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document in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
JUDGMENT
Reportable/Not Reportable
Case no: 22803/24
In the matter between:
OURANON PROPERTIES (PTY) LTD APPLICANT
and
JBO WORLDWIDE SUPPLIES (PTY) LTC T/A COCO
SAFAR
RESPONDENT
Neutral citation: Ouranon Properties (Pty) Ltd v JBO Worldwide Supplies (Pty) Ltd
t/a Coco Safar (Case no 22803/24) [2024] ZAWCHC (20 May
2025)
Coram: SALLER AJ
Heard: 23 April 2025
Delivered: 20 May 2025
Summary: Contract – strict enforcement of cancellation clause – eviction from
commercial property – refusal of application for leave to file a further affidavit – public
policy
ORDER
The following order is made:
1. The respondent and all those occupying the premises by, through or under
them are directed to vacate Shop 8 (including storeroom 3 […]) and Shop 9,
Piazza St John, 3[…] M[…] Road, Sea Point (“the premises”).
2. In the event that the respondent or any person occupying the premises by,
through or under it do not vacate the premises within ten (10) days from the
date of this order, the sheriff of this court or his or her deputy is directed and
authorised to evict the occupiers from the premises.
3. The sheriff or his or her deputy is authorised to approach the South African
Police Service for any assistance or support to enforce this order.
4. The respondent is to pay the applicant’s costs on a scale as between attorney
and client.
JUDGMENT
Saller AJ:
INTRODUCTION
[1] This is an application for the eviction of the respondent from commercial property
consisting of Shop 9 and Shop 8 (including storeroom 3 […]), Piazza St John,
3[…] M[…] Road, Sea Point (“the premises” ). The respondent operates a
restaurant, retail space and coffee roastery from the premises.
[2] The respondent first entered into a lease agreement in respect of Shop 8 with the
erstwhile owners of the premises , Nedglen Property Develo pments (Pty) Lt d
(“Nedglen”), on 2 June 2021 (“the Shop 8 lease”). On 18 June 2021 the same
parties concluded a further lease agreement, this time in respect of Shop 9 (“the
Shop 9 lease”) . Finally, on 9 November 2021 the respondent and Nedglen
concluded a written addendum to the Shop 8 lease, whereby the respondent leased
from Nedglen sto reroom 3A (“the addendum”) . Collectively, I refer to these
agreements as “the lease agreements”.
[3] The lease agreements are similar, but not identical. They have in common,
however, that payment of the agreed rental and ancillary charges are due and
payable in advance, on the first day of each month.
[4] Despite this, Nedglen was prepared to indulge the respondent by allowing it to
pay the rental and ancillary charges for in multiple payments over the course of
the relevant month.
[5] On 6 May 2024, Nedglen and the applicant concluded a written sale of letting
agreement, which related inter alia to the premises. The lease agreements
anticipated such a sale in that they provide, in identical terms, for reference to the
landlord in the respective lease agreement to include reference to the landlord’s
successor in title. Transfer and registration of the premises in the applicant’s
name was effected on 6 August 2024.
[6] Consequently, t he rental for September 2024 was, for the first t ime, due and
payable to the applicant on or before 1 September 2024. This is common cause.
It is also not in dispute that the respondent did not pay the due amounts on or
before that day.
[7] Instead, o ver two days on 2 and 3 September 2024, the respondent made two
payments of R 5.000,00 each.
[8] On 3 September 2024, at 10h39, the applicant’s Ms Shireen Coraizin sent an
email to the respondent demanding immediate payment of arrears in an amount of
R 78.061,89, in order to avoid “further penalties as well as negatively affecting
your credit record ”. Ms Coraizin’s email was addressed inter alia to the email
address p[…]. It is common cause that this is the correct email address for the
purpose of communication between the parties.
