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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
Case Number: 2024/031754
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: NO
In the matter between:
EMM PROPERTY HOLDINGS (PTY) LTD Applicant
and
WORLDWIDE RAIL AND MINING SOLUTIONS (PTY) LTD Respondent
JUDGMENT
NOKO, J
Introduction
[1] The applicant launched proceedings for the ejectment of the respondent and all
persons occupying the premises described as:
[a] A portion of Erf 4[ …] and Erf 4[…], J[...] P[...] Extension 15 Township,
held under Deed of Transfer T[…]; and
[b] A portion of the r emaining extent of Portion 170 of the farm Witkoppie ,
held under Deed of transfer T[…], (collectively, “the Premises”); and
[c] The portion of the Remaining Extent of Portion 170 of the
Farm Witkoppie No. 6[ …], Registration Division IR, Gauteng Province
and held under Deed of transfer T […], as identified north of the entrance
2
of J […] P[…] Road, situate at 6 […] J[…] P[…] Road, J[...] P[...] ,
Boksburg.
(hereinafter collectively referred to as the “premises”)
[2] The respondent is opposing the application.
Parties
[3] The applicant is EMM Property Holdings (Pty) Ltd, a private company duly
incorporated in accordance with the company laws of the Republic of South Africa, with
registration number 1 976/001806/07. The appl icant’s chosen domicilium citandi et
executandi is 120A, 8
th Avenue, Fairland, Johannesburg.
[4] The respondent is Worldwide Rail and Mining Solutions (Pty) Ltd, a private
company duly inc orporated in terms of the company laws of the Republic of South
Africa, with registration number 2016/296981/07. The respondent’s chosen domicilium
citandi et executandi is 6[…] J[…] P[…] Road, J[...] P[...], Boksburg.
Background
[5] The part ies entered into a lease agreement of the premises on 10 May 2023,
which consist of warehouse, workshop, and office facilities . The lease commenced on
1 June 2023. The monthly rental payable in advance was R300 000.00, to increase to
R600 000.00 per month from 1 June 2024. The monthly municipal rate s payable were
R40 300.00, plus increases as contemplated in the lease agreement , of which the
respondent would be liable for 50% as per the local authority’s invoice. The total
monthly rental is exclusive of VAT, which shall be added on a monthly basis.
[6] The applicant instituted eviction proceedings on 20 March 2024 on the basis that
the respondent breached the lease agreement by failing to pay rental when due, and that
the lease agreement was accordingly cancelled.
Parties’ version and submissions
3
[7] The applicant avers that the responde nt was in arrears in the sum of R46 345.00
for the rates and was served with a notice to remedy the breach on 2 August 2023,
requiring payment within seven days, failing which the agreement would be terminated.
The notice was sent by email to the respondent’s representatives. The applicant
proceeded to terminate the lease in writ ing on 15 August 2023, and a copy of the
termination letter is annexed to the founding papers. Although the notice was not
delivered at the chosen domicilium, the applicant contends that it came to the
respondent’s attention as it was subsequently attached to correspondence from
respondent’s attorneys. The applicant relied on Sandton Square Finance (Pty) Ltd ,1
where it was held , he submitted, that if the notice reaches the respondents , failure to
deliver at the domicilium citandi et executandi is of no moment.
[8] The respondent only made payment on 18 August 2023. Nonetheless , the
respondent was requested to vacate the property on 31 August 2023, as the agreement
had been cancelled.
[9] The applicant further sent a notice of another breach on 4 March 20 24 to the
respondents’ attorneys ,
2 stating that the respondent was in arrears in the amount of
R515 584.00 for failure to pay rental and related charges. 3 The notice provided that,
without derogating from the termination already effected on 15 August 2023 (and ex
abudanti cautela), if the responde nt failed to remedy the breach within seven days, the
agreement would be cancelled. The respondent failed to remedy the breach within the
stipulated period, and the lease agreement was accordingly cancelled, as set out in the
founding affidavit.4
[10] The applicant referred to the following clauses in the lease agreement relevant to
the issue before me:
1 Sandton Square Finance (Pty) Ltd and Others v Biagi, Bertola and Vasco and Another 1997 (1) SA 258
(W).
(W).
