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with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
(NORTHERN CAPE DIVISION, KIMBERLEY)
Not Reportable
Case No: 1791/2025
In the matter between:
VELASKER PROPERTY INVESTMENT (PTY) LTD Applicant
and
THE GLOW ENTERPRISE (PTY) LTD
t/a ROAST KIMBERLEY Respondent
Neutral citation: Velasker Property Investment (Pty) Ltd v The Glow Enterprise (Pty)
Ltd t/a Roast Kimberley (1791/2025) (12 September 2025).
Heard: 01 August 2025.
Delivered: 12 September 2025.
Summary: Law of lease – Commercial lease – Failure to pay rental as agreed –
Landlord entitled to terminate the lease on reasonable notice to the tenant.
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_____________________________________________________________________
ORDER
______________________________________________________________________
1. The cancellation of the memorandum of the agreement of lease dated 1
November 2024 entered into between the applicant, Velasker Property
Investment (Pty) Ltd, and the respondent, The Glow Enterprise (Pty) Ltd t/a
Roast Kimberley, is confirmed.
2. The respondent and all those holding title under it, are to vacate the property
known as Shop […], K […] Centre, Cnr of Phakamile Mabija Road and York
Street, Kimberley, Northern Cape (the property), within a period of 30 days from
date of this order.
3. In the event that the respondent fails to vacate the property as set out in
paragraph 2 above, the sheriff of this Court is directed to carry out the eviction of
the respondent and all those holding title under it from the property.
4. The respondent is to pay the costs of the application on the scale as between
attorney and client.
______________________________________________________________________
JUDGMENT
______________________________________________________________________
Phatshoane DJP
[1] The applicant, Velasker Property Investment (Pty) Ltd, is the registered owner of
the property known as Shop […], K […] Centre, situated at the corner of Phakamile
Mabija Road and York Street, Kimberley (the property). It seeks an order confirming the
cancellation of a commercial lease concluded between itself and the respondent, The
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Glow Enterprise (Pty) Ltd t/a Roast Kimberley, in respect of the property; an order that
the respondent vacate the property; and further ancillary relief with regard to costs. On
18 July 2025 the application was launched on an urgent basis; however, for reasons
not apparent from the record, it was postponed to 1 August 2025.
[2] Mr Bradley John Bordiss (Mr Bordiss), a deponent to the founding affidavit, is a
member of Bordiss Property CC and a managing agent for the applicant. On 1
November 2024 the applicant and the respondent concluded a lease agreement in
terms of which the applicant leased the property to the respondent for a period of five
years, commencing on 1 December 2024 and terminating on 30 November 2029. The
monthly rent was R20 600 for the first six months of the lease period and thereafter
R26 600, with an annual escalation of 7% to be effected on 1 June of each year.
[3] The further salient terms of the lease were that the respondent would be liable to
make payment of a deposit of R61 180, a pro rata payment of muni cipal rat es and
taxes, operating costs of the property, costs for refuse removal, sanitary fees, domestic
and industrial effluent fees levied from time to time on the property, costs of security
guards, costs for water consumption, and costs in respect of use of electricity or gas on
the property. The property would be used solely for the preparation, cooking of fast
foods and related services. The express written consent of the applicant would be
required in case the property was used for any other purpose. The respondent also
undertook not to make any alterations or additions or to partition the leased premises.
The applicant would be entitled to cancel the lease should the respondent default in the
payment of the rental or breach the terms of the lease. The respondent would be liable
to pay legal costs that the applicant would incur in enforcing the terms of the lease on
an attorney and client’s scale.
an attorney and client’s scale.
[4] The applicant avers that the respondent continuously breached the terms of the
lease in that it failed to make payment of its monthly rental and other charges as and
when they fell due. It is further argued that the respondent partitioned the lease d
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premises and used them for a different purpose without the prior written consent of the
applicant.