[9] At 14 h45 on the same day, the applicant’s Ms Nadia Duvenhage sent a further
email, to the same recipients, enclosing a formal letter of demand. In that letter of
demand, the applicant demanded payment of the outstanding amount “ within 7
(seven) days from date hereof ” – the seven day period being that stipulated in
clause 19 of the Shop 9 lease for remedying any breach . The Shop 8 lease
contains no such requirement, nor does the addendum. The applicant further gave
notice that , failing such payment, it would be entitled to cancel the respective
lease agreements, seek the respondent’s eviction from the premises, and hold the
respondent liable for all costs incurred on the attorney-client scale.
[10] In argument, the parties referred to this as the “ breach notice” and I adopt this
terminology to distinguish the letter of demand of 3 September 2024 from
Ms Coraizin’s email of the same day.
[11] The respondent’s Mr Liebenberg replied to the email of Ms Coraizin on
4 September 2024. He acknowledged being in arrears , referred to what he said
was an agreement with Nayglen to make daily payments over the course of the
month, and promised that with such daily payments “the arrears will be covered
in the next 14 days and then we will start to build up a credit.”
[12] He did not address the applicant’s demand , in the breach notice, that full payment
of arrears be made within seven days of the letter of demand , failing which the
applicant would be entitled to cancel the lease agreements.
[13] The respondent made a further two payments of R 5 000 each on 9 and 11
September 2025.
[14] On 12 September 2024 the applicant cancelled the lease agreements for non -
payment, and demanded that the respondent vacate the premises the following
day, failing which an application for the respondent’s eviction would be launched.
The respondent did not vacate the premises.
[15] On 21 October 2025 the applicant launched the present application. It is common
cause that the respondent remains in occupation of the premises and continues to
pay the rental and ancillary charges due to the respondent, albeit not always on
the first of each month.
STRICT ENFORCEMENT OF CONTRACTUAL REMEDIES
[16] In the answering affidavit, despite putting up its case in somewhat cryptic terms,
it appears the respondent’s defence is, in effect, three -fold: [1] that the applicant
was entitled to carry on making payments in accordance with the payment terms
agreed between it and Nedglen ; [2] that the applicant was not entitled to cancel
the lease because at the time of the cancellation, the respondent was “ actively
remedying the breach ”, had promised to make good the outstanding payments
within 14 days, and in fact did so one day after the self -imposed deadline of 14
days; and [3] that this application was launched “prematurely” because the breach
had been remedied by the time the application was launched and there had been
no further breaches since then.
[17] None of these defences can succeed.
[18] As to the payment arrangement between the respondent and Nedglen, for this
arrangement to be binding, it had to have been recorded in writing . This is
because the respective clauses 24 of the lease agreement s stipulate that such
agreements constitute the whole agreement between the parties, and variation
thereof had to be in writing and signed by the parties.
[19] Consequently, t he payment arrangement between the respondent and Nedglen
amounted to no more than an indulgence which does not bind the applicant –
notably, on the wording of clause it also would not have bound Nedglen. The
respondent does not say that it was unaware of the change of ownership of the
premises. It says , instead , that it was under the impression that the indulgence
granted by Nedglen would continue but does say on what legal basis. There is
none.
[20] As to the defendant’s undertaking in the email of 4 September 2024 to remedy the
breach within 14 days, in the absen ce of the applicant’s acceptance of the
proposal it amounted to a unilateral variation of the lease agreements which, too,
does not meet the requirements of a formal variation of the lease agreements. The
Shop 9 lease required the respondent to remedy a b reach within 7, not 14 days.
The Shop 8 agreement and the addendum afforded the respondent no additional
time at all. On the terms of the respective lease agreements, the applicant was
entitled to cancel the respective leases when it did.
[21] In any event, on the facts, the respondent remained in arrears on the 14 th day and
even, on its own version , on 1 October 2024 when an outstanding amount of
R 1 938 was carried over in the October invoice.
[22] As to the respondent’s suggestion that eviction proceedings could not be launched
because, by that time, it was no longer in arrears, there is no legal basis for this
surprising proposition , and Ms Meiring who appeared for the respondent
advanced none. Valid cancellation of a contract is not undone by a subseq uent
remedy of the breach which provided the grounds for the cancellation.
