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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG
Case number: 2023-128784
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: NO
In the matter between:
PARAMOUNT PROPERTY FUND First Applicant
GROWTHPOINT MANAGEMENT SERVICES (PTY) LTD Second Respondent
and
NEW AFRICA CAPITAL GROUP Respondent
JUDGMENT
Mfenyana J
Introduction
[1] The applicants seek an order for the eviction of the respondent from the
commercial premises described as Portion of Lower Ground Floor, 1 Sixty
J[…] S[…], situated at 1 […] J[…] S[…] Avenue, […], Johannesburg (the
property). The first applicant had concluded a lease agreement with the
respondent on 26 July 2022. On 27 November 2023, the first applicant
cancelled the agreement, citing the respondent 's failure to pay rental and
ancillary expenses due to the first applicant in terms of the lease
agreement.
[2] The respondent opposed the application and filed the answering affidavit
two months out of time. For this, the respondent seeks condonation, which
is opposed by the applicants. The respondent also seeks leave to file a
supplementary affidavit in answer to the applicants’ replying affidavit. On
the other hand, the applicants seek condonation for the late filing of their
replying affidavit, which was filed one day out of time.
[3] It is necessary to consider the merits of the condonation applications filed
in respect of both the applicants and the respondent.
The respondent’s condonation application
[4] The answering affidavit is deposed to by Mr Daniel Besong (Mr Besong),
who asserts that he is a director of the respondent, duly authorised to
depose to the answering affidavit. He does not provide any further details
in relation to his authority to act on behalf of the respondent.
[5] Relevant to the condonation application, Mr Besong acknowledges that the
answering affidavit should have been filed on 5 February 2024. It was,
however, filed on 2 May 2024, a delay of close to two months. Mr Besong
states that on 5 February 2024, the applicants initiated settlement
negotiations, which continued until 22 March 2024. He avers that f or this
reason, legal proceedings were held in abeyance.
[6] When the settlement negotiations did not yield the desired results, the
respondent called upon the applicants to produce certain documents in
accordance with rule 35(12), which would enable the respondent to file its
answering affidavit. These documents range from documents confirming
the handover of the property by the applicants to the respondent,
electricity and water readings for the property and the common area from
date of occupation to date of cancellation, the generator costs for the
property and th e property assessment rates from date of occupation to
date of cancellation. The applicants did not provide the documents
specified in the rule 35 (12) notice and set the matter down on the
unopposed roll for hearing on 13 May 2024.
[7] On 2 May 2024, the respondent filed its answering affidavit.
[8] Mr Besong contends that the delay is minimal, being 22 days out of time ,
and thus condonation ought to be granted. He further avers that “there
was clearly never any disregard of the Rules” of court, rather, there was a
genuine effort to file the answering timeously. He does not provide any
details to support this contention, bearing in mind that in terms of the
Rules, the answering affidavit should have been delivered by 5 February
2024.
[9] Mr Besong further avers that it is obvious that this matter is important to
the respondent . He goes on to state that the deponent to the founding
affidavit lacks the
locus standi to depose to the founding affidavit. He
further avers that the cancellation of the lease agreement by the first
applicant is unlawful, as there was no amount owing. Instead, the
respondent had paid in excess of its obligations to the respondents, he
avers. Importantly, he avers that the parties’ obligations were suspended
due to impossibility of performance.
[10] The respondent thus avers that it has a legitimate case and would suffer
irreparable harm if condonation is not granted, as it would be barred from
properly addressing the applicants’ contentions, while the applicants
would not suffer any prejudice.
[11] The respondent asserts strong prospects of success, arguing it has an
unassailable defence: specifically, that the deponent lacks locus standi for
failing to provide a resolution authoris ing this application. The respondent
further states that it could not obtain a liquor licence despite meeting all
requirements until 15 February 2024, and was thus unable to use the
premises as intended for a restaurant and music lounge. The respondent
claims this situation constitutes legal impossibility, which either
extinguishes or suspends reciprocal obligations. Notably, the respondent
argues that if performance under the lease agreement was unlawful at the
time of cancellation, then terminating the lease due to an alleged breach
would also be unlawful. The respondent alternates between arguments of
impossibility of performance and unlawfulness of performance, contending
that the applicant’s reliance on a breach, while the lease was suspended,
is unlawful.