[5] On 23 May 2025 the applicant’s managing agent addressed an email to the
respondent highlighting that the respondent failed to honour a payment arrangement
dated 30 April 2025 and accordingly he cancelled the lease . The respondent was given
seven days’ notice to vacate the premises and to remove its paraphernalia by 31 May
2025. The applicant alleges that on 3 June 2025 the respondent was indebted to it in
the amount of R26 002.07. Two days later, the respondent made payment of arrears in
the amount of R25 0 00. The applicant averred that the payment in question ‘did not
extinguish the arrear’ nor did the applicant, on receipt of the payment , waive its right to
cancel the agreement . In its replying affidavit , it intimated that the arrears were in the
order of R11 515.52. It explained that the respondent pays rental ‘when he feels like it
and the rental remains in arrears due to the inconsistent manner [in which] the
respondent has been paying its rental from 1 December 2024’.
[6] The respondent remains in occupation of the lease d premises. However, in the
interim, the applicant attempted to conclude a new lease in respect of the same
premises with a certain Real Beds, Kimberl ey (Lewis). The occupation of the said
premises by Lewis was supposed to have been on 1 August 2025. The applicant stated
that it wished to provide Lewis with a beneficial occupation, prior to the commencement
of the new lease, but could not do so because the respondent refused to vacate the
property. The applic ant further contended that the application is urgent because ,
through the respondent’s refusal to vacate the property , the applicant is denied its use
and enjoyment of the property. Put differently, it is prevented from generating an income
to advance the purpose for which the property was intended.
[7] Mr Muhammad Shavaiz Ali, the sole director of the respondent, deposed to the
[7] Mr Muhammad Shavaiz Ali, the sole director of the respondent, deposed to the
answering affidavit. He is a businessman who generates income by selling cellphones,
cellphone accessories, and related gadgets. The respondent’s answering affidavit is
one day late. The delay is negligible and is condoned. The respondent devoted much
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time in oral argument and in its heads of argument contending that the applicant did not
make out a case for urgency.
[8] It is trite that there are varying degrees of urgency. The property is intended to
generate an income, and it is alleged that it is currently not generating any. This would
warrant some expedited approach. I am of the view that the issues raised are semi -
urgent and should be treated in that manner. The respondent also took issue that the
founding affidavit was not properly attested to by a commissioner of oaths and therefore
not properly before Court because it does not state where it was signed. This argum ent
must immediately be rejected because the founding affidavit was attested on 1 Jul y
2025, it bears the full names of the commissioner of oaths, his address and that he is a
sergeant in the South African Police Service, Rondebosch.
[9] With regard to the me rits of the application the respondent states that, upon the
conclusion of the lease, it intended to open a franchise roast business and to sell fast
foods. It paid the deposit of R61 200 but could not conduct that form of business. It then
requested Mr Bordiss to change the nature of the business to that of trading in
cellphones and related accessories. Mr Bordiss accepted the variation. It therefore
commenced selling cellphones on the basis of that approval.
[10] The respondent’s main gripe with the application appears to be twofold. First, it
contended that the cancellation of the lease was prematu re as the applicant failed to
provide it with the notice of breach and to afford it a reasonable opportunity to remedy
the default, which caused considerable hardships. In light of this, it was contended for
the respondent that it was not obliged to accept ‘the unlawful termination of the lease’.
[11] Secondly, the respondent argued that there was some lack of good faith on the
part of the applicant in seeking to cancel the lease and evict it from the pr operty. In
part of the applicant in seeking to cancel the lease and evict it from the pr operty. In
amplification, the respondent intimated that Mr Bordiss accepted an offer dated 15 April
2025 from Lewis, which expressed interest to take beneficial occupation of the property
from 1 August 2025. For this reason, the respondent aver that the applicant acted mala
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fide and never had any intention to afford it an opportunity to remedy the breach. It was
submitted for the respondent that the applicant unilaterally terminated the lease in order
to enter into a new lease agreement with Lewis. On the basis of the aforegoing, the
respondent argued, the application falls to be dismissed with costs on a punitive scale.
[12] On the respondent’s own version, it did not pay the rent as agreed and fell in to
arrears. The respondent’s submission that there was some period of two weeks during
which it could not trade and therefore seeks the rental to be adjusted cannot avail it.
