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IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Case no: 22803/24
In the matter between:
OURANON PROPERTIES (PTY) LTD APPLICANT
and
JBO WORLDWIDE SUPPLIES (PTY) LTC T/A COCO
SAFAR
RESPONDENT
Coram: SALLER AJ
Heard: 27 June 2025
Delivered: 24 July 2025
JUDGMENT ON LEAVE TO APPEAL
Saller AJ:
[1] The respondent seeks leave to appeal against my order and judgment delivered
in this matter on 20 May 2025, whereby I ordered that it be evicted 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 also seeks leave to appeal my ex tempore order refusing it leave to
file a further affidavit, with reasons given as part of my judgment.
[2] The application is opposed.
THE TEST
[3] Under section 17(1)(a) of the Superior Courts Act 10 of 2013 , I may only
grant leave to appeal if I am satisfied that an appeal would have a reasonable
prospect of success on appeal or there are compelling reasons which exist why
the appeal should be heard.1
[4] The respondent advanced no argument addressing the second leg in the
context of the present matter . In Ramakatsa the Supreme Court of Appeal
explained the first leg of this test as follows (my emphasis):2
“… The test of reasonable prospects of success postulates a dis passionate
decision based on the facts and the law that a court of appeal could
reasonably arrive at a conclusion different to that of the trial court. In other
words, the appellants in this matter need to convince this Court on proper
grounds that they ha ve prospects of success on appeal. Those prospects of
success must not be remote, but there must exist a reasonable chance of
succeeding. A sound rational basis for the conclusion that there are prospects
of success must be shown to exist.”
1 Ramakatsa and Others v African National Congress and Another (724/2019) [2021] ZASCA 31 (31
March 2021) para 10.
2 Ibid, with reference to Smith v S [2011] ZASCA 15; 2012 (1) SACR 567 (SCA); MEC Health,
Eastern Cape v Mkhitha [2016] ZASCA 176 para 17
[5] That is the test that will apply to the grant of leave to appeal the main order for
the respondent’s eviction from the premises.
[6] An additional consideration applies to my decision to refuse the respondent
leave to file the further affidavit. That decision amounted to an exercise of a
true discretion.3 It flows from this that in order to show a reasonable prospect
of success on appeal on this aspect, the respondent must show that that I “did
not exercise [my] discretion judicially; was influenced by the wrong
principles; misdirected [myself] on the facts; and/or ‘reached a decision
which in the result could not reasonably have been made by a court properly
directing itself to all the relevant facts and principles’.”4
THE DECISION TO REFUSE LEAVE TO FILE A FURTHER AFFIDAVIT
[7] I deal with this aspect first because it logically precedes the main order.
[8] The further affidavit sought to introduce evidence in relation to three matters:
the respondent denied that it had received the applicant’s breach notice by
email; the it advanced an argument relying on a domicilium clause; and, lastly,
it traversed the economic impact of eviction on the respondent’s employees.
[9] The respondent takes no issue with the legal test I applied, namely that a party
seeking leave to file a further affidavit must provide an explanation of why the
affidavit is out of time and satisfy the court that, although the affidavit is late,
it should, having regard to all the circumstances of the case, nevertheless be
received.
3 Seebed CC t/a Siyabonga Convenience Centre v Engen Petroleum Limited (CCT 290/20) [2022]
ZACC 28; 2023 (12) BCLR 1535 (CC) para 39, with reference to Trencon Construction (Pty) Limited v
Industrial Development Corporation of South Africa Limited [2015] ZACC 22; 2015 (5) SA 245 (CC)
paras 85-6, and Sealed Africa (Pty) Ltd v Kelly 2006 (3) SA 65 (W) at para 4.
4 Seebed para 41, with reference to National Coalition for Gay and Lesbian Equality v Minister of
Home Affairs [1999] ZACC 17; 2000 (2) SA 1 (CC) para 11.
The explanation
[10] The respondent provided no explanation at all why evidence relating to the
respondent’s employees could not be put up timeously as part of the answering
affidavit, and why the answering affidavit did not traverse the domicilium
clause on which the respondent sought to rely.
[11] The only explanation which the respondent provided in the further affidavit
related to the email dated 4 September 2024, enclosing t he breach notice , on
which the applicant relied. On behalf of the respondent, Mr Liebenberg said
that at the time he deposed to the answering affidavit, the respon dent “was
unsure whether the email had been received” and for that reason merely noted
the applicant’s averments relating to its transmission.
