IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Not Reportable
Case No: 20358/2024
In the matter between:
DAMELIN (PTY) LTD Applicant / Defendant
and
SARGAS (PTY) LTD t/a VEGA PROPERTIES Plaintiff / Respondent
Coram: DA SILVA SALIE, J
Heard on: 27 August 2025
Delivered on: 3 October 2025
Summary:
Leave to appeal – Rule 27(1) upliftment of bar – section 17(1)(a) Superior Courts Act
– stringent threshold – whether applicant showed “good cause” including bona fide
defence with prospects – purported defences (jurisdiction, utilities, rectification,
warranties) found to be opportunistic, belated, or contradicted by lease – no
reasonable prospects that another court would differ – leave dismissed with costs.
ORDER
(i) The application for leave to appeal is dismissed.
(ii) The applicant is ordered to pay the costs of the application for leave to appeal.
JUDGMENT
DA SILVA SALIE, J
Introduction:
[1] This is an application by the defendant, Damelin (Pty) Ltd (“Damelin”), for
leave to appeal against my judgment delivered on 15 May 2025, in terms of which
the application for the upliftment of the bar was dismissed with costs.
[2] The plaintiff in the action proceedings, Sargas (Pty) Ltd t/a Vega Properties
(“Sargas”), instituted action against Da melin for arrear rental in the amount of
R1 160 281,20 together with ancillary relief . The lease agreement relates to the
leased premises situate in Observatory, Cape Town utilised as Damelin’s campus.
[3] Damelin failed to deliver its plea to the summons within the prescribed time
however subsequently filed its plea. Given that it was out of time, it sought leave
from this Court to uplift the bar. I found that Damelin had failed to meet the threshold
under Rule 27(1) and was not persuaded that it had shown a bona defence with
prima facie prospects of success. In the result, I dismissed the application with costs.
Application for leave to appeal:
[4] Damelin now seeks leave to appeal to the Full Court of this Division,
alternatively, to the Sup reme Court of Appeal. It is contended that I erred by
applying:
(i) An overly stringent test for the upliftment of the bar.
(ii) Imposed too heavy a burden upon the applicant to demonstrate its
defences.
(iii) The interests of justice warranted a different outcome.
[5] The test for leave to appeal is trite. Section 17(1)(a) of the Superior Courts Act
10 of 2013 provides that leave may only be granted where the court is of the opinion
that the appeal would have a reasonable prospect of success, or that th ere is some
other compelling reason why the appeal should be heard. The threshold is a
stringent one, intended to filter out appeals lacking in merit.
Grounds for leave to appeal:
[6] The grounds of appeal substantially argue the same issues considered in the
main application. The submissions in the main application were considered and
rejected, upon detailed consideration of the affidavits filed in the application, the
pleadings, the lease agreement, and the purported defences : that the amou nts for
utility charges (water and electricity consumption) in respect of the portion of the
leased premises were not accurate as well as the additional defence (raised in the
supplementary affidavit) that Sargas had made warranties regarding signage and the
Millpark Business School , the breaches of which resulted in da mages suffered by
Damelin.
[7] The jurisdictional defence was abandoned during the hearing of the main
application as well as during this application. The application for upliftment of the bar
proceeded on the utility charges issue.
[8] Damelin claims that it had been incorrectly charged for the utility charges and
as it had not received proof of such charges, it therefore could not accept same as
accurate. Sargas has shown that electricity and water meters have been installed at
the premises and further, that it sent Damelin monthly reports relating to both the
water and electricity meters.
[9] The proverbial pinched shoe for Damelin was that in th e lease agreement,
Damelin is precluded from raising a claim to remission of rental and set off as a
defence. At clause 16 of the agreement, Damelin agreed that it would not be entitled
to withhold rental, in that the rental shall be paid in advance on the first day of each
and every month, without deduction or demand. In other words, amounts in respect
of water and electricity which it considered as having been overcharged, can in any
event not be set off against rental due. Whilst other remedies lay open to Damelin to
pursue its possible claim in respect of what it considers possible inaccurate charges;
these do not include the withholding of rental . A possible claim for overcharged
municipal charges does not amount to a specified amount and cannot be cons idered
as a bona fide defence to the liquid claim under the lease agreement for outstanding
rental.
[10] In or der to overcome the hurdle aforesaid, Damelin alleged in its
supplementary affidavit that it has additional defences which it would raise in the
action proceedings, and which arise from the breach of the warranties given by
Sargas prior to the conclusion of the leave agreement. As a result of these alleged
breaches, Damelin would be entitled to commensurate rental remis sion and a
counterclaim for contractual damages.
Rectification of lease agreement defence – alleged warranties re signage and
Milpark Business School:
[11] Damelin alleged that Sargas provided it with the express warranty that all
municipal licenses and approvals for its signage would be obtained by Sargas. This
is though at odds with the non -variation clause in the agreement and also that all
signs, notices, billboards or advert isement requiring municipal approval and consent
must first be obtained by a tenant, who will be responsible for all and any costs in
relation thereto. It also alleged that Sargas warranted that the portion of the
premises occupied by Milpark Business School was merely used as an exam centre,
however, that it had come to Damelin’s attention that numerous students were being
diverted from Damelin to the Milpark Head Office which resulted in loss of student
registration.
[12] To get around the above clause, Damelin claimed that it would seek
rectification of the lease agreement . In other words, that relief would be sought for
the lease agreement to be amended to record these warranties . I was also mindful
that whilst there was numerous correspondence exchanged between the parties ,
however, nowhere is reference made to th e alleged breaches of express warranties.
