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IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO: 045487 /2025
In the matter between:
HENNIE’S SPO RTS BAR PTY ( LTD) Applicant
And
RYALL TRADING CC First Respondent
SOUTH AFRICAN CIVIL AVIATION AUTHORITY Second Respondent
JUDGMENT
DELETE WHICHEVER IS NOT APPLICABLE
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: NO
(4) Date: 27 June 2025
Signature: _
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NYATHI J
A. INTRODUCTION
[1] The applicant Hennie’s Sports Bar (Pty) Ltd, and the first respondent, Ryall
Trading CC concluded a Letter of Intent (“LOI”) on 7 March 20251 under which
Ryall Trading undertook, in good faith and on an exclusive basis, to negotiate
the sale of a 2000 Piper Malibu Mirage aircraft to the applicant for R10 500 000
(plus VAT).
[2] The applicant contends that despite compliance with all agreed timelines, Ryall
Trading repudiated the exclusivity and good -faith obligations by selling the
aircraft to a third party on 27 March 2025 before expiry of the exclusivity period.
The identity of the third party was only disclosed by Ryall Trading on the day of
the hearing in its response to applicant ’s Rule 35(12) Notice .
[3] The applicant seeks an urgent interim interdict and joinder of the third party to
preserve the status quo and prevent any further disposition or removal of the
aircraft pending final dispute resolution or litigation to reso lve the matter .
[4] The Civil Aviation Authority (“CAA”), which controls and regulates civil aviation
safety and security within the Republic and derives its mandate from the Civil
Aviation Act, 2009 (Act No. 13 of 2009) and the Civil Aviation Regulations, 2011,
is cited as t he second respondent. The CAA has undertaken in writing (submitted
to the court at the hearing) to “abide by any court order or interdict pertaining to
the registration of the said aircraft.”
[5] In its repudiation letter2 dated 27 March 2025, the respondent complained that
the applicant had not complied with certain requirements pertaining to formal
1 Accepted by the Respondent (Ryall Trading CC) by countersigning on the 7 March 2025. See Para 2.22 of Annexure
FA14.
2 Annexure FA13 to applicant’s founding affidavit .
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guarantees and confirmation of the funds from the ban k. The respondent
informed the applicant “…that somebody else has purchased the aircraft today .”
[6] It is on this basis that the applicant asserts that the respondent acted in breach
of the exclusivity period agreed to, and therefore breached good faith.
[7] On 28 March 2025 the applicant's attorney sent a letter of demand affording the
first respondent until 17:00 on Monday 31 March 2025 to provide the required
undertakings, failing which an urgent application would be issued.
[8] No undertaking was received and on 2 April 2025 this application was issued for
hearing in the urgent motion court on 15 April 2025.
B. THE REPUDIATION
[9] The issue in contention between the parties is the alleged repudiation. On 27
March 2025 , Neil Marx of the first respondent notified the applicant that the
aircraft had been sold to “somebody else .” The applicant is steadfast in the view
that this communication clearly constitutes a flagrant repudiation of the letter of
intent and a material breach of the duty to negotiate in good faith.
[10] The first respondent's premature sale announcement and engagement with a
third party represent a clear breach of the good faith negotiating obligation under
the letter of intent. The applicant seeks the interim interdict to prevent any further
disposition or adverse change concerning the Aircraft until the matter is resolved
through litigation or expedited dispute resolution.
Respondent’s contentions
[11] The applicant’s assertion s are denied by the first respondent who opposes the
application on both its urgency and on the merits.
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[12] It was submitted on behalf of the respondent that interdicts regulate future
conduct and not historical conduct or wrongs. They aim to maintain the status
quo and restrain future conduct thereby avoiding irreparable harm. Mr Lüderitz
SC stated that in the current application there is no status quo to be preserved
because the airplane has already been sold and transferred to the new owner.
[13] Mr Lüderitz referred the court to the matter of Titty’s Bar and Bottle Store (Pty)
Ltd v ABC Garage (Pty) Ltd3 matter and submitted that the application is a futility
since the applicant has not made out its case in the founding affidavit. An
applicant’s case stands or falls on the averments made in the founding affidavit.
An applicant is not allowed to make out a mere skeleton of a case in the founding
affidavit and to supplement that case in the replying af fidavit .
[14] The respondent’s further contention was that the applicant seeks relief which
was moot even at the launch of this application on 02 April 2025 . The mootness
was foreshadowed by the applicant itself in its founding affidavit.4
[15] The respondent’s last contention is that the purchaser of the airplane has not
been joined in the application. The applicant seeks relief against a party that is
not before court. This will amount to ex parte relief against the purchaser, who
has not been heard.