[12] Mr Liebenberg provided no explanation why he did not investigate the
applicant’s averment before deposing to the answering affidavit.
[13] He implied, however, that this was because, he said, the email did not form
part of the founding papers. But as I pointed out in my main judgment, that is
not correct – and the respondent does not challenge this finding : t he email
forms part of an annexure to the founding aff idavit, this is expressly referred
to in the email author’s confirmatory affidavit, and the email’s content was
also traversed in detail in the founding affidavit.
[14] Mr Liebenberg provided no other explanation for not engaging with the email
nor its content in the answering affidavit.
[15] It may be that when he deposed to his further affidavit, Mr Liebenberg
repeated a mistake the applicant made in the reply , overlooking the inclusion
of the email in the founding papers and attaching it again to the repl y. Of
course, at the time of deposing to the answering affidavit, Mr Liebenberg
would not have seen the reply, and this, too, cannot serve as an explanation.
[16] In argument, the respondent sought to rely on Mr Liebenberg being a lay
person, suggesting that this may have led Mr Liebenberg to not appreciate the
implications of his averments, or lack thereof, in the answering affidavit. This
is not an explanation put up by Mr Liebenberg on affidavit. It also ignores the
fact that the respondent has been legally represented throughout.
[17] Against this background, I found that Mr Liebenberg’s explanation was
inadequate and stretched credulity. The respondent says in para 2 of its notice
of application for leave to appeal that the finding is inappropriate. It does not
say why. It also says the finding could not have been made without an
allegation to that effect on the record. That was not necessary – it is not a
factual finding in the dispute, but represents my assessment of the
respondent’s explanation in the course of deciding wheth er to allow the late
filing of the further affidavit.
Materiality
[18] On the question of materiality, I considered the evidence which
Mr Liebenberg sought to introduce in support of his denial of the applicant’s
averments as they related to the emailed breac h notice. O n an application of
the Plascon-Evans rule as set out in Wightman t/a JW Construction v Headfour
(Pty) Ltd and another 2008 (3) SA 371 (SCA) , I found that such evidence did
not create a bona fide dispute of fact in the application, and that his denial
consequently amounted to a mere “bare denial” and thus lacked materiality.
[19] In para 1.1 of the respondent’s notice, t he respondent takes issue with my
characterisation of the evidence sought to be introduced as a “bare denial”.
[20] The finding related to what Mr Liebenberg said, or rather failed to say, in
respect of the email address (p[…]) which on his own version is the primary
and actively monitored email address f or the purpose of communication
between the parties – I will refer to it as the “primary email address ”.
Mr Liebenberg put up no material facts directly addressing the applicant’s key
averment to the effect that the applicant “transmitted” the breach notice to the
averment to the effect that the applicant “transmitted” the breach notice to the
respondent on 4 September 2024 inter alia through an email of Ms Duvenhage
addressed to the respondent’s primary email address.
[21] Instead, t he facts which Mr Liebenberg sought to introduce related to the
content of three folders (inbox, spam and deleted items5) of the primary email
address which he searched on an unspecified date between deposing to the
answering affidavit and the further affidavit.
[22] Mr Liebenberg made no effort to link the contents of these folders on that
unspecified date to the facts on which the applicant relied, i.e. the transmission
of the breach notice by email many months earlier on 4 September 2024 .6 In
other words, the fact that he was unable to locate the email months after it was
sent does not, without more, address the question whether it was transmitted.
[23] Consequently, even accepted at face value, the facts which Mr Liebenberg
belatedly sought to introduce relating to the primary email address were not
facts which substantiated his denial of the applicant’s case. That accords with
the well-accepted understanding in our law of what constitutes a bare denial.
[24] The respondent also complains , at para 1.1 of its notice, that I placed
insufficient weight on the res pondent’s explanation relating t o the email’s
other two addressees. Mr Liebenberg’s averments relating to the m also did
not create a bona fide dispute of fact. On the respondent’s version, the email
address of the second addressee is dormant, and the third addressee confirmed
receiving the email but not forwarding it to the respondent. Neither fact has a
bearing on the applicant’s reliance on the transmission of the breach notice to
the respondent by way of email on 4 September 2024 to its primary email
address.
Balancing relevant factors
[25] At para 1.2 of the respondent’s notice, the respondent says I placed undue
weight on the inadequacy of Mr Liebenberg’s explanation.
