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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
Case Number: 25302/2020
3419/2020
(1) REPORTABLE: YES / NO
(2) OF INTEREST TO OTHER JUDGES: YES/NO
(3) REVISED: YES/NO
In the matter between: -
A MILLION UP INVESTMENTS 86 (PTY) LTD PLAINTIFF
and
MAVAMBO COACHES (PTY) LTD DEFENDANT
JUDGMENT
Van Aswegen AJ
INTRODUCTION:
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[1] In this matter there was a consolidation of two actions under case numbers
25302/2020 and 34919/2020 in terms of rule 11 of the Uniform Rules of Court on 4
October 2023.1 The Plaintiff and the Defendant agreed to the consolidation.
[1.1] The aforesaid actions pertain to the alleged unlawful occupation by the
Defendant of the P laintiff's commercial premises located at 1[...] V[...] Road,
Johannesburg (the "Premises"), and the refusal by the D efendant to vacate
the premises.
[1.2] The action under case number 25302/2020 claimed the commercial
eviction of the Defendant company from the Plaintiff's premises.
[1.3] The Plaintiff claimed damages from the Defendant under case number
34919/2020, arising from the unlawful occupation of the premises.
[2] The matter was consolidated under case number: 25302/2020.
[3] The cause of action in this case arises from an alleged breach of an oral lease
agreement ("the agreement") entered into approximately during August 2017 in
Johannesburg.
[3.1] The agreement was concluded by the Plaintiff and the Defendant, each
being duly represented by their authorised representatives.
[4] The material terms of the Agreement were as follows:
[4.1] The Plaintiff agreed to lease a portion of the premises located 1[...]
V[...] Road, Johannesburg (the "P remises"), to the Defendant, with the lease
term commencing on 1 September 2017 and concluding on 31 December
2019.
1 Case Lines 27-1
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[4.2] The Defendant was required to pay the Plaintiff a rental amount of R21
200.00 (twenty-one thousand two hundred rand) per month in advance for the
use of the premises throughout the term of the Agreement.
[4.3] The Defendant w as liable for all consumption charges for water,
electricity, sewage, rates or surcharges on the premises imposed by the City
of Johannesburg, as well as any related interest charges.
[4.4] The Defendant was responsible for maintaining the property in the
condition existing at the commencement of the lease, performing regular
maintenance, and safeguarding the premises against vandalism.
[4.5] The Defendant was to occupy only the area of the property leased from
the Plaintiff and was not allowed to enter upon or use any part of the premises
not covered by the lease (such unleased portion hereinafter referred to as the
"PXL portion").
[4.6] Upon termination of the lease, the Defendant wa s required to vacate
the premises.
[5] The respondent breached the agreement by:
[5.1] not vacating the premises after lease termination; and
[5.2] occupying or encroaching on the PXL portion.
[6] The Defendant occupied the p remises unlawfully from 1 January 2020 until
abandoning it on 30 November 2024. The eviction relief has therefor become
academic.
[7] The Plaintiff continues to pursue three claims against the Defendant. The
claims are as follows:
[7.1] Claim A - Rental claim.
The plaintiff was unable to lease out either the premises or the PXL portion.
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[7.2] Claim B - Damages for restoration costs.
As is a result of the Defendant’s failure to maintain the property , to conduct
regular maintenance or to protect the premises from vandalism.
[7.3] Claim C - Sub-charges and rates in respect of the City of
Johannesburg.
The consumption of services obtained from the City of Johannesburg and
through surcharges, rates and interest for which the D efendant was liable to
the Plaintiff as lessor of the premises.
PROCEDURAL STEPS:
[8] The summons under case number 25302/2020 was served on the 15 October
2020 at 1[...] V[...] Road City Deep the place of business upon Chris, the manager of
Pioneer Busses a responsible person, apparently not less than sixteen years of age
and in charge of the Defendant.
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[9] The Defendant filed a Notice of Intention to Defend dated 30 October 2020 on
the Plaintiff.
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[10] A Plea was filed dated 7 December 2020.
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[11] The trial was initially scheduled for 31 January 2022 but was postponed at the
Defendant's request to amend its Plea, who also covered the associated costs.