[12] In opposing the condonation application, the applicant s contend that the
respondent has failed to provide a reasonable explanation for the delay of
almost three months, and not 22 days as the respondent suggests. In this
regard, the applicants argue that there was no agreement between the
parties to suspend the time periods for the filing of the respondent’s
answering affidavit, which was due on 5 February 2024. The applicants, in
essence, aver that the respondent’s explanation is factually incorrect, as
the settlement negotiations collapsed on 14 March 2024 and not on 22
March as alleged by the respondent.
[13] The applicants, however, point to a different time from 13 to 15 February
2024, when the applicants agreed to suspend legal proceedings. During
this time, contend the applicants, the respondent had given an
undertaking, but later failed to adhere. On that basis, the applicants on 21
February 2024 applied for a hearing date on the unopposed roll, having
advised the respondent that it would do so in the event the respondent did
not adhere to its undertaking. The applicants question why the respondent
chose not to raise, at that stage, the existence of an agreement to suspend
the proceedings.
Discussion
[14] It is trite that condonation will not be had for the mere asking
1. An
applicant for condonation seeks indulgence from the court. Such applicant
must set out fully and comprehensively the reasons for the delay in not
only timeously delivering the ( answering affidavit ), but also the delay in
seeking condonation for non-compliance.
2 The respondent in this
application glibly states that it should be granted condonation partly on the
basis that the reasons why the matter is important to it are obvious. That
1 See in this regard: Uitenhage Transitional Local Council v South African Revenue Service
2004(1) SA 292 (SCA).
2 Mulaudzi v Old Mutual Life Assurance Company (South Africa) Limited 2017(6) SA 90 (SCA).
is not sufficient. It is not for the court to guess the importance of a matter
to a party, assuming that each matter is important to the parties involved.
The importance of the matter in the context of good cause pertains to the
novelty of the issue or issues raised in the matter. There are no such
issues in this matter.
[15] A rather disturbing aspect of the respondent’s bid is that it maintains that
the delay is not inordinate , as it filed its answering affidavit on 30 April
2024. It further maintains that the answering affidavit was filed 22 days
out of time. This is incorrect. An email from the respondent’s attorneys to
the applicant’s attorneys confirms that the answering affidavit was served
on 2 May 2024. It is also difficult to understand how the respondent arrived
at a total of 22 days from 5 February 204 to 2 May 2024. On any
interpretation, the calculation is incorrect.
[16] Even on the respondent’s version, it is worth noting that at the time the
respondent avers an agreement was reached to suspend legal
proceedings, the
dies for the filing of the respondent’s answering affidavit
had already lapsed. It is not the respondent’s case that the agreement was
reached in relation to its non -compliance between 5 February 2024 and
the time the negotiations commenced. The answering affidavit sheds no
light on this period, which, in my view, is crucial. This downplaying of the
extent of the delay, which in my view is inordinate, by the respondent
renders his explanation not only improbable but also mendacious. What
exacerbates the respondent’s situation is that Mr Besong, who deposed to
the answering affidavit, is also the attorney of record of the respondent. As
such, he ought to have been privy to the correct facts of the matter.
Whatever the reason behind the respondent’s explanation, it falls short of
the requirements for condonation as set out in Rule 27.
[17] A party seeking condonation seeks an indulgence from the court. Thus,
that party ought to take the court into its confidence and state fully and
honestly the reasons for its non-compliance. That party must show good
cause. In this regard, the respondent merely states that it has good
prospects of success, presumably because the first applicant was not
entitled to cancel because the respondent had internal problems and thus
the cancellation was unlawful. Nothing could be further from the truth .