[23] In argument, Ms Meiring who appeared for the applicant did not seriously pursue
the argument that there had been a variation of th e lease agreements either
flowing from the indulgences granted by Nedglen to the respondent, nor from the
respondent’s unilateral undertaking to remedy the breach within 14 days . She
rightly accepted that the respondent had in fact breached the terms of the written
lease agreements, and that such contractual terms were also not contrary to public
policy.
[24] Instead, Ms Meiring urged the court to find that the fact s referred to above at
para [16] should move the court to find that a strict application of the lease
agreements’ terms as they related to non -payment and cancellation would be
contrary to public policy , and that, consequently, the court should refuse to
enforce the agreements’ terms.
[25] For a number of years following the Constitutional Court’s decision in Botha v
Rich N.O. 2014 (4) SA 124 (CC) , the role played by considerations of good faith
and fairness in contract law , as well as the application of public policy
considerations in cases where a party seeks to rely strictly on contractual
provisions, was the subject of considerable jurisprudential uncertainty . Such
uncertainty was fortunately resolved in Beadica 231 CC and Others v Trustees for
the time being of the Oregon Trust and Others 2020 (5) SA 247 (CC).
[26] In Beadica, Justice Theron discussed and affirmed several principles of relevance
to the present matter . These include that “ … a court may not refuse to enforc e
contractual terms on the basis that the enforcement would, in its subjective view,
be unfair, unreasonable or unduly harsh. These abstract values have not been
accorded autonomous, self -standing status as contractual requirements .”
(para 80).
[27] Justice Theron further affirmed the continuing authority of Barkhuizen v Napier
2007 (5) SA 323 (CC) , which in turn had confirmed the centrality of the long-
standing contractual principle of pacta sunt servanda in the new constitutional
order. The starting point, Justice Theron explained at para 83, was that “ in
general public policy requires that contracting parties honour obligations that
have been freely and voluntarily undertaken ”, thus giving effect to the
constitutional values of dignity and freedom (para 92).
[28] Nevertheless, courts retained the power to invalidate, or refuse to enforce ,
contractual terms in “worthy cases” (para 89), where this was demanded by public
policy “ infused with constitutional values ”, giving “ proper weight to the
overarching mandate of the Constitution.” (para 90). What is required is a careful
balancing of constitutional imperatives.
[29] Turning to the facts of the present matter, it is hard not to feel some sympathy for
the respondent. But the question whether a constitutionally infused public policy
demands that the respondent be shielded from the consequences of its failure to
demands that the respondent be shielded from the consequences of its failure to
pay rental in advance on 1 September 2024 , and to settle the arrears within the
contractually stipulated seven -day period from the applicant’s demand, must be
answered in the negative. There is nothing on the papers to elevate personal
hardship to the level of public policy: no constitutional rights are implicated, nor
is the respondent in an exceptionally vulnerable or inequitable position. There is
also no suggestion of bad faith or improper conduct on the part of the applicant
who stands in a purely commercial relationship to the respondent.
[30] In those circumstances, th ere are no grounds for th is court to decline to enforce
the contractual terms, harsh as their consequences may be.
THE BREACH NOTICE
[31] Ms Meiring’s argument stood on a second pillar – one which was not
foreshadowed in the respondent’s answering affidavit but which its factual
averments were capable of sustaining. She submitted that the breach notice failed
to comply with the requirements of the lease agreement s in that it was not
addressed to the respondent’s chosen domicilium, being its business premises or
the cell phone number stipulated in the lease agreements – the latter presumably
by text message.
[32] In this regard, Ms Meiring relied to the matter of Fedgas (Pty) Ltd v Rack -Rite
Bop (Ltd) [1997] 3 All SA 68 (B) where, she submitted, the court held that service
of a contractual notice on an address other than the lessor’s chosen domicilium
invalidated the notice.