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[12] The Defendant subsequently submitted an application under rule 28 to amend
its Plea, which was met with opposition.6
[13] On 18 March 2022 the opposed interlocutory rule 28 application was
dismissed with costs.7
2 Case Lines 02-1
3 Case Lines 03-3
4 Case Lines 05-3
5 Case Lines 17-1
6 Case Lines 12-3
7 Case Lines 003-1
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[14] The Particulars of Claim was amended on 8 July 2024.8
[15] The Notice of Set down for 18 A ugust 2025 was served via email on the
Defendant’s attorneys on 3 September 2024.9
[16] Counsel for the Plaintiff has confirmed that the Defendant is informed of the
court date due to:
[16.1] correspondence between the attorneys,
[16.2] discussions at the previous hearing of this matter and
[16.3] the trial date which was widely circulated via Case Lines.
[17] The matter was allocated on the civil trial roll for 18 August 2025. The
Defendant and its attorneys were not in attendance.
[17.1] The Plaintiff proceeded in terms of rule 39 (1) of the Uniform Rules of
Court which states:
“If, when a trial is called, the plaintiff appears and the defendant does not
appear, the plaintiff may prove his claim so far as the burden of proof lies
upon him and judgment shall be given accordingly, in so far as he has
discharged such burden.”
[18] The Plaintiff’s counsel indicated that the Plaintiff would be leading the
evidence of three (3) witnesses to substantiate its three claims. It led the evidence of
a property valuator, the property managing agent of the premises and an quantity
surveyor.
EVIDENCE LEAD BY PLAINTIFF
8 Case Lines 31-3
9 Case Lines 29-3
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[19] The first witness called was Mr. Geoffrey Geoff Balme, a Property Consultant,
Valuer, Director, and Registered Professional Associated Valuer at Balme Van Wyk
& Tugman.
[20] His professional background encompasses two decades of relevant
experience in the following areas:
[20.1] preparation of portfolio valuations for housing and landholding
companies to support audited financial statements;
[20.2] completion of retail tenant-to-landlord assessments;
[20.3] provision of pre-emptive valuations for future rates forecasts; and
[20.4] completion of retail tenant-to-landlord assessments.
[21] He was asked to assess the current market rental of the pr emises listed
below, which he inspected on 7 May 2025:
• 1[...] V[...] Road, City Deep;
• Nature thereof: B Grade Industrial / warehouse / with offices
• Date of Rental: Wednesday, 01 January 2020
• Rental nature: Rent Assessment to market as at 1 January
2020
[22] A lease agreement between the Plaintiff and Pindulo VDM (Pty) Ltd
(“Pindulo”), dated 9 July 2020, was provided to Mr Balme . The lease term
commenced on 1 July 2020 and concluded on 30 June 2021, with an option for
renewal for a further year. The rental amount was set at R175 000.00, or R35 per
square meter.
[23] The methodology employed by Mr. Balme, was as follows:
[23.1] The fair rental value of the property was established by examining a
wide spectrum of comparable industrial facilities that include office spaces,
considering both the nature of such properties and the demographics they
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attract. This research encompassed facilities located within the surrounding
area and specifically those within a 5 km radius of the subject property, with
particular emphasis on industrial sector trade facilities featuring office
components.
[24] Mr. Balme referred to the Rode report that shows that a 5 000 m² property in
City Deep earns R210 000.00 monthly, equating to R42.00 per square meter.
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[25] According to Mr Balme, the Pindulo lease amount of R175 000.00 , equating to
R35 per square meter for a one-year period
11 is considered understated.12
[26] Comparative market analysis within the same area indicates an average
rental rate of R53.52 per square meter as at 2025.
13 When this figure is de-escalated
by 7% in accordance with the Rode Report 14 the corresponding rental rate for 2020
would be R38.16 per square meter.
[27] Mr Balme concluded that, based on his inspection and report, the fair market
rental for a five-year lease with a 7% escalation as of 1 January 2020 is R200 000.00
or R40.00 per square meter per month. For a three- year lease, the escalated rental
would be slightly higher at R53.00 per square meter.
APPLICATION OF EXPERT”S EVIDENCE IN RESPECT OF CLAIM A – RENTAL
[28] Mr. Balme’s evidence indicates that the Plaintiff could have rented the
premises, including the PXL portion, for R200 000.00 per month over at least 5
years, with an annual escalation of 7%.
