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IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case Number: 2024-109469
(1) REPORTABLE: NO
(2) OF INTEREST TO THE JUDGES: NO
(3) REVISED.
DATE: 29 August 2025
SIGNATURE:
In the matter between:
CENTPRET PROPERTIES (PTY) LTD Applicant
and
THAMAE OCCUPATIONAL HEALTH SOLUTION CC First Respondent
MOSENYA SOLOMON THAMAGA Second Respondent
SUCCESS MATAITSANE Third Respondent
JUDGMENT
VIVIAN AJ
Introduction
[1] The applicant seeks an order evicting the respondents from a commercial
property.
[2] It is common cause that the applicant is the owner of the property and that the
first respondent is in occupation of the property. The first respondent took occupation
pursuant to a lease agreement concluded in 2017. The first lease was for a period of
three years commencing on 1 March 2017 and terminating on 29 February 2020. A
second lease was concluded for a period of two years commencing on 1 March 2020
and terminating 28 February 2021.
[3] The second lease expired, but its terms provided that it continued on a month
to-month basis until conclusion of the third lease. A third lease agreement was
concluded for a period of one year commencing on 1 September 2021 and
terminating on 31 August 2022.
[4] A fourth lease agreement was concluded for a period of one year
commencing on 1 September 2022 and terminating on 31 August 2023. After the
expiry of the term of that lease, it continued on a month -to-month basis, subje ct to
either party giving 30 days' notice of termination. The issue in this application is
whether the fourth lease agreement was validly terminated.
[5] The second and third respondents signed deeds of suretyship for the payment
by the first respondent to the applicant for all or any sum or sums of money from
whatsoever cause arising. They should not have been cited as respondents in this
application for reasons that I set out below.
[6] The applicant contends that the first respondent failed to pay amo unts due
under the lease agreement. It gave notice of default on 9 November 2023. The
respondent did not remedy its default, and the applicant terminated the lease on 30
May 2024.
[7] The first respondent argues that it has not breached any terms of the l ease
agreement. It disputes certain charges levied by the applicant.
[8] The first respondent contends that the applicant has failed to prove a cause of
action for eviction.
[9] In his heads of argument, the respondents' counsel, Mr Janse van Rensburg,
relied on two defences. First, he argued that the breach was not common cause.
Second, he argued that the issue as to whether there was a breach is an issue in a
matter pending before another court and that the doctrine of lis alibi pendens should
be applied. I deal with these in reverse order.
Lis alibi pendens
[10] The First Respondent relies on the dilatory defence of lis alibi pendens. It has
instituted an action in the Regional Court, Pretoria. It contends that, because those
proceedings were instituted before this application, this application should be stayed
pending the finalisation of those proceedings.
[11] In Caesarstone, Wallis JA explained that there are traditionally three
elements to the defence of lis alibi pendens, namely:
11.1. The litigation is between the same parties;
11.2. The same cause of action;
11.3. The same relief is sought in both matters.1
[12] Each of the three requirements can be relaxed in appropriate circumstances.
In respect of the same cause of action requirement, Wallis JA held: "... the
1 CAESARSTONE SDOT-YAM v WORLD OF MARBLE AND GRANITE 2000 2013
(6) SA 499 (SCA) at para 12
requirement of the same cause of action is sat isfied if the other proceedings involve
the determination of a question that is necessary for the determination of the case in
which the plea is raised and substantially determinative of the outcome of that latter
case."2
[13] I agree with Mr Janse van Ren sburg that the primary issue in this application
is whether the first respondent was in breach of its obligations under the lease
agreement at the time when it was given notice of breach and at the time of
cancellation. The summons was issued before the ap plication was issued.
Accordingly, if the issue in the question of whether the first respondent was in breach
at the relevant times is substantially determinative of the outcome of the Regional
Court case, then the requirement of same cause of action may be met.
[14] The particulars of claim in the Regional Case reveal that the first respondent
advances two alternative contentions. The complaint is that the fact that the first
respondent was liable for additional costs such as a pro rata share of rates and taxes
and utilities was not immediately apparent from the schedule that formed part of the
agreement.