With reference to the supplementary affidavit, t here is nothing to explain what the
scope of the signage warranty was, why it was not included in the lease agreement
and why it had only been raised for the first time in the supplementary affidavit
shortly before the hearing of this matter.
[13] It is alleged on behalf of Damelin that because of signage failure, it placed it in
breach of the conditions imposed by the regulations of the Department of Higher
Education and the Council for Higher Education, which mandate that all higher
education institutions must erect appropriate signage. There is nothing in the papers
before me to suggest that this alleged signage breach resulted in Damelin failing to
obtain its accreditation to run courses. Signage is technical in nature and has various
rules and regulations attached to it. Furthermore, Damelin did not seek rectificatio n
of clauses 6.24 - which recorded its acknowledgement that the landlord gave no
warranties or assurances that such licences required by the municipality will be
granted. Clause 7.3 records that the landlord did not warrant that the tenant will be
granted licences in respect thereof for the conduct of its business or that its licences
will be renewed.
[14] Damelin’s claim that Sargas warranted that the portion of the premises
occupied by Milpark was only for an exam centre, and not for trading, is not ra ised
with specific reference to the clause in the agreement it seeks to rectify.
Furthermore, the amount of its loss in connection to this claim is unliquidated.
[15] The applicant further argues that I erred in rejecting what it describes as the
“Milpark warranty” defence, contending that it raises disputes of fact requiring
ventilation at trial. This submission cannot be sustained. The so -called Milpark issue
was not raised in the defendant’s (purported and late filed ) plea at all but was
introduced belatedly for the first time in a supplementary affidavit to the upliftment
application.
[16] A defence that is absent from the plea cannot properly form the basis of “good
cause” under Rule 27(1). The court’s task is to assess whether the plea itself
discloses a bona fide defence with some prospects of success. Allegations raised
discloses a bona fide defence with some prospects of success. Allegations raised
only in supplementary affidavits, not reflected in the plea, do not advance the
defendant’s ca se. Indeed, they underscore the opportunistic and after -the-fact
manner the defendant has attempted to resist the plaintiff’s claim.
[17] Even if one were to consider the Milpark allegations, they are
unsubstantiated, raised for the first time some time into the litigation, contradicted by
the express lease provisions, and expressly denied by the plaintiff and is not
quantified. They therefore fall well short of the threshold of a bona fide defence. My
rejection of the Milpark issue was accordingly correct, and no appeal court would find
that it demonstrates reasonable prospects of success.
[18] I note the applicant’s submission that I erred by dismissing the warranty
allegations summarily, without allowing them to be ventilated through oral evidence,
and that at this stage the applicant was not required to prove its defence but only to
allege facts which, if established, would constitute a d efence. This contention
overlooks the procedural context. The alleged defences were not raised in the plea
but advanced belatedly within the upliftment application, not as part of properly
joined issues. Rule 27(1) demands that “good cause” be shown, which requires more
than a bare assertion; it requires a defence which is bona fide, and which carries
some prospects of success.
[19] Where, as here, the allegations are not only unsupported by any
contemporaneous material, but also directly contradicted by the lease provisions,
they cannot qualify as triable issues. The dismissal of such defences was not for
want of oral evidence but because, viewed against the pleadings, affidavits and the
contract itself, they lacked credibility, were raise d belatedly, and were opportunistic
in nature. To elevate such claims to “good cause” would dilute the threshold set by
Rule 27(1) and endorsed by the appellate courts.
Good cause:
[20] In my view, the defences purported to be raised to the claim for unp aid rental
were not good in law and do not amount to bona fide defence s which carry some
prospects of success.
[21] Damelin contends that I imposed an unduly high burden in requiring more
than a mere allegation of fact. However, Rule 27(1) requires that the bar may only be
uplifted upon “good cause shown”, which demands not only an explanation for delay
but also a bona fide defence with some prospects of success. The defences
advanced were not only lacking in evidentiary foundation but, more importantly,
patently contradicted by the contractual terms.
[22] On the papers before me, the applicant failed to demonstrate the existence of
triable issues with prima facie merit. Its attempt to recast the same points in the
guise of appeal grounds does not surmount the threshold imposed by section
17(1)(a).
[23] For completeness, I add that this matter does not implicate any wider public
interest considerations, nor does it raise a novel legal question or conflicting
authority that another court might be called upon to resolve. Section 17(1)(a)(ii) of
the Superior Courts Act envisages that leave may be granted in the interests of
justice, even absent prospects, but nothing in this case brings it within that ambit.
The dispute is fact-bound and contractually determined.
[24] In the circumstances, I am not persuaded that there are reasonable prospects
of success on appeal. Nor does the application disclose any compelling reason,
within the meaning of section 17(1)(a)(ii), why the appeal should be heard. This
matter rai ses no novel question of law, no conflict of authority, and no issue of
general importance. Another court would not come to a different conclusion.
Order:
[25] In the result, I order as follows:
“(i) The application for leave to appeal is dismissed.
(ii) The applicant is ordered to pay the costs of the application for leave to
appeal.”
________________________
DA SILVA SALIE, J
JUDGE OF THE HIGH COURT
WESTERN CAPE DIVISION
Appearances
For Applicant/Defendant: Adv. A J Gevers
Instructed by: Mooney Ford Attorneys
For Plaintiff/Respondent: Adv. B Hansen
Instructed by: BDP Attorneys