[29] In the application of the provided evidence, it is noted that the rental
commenced at R200 000.00 per month in 2020, subject to a 7% annual escalation.
10 Case Lines 37-317
11 Case Lines 37-79
12 Case Lines 37-77
13 Case Lines 37-318
14 Case Lines 37-317
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[29.1] The rental amount is accordingly determined as follows:
• 1 January 2020 to 31 December 2020: R 2 400 000.00
• 1 January 2021 to 31 December 2021: R 2 568 000.00
• 1 January 2022 to 31 December 2022: R 2 747 760.00
• 1 January 2023 to 31 December 2023: R 2 940 103.20
• 1 January 2024 to 30 November 2024: R 2 883 751.20
Total: R 13 539 614.40
Less Amounts Paid:
R 508 800.00
Total: R 13 030 814.40
[30] The Plaintiff has accordingly suffered damages of R13 030 814.40 due to loss
of rental from 1 January 2020 to 30 November 2024, resulting from the Defendant's
breach and/or unlawful occupation.
EVIDENCE - MS ATLANTA RWODZI
PRE- AND POST CONDITION OF PROPERTY AND CITY OF JOHANNESBURG
SUBCHARGES
[31] Ms. Atlanta Rwodzi indicated that she has held the position of property
manager for the Plaintiff since 1 July 2013. Her responsibilities include overseeing
tenants and collecting rental payments.
[32] Since 1 July 2013, she has managed the property located at 1[...] V[...] Road,
City Deep.
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[33] A satellite photograph of the property was presented, showing the area
initially leased by the Plaintiff .15 The Plaintiff subsequently occupied additional
portions of the property beyond the original lease area.
[33.1] Regarding the premises, she indicated that upon entering through the
property gate, drivers' restrooms, ablution facilities, and a canteen are
immediately accessible. Furthermore, the property contains a warehouse as
well as a two-storey office building.
[34] Ms Rwodzi testified that the Plaintiff’s lease commenced at the beginning of
2020 and expired on 31 December 2019.
CONDITION OF PREMISES AT 2020
[35] She took photographs numbered 1 to 8 during her inspection of the property
before the handing over to Pindulo on 1 July 2020.
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[36] No significant defects were found in the property, and Pindulo acknowledged
and accepted its condition.
[37] The Defendant continued to occupy the property after receiving notice
regarding the lease's expiration.
[38] Pindulo had paid a deposit equivalent to two months – R350 000.00, to the
Plaintiff which had to be refunded to P indulo because the Plaintiff continued to
occupy the premises after its lease expired.
[39] She additionally stated that throughout 2020, all buildings and rooms depicted
in photographs 1 through 8 were maintained in good condition. She identified each
photograph as follows:
15 Case Lines 37-186
16 Case Lines 37-390
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[39.1] Photograph 1 shows the entrance to a two- storey reception
area.17
[39.2] Photograph 2 is a photo of the warehouse and offices.18
[39.3] Photograph 3 is one of the offices equipped with a fire extinguisher
and air-conditioner.19
[39.4] Photograph 5 shows the drivers’ restrooms and ablution facilities.20
[39.5] Photograph 6 reflects the front of the warehouse.21
[39.6] Photograph 7 is of the external surrounding wall.22
[39.7] Photograph 8 is the double storey office building.
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CONDITION OF THE PREMISES AFTER ABANDONMENT
[40] After the Defendant left the premises in November 2024, the property was
found to be in a deteriorated and dilapidated condition. The main entrance gate
designed to slide open had to be lifted to operate.
[41] The photographs, beginning at Case Lines 37- 404, show the condition of the
property as it was in May 2025. Ms. Rwodzi provided commentary on these
photographs as detailed below.
[41.1] Photograph 16 includes two photos; the second shows the driver’s
restrooms, where smashed sewage and water pipes have left no running
water, and the wall paint is damaged.
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17 Case Lines 37-390
18 Case Lines 37-391
19 Case Lines 37-392
20 Case Lines 37-394
21 Case Lines 37-395
22 Case Lines 37-397
23 Case Lines 37-398
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[41.2] Photographs 17 to 19 25 show the driver’s ablution, which is in poor
condition. Taps are missing, water damage caused the ceiling to collapse, the
windows are broken, and the facility is discoloured.