[15] This is advanced on at least three grounds. The first is based on Section
41(1)(b) of the Consumer Protection Act 68 of 2008 (CPA), which provides:
"(1) In relation to the marketing of any goods or services, the supplier must
not, by words or conduct-
(a)
(b) use exaggeration, innuendo or ambiguity as to a material fact, or fail to
disclose a material fact if that failure amounts to a deception ... "
[16] The second is that the term of the lease requiring such conduct is unfair,
unreasonable or unjust in terms of Section 48(1) of the CPA.
2 CAESARSTONE SDOT-YAM v WORLD OF MARBLE AND GRANITE 2000, supra
at para 21
[17] The first respondent accordingly seeks an order in terms of Section 52(3) of
the CPA. It seeks a refund for overpayment of expenses and an order that the
applicant account to the first respondent.
[18] In the alte rnative, the first respondent asserts that the applicant was not
entitled to delegate its responsibility to pay rates and taxes to the first respondent as
a matter of public policy or in terms of the Local Government: Municipal Property
Rates Act 6 of 2004 . It asserts that the applicant (through its utility management
company) wrongly charged fees in respect of electricity in excess of the tariffs
approved by NERSA.
[19] I do not comment on the merits of the Regional Court case. However, it is
immediately apparent that there is no contention in the particulars of claim that the
first respondent was not in breach of its obligations in terms of the lease agreement.
The Regional Court action and this application do not seek the same relief, nor do
they turn on the same cause. Here the applicant invokes its entitlement to
possession after a valid cancellation. In the Regional Court, the first respondent
seeks relief under the CPA or public-policy regarding past charges.
[20] Whether the first respondent was en titled to withhold payment is not
determinative of the Regional Court claim. Clause 5.4 of the lease in any event
precludes withholding. Indeed, I do not expect that the first respondent will contend
that, because of the findings in this application, it ca nnot proceed with its action in
the Regional Court.
[21] The defence of lis alibi pendens is not established.
The breach
[22] Mr Janse van Rensburg rightly accepted that, if the first respondent was in
breach of its obligations under the lease agreement when the notice of breach was
given, it remained in breach when the termination notice was given. He also did not
contend that either of these notices did not comply with the provisions of the lease
agreement.
[23] The rent was R17 250 per month, inclusive of Value Added Tax.
[24] Clause 5 of the fourth lease agreement provided for payment of amounts and
charges. It expressly listed the charges for which the first respondent was liable.
These included the monthly rent, electricity, water, sewerage, and other services.
[25] Clause 5.4 provided that the first respondent was not entitled to withhold or
defer payment of any charge for which it was liable under the agreement.
[26] The applicant annexed a statement of transactions to its founding affidavit.
The statement shows sporadic payments. In September 2023, the first respondent
paid R10 000. In December 2023, it paid R6 300. In April 2024, it paid R5 000. Yet it
paid R20 000, R30 000 and R50 000 in other months.
[27] Significantly, the statement shows that the first respondent was in arrears as
at the date of the notice of breach and remained in arrears as at the date of
termination.
[28] It does not assist the first respondent that it has instituted proceedings i n the
Regional Court. The lease requires it to pay all amounts for which it is liable in terms
of the lease. Even if the first respondent succeeds in the Regional Court, the relief
that it seeks is a refund of monies paid to the applicant on the basis of a declaration
by the Court in terms of the Consumer Protection Act or on the basis of public policy
or the Local Government: Municipal Property Rates Act. Even if the Regional Court
grants relief, that relief would operate through the accounting and refund remedies
pleaded by the first respondent. It does not translate into a present right to withhold
payment in the face of the plain wording of the lease requires the first respondent to
pay all the amounts for which it agreed to be liable in terms of the lease.
[29] It is telling that the first respondent has concluded four leases with the
applicant. Each is in substantially the same term. It asserts that it never had any
applicant. Each is in substantially the same term. It asserts that it never had any
issues in respect of the first two leases. The second respondent, who is the first
respondent's sole member, says he did not scrutinize the first two leases.
[30] The second respondent says that the problems arose towards the end of
2021 and the beginning 2022. He noticed an increase in the total monthly bill. He
says he raised a query wit h the applicant's administrator, who understood to
investigate the issue.
[31] Notably, the second respondent says that he protested against entering into a
new lease without the resolution of his queries. He says that the applicant undertook
to resolve i ssues such as metering of water and electricity and circuit breaker
charges. He then signed the fourth lease.
[32] The second respondent, as the controlling mind of the first respondent, was
accordingly aware of the provisions in the lease relating to cha rges when he signed
the fourth lease.
