The respondents and any other business occupying the premises under the auspices
of Wentzel are ordered to, within 60 days from the date of this order to vacate the
commercial premises situated at erf 17098 Bloemfontein .
2 The first and second respondents shall pay the costs of this application jointly and
severally the one paying the other to be absolved includi'ng the costs of counsel on scale
C.
Appearances
For the applicant:
Instructed by:
For the second respondent:
Instructed by: CD Pienaar
Symington & De Kok Attorneys, Bloemfontein
M Smit
Cliffe Dekker Hofmeyer Inc, Johannesburg
c/o Lovius Block Attorneys, Bloemfontein. 11