[41.3] Photograph 20
26 depicts the interior of the ablution facility. Several taps
are damaged, and there is evidence of vandalism throughout the property. 27
Furthermore, the restrooms have been converted into permanent living
spaces. 28
[41.4] Photograph 22 s hows the ablution facility. The door is damaged and
has not received adequate maintenance. Additionally, the kitchen appears to
be in poor condition, with several taps missing.
[41.5] Photograph 23 shows significant water damage and ceiling
deterioration.
[41.6] Photograph 24 depicts a dislodged gutter and damaged roller shutter
doors. The lower image shows the warehouse frontage. Electrical supply is
absent due to severed cables; wiring has been removed and fittings have
been stripped.
[41.7] Photograph 27 depicts the office building. The doors had been forcibly
opened, and all air conditioning units had been vandalised. The units are
found lying on the floor throughout the offices.
[41.8] Photograph 28 s hows the kitchen within the main office, where the
doors are either missing or damaged.
24 Case Lines 37-405
25 Case Lines 37-406
26 Case Lines 37-409
27 Case Lines 37-410
28 Case Lines 37-409
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[41.9] Photograph 29 depicts the upstairs office. The ceilings exhibit damage,
and the walls show evidence of peeling. The ceiling was intentionally
compromised to remove the electrical wiring.
[41.10] Photograph 30 shows that the surrounding external wall is not
intact, with visible holes that are covered by canvas.
[41.11] Photograph 31 is evidence of the Defendant’s trucks abandoned
in the main shed and also in the surrounding areas.
CLAIM 2: SERVICE CHARGES - CITY OF JOHANNESBURG
[42] Ms Rwodzi provided an accounting of the service charges related to the
property. These charges were to be paid by the Defendant to the Plaintiff, who
subsequently remitted payment to the City of Johannesburg. She conducted a
calculation and recalculation of these expenses.
[43] Exhibit A, submitted to the court, details the recalculated figures. The balance
according to the COJ statement is R4 822 060.44. Deductions include R88 140.28
for payments made by the Plaintiff as landlord, R1 658 058.33 for charges incurred
by the previous tenant (PXL, who vacated on 30 June 2018), as well as rates
charges from July 2018 to November 2024 that are not attributable to the Defendant.
Consequently, the outstanding amount is R2 670 609.08.
[44] Ms Rwodzi verified that the sum of R2 670 609.08 remains due for payment to
the City of Johannesburg.
EVIDENCE- MR. TAPIWA MADHOMU
CLAIM B – REPAIR COSTS
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[45] Mr. Madhomu was called as the second witness. He works as a quantity
surveyor and provides cost estimates for new, restructuring, and ongoing
construction projects. He has been working in his field of experience since 2022. 29
[46] He conducted an inspection of the property and noted that it had been
neglected for an extended period. Additionally, the property had been subject to
vandalism.
[47] He inspected the property, consulted electrical, structural, and air -conditioning
experts, and drafted a bill of quantity based on their market rates. His final report is
Annexure C.
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[48] The initial calculation of the repair costs was R14 753 059.13.
31 A subsequent
recalculation was performed, excluding the electrical fence, which was not present in
January 2020. Exhibit B submitted in court reflects this recalculation, with the revised
amount totalling R13 657 915.93.
[49] He provided an overview of the primary defects present at the property, which
predominantly involve water damage. The roofs exhibit rust due to insufficient
maintenance, the tiles show signs of cracking, and there has been a general lack of
upkeep. Additionally, the P laintiff was denied access to the premises. The current
condition of the building is attributed to ongoing neglect in maintenance.
[50] Vandalism occurred, as shown by stripped electric wires and missing light
fittings. Most items were stolen, indicating significant theft.
[51] The preliminary and general costs on Exhibit B total R1 749 374.60, covering
construction overhead, salaries, scaffolding, and protective clothing. These
expenses account for 50% of the total cost and are considered fair and reasonable.
29 Case Lines 37-342
30 Case Lines 37-347
31 Case Lines 37-389
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[52] Item 2 on Exhibit B concerns ablution facilities, with a cost of R768 573.23.