5 It is correct, as the respondent points out, that in my Judgment I referred to the inbox folder. That has
no impact on my reasoning.
no impact on my reasoning.
6 The respondent does not deny the email was sent. On Mr Liebenberg’s own version in the further
affidavit, the third addressee Mr. Dry did in fact receive the email.
[26] In Hano Trading ,7 the Supreme Court of Appeal affirmed the long -standing
principle that the court’s leave to file an affidavit late and out of sequence is
an indulgence. Leave will be granted only if the party seeking the indulgence
has shown good reason. When making tha t assessment , the court has a
discretion to consider t he facts of the matter, and “on any approach to the
problem, the adequacy or otherwise of the explanation for the late tendering
of the affidavit will always be an important factor in the enquiry .” There can
accordingly be no complaint against my granting the explanation put up in the
present matter primacy among the relevant considerations.
[27] The respondent also says I placed insufficient weight on other factors, such as
the degree of materiality of the evidence and the balance of prejudice (para 1.2
of the notice) , as well as the potential for the healing balm of a costs order.
The respondent rightly does not suggest that I did not consider th ese two
factors.
[28] As regards the materiality of the evidence, as set out above, my assessment of
the evidence’s lacking materiality in fact militated against granting the
respondent leave to file the affidavit.
[29] As regards the balance of prejudice , I acknowledged that this tilted in the
respondent’s favour. I also considered the healing balm of a costs orde r as a
factor weighing in favour of granting leave. While I mentioned the
respondent’s opposition to such an order, I did not consider myself bound.
[30] On balance, I concluded that the factors speaking against my granting leave to
file the further affidavit outweighed those speaking in favour. In my view
there is no reasonable prospect that an appeal court will find this to be a
decision “which in the result could not reas onably have been made by a court
properly directing itself to all the relevant facts and principles”.
7 Hano Trading CC v J R 209 Investments (Pty) Ltd 2013 (1) SA 161 (SCA) paras 12 and 13
THE GRANT OF THE EVICTION ORDER
[31] On the main application, I granted an order for the eviction of the respondent
from the premises. In its notice of application for leave to appeal , the
respondent raises the following grounds of appeal : that I erred in finding that
the strict enforcement of the contractual terms in this matter was not contrary
to public policy and subsequently not grounds for refusing to enforce its terms
(para 3); and that I failed to appropriately balance “the relevant constitutional
imperatives” (para 5) as well as other considerations (para 4).
Strict enforcement of contractual provisions
[32] With reference to the decision in Beadica,8 I accepted that there may be
circumstances in which contractual terms, or their enforcement, are so unfair,
unreasonable or unjust that they offend public policy, and in such a case I
would be entitled to refuse to enforce those terms . The respondent did not
take issue with my reliance on Beadica, and para 3 of the respondent’s notice
gives little indication of the grounds upon which it says I erred when applying
those principles.
[33] On the facts of the matter before me, I found that the respondent’s hardship
had not been elevated to a level of public policy harm : no constitutional rights
were implicated, the respondent is not in an exceptionally vulnerable or
inequitable position, and there was no bad faith on the part of the applicant. In
those circumstances I could not decline to give effect to the relevant
contractual terms , and unless those findings are disturbed there is no
reasonable prospect of an appeal court holding otherwise.
[34] The respondent expressly challenges only one of these findings. It says (para
4.3 of the notice) that the chronology of events leading up to the cancellation
and the manner in which the notice of cancellation was delivered, indicate bad
8 Beadica 231 CC and Others v Trustees for the time being of the Oregon Trust and Others 2020 (5)
SA 247 (CC)
faith on the part of the ap plicant. The notice does not elaborate, and neither
did the applicant’s heads of argument.
[35] The sole allegation of bad faith on the record is at para s 48.6 to 48.8 of the
answering affidavit, where Mr Liebenberg says that the respondent has not
been shown to be unable to “ carry out the terms of the Lease ” and that the
applicant accordingly “acted in bad faith unreasonably, and prematurely by
proceeding with legal action despite the Respondent's rectification of the
breach and continued performance under the Lease.”
[36] As for rectification of the breach – the respondent unilaterally afforded itself
14 days to rectify the breach . For reasons set out at para 20 of the main
judgment, it w as not entitled to do so. For reasons set out in para 21, as a
matter of fact , it also did not do so. The applicant was therefore entitled to
cancel the lease agreements and institute proceedings for the respondent’s
eviction.
