(1) REPORT ABLE: NO
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
(2) OF INTEREST TO OTHER JU DGES: NO
(3) RE V ISED: NO
29 September 2025
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Case No : 34726/2022
In the matter between:
INTERGAME PROPERTIES (PTY) LTD
INTERNATIONAL GAME TRADING CC
GLEN AFRIC SPRINGWATER CC
and
GO2 H2O (PTY) LTD
JUDGMENT
First Applicant
Second Applicant
Third Applicant
Responden t
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GOUWS, AJ
INTRODUCTION
[1] This application concerns the status of two written lease agreements, respectively
concluded between the first applicant and the respondent, and the first through
third applicants and the respondent, during July 2020.
[2] It is common cause that both leases contained a series of suspensive conditions
which had to be fulfilled within a “reasonable period”, failing which the agreements
would automatically lapse.
[3] The applicants’ case is that none of these conditions were fulfilled, and that the
agreements have accordingly lap sed. Declaratory orders relating to both
agreements are sought to this effect.
[4] In respect of the first lease agreement, which concerned the lease of water rights
and a portion of a six-hectare portion of land, the suspensive conditions included:
[4.1] the obtaining of all necessary licences and permits required by South
African law, the Department of Health and the Department of Water
Affairs;
[4.2] the submission of an application for an extension of the existing water -
use licence, which must include reports of a geologist and an EIA
(environmental impact assessment) report;
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[4.3] the granting of all registrations that may be required by local council;
[4.4] application and registration with the South African National Bottled Water
Association (“SANBWA”);
[4.5] installation of a constant waterflow monitoring system;
[4.6] the appointment of a land surveyor to survey and record the co-ordinates
of the leased portion to be registered with the deeds office;
[4.7] the registration of servitudes relating to water use;
[4.8] the registration of servitudes for roads and excess roads to the existing
factory; and
[4.9] the obtaining of special zoning, including business rights for the factory,
bottling, distribution, residential and/ or other.
[5] In respect of the second lease agreement , the suspensive conditions were
similar:
[5.1] the obtaining of requisite licences required under South African law, and
permits from the Department of Water Affairs and the Departme nt of
Health;
[5.2] the application for an amended or extended water-use licence;
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[5.3] obtaining all general registrations with the local council;
[5.4] application and registration with SANBWA;
[5.5] the installation of a flow monitoring system to regulate abstraction;
[5.6] appointment of a land surveyor to record and survey the co -ordinates of
the one hectare, as well as six hectare portions of the property to be
leased by the applicants.
ASPECTS IN DISPUTE
[6] The applicants’ case is advanced in broad terms: they allege that the respondent
failed to comply with any of the suspensive conditions.
[7] The respondent, by contrast, deals with each condition individually. It claims that
the monitoring system was installed in April 2021; that SANBWA membership
was already secured in 2019 and awaited operational status; that a provisional
health approval was obtained in August 2021; that professionals were appointed
to prepare the water-use application and conduct the survey; and that preparatory
steps were taken regarding rezoning, building plans and environmental
approvals.
[8] The respondent contends that the applicant prevented the fulfilment of the
outstanding conditions by forcefully and unlawfully evicting the respondent from
the leased premises during July 2021, which made further progress impossible.
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[8] A further dispute concerns the effect of clause 7 of the lease agreement , which
provides that operations were to commence within five months of occupation. The
applicants, in the replying affidavit, contends that this period ought to be attributed
also to the suspensive conditions, meaning that 5 months constituted a
reasonable period within which these conditions were to be fulfilled.
ANALYSIS
[9] It is immediately apparent that several of the conditions are described only in
broad and unspecific terms. The first condition refers to the obtaining of “all
necessary licences and permits required by South African law, the Department
of Health and the Department of Water Affairs ”, but nowhere do the applicants
explain what compliance would entail , or how long it would ordinarily take to
obtain whatever licenses and permits were required . The second condition
relates to the application for extension of an existing water -use licence, but no
evidence is given as to the ordinary duration of such applications, or what would
constitute a reasonable period within which to prepare and submit such an
application. As to registration with SANBWA, the applicants do not explain what
that process involves or the expected timeframe. For the installation of a constant
water-flow monitoring system, there is no indication of what would constitute a
reasonable period to do this . Similarly, the registratio n of servitudes and the
rezoning of land are recorded, without reference to the steps involved or their
typical duration.
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[10] In reply, the applicant contends that all of these conditions were to be met within
5 months from date of occupation, to with around November 2020.
[10] The respondent, for its part, admits that many of the conditions had not yet been
fulfilled. It acknowledges that the extension of the water -use licence, the land
survey, the rezoning and the servitudes remained outstanding. It maintains,
however, that some conditions were in fact satisfied or substantially progressed.
These include the installation of the water -flow monitoring system in April 2021,
SANBWA membership already secured in 2019, and a provisional approval from
the Department of Health obtained in August 2021. The respondent explains that
the outstanding conditions could not be completed because it was forcibly
removed from the premises in July 2021, after which it had no further access.
[11] In addition, the respondent contends that those conditions that remain unfulfilled
remain so because of its unlawful eviction from the premises in July 2021, which
constituted a repudiation of the agreements. The respondent contends that these
conditions ought to be regarded as fictionally fulfilled.
[12] It is apposite to first deal with the issue of fictitious fulfilment, particularly against
the backdrop of the relief sought by the applicants. The applicants seek final relief.
In such cases the well -established principle in Plascon-Evans Paints Ltd v Van
Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A) at 634E –635C applies: Where
disputes of fact arise on the affidavits, a final order may be granted only if the
facts averred by the applicant, which have been admitted by the respondent,
together with the facts alleged by the respondent, justify such an order. Unless
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the respond ent’s version is so palpably implausible, far -fetched or clearly
untenable that it can safely be rejected on the papers, the Court must accept it
for purposes of adjudicating final relief.
[13] The disputes in this matter are real and material. The question of whether the
respondent was unlawfully evicted is in dispute. The question of whether this
unlawful eviction resulted in the respondent being unable to meet all of the
suspensive conditions is in dispute. Wh ether certain conditions were fulfilled or
partially fulfilled is disputed. Whether all of the conditions were to be fulfilled within
5 months from date of occupation of the premises is disputed. And what
constitutes a reasonable period within which these conditions were to be fulfilled
is disputed.
[14] On the affidavits, I find nothing far -fetched or palpably imp lausible about the
respondent’s version that would warrant its rejection on the papers. On that
version, the respondent’s inability to finalise certain approvals was directly
caused by the alleged unlawful eviction.
[15] It is a recognized principle that no party may benefit from its own obstructive
conduct. The dictum of Wessels, CJ in KOENIG V JOHNSON & CO. Ltd 1935
AD 262 is instructive:
“If it is the fault of the person in whose favour the condition is inserted that the
condition cannot be fulfilled, the law considers the condition to have been fulfilled as
against him. The nature of the contract is always an important element. In some cases
the person benefitted by the non -performance of the condition ca n sit still and do
nothing to assist in its fulfilment; in other cases it is his legal duty to assist in the
condition being fulfilled; and in other cases if he deliberately and in bad faith prevents
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the fulfilment of the condition in order to escape the consequences of the contract, the
law will consider the unfulfilled condition to have been fulfilled as against the person
guilty of bad faith.“
[16] The applicants deal with th e proposition of fictional fulfilment by denying the
forced eviction, but also by contending that the conditions were required to be
complied with within five months of signature – namely by December 2020 – and
accordingly, even if the forced eviction did occur later as alleged, it was not the
cause of the non -fulfilment. Thus, so the argument goes, nothing would turn on
the forced eviction.
[17] There are substantial difficulties with this proposition. First, a 5-month period that
relates to the fulfilment of the suspensive conditions is not borne out by any
express term in the agreement. The five-month period is sought to be attributed
to the suspensive conditions by the applicants, with reference to clause 7.2 of the
respective lease agreements, which provide that the bottling plant had to be
operational five months after signature. Ergo, so the argument goes, five months
was a reasonable time also for the fulfilment of the conditions.
[18] There is no evidence before me that would drive a conclusion that the suspensive
conditions were all required to be fulfilled when the plant became operational. I
cannot simply derive from the affidavits that conditions such as zoning, business
rights, registration of servitu des for roads, and the appointment of a land
surveyor, serves as preconditions for the plant becoming operational. It might
very well be that the plant is required to be operational before some of the
conditions can be met. This corresponds to the assertio ns of the respondent,
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where it contends that some of the compliances could only be achieved when the
plant became operational. Date off operation does accordingly not automatically
correspond to date of fulfilment of one or more of the suspensive conditions.
[19] The respondent also points out that the 5 - month period, as sought to be
attributed to the suspensive conditions through clause 7.2, is wholly insufficient,
when measured against statutory prescribed timelines. W ater-use licence
amendments ordinarily take more than 12 months . Rezoning applications under
SPLUMA often take a year or longer, and environmental approvals under NEMA
require extensive procedural compliance extending well beyond five months.
Similarly, SANBWA certification presupposes an op erational plant, which itself
could not be realised within that short period.
[20] In addition, t he reliance on the 5 -month period in any event carries little or no
probative value, as it was advanced for the first time in the replying affidavit. It is
trite that a case must be made out in the founding papers, and not in reply.
[21] That leads to the second fundamental difficulty with the applicants’ case. The
founding affidavit does not enumerate what the conditions are that was agreed to
be met. I had previously remarked that some of these conditions are stated in a
generalised manner. The term that provide s for the obtaining of “all necessary
licenses and permits required under South African law” serves as an example.
What would those be? This observation is somewhat mitigated by the respondent
dealing pertinently in the answering affidavit with what exact licenses or approvals
were contemplated by the parties.
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[22] More significant , is that t he conditions that were enumerated are furthermore
fundamentally different. I t stands to reason that what would constitute a
reasonable time for fulfilment of one condition would not necessarily relate to
another. Each would be subject to independent evaluation. I have not been
favoured with any evidence that would allow for objective analysis as to what
would constitute a reasonable time for fulfilment of the separate conditions. The
applicant has resided with a blanket allegation that five months was reasonable
for all of the conditions to be met.
[23] I have already dealt with the difficulties that I have with this submission.
[24] The onus lies on the applicants to establish what the conditions were, what would
constitute a reasonable time for fulfilment of each condition, and ultimately that
the conditions were not fulfilled within a reasonable time. Absent express
agreement between the parties as to when the conditions are to be fulfilled, and
without evidence showing, for example, how long it should reasonably take to
obtain a water -use licence amendment, to complete rezoning, to secure
environmental authorisations, or to obtain SANBWA operational compliance, I
cannot make such finding s. The respondent, by contrast, drew attention to
statutory timelines that relate to some of these cond itions that typically extend
beyond five months.
[25] As I had previously remarked, t he application is plagued by a myriad of factual
disputes that ought more appropriately to be determined by a trial court. Absent
such a referral , and applying Plascon-Evans, I am constrained to accept , for
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purposes of determination of this application, the respondent's version that the
applicants' eviction prevented fulfilment of those suspensive conditions that
remain unfulfilled. On this version, the applicants w ould not be entitled to rely on
the non-fulfilment of the conditions, having themselves caused the non-fulfilment
through their intentional conduct.
[23] In addition, the applicants have failed to discharge the onus of illustrating, in the
founding affidavit, the exact nature and extent of the conditions that w ere to be
fulfilled, w hat a reasonable time w as w ithin w hich each w ould have to be fulfilled,
and correspondingly that such a reasonable time has lapsed for each condition.
[18] In the result, I cannot find that the agreements have lapsed as prayed for.
Resultantly I make the follow ing order:
1. The application is dismissed.
2. The applicants, jointly and severally, are ordered to pay the respondent's costs
of the application on Tariff scale B.
SG GOUWS
ACTING JUDGE OF THE HIGH COURT , PRETORIA
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APPEARANCES:
FOR APPLICANTS: ADV DA DE KOCK
Cell: 0833248125
Email: danelo@gkchambers.co.za
Instructed by: CLARINDA KUGEL ATTORNEYS
Tel: 012 344 6579
Email: johan@kugel.co.za; assistant@kugel.co.za
FOR RESPONDENT: FJ NEL
Cell: 0829757592
Email: fj@clubadvocates.co.za
Instructed by : BARNARD & PATEL INCORPORATED
Email: litigation@bpinc.co.za