The doors are bent and must be replaced. The ceiling is unstable and there is
significant water present. The floors are cracked and also require attention.
[53] The urinals are outdated and stained. The shower flows and mixers require
replacement, the taps have been removed and the mixers no longer work.
[54] The plumbing structures have been vandalized. The taps must be replaced,
broken pipes require new installations, and wall access is necessary to insert the
pipes.
[55] There is evidence of water damage i n the ceiling. The paint is also peeling
throughout. The walls require brushing to remove flakes, followed by plastering and
repainting. The doors are also scheduled for replacement.
[56] The kitchen and canteen walls and tiles are damaged, with holes and
smashed tiles. Hedges and cracked floors also require repair.
[57] The bedroom walls exhibit signs of rust and deterioration.
[58] The roof has significant water damage.
[59] With reference to the images included in Mr. Madhomu’s report and the
accompanying picture bundle 32 he discussed and referenced the photographs that
he had taken himself.
[59.1] Photograph 122 comprises two images; the lower image depicts a
partition, with a portion that has sustained damage and has been
dismantled.
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[59.2] Photograph 124 – The ceiling board collapsed. Isolation must be
removed and electricians need to rewire the ceiling.
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32 Case Lines 37-421
33 Case Lines 37-433
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[59.3] Photograph 125 – The steel canopy covering and structural
components exhibit deformation. Replacement sheeting is required for the
canopy covering.
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[59.4] Photograph 127 – the doors have been subjected to vandalism.
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[59.5] Photographs 153
37 and 157 38 - show leaking warehouse and office
roofs, cracked floors, broken glazing, and damaged roller doors requiring
replacement. Poorly maintained gutters caused significant ceiling and floor
damage.
[59.6] Photograph 178 shows an upstairs room with a collapsing ceiling.39
[59.7] Photograph 193 - The kitchen is vandalized, with cabinets and handles
removed.
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[59.8] Photograph 246 – The external walls exhibit significant damage,
indicating inadequate maintenance. The plaster has been exposed to water
due to insufficient protection.
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[59.9] Photograph 248 shows the rusted roof of the main shed. Repainting
will be ineffective; the entire sheeting must be replaced. The steel supports
also require repair due to loss of strength.
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[59.10] Photograph 254 show the boundary wall has been vandalized
and is covered with plant roots, which proper gardening could have
prevented.
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34 Case Lines 37-434
35 Case Lines 37-435
36 Case Lines 37-436
37 Case Lines 37-437
38 Case Lines 37-436
39 Case Lines 37-439
40 Case Lines 37-442
41 Case Lines 37-443
42 Case Lines 37-443
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[59.11] Photograph 256 illustrates that the sliding gate to the property
was not properly maintained, as it lacks both spikes and wheels.44
[59.12] Photograph 264 and 266 - The electrical wires were stripped
and vandalized.
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[60] Mr. Madhomu removed item 291 from his calculation because it was not
present in 2020.46
[61] In Mr. Madhomu’s expert opinion R13 657 915.93 represents the fair and
reasonable cost required to restore the premises to its condition at the
commencement of the Defendant’s lease.
CONCLUSION:
[62] Upon reviewing the aforementioned evidence, this court finds that the Plaintiff
has established entitlement to claim liquidated damages ( for rental) and for sub-
charges and repair costs.
[63] Accordingly, I make the following order:
Order
[1] The Defendant is ordered to make payment of the following sums:
[1.1] in respect of claim A the sum of R13 030 814.00.
[1.2] In respect of claim B the sum of R13 657 915.93.
[1.3] in respect of claim C the sum of R2 670 609.08.
43 Case Lines 37-445
44 Case Lines 37-446
45 Case Lines 37-447
46 Case Lines 37-388
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[2] Interest is calculated at the rate of 11% per annum from 29 October
2020, being the date of service of the summons, to date of final payment.
[3] Costs including costs of counsel on scale C.
S VAN ASWEGEN
ACTING JUDGE OF THE HIGH COURT
JOHANNESBURG
For the Plaintiff: Adv J Heher
Instructed by Fluxmans Inc
For the Defendant No appearance