2 At this time the respondent’s attorneys conveyed that the service should be effected at their offices.
3 Other breaches were that the respondent effected numerous alterations, had damaged polycarbonate
sheets and was requested to replace same.
4 See para 53 of the Applicant’s Founding Affidavit.
4
[a] The applicant is entitled to cancel the agreement if the respondent fails to
remedy any breach within seven days of receiving notice requesting
rectification.5
[b] The respondent is prohibited from improving the premises without the
applicant’s written consent.6
[c] In the event of any alterations , the respondent waives any claim for the
value of those improvement in favour of the applicant.7
[11] In its defence, the respondent contended that the notice of breach was not
compliant with the terms of the lease agreement because it was not delivered at the
domicilium address and should therefore be considered pro non scripto.
[12] The respondent’s second defence was that the applicant failed to ensure that the
premises was fit for purpose , thereby necessitating alterations . In this regard , counsel
submitted, the Supreme Court of A ppeal held in Thompson v Scholtz
8 that a tenant is
entitled to withhold the rental amou nt. The respondent further contended that the
premises were not properly maintained and that water ingress from roof leaks damaged
its diesel locomotive engine, necessitating repairs at a cost of USD 508 000.00. The
respondent intends to institute a claim against the applicant for those damages and, in
view thereof, contends that it is entitled to an improvement lien over the property.
[13] In reply, the applicant submitted that, as set out above, the respondent waived in
the applicant’s favour any benefit arising from alterations effected to the property.
Moreover, the respondent has not satisfied the requirements for an improvement lien ,
including the requirement that the value of the alleged improvements be quantified. It is
also a prerequisite to the exercise of a lien that the lienholder neither trade on nor use the
premises.
[14] The respondent further argued that, since the purported termination of the lease
agreement, there have been several discussions between the parties with the intention of
5 Clause 24.4 of the Agreement at CL 02-53.
5 Clause 24.4 of the Agreement at CL 02-53.
6 Clause 12.1 of the Lease Agreement at CL 02-45.
7 Clause 12.2 read with 12.5 of the Agreement at 02-26.
8 [1998] ZASCA 87; 1999 (1) SA 232 (SCA).
5
reinstating the lease. The respondent has also continued making payments and, to date,
there is no amount outstanding. The applicant submitted that this argument is untenable,
pointing out that it made no concession at any stage that the termination was withdrawn.
Moreover, the agreement 9 expressly provides that , once terminated, the respondent
remains liable for rental if it continues in occupation . Accordingly, the contention that
the agreement was impliedly reinstated is unsustainable.
[15] Finally, the responde nt contended that the municipal charges would not attract
VAT. Moreover, the respondent understood that the applicant would provide the
statement from the local authority.
Issues
[16] The issues for determination are whether the applicant has established a case for
the eviction of the respondent from the premises and whether the defences raised are
sustainable.
Legal principles and analysis
[17] The basis for eviction is predicated on evidence that the premises belong to the
applicant and that the occupier’s right of occupation has been lawfully terminated. The
applicant alleged that it is the owner of the premises and has cancelled the lease
agreement. The respondent does not dispute the applicant’s ownership but contends that
the lease agreement was not cancelled or, alternatively, was reinstated.
[18] Where a tenant holds over
—that is, remains in occupation after disputing the
cancellation of the lease —the tenant shall continue to make all payments and comp ly
with the obligations set out in the agreement.10
9 See clause 001-53 of the Agreement of Sale at CL 001-53.
10 See clause 26 of the Lease Agreement. See also Willis, Principles of South African Law 9 ed at 919 (by
Graham Bradfield et al), where the following is stated: “On the termination of a lease, it is the duty of the
lessee to vacate the property; if he ‘holds over’, he is liable in damages, or on the basis of unjust
enrichment, depending on the circumstances, to the lessor, in addition to ejectment under order of court.”
6
[19] The agreement provides that if the tenant fail s to make payment under the lease
agreement by the due date ,11 or breach es any other term of the l ease12 and fail s to
remedy such default or breach within seven days of receiving a written demand to do so,
the landlord is entitled to forthwith cancel the lease.13
[20] In Sandton Square Finance (Pty) Ltd ,14 the court stated that the mere fact that a
domicilium address has been chosen does not preclude effective service by another
method provided for in the Uniform Rules of Court.15 However, the judgment cited does
not support the applicant’s case, because the method actually used is not among those
listed in the Uniform Rules.