The respondent also sought to imply that a rental discount was granted to it without any
substantiation. The applicant denies that the respondent ever approached it to consider
reducing the agreed rental. The terms of the lease are clear. Clause 22.5 specifically
records:
‘No relaxation or indulgence which the landlord may show to the tenant shall in any way
prejudice its rights under this lease. In particular, no acceptance by the landlord of rent
or other amounts payable in terms of this lease after due date (whether on one or more
occasions) nor any act or omission by the landlord including, without limitation, the
rendering of accounts after due date, shall preclude or stop the landlord from exercising
any rights enjoyed by it hereunder.’
[13] The manner in which the respondent carried out its obligations in terms of the
lease is problematic. For instance, in terms of clause 17.4:
‘The tenant shall not make or cause to be made any alteration, additions, or
improvements to the exterior or interior of the leased premises or install or cause to be
installed in addition to those referred to in 17.1 above any trade fixture, floor covering,
interior lighting, interior plumbing or other interior fixtures, shades awnings without first
obtaining the landlord ’s prior written consent which consent shall not be unreasonably
withheld’.
withheld’.
In terms of clause 17.1 , it is required of the tenant to submit the plans and
specifications, prepared by a professional designer or shopfitter, of the tenant’s
proposed fixturing and fitting of the property to the landlord . Where the plan and
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specifications are not approved by the landlord, the tenant should submit amendments
which should conform to the landlord’s requirements.
[14] The applicant disputes that it verbally agreed to the variation of the lease thereby
permitting the respondent to conduct the business of selling cellphones , related
accessories and other gadgets or partitioning the property. That may well be. However,
the lease has a non -variation clause which precludes alteration of its terms unless
reduced to writing and signed by the parties or on their behalf. The respondent did not
produce anything in writing concerning the agreement to partition the premises or to
change the nature of the business to that of trading in cellphones, cellphone
accessories and other gadgets.
[15] Clause 22 of the lease is relevant to the argument on the purported premature
termination of the lease. It stipulates in part:
‘DEFAULT OF THE TENANT:
22.1 Should the TENANT:
22.1.1. Fail to pay any rent or any other amount falling due in terms of this lease on the
due date, or
22.1.2. Fail to submit timeously or falsify any report required to be furnished to the
LANDLORD in terms of the lease, or
22.1.3. Commit any act of insolvency, or
22.1.4. Breach any of the conditions of this lease and thereafter again breach any other
conditions of this lease (whether the same condition or not) within a period of 12
(twelve) months after the earlier breach, whether or not the LANDLORD has
given the TENANT notice calling upon it to remedy such breaches, or
22.1.5. Consequently breach any of the conditions of this lease in such a manner as to
justify the LANDLORD in holding that the TENANT’S conduct is inconsistent
with the intention or ability of the TENANT to carry out the conditions of this
lease, whether or not the LANDLORD has given the TENANT notice calling
upon it to remedy such breaches, or
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22.1.6. Notwithstanding Clause 22.1.4 above commit any breach other than referred to
in Clause 22.1.1 above and fail to remedy that breach within a period of 7
(seven) days after the LANDLORD has given the TENANT written notice calling
upon it to do so (provided that should the breach be one which is not
reasonably capable of being remedied within the said period of 7 (seven) days
then the TENANT shall be allowed such additional period as is reasonable
therefore), then and in such events the LANDLORD shall have the right, but
shall not be obliged, (and without prejudice to any other rights or remedies the
LANDLORD may have against the TENANT including the right to claim arrears
or damages):
a) to forthwith terminate and cancel this lease at an end without any notice
thereof being required, resume possession of the leased premises and
eject the TENANT from the leased premises, or
b) to vary this lease by making it terminable by one month’s written notice
given by the LANDLORD at any time, or
c) in the case of any breach or breaches under Clauses 22.1.4, 22.1.5 or
22.1.6 above, to remedy such breach itself and immediately recover the
total costs incurred by the LANDLORD in so doing from the TENANT.’