[33] Fedgas, however, is distinguishable. T here, the lease agreement in peremptory
terms required service on the chosen domicilium, whereas in the present matter
service on the domicilium merely gives rise to a presumption of service within a
stipulated period in favour of the serving party . Such a presumption will be
unnecessary if service is proven on the papers (I return to this below).
[34] In the present matter, the applicant says that the breach notice was electronically
transmitted by Ms Duvenhage on behalf of the applicant to the respondent, using
the email address commonly used for correspondence with the respondent. A
confirmatory affidavit of Ms Duvenhage forms part of the applicant’s papers. In
it, Ms Duvenhage identifies the email with reference to an annexure attached to
the founding affidavit. The email of Ms Coraizin of the same day is addressed to
the same email address, and the respondent replied to it. None of this is denied in
the answering affidavit.
[35] In those circumstances , transmission of the breach notice by email instead of
personal service at the premises, or notification to the chosen cell phone number
is of no consequence.
REASONS FOR MY RULING DISALLOWING THE FILING OF A FURTHER
AFFIDAVIT
[36] Mere days before the hearing, and after the applicant had already filed its heads of
argument, the respondent applied to admit a further affidavit, wherein it addressed
three issues: first, it sought to introduce a denial that it had received the breach
notice sent by Ms Duvenhage by email ; second, it advanced the domicilium
argument dealt with above; and, third, it sought to place on record facts relating to
the economic impact on the respondent’s employees in the event that the court
granted the eviction order sought.
[37] Ms Graham on behalf of the applicant opposed the introduction of the further
affidavit, and indicated that the applicant would require time to reply to the new
averments if the further affidavit were allowed.
[38] Rule 6(5)(e) of this court’s rules makes clear that motion proceedings are
ordinarily determined on the basis of three sets of affidavits, and that the filing of
further affidavits is only permitted with the indulg ence of the court. Where a
party seeks to file a further affidavit, it must show that there is a good reason for
doing so. That party must provide an explanation of why the affidavit is out of
time and satisfy the court that, although the affidavit is la te, it should, having
regard to all the circumstances of the case, nevertheless be received . These
principles are so well established as to be trite , see for example James Brown &
Hamer (Pty) Ltd (previously named Gilbert Hamer & Co Ltd) v Simmons, NO
1963 (4) SA 656 (A) at 660D-H, and, more recently, Hano Trading CC v JR 209
Investments (Pty) Ltd and Another 2013 (1) SA 161 SCA para 11.
[39] After hearing argument, I refused the respondent application for leave to file the
further affidavit. My reasons were as follows.
[40] The respondent only put up any explanation at all in respect of the first aspect of
the further affidavit – the denial of having received the breach notice. The
respondent’s director Mr Liebenberg refers to the fact that in the respondent’ s
answering affidavit it merely noted the applicant’s averment that the breach notice
was electronically transmitted by Ms Duvenage on 3 September 2024 to the email
address p[…]. He say s this is because the respondent was “unsure” whether the
email had been received. That averment stretches credulity. If the respondent
was unsure at the time, given the serious consequences for the respondent flowing
from the breach notice, it is hardly believable that the respondent would not have
investigated this aspect prior to the answering affidavit being filed.
[41] Mr Liebenberg implies that the failure to d o so is because the email was not
attached to the founding papers. But that is not correct. The email forms part of
attached to the founding papers. But that is not correct. The email forms part of
annexure F A 7 to the founding affidavit, and this is explicitly mentioned by
Ms Duvenhage in her confirmatory affidavit that also forms part of the founding
papers. Mr Liebenberg provides no explanation for the respondent having
overlooked the annexure, and the content of Ms Duvenhage’s confirmatory
affidavit, and failing to engage with that evidence in the answering affidavit.
[42] In any event, it was not necessary for the respondent to have seen the actual email
before it could investigate whether or not the breach notice had been received.