C. LEGAL POSITION AND DISCUSSION
[16] The LOI from its content is clearly “an agreement to agree” , a pactum de
contrahendo , which is generally unenforceable in law, save for a few specific
instances. The Supreme Court of Appeal in the matter of Van Zyl v Government
3 1974 (4) SA 362 (T) at 369A -B.
4 Founding affidavit para 52.
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of the Republic of South Africa5 reiterated the position that a promise to contract
is not a contract by itself.
[17] This is so because , as was held in ABSA Bank Bpk v Janse van Rensburg6, the
parties retain an absolute discretion to agree .
[18] In Seale v Minister of Public Works7 the S upreme Court of Appeal stated that :
“I accept that there was implicit obligation on the parties to negotiate in good faith, but
subject thereto, the further agreement was entirely dependent on the will of the parties ".
[19] In Makate v Vodacom Ltd8 the Constitutional Court held that :
“Therefore, currently the position in our common law is that an agreement to negotiate
in good faith is enforceable if it provides for a deadlock -breaking mechanism in the
event of the negotiating parties not reaching consensus. This position was reaffirmed
by the Supreme Court of Appeal in Southernport Developments.9 In that case parties
to a lease agreed to enter into good faith negotiations in respect of certain specified
properties. The agreement provided that if the parties were unable to agree on any of
the terms of the yet -to-be negotiated lease, the dispute w ould be referred to an arbitrator
whose decision would be final and binding .” [Emphasis supplied ].
[20] Since the above sentiments in the earlier decisions were made , the pendulum
may yet swing much wider towards the recognition of principles of ubuntu being
infused into contractual disputes. The learned Justice Jafta writing for the
majority remarked at para [100] that : “Whether an agreement to negotiate in good
faith is enforceable where there is no deadlock -breaking mechanism remains a grey
5 2008 (3) SA 294 (SCA).
6 2002 (3) SA 701 (SCA) at 708 -9.
7 [2020] JDR 2131 (SCA)
8 2016 (4 ) SA 121 (CC) at para 97.
9 Southernport Developments (Pty) Ltd v Transnet Ltd [2004] ZASCA 94 ; 2005 (2) SA 202 (SCA)
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area of our law …”. He referred to Everfresh Market Virginia (Pty) Ltd v Shoprite
Checkers (Pty) Ltd10 where Moseneke DCJ , recognizing that the issue of
developing the common law was raised by the appellant only at the
Constitutional Court appeal, said:
“Were a court to entertain Everfresh’s argument, the underlying notion of good faith in
contract law, the maxim of contractual doctrine that agreements seriously entered into
should be enforced, and the value of ubuntu, which inspires much of our constituti onal
compact, may tilt the argument in its favour. Contracting parties certainly need to relate
to each other in good faith. Where there is a contractual obligation to negotiate, it would
be hardly imaginable that our constitutional values would not requ ire that the negotiation
must be done reasonably, with a view to reaching an agreement and in good faith .”
C. CONCLUSION
[21] In the current matter the applicant has suffered substantial prejudice by the
respondent’s repudiation of the LOI, the parties came bef ore court because they
have dea dlocked, and there is no deadlock -breaking mechanism built into the
agreed Letter of Intent . This has the consequence that the applicant is deprived
of a prima facie right or clear right on which to pin its entitlement to the interdictory
relief that it seeks .
[22] In cons ideration of the aforementioned legal position, the application cannot
succeed. The costs in this matter will follow the cause.
10 [2011] ZACC 30; 2012 (1) SA 256 (CC); 2012 (3) BCLR 219 (CC).
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[23] The following order is made:
The application is dismissed with costs including costs of two counsel to be taxed
at scale B .
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J.S. NYATHI
Judge of the High Court
Gauteng Division, Pretoria
Date of hearing: 15/04/2025.
Date of Reasons : 27 June 2025
On behalf of the Applicant: CHJ Badenhorst SC
EG Malherbe
Applicant’s attorneys: Ulrich Roux and Associates , Illovo , Jhb.
c/o Jacobson & Levy, Pretoria
On behalf of the Respondents : KW Lüderitz SC
CAC Korf
Respondent’s attorneys: Bern hard Van der Hoven Attorneys , Pretoria
Delivery : This judgment was handed down electronically by circulation to the parties' legal
representatives by email and uploaded on the CaseLines electronic platform. The date for hand -
down is deemed to be 27 June 2025.