REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
CASE NO: 52165/2021
UNIVERSITY OF JOHANNESBURG First Applicant/ Plaintiff
FUNDI CAPITAL (PTY) LIMITED Second Applicant/ Plaintiff
And
TOTO TSHABALALA CONSTRUCTION AND
PROJECTS CC Respondent/ Defendant
REASONS
DE VOS AJ
[1] This Court granted summary judgment in favour of the applicant s for R 4 261 438.30,
interest at 7% and costs on scale A. These are the reasons for the order.
[2] The case concerns the provision of student housing. The applicants and the respondent
entered into an agreement for the respondent to provide thirty students with
accommodation. The respondent over delivered and provided more accommodation than
the contra ct permitted – R 4 261 438.30 more. The applicant claims back the R
4 261 438.30. The respondent accepts it was not contractually permitted to provide the
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: NO
Date: 23 October 2025
additional housing – but claims that it was responding to a high demand for housing. On
the pleadings, the terms of the contract, the breach and the amount are not in dispute.
The only issue is whether the respondent has raised a bona fide defence to the claim.
[3] The pertinent facts are that the University administers funding received from NSFAS for
students to live in privately -owned accommodation. The accommodation must meet the
minimum standards and norms determined by the Minister of Higher Education and
Training. The University has – to ensure compliance with the norms and standards –
adopted a policy. The policy permits the University to accredit service providers to provide
privately-owned student accommodation for the purposes of housing University students
who have been granted NSFAS funding. Companies apply for authorisation, in terms of
the pol icy, to be able to provide such accommodation to the students. If approved, a
company is authorised to provide a specific number of beds to the students.
[4] The University accredited the respondent in terms of the policy for the 2018 academic
year. As a resu lt of the accreditation the respondent became eligible to receive NSFAS
funding for the 2018 financial year. The respondent was authorised to provide thirty beds
Pursuant to the authorisation, the parties concluded a contract which limited the housing
the respondent was authorised to provide, to thirty beds.
[5] In breach of the agreement, the respondent sought additional properties which were never
authorised by the University, provided accommodation to more students than it was
permitted, claimed for their expenses, and received additional payments to the
sum of R 4 261 438.30.
[6] The respondent accepts all these foundational facts. The policy, the authorisation, the
terms of the contract – specifically the limit of 30 beds and that it had provided more
housing than it was authorised to in terms of the policy or permitted in terms of the
contract.
contract.
[7] In essence, the conclusion of the agreement, its terms and the breach are common cause.
Even the amount of overpayment is common cause. As the terms, breach and amount
are all common cause, the question arises: what is the defence?
[8] The pleaded defence is that the respondent provided more housing than its contract
allowed “out of necessity to meet the overwhelming demand for student housing”. The
Court invited the respondent, through an additional opportunity for written submissions,
to present the Court with authority that necessity is a defence in these circumstances.
[9] The submissions received from the respondent presented the position as “trite”, but
without precedent to support the position. Reliance was placed on Barkhuizen v Napier
as an invitation for the Court to declare the contract against public policy. However this
was raised for the first time in the supplementary submission with no foundational facts
to support the argument.
[10] Counsel for the University submitted that necessity was not a recognised defence in these
circumstances. Centrally, it was submitted that the defence of necessity justifies an act
which would otherwise be unlawful. It is only a defence where wrongfulness is an element
of the cause of action: such as in delict or criminal cases.
[11] The submission is sound. Necessity negates wrongfulness. As wrongfulness is not an
element of breach of contract, necessity is not a valid defence. If the applicant had to
prove wrongfulness, the respondent could have met such claim with a defence of
necessity. However, the applicant need not prove wrongfulness, only the terms and their
breach. The respondent has raised a defence which does not speak to the elements of
the cause of action.
[12] The respondent has also not pleaded a case for the development of the common law to
include that a defence of necessity, which aim to justify why an act should be acceptable
by the society, is a competent defence to a breach of contract.
[13] The Court concludes that necessity is not a recognised defence in law to demand more
from a contracting party than what was agreed. The defence raised by the respondent is
not a cognisable legal defence, in these circumstances.
[14] In order to successfully resist summary judgment, the respondent must disclose fully the
nature and grounds of the defence as well as the material facts relied on. The court’s
discretion should be exercised based on facts placed before it not speculation or
conjecture. Bald and vague allegations will not comply with the requirements of the rules.
conjecture. Bald and vague allegations will not comply with the requirements of the rules.
[15] The Court considers the facts placed before it. The respondent pleaded that provided
more housing than authorised “out of necessity to meet the overwhelming demand for
student housing” and “due to high demand for student accommodation”. In the affidavit
resisting summary judgment the respondent states that it was in response to “urgent and
overwhelming demand for student housing” and it was as out of “necessity for the well -
being of the students”.
[16] This is the totality of what has been placed before the Cour t to sustain the defence of
necessity. There are no primary facts pleaded, only subjective conclusions. The Court
doesn’t know the number, names or circumstances of the students. No facts regarding
the provision of the additional housing. No information o n the housing. At best for the
respondent it has pleaded, as a conclusion that there is a high demand for student
housing. This does not rise to necessity. And even so, no explanation is given why it was
necessary for the respondent to meet this demand.
[17] The Court concludes that even if necessity w ere a legally cognisable defence, the
respondent has failed to plead the necessary facts to resist summary judgment. On this
basis alone, the respondent has failed to raise a bona fide defence.
[18] Whilst necessity w as the only defence in the plea, in the affidavit resisting summary
judgment, a new defence arises. In the answering affidavit, the respondent contends that
the applicants ought to have objected to its overspending and failed to issue directives
telling the respondent to stop provide more housing than the contract permitted . As the
University failed to do so , the argument goes, it had acquiesced in the respondent’s
conduct.
[19] The Court raised with the respondent’s counsel whether this defence was pleaded. It
was conceded in Court that it did not appear in the plea and only in the affidavit resisting
summary judgment for the first time. The Court invited parties to make submissions in this
regard.
[20] Counsel for the respondent relied on Bragan Chemicals Pty Ltd v Devland Cash and
Carry Pty Ltd 1 for authority that a respondent can rely on a defence disclosed in the
answering affidavit for the first time. The full extract from this judgment is necessary:
“An applicant for summary judgment is therefore entitled to rely on a plea in considering
whether or not to launch an application for summary judgment. Where a defendant has
failed to disclose a defence in its plea, a plaintiff would (in most instances) be entitled to
the relief sought in its claim. I say this, however, with caution. I accept that there may
the relief sought in its claim. I say this, however, with caution. I accept that there may
be circumstances in which a defendant in summary judgment may well be able to raise
a defence in the affidavit resisting summary judgment but which was not raised in the
plea. However, this is not the case is the present matter. In the present circumstances
the defences raised in the affidavit resisting summary judgment clearly were an
afterthought for the reasons I have already alluded to. This is precisely what the drafters
of the new rule have tried to avoid.”2
[21] The statement is obiter, as Basson J clearly granted the summary judgment. The authority
in Bragan, at best for the respondent, is that there are circumstances where it is permitted.
The judgment is hardly the permission slip the respondent contends i t to be. The
1 (11096/20) [2020] ZAGPPHC 397 (5 August 2020)
2 Id para 16
Counsel for applicant: Z Raqowa
Instructed by: Lawtons Inc
Counsel for the respondent: R Bvumbi
Instructed by: Mashele Attorneys Inc
Date of hearing: 15 September 2025
Receipt of further submissions: 29 September 2025
Date of order: 2 October 2025
Date of request for reasons: 9 October 2025
Date of reasons: 23 October 2025
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