[37] The respondent’s subsequent timeous payments of monthly rental and its
ability to do so in the future does not change th e legal position. As explained
at para 22 of the judgment, valid cancellation of a contract is not undone by a
subsequent remedy of the breach.
[38] Nor can the applicant’s strict adherence to the contractual timelines prov e bad
faith which justifies the court’s refusal to enforce those very provisions – such
reasoning would be entirely circular.
[39] Lastly, in heads of argument, the respondent relied on the judgment of
Moseneke DCJ in the Constitutional Court’s decision in Everfresh9. In that
matter, Everfresh sought to enforce what it said was a contractual right to
renewal of its lea se (I pause to note that in the present matter, the respondent
did not plead such a right). The High Court refused, on the basis that the lease
did not specify, fix or make definitively ascertainable the amount of rental
did not specify, fix or make definitively ascertainable the amount of rental
9 Everfresh Market Virginia (Pty) Ltd v Shoprite Checkers (Pty) Ltd 2012 (1) SA 256 (CC) para 72.
payable upon renewal. The High Court also found that there was no duty on
the landlord, Shoprite, to negotiate a renewal of the lease in good faith. In the
Constitutional Court, Everfresh conc eded that the High Court’s reasoning
accorded with the common law. However, it asked the Constitutional Court to
develop the common law to as to impose a duty to negotiate in good faith in
such circumstances. At para 72, on which the respondent relies,
Moseneke DCJ remarked that contracting parties “ certainly need to relate to
each other in good faith ”. His remarks are obiter, and he expressly declined ,
at para 73, to decide what this might entail in the context of the case at hand.
[40] In Beadica the Const itutional Court comprehensively discussed its previous
decisions as they dealt with the question of good faith in contract, including its
decision in Everfresh. At para 43, the Constitutional Court affirmed that in
Everfresh, it had declined to develop the common law to impose a duty on
parties to negotiate in good faith.
[41] Everfresh accordingly does not assist the respondent to establish a duty on the
applicant to have negotiated in good faith before cancelling the lease, or
launching eviction proceedings.
Balancing of relevant considerations
[42] The respondent further says that in balancing the various considerations, I
placed undue weight on the principle of pacta sunt servanda , at the expenses
of other considerations such as harm to employees (para 4.1 of the notice), the
absence of hardship falling on the applicant (para 4.2 of the notice), and the
applicant’s bad faith (para 4.3 of the notice). I have already dealt with the
unfounded allegation of bad faith above . No more needs to be said in that
respect.
[43] As regards harm to the respondent's employees, there is no evidence regarding
such harm on the papers absent admission of the further affidavit . In any
event, as I pointe d out at para 49 of the main judgment, nothing said there
event, as I pointe d out at para 49 of the main judgment, nothing said there
evidences extraordinary harm.
[44] As regards the absence of hardship on the applicant, it is not a requirement for
valid cancellation of a lease agreement , nor for the institution of eviction
proceedings, that a landlord demonstrate prejudice arising from the breach.
[45] Lastly, unless the respondent is able to show public policy harm of the kind
envisaged by Beadica, which it has been unable to do, there is no call for a
balancing of competing interests in determining whether to give effect to
contractual terms.
Constitutional imperatives
[46] The respondent’s notice does not say on which constitutional imperatives it
relies. Neither do its heads of argument, nor did its papers. This is not a basis
for finding that there is a reasonable prospect of success on appeal.
CONCLUSION
[47] Based on what I have said above, I conclude that the respondent has no
reasonable prospect on appeal in respect of , either, my order that it be refused
leave to file the further affidavit, nor the main eviction order.
[48] On the question of costs, the applicant sought costs on an attorney-client scale
as provided in the lease agreements. The respon dent advanced no reason why
the lease agreements should not be given effect in this respect.
ORDER
[49] For these reasons, the following order is made:
1. The application for leave to appeal is dismissed.
2. The respondent (the applicant in the application for leave to appeal) is to
pay the costs on an attorney-client scale.
_____________________________
K S SALLER
Acting Judge of the High Court
Appearances
For the applicant: Adv Reneé Graham
Instructed by: Werksmans Inc.
For the respondent: Adv Kara Meiring
Instructed by: Fairbridges Wertheim Becker