[16] The respondent’s deponent conceded that the respondent has been in arrears
during February 2025 due to its financial constraints and delays in finalising the
franchise deal. He further confirmed having received an email, on behalf of the
respondent, which recorded that the agent was under pressure from the landlord to
have the respondent evicted from the property due to its default in the payment of the
rental. These are the events of the breach specified in the agreement which would
entitle the applicant t o cancel the lease in terms of clause 22. Had the respondent kept
to the payment of the rental as agreed , the applicant’s acceptance of the offer from
Lewis would have been frowned upon . However, the acceptance of that offer cannot be
Lewis would have been frowned upon . However, the acceptance of that offer cannot be
said to have been insincere or tainted by mala fides in the circumstances where the
respondent has been in default.
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[17] A reading of clause 22.1. 6(a) exempts the landlord from giving notice to remedy
the breach to the tenant in the event that the tenant defaults in the payment of rental. To
remove any doubt on whether notice of breach ought to have been issued, clause
22.1.6 expressly exempts providing notice for a breach referred to in clause 22.1.1,
which is ‘any default with regard to the payment of the rental’. The respondent ’s default
falls squarely within that category. This should put paid to any suggestion that the
respondent ought to have been afforded an opportunity to remedy its breach.
[18] If no period has been agreed upon in respect of a notice of termination ,
reasonable notice must be given. 1 The applicant argued that the seven -day notice to
vacate the property was sufficient and reasonable. G Bradfield and K Lehmann state:
‘What constitutes reasonable notice depends on the circumstances of each case, but
certain guidelines have emerged over the years. The notice must as a general rule
expire at the end of a period for which rent is payable and must afford the lessor a
reasonable time to relet the premises or the lessee a reasonable time to find other
premises. In this regard the following periods have been accepted as reasonable: a
week in the case of a weekly lease, a month in the case of a monthly lease and three
months in the case of a yearly lease. Under common law both landlords and tenants are
entitled to terminate a periodic lease on reasonable notice without “let or hindrance ”.
The right is absolute, and the motive for the termination is irrelevant.’2
[19] I am unpersuaded that the seven days’ notice given to the respondent to vacate
the property was sufficient. Considering the period within which the lease would remain
in existence (five years) and the period in which the respondent has been in occupation
of the premises (some eight months), to my mind, a period of 30 days within which the
of the premises (some eight months), to my mind, a period of 30 days within which the
respondent ought to have been allowed to vacate the property would have been
adequate and reasonable. I propose to make an order to that effect. Save in respect of
the deficient notice of termination, the applicant was justified to terminate the lease in
the circumstances of this case. As a result, I am of the view that a proper case has been
1 G Bradfield and K Lehmann Principles of the Law of Sale & Lease 3 ed (2013) at 185.
2 Ibid at 185-186.
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made out for the eviction of the respondent from the property . It follows that the
application must succeed.
[20] Costs on an attorney and client’s scale are provided for in clause 22.3 of the
agreement. In the result:
Order
1. The cancellation of the memorandum of the agreement of lease dated 1
November 2024 entered into between the applicant, Velasker Property
Investment (Pty) Ltd, and the respondent, The Glow Enterprise (Pty) Ltd t/a
Roast Kimberley, is confirmed.
2. The respondent and all those holding title under it, are to vacate the property
known as Shop […], K […] Centre, Cnr of Phakamile Mabija Road and York
Street, Kimberley, Northern Cape (the property), within a period of 30 days from
date of this order.
3. In the event that the respondent fails to vacate the property as set out in
paragraph 2 above, the sheriff of this Court is directed to carry out the eviction of
the respondent and all those holding title under it from the property.
4. The respondent is to pay the costs of the application on the scale as between
attorney and client.
M V PHATSHOANE
DEPUTY JUDGE PRESIDENT
NORTHERN CAPE DIVISION
Appearances
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For the applicant: JP Van Den Berg
Instructed by: PPM Attorneys, Bellville
Duncan & Rothman Inc, Kimberley
For the respondent: M Froneman
Instructed by: PGMO Attorneys, Kimberley.