The founding affidavit at para 26 not only traverses its content in detail but also
states the time an d date of the email’s transmission, to which email address es it
was sent, and who sent it. The respondent was undoubtedly aware at least of this
part of the founding affidavit – the answering affidavit responds to this paragraph
in seriatim fashion in the answering affidavit at para 45, albeit without engaging
with the contents thereof.
[43] Mr Liebenberg goes on to say that it has “ subsequently” come to the respondent’s
attention, after a thorough search of the inbox of the email address p[…], that the
email was not received . To repeat - this is the email address that indisputably
received Ms Coraizin’s email only hours earlier on 3 September 2024, and which
the respondent accepts “is the communication channel historically used in general
interactions between the parties.”
[44] Mr Liebenberg does not engage with the question which urgently presents itself as
to why the email from Ms Duvenage would not have been received, when th at of
Ms Coraizin indisputably was. He also does not traverse alternative explanations
as to why on an unspecified date several months after filing the answering
affidavit, the email might no longer be found in the inbox – who monitors the
inbox, might other persons have inadvertently deleted it, could it have been
caught in the spam filter? None of these questions are addressed. Mr Liebenberg
quite simply provides no facts that might support his denial, which amounts to
nothing more than a bare denial of the facts put up by the applicant.
[45] In Wightman t/a JW Construction v Headfour (Pty) Ltd and another 2008 (3) SA
[45] In Wightman t/a JW Construction v Headfour (Pty) Ltd and another 2008 (3) SA
371 (SCA) para 13 the Supreme Court of Appeal elaborated on the application of
the Plascon-Evans rule for proof of fact in motion pro ceedings in such
circumstances as follows:
“A real, genuine and bona fide dispute of fact can exist only where the court is
satisfied that the party who purports to raise the dispute has in his affidavit
seriously and unambiguously addressed the fact said to be disputed … When the
facts averred are such that the disputing party must necessarily possess
knowledge of them and be able to provide an answer (or countervailing evidence)
if they be not true or accurate but, instead of doing so, rests his case on a bare or
ambiguous denial the court will generally have difficulty in finding that the test is
satisfied.”
[46] Having regard to the above, Mr Liebenberg’s bare denial takes the respondent’s
case no further because it does nothing to dislodge the applicant’s evidence in its
founding papers.
[47] Further, as already mentioned, Mr Liebenberg provides no explanation at all as to
why, in its answering papers the respondent did not already rely on the
domicilium argument – after all, the email address to which the breach notice was
transmitted did not constitute the chosen domicilium of the respondent.
[48] He also makes no attempt to explain why the answering affidavit failed to put up
any evidence of what he says are the harsh socio-economic impacts of eviction on
the respondent’s employees, if he regarded such evidence to be material.
[49] In any event, as unfortunate as that impact will undoubtedly be on the
respondent’s employees, there is nothing in the further affidavit to suggest that it
is extraordinary when measured against other persons in a similar position, much
less that this constitutes the kind of injustice that render s enforcement of the
contractual terms in this case contrary to public policy in our constitutional
dispensation.
[50] In these circumstances, it cannot be said that the respondent has provided a n
explanation, much less a compelling explanation, for why the further affidavit
was not produced timeously, nor that the evidence which the respondent sought to
introduce at the last minute was material. Those factors outweighed any
consideration which might speak in favour of admitting the further affi davit, such
as the healing balm of a costs order (which Ms Meiring in any event opposed) or
the balance of prejudice which tilts mildly in the respondent’s favour.
[51] Consequently, I refused the respondent’s application for leave to file the further
affidavit.
COSTS
[52] Lastly, on the issue of costs: the applicant succeeds with the application, and there
is no reason to deviate from the rule that costs follow the result.
[53] The lease a greements between the parties provide for costs on an attorney and
client scale. No reason was advanced as to why the court should not give effect to
this contractual term, as well.
_____________________________
K S SALLER
ACTING JUDGE OF THE HIGH COURT
Appearances
For the applicant:
Instructed by:
For the respondent: