IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
( 1) REPOR T ABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: NO
21 July 2025
Date
In the matter between:
NEDILE LODGE (PTY) LTD
WONDERBOOM HANGAR OWNWERS
ASSOCIATION
And
CITY OF TSHWANE METROPOLITIAN
MUNICIPALITY
CASE NO:23/013897
FIRST APPLICANT
SECOND APPLICANT
RESPONDENT
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This Judgment was handed down electronically and by circulation to the parties' legal
representatives by way of ema il and all be uploaded on Caselines. The date for hand
down is deemed to be 21 July 2025.
JUDGEMENT: APPLICATION FOR LEAVE TO APPEAL
SCHEEPERS AJ
1. The Respondent has applied for leave to appeal the orders granted in this
application.
2. The intended grounds of appeal are set out in application for leave to appea l. I w ill
not deal w ith each individual ground in this judgment and will only deal with the
allegations in general.
3. I w ill deal with the "grounds of appeal" relating to my failure to explicitly deal with
the Second Applicant's claim for relief, as well as the cost in that regard, and the
cost orders in general.
4. It is appos ite that I commence with the issue raised pertaining to my failure to
explicitly deal with the application brought by Second App licant and the
appropriate cost order relating to the relief sought by the Second Applicant.
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5. Although dealing with the refusal of the Second Applicant's claim for relief in the
judgment, I did not specifically provide for a dismissal of Second Applicant's
application for declaratory relief in the order. This was as a result of an oversight on
my part. Neither party elected to seek clarification and the Applicant in the
application for leave to appeal has, in my mind, opportunistically sought to include
this as a ground of appeal.
6. The failure to accurately record my finding regarding he Second Applicant's relief
does not render the order appealable, as I hold the view that I can correct this patent
error mero motu, as provided for in Rule 42(1 )(b) of the Uniform Ru les of Court.
7. I am also mindful that Rule 42(1 )(b) limits the extent of a variation to the ambiguity
or mistake. (See : Trencon Construction (Pt¥) Ltd v Public Investment Corpo ration
Soc Ltd and others,_[2.02J] JOL 52698 (GP).
8. The same applied to the criticism levelled against the failure to clarify the cost
orders that I made against the Respondent both on the relief in convention and in
reconvention, by not explicitly stating that the costs so ordered are in favour of the
First Applicant.
9. Despite there not being a formal application by any party to correct the Order, Mr
Maritz SC requested that the mistake and /or ambiguity be corrected to reflect it in
the Court Order. Even absent a formal application the Court is entitled to correct
the error mero motu.
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10. I will accordingly correct the Order issued on 24 November 2024 at the end of this
judgment and limit the variation of the Order to only provide for the failure to record
the dismissal of the Application brought by the Second Applicant, the cost order in
that regard and the failure to specify in the remaining cost order that such cost
orders are in favour of the First Applicant.
11. I now move on the counterapplication brought by the Respondent and where the
grounds of appeal are contained in paragraphs 2.7 and 2.9 of the application for
leave to appeal.
12. The ground(s) of appea l are without any merit and fails to consider the fact that the
judgment specially dealt with the absence of evidence supporting the alleged
invalidity as well as the absence of a record to consider the alleged invalidity.
13. Even if, there were grounds in support of invalidity, which I found was not proven,
the inexplicable delay in launching the review application, on its own sufficient to
dismiss the counterapplication.
14. I accordingly find that there are no grounds on which another Co urt would come to
a different conclusion regarding the counter-application.
15. Moving on to the rema ining grounds of appeal , aimed against the declarators
issued.
16. The findings made were based on the interpretation of the agreement and in line
with the principles applicable to interpretation of contracts. It is further based on
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existing precedent on the interpretation of similar clauses as set out in Webb v
Hipkin 1944 A.O. 95 and dealt with in Brink v Premier of the Free State and another
(2009) 3 ALL SA 304 (SCA).
17. N o contrary legal precedent on this interpretation was pointed out to me in legal
argument by M r Rip SC on beha lf of the Applicant.
18. I therefore cannot find that there are prospects that another Cou rt would come to
a different finding.
19. The relief granted pertaining to the method upon which increases in rental needs
to be determined is explicitly dealt with in the written agreement between the
parties.
20. In this regard I also find that there are no prospects that another Court would come
to a different finding.
THE FOLLOWING ORDER IS MADE:
1. In terms of Rule 42(1 )(b) of the Uniform Rules of Cou rt the Order granted on 13
November 2024 is corrected and varied to read as follows:
1. It is declared that the option exercised by the first respondent to renew
the lease in terms of clause 29 of the lease agreement "on the same
terms and conditions", affords to the First Applicant an option to
renew the lease for a further period or periods "on the same terms and
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conditions", which would include clause 29 thereof,·
2. It is declared that should the respondent or the First Applicant call for
a redetermination of the rent payable for the lease premises, in terms
of clause 5 of the lease agreement, the market-related rental to be
determined falls to be determined without having any regard to the
nature or value of any improvements or structures which the lessee
erected on the leased premises;
3. The Application bv the 2nd Applicant is dismissed and there is no
order as to costs.
4. The Respondent is ordered to pay the costs of the First Applicant
on party and party scale, including the costs of senior counsel on
Scale C and on a party and party scale.
5. The counter application by the Respondent is dismissed and the
Respondent is ordered to pay the costs of the First Applicant,
including the costs of senior counsel, where so employed, on
Scale C and on a party and party scale.
2. The Application for leave to appeal is dismissed with costs, such costs to
include the costs of Senior Counsel on Scale C.
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G J SCHEEPERS
Acting Judge of the High Court
Gauteng Division; Pretoria
21 July 2025
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