[21] One may be tempted to conclude that the respondent’s acknowledgment of
receipt of the emailed notice suffices for service as contemplated in the agreement. This
would, however, mean that the agreement was effectively amended without complying
with the Shifren clause. It bears noting that courts are expected to respect principles of
contractual autonomy, including the common law principle of pacta sunt servanda
(agreement must be kept). Notwithstanding the se principles, the Constitutional Court
held in Beadica 231 CC and Others16 that contractual clauses should be enforced unless
doing so would be unfair, unreasonable, and/or contrary to public policy.
[22] In any event, the Rules of Court ordinarily govern the service of court processes,
not termination notices. Accordingly, I find that the alleged service of the first notice
was not in accordance with the agreement and is to be regarded as pro non scripto.
Moreover, the agreement makes no provision for communication by electronic means ;
accordingly, any such service would have to comply with the Electronic
Communications and Transactions Act.17 I note that the applicant did not advance this
argument.
11 See 24.1.1.
12 See 24.1.3.
13 See 24.2.2.
14 See n 1 above.
argument.
11 See 24.1.1.
12 See 24.1.3.
13 See 24.2.2.
14 See n 1 above.
15 Id at 260 C -D. See Motloung v Meyersdal Nature Estate Homeowners Association (NPC) [2021]
ZAGPJHC 477 at para 18.
16 Beadica 231 CC and Others v Trustees for the time being of Oregon Trust and Others [2020] ZACC 13;
2020 (5) SA 247 (CC); 2020 (9) BCLR 1098 (CC).
17 Electronic Communications and Transactions Act Act 25 of 2002.
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[23] Turning to the second notice , the applicant correctly contended that the service
address had been changed and that the new address for service of the notice was that of
the respondent’s firm of attorneys. The termination, as set out in the founding affidavit,
may therefore be construed as the notice of termination envisaged in the agreement. The
lease agreement provides that , should the respondent fail to remedy the breach or
default, the “… Landlord shall be entitled … to forthwith ca ncel this lease , resume
possession of the Leased Premises and claim full value of all arrear amounts owing in
terms of this Lease togeth er with the present value of each unpaid but not yet due a nd
payable Total Monthly Rental for the unexpired portion of the Lease as pre -determined
liquidated damages.” 18 There is no re quirement that cancellation be in writing , and
accordingly termination through court process is valid.
Conclusion
[24] Having regard to the foregoing, the other issues raised by the respondent warrant
no attention by this Court. Accordingly, I find that the defences raised by the respondent
are unsustainable, except insofar as they relate to the first notice , which was sen t by
email.
Costs
[25] There is no reason why the costs should not follow the results.
Order
[26] I make the following order:
1. That all persons holding occupation through the respondent be ejected from
the commercial lease premises described as:
1.1. A portion of Erf 4[…], J[...] P[...] Extension 15 Township, Township,
Registration Division, IR, Gauteng P rovince and held under Deed of
transfer T[…].
18 24.2.2 at CL 02-53
8
1.2. A portion of Erf 4[…], J[...] P[...] Extension 15 Township, Township,
Registration Division IR, Gauteng P rovince and held under Deed of
transfer T[…].
1.3. The p ortion of the Remaining Extent of Portion 170 of the
Farm Witkoppie No. 6[ …], Registration Division IR, Gauteng
Province and held under Deed of transfer T […], as identified north of
the entrance of J […] P[…] Road, situate at 6[…] J[…] P[…] Road,
J[...] P[...], Boksburg.
1.4. The respondent is ordered to pay the costs for the application on a
scale as between attorney and client.
__________________________
MV Noko
Judge of the High Court
Gauteng Division, Johannesburg
This judgement was prepared and authored by Noko J and is handed down electronically
by circulation to the parties/ their legal representatives by email and by uploading it to
the electronic file of this matter on CaseLines. The date of the judgment is deemed to be
9 May 2025.
Date of hearing: 30 April 2025
Date of judgment: 9 May 2025
Appearances
For the Applicant: H. G. Dobie, instructed by Reaan Swanepoel Inc.
For the Respondent: A. Allison, instructed by Vardakos Attorneys.