Taking into account the inordinate delay, the inadequate explanation by
the respondent, the prospects of success and the importance of th is case,
no good cause has been shown. No plausible explanation which covers
the entire duration of the delay was proffered by the respondent.
[18] It is well established that if, when considered in totality, the facts make an
application for condonation clearly unworthy of consideration, the court is
not obliged to consider the prospects of success. In this case, not only is
that so, but the applicant has also demonstrated no such prospects of
success. The inevitable conclusion is that the applicant either flagrantly
breached the Rules of Court or cannot provide any explanation for the
delay. In these circumstances, the application for condonation is bound to
fail.
[19] Having found no merit to the respondent’s condonation application, the
adjudication of the applicants’ condonation application in respect of the
filing of their replying would be academic and serve no purpose.
[20] The applicants contend that the lease agreement was for a duration of two
years, from 1 September 2022 to 31 August 2024. The terms of the lease
agreement are not in dispute.
[21] The applicants contend that the respondent failed to pay amounts due in
terms of the lease agreement and was in arrears in the amount of R111
646.07 on 10 November 2023. The first applicant caused a letter of
demand to be delivered to the respondent for payment of the arrears
within seven days. When the respondent failed to remedy the breach, the
first applicant delivered a letter of cancellation to the respondent on 27
November 2023, demanding that the respondent immediately vacate the
property.
[22] The first applicant contends that it lawfully cancell ed the lease agreement
in accordance with its provisions. In this regard, clause 26.1 of the lease
agreement entitles the first applicant to cancel the lease agreement if the
respondent commits a breach and fail s to remedy such breach within
seven days or such longer period as may be reasonable in the
circumstances. Despite this, the respondent refused to vacate the
property and remained in occupatio n, prompting the applicants to bring
this application seeking to evict the respondent and all persons who
occupy the premises through the respondent.
[23] The applicants, therefore, assert that the respondent's occupation of the
property is unlawful, and they no longer wish for the respondent to remain
in occupation of the leased premises. They further allege that, in
accordance with the lease agreement, the respondent is liable for the
costs of this application on an attorney-and-client scale.
[24] The version placed by the applicants before this court is clear and
unambiguous, that the respondent has failed to comply with its obligations
in terms of the lease agreement and has failed to meet the applicant’s
demand and remedy its breach within seven days as stipulated in the lease
agreement. After the applicant cancelled the lease agreement, there was
no valid reason for the respondent to continue occupying the premises.
Moreover, the applicants state that the lease agreement has, in any event,
run its course. All the documentary evidence supports the applicant’s
version. In my view, the applicant has made out a case for the granting of
the relief sought. The respondent’s continued occupation of the leased
premises is unlawful.
Order
[25] In the result, I make the following order:
a. The respondent’s application for condonation for the late filing of the
answering affidavit is dismissed.
b. The respondent and all persons occupying the premises through or
under the respondent are directed to vacate the premises situated at
Portion of Lower Ground Floor, 1 Sixty J […] S[…], 1 […] J[…] S[…]
Avenue, R[…], Johannesburg, within seven (07) days of this order and
allow the applicant vacant possession of the premises.
c. Should the respondent and all persons occupying the premises through
or under the respondent fail to vacate the premises within the time
stipulated in b. above, or enter the premises after the expiry of seven
days aforementioned, t he Sheriff of this court or his duly authorised
deputy, duly assisted by members of the South African Police Service
(SAPS), if necessary, is authorised and directed to take the necessary
steps to eject the respondent and all persons occupying through or
under the respondent, from the premises situated at Portion of Lower
Ground Floor, 1 Sixty J […] S[…], 1 […] J[…] S[…] Avenue, R […],
Johannesburg.
d. The respondent is ordered to pay the costs of this application on an
attorney and client scale.
____________________________
S MFENYANA
Judge of the High Court
Johannesburg
Appearances
For the applicant: Adv G J A Cross instructed by NHL Inc.
gareth@lazattorneys.com
For the respondent: No appearance
Date of hearing: 30 May 2025
Date of judgment: 23 October 2025