[33] The fourth lease provided that for the first three months of that lease, the first
respondent did not have to pay any rental. It remained liable for other charges. The
first respondent made payments during these months, which were applied to arrears
and to current charges. The overall amount outstanding reduced to some R13
710,79 by 1 December 2022.
[34] Thereafter, the first respondent continued to pay less than the total amount of
the monthly charges in most months.
[35] The notice of default was sent on 9 November 2023. At that time, the arrears
were R144 192,14.
[36] The first respondent made payments of R20 000 on 1 November 2023 and
R10 000 on 28 November 2023. It paid R6 500 on 1 December 2023, R20 000 on 5
January 2024 and R17 000 on 19 January 2024. In February 2024, it paid amounts
of R10 000, R15 000 and R15 000. These payments resulted in the overdue amount
being slightly reduced.
[37] On 28 February 2024, the first respondent's attorneys sent a lett er to the
applicant. The reference line included the following: "Settlement proposals to write
off part of debt". The letter contained no such proposals, but did request various
documents.
[38] The first respondent then paid R20 000 on 26 March 2024 and R 5 000 on 30
March 2024. It made no payments in April 2024 and paid R15 000 on 2 May 2024.
[39] Unsurprisingly, by 2 May 2024, the balance owing to the applicant had
ballooned to R210 148,60.
[40] The notice of termination was sent on 30 May 2024. At the t ime when it was
sent, the first respondent had not even paid the rental for the previous three months.
[41] In my view, the first respondent was plainly in breach as at the date of the
notice of default. It remained in breach as at date of the notice of t ermination. The
fact that it disputed some of the charges does not assist it as clause 5.4 prevented it
from withholding payment.
[42] The lease agreement was accordingly validly terminated.
The position of the second and third respondents
[43] As noted above, the second and third respondents appear to have been cited
on the basis that they stood surety for the first respondent's indebtedness to the
applicant.
[44] The applicant seeks an orde r evicting the first, second and third respondents
from the premises. There is no allegation that the second or third respondents
occupy the premises in their personal capacity. It is the first respondent who is in
occupation.
[45] An order evicting the s econd and third respondents would ignore separate
corporate personality.
[46] I consider that the second and third respondents were wrongly joined in this
application. However, as they did not raise the point or seek costs, I will simply make
no order aga inst them. This does not prevent the applicant from seeking to recover
any debts owed by the first respondent, including the costs order in this application,
from the second and third respondents in due course.
Conclusion
[47] The applicant has made out a proper case for an order for eviction.
[48] The applicant seeks orders cancelling the third and fourth leases. Such orders
are neither appropriate nor necessary. The third lease has terminated through the
effluxion of time. The fourth lease has been te rminated for breach. The Court cannot
again cancel the lease. The ejectment of the first respondent is the natural
consequence of the fact that it no longer has a right to occupy the premises.
[49] The lease makes provision for attorney and client costs and it is appropriate to
order such costs. As a result, it is not necessary to make provision for the scale of
counsel's fees.
[50] I accordingly make the following order:
50.1. The first respondent, and all persons holding by, through or under it, are
evicted from Workshop 0001 Rosnew, 6 […] P[…] R[…] Street, Rosslyn,
Pretoria, Gauteng Province ("the premises").
50.2. The first respondent and all such persons shall vacate the premises
within 15 days of the date of service of this order on the firs t respondent.
Service shall be effected at the premises.
50.3. Should the first respondent or any such person fail to vacate the
premises within 15 days of the date of service of this order upon it, the
sheriff is authorised and directed to evict the firs t respondent and any
such person from the premises and to give vacant possession to the
applicant.
50.4. The first respondent is to pay the costs of this application on the scale as
between attorney and client.
Vivian, AJ
Acting Judge of the Gauteng Division
of the High Court of South Africa
Appearances
For the Applicant: Z Schoeman
Instructed by Savage Jooste & Adams Inc
For the Respondent: E Janse van Rensburg
Instructed by SJ van den Berg Attorneys
Date of hearing: 13 August 2025
Date Delivered: 29 August 2025
MODE OF DELIVERY: This Judgment was handed down electronically by circulation
to the parties' and or parties' representatives by email and by being uploaded to
CaseLines. The date and time for the hearing are deemed to be 10h00 on 29 August
2025