SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in
compliance with the law and SAFLII Policy


IN THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL DIVISION, PIETERMARITZBURG

Case no: 2025-172571
In the matter between:

SHREE PROPERTY HOLDINGS (PTY) LTD APPLICANT

and

NATAL ENERGY AND COMMODITIES (PTY) LTD RESPONDENT


Coram: MOSSOP J
Heard: 20 October 2025
Delivered: 6 November 2025


ORDER


The following order is granted:
1. The respondent, and all those holding occupation by, through or under it, are
directed, on or before the last day of November 2025, to vacate the property situated
at 1[...] T[...] Road, Mobeni, Durban (the premises).
2. If the respondent or any person occupying the premises by, through or under
it, fails to comply with the order in paragraph 1 above, the sheriff of the court, or his
deputy, is authori sed and directed to do all things necessary to eject from the

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premises the respondent and any persons occupying the premises by, through or
under it.
3. The respondent is directed to pay the costs of this application on an attorney
and client scale, such to include the costs of two counsel where so employed.
4. The respondent’s counter -application is dismissed with costs, such to be
payable on the attorney and client scale, and to include the costs of two counsel
where so employed.


JUDGMENT


Mossop J:

Introduction
[1] This matter was on my motion roll o n 20 October 2025 as an urgent
application. It is an ejectment application. The applicant is the owner of certain
immovable property situated at 1[...] T[...] Road, Mobeni, Durban (the premises)
where there is constructed , inter alia, a warehouse . The premises are situated in
close proximity to a residential area. The respondent has leased the premises from
the applicant (the lease agreement) and is presently in occupation thereof . The
applicant has, however, terminated the lease agreement because the respondent
has allegedly breached it by not paying the rental agreed upon . The respondent
denies that the applicant is entitled to do so and resists its ejectment from the
premises and has preferred a counter-application against the applicant.

[2] I first consider the preliminary issue of the urgency of the applicant’s
application.

Urgency
[3] I heard lengthy argument on the issue of urgency.

[4] The applicant contended that the matter was urgent for various reasons ,
including that it had two potential occupants of the premises who were interested in
leasing them . The applicant could not lease the premises to either of these two

3
interested parties if the respondent remained in occupation after the lease
agreement had been properly cancelled. Having cancelled the lease agreement, i t
was therefore vital for the applicant to remove the respondent from the premises as
expeditiously as possible so that it could ex plore its options with the two interested
parties. The applicant contended that while the respondent remains in occupation of
the premises, it makes no payment for such occupation.

[5] The respondent claimed that the matter was not urgent and sought an order
that the application be struck from the roll with costs. The respondent took strong
exception to the fact that it had been given a mere five days to deliver its answering
affidavit, asserting that this was a complex matter that required a detailed and
thorough investigation by it, which it had not been able to do because of the time
constraints imposed upon it by the applicant. Mr Harpur SC, who appeared for the
respondent together with Mr Bond, lamented , repeatedly, that the applicant had
‘rushed’ to have the matter adjudicated upon and submitted that it was not ready to
be argued.

[6] On the issue of urgency, it is settled that commercial urgency, while
admittedly not dealing with life or death issues, may , nonetheless, be invoked to
have a matter heard out of turn. In Twentieth Century Fox Film Corporation and
Another v Anthony Black Films (Pty) Ltd,1 the court opined that:
‘… the urgency of commercial interests may justify the invocation of Uniform Rule of Court
6(12) no less than any other interests. Each case must depend upon its own circumstances.’
I agree with this.

[7] When urgency is claimed, the initial consequence of that urgency is the
abridgement of the time limits prescribed by the rules and a departure from the
prescribed filing times and, possibly, the prescribed sitting times of the court. 2 It is
so, as M r Harpur acerbically pointed out, that the applicant did not ask for

so, as M r Harpur acerbically pointed out, that the applicant did not ask for
condonation for departing from the prescribed forms and time limits in its notice of

1 Twentieth Century Fox Film Corporation and Another v Anthony Black Films (Pty) Ltd 1982 (3) SA
582 (W) at 586 F-G; Blue Crest Holdings (Pty) Ltd v Body Action Health Clubs (Pty) Ltd [2020]
ZAGPJHC 407 para 9; Avis Southern Africa (Pty) Ltd and Others v Porteous and Another 2024 (2)
SA386 (GJ) para 21.
2 Luna Meubel Vervaardigers (Edms) Bpk V Makin and Another (t/a Makin's Furniture Manufacturers)
1977 (4) SA 135 (W) at 136H.

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motion, as it is customary to do. I am, however, satisfied that the certificate of
urgency and the founding affidavit unequivocally alert the reader to the urgency of
the matter. I consequently do not regard this omission as being fatal.
[8] A consideration of the brief history of th is application reveals that the
applicant’s papers were issued on 23 September 2025, and the matter was heard
almost a month later, on 20 October 2025. Both parties delivered affidavits and
heads of argument in the application and the counter -application.3 While not
overlooking the fact that the respondent had not, however, delivered a replying
affidavit in its counter -application,4 I was of the view that the respondent had
adequate time to ventilate whatever defence it intended raising. In fact, in my
experience, it had been granted considerably more time than the average
respondent in an urgent application is generally given.

[9] During the course of Mr Harpur’s submissions on urgency, it began to appear
to me that what the respondent was actually seeking was an adjournment in order
for it to acquire further evidence , to which need Mr Harpur made frequent and
pointed reference. On enquiry from the court, Mr Harpur, however, initially said that
he was not seeking an adjournment and continued with his argument relating to
urgency. However, later, Mr Harpur indicated that he may seek an adjournment i f I
did not strike the matter from the roll, which was his preferred outcome of the matter .
He confirmed that n o formal application for an adjournment had, however, been
prepared by the respondent and if such an application were to be made , it would
have to be made orally from the bar by counsel.

[10] Ultimately, I did not strike the matter from the roll, as I found it to be
commercially urgent, and I concluded, given the facts of the matter, that the
applicant would not obtain substantial redress at a hearing in due course. I also did

applicant would not obtain substantial redress at a hearing in due course. I also did
not agree with Mr Harpur’s submission that the applicant had ‘rushed’ the matter to
court. Having made my ruling on urgency, Mr Harpur did not address me further on
the need for an adjournment and both he and Mr Stokes SC, who appeared for the

3 Initially, I did not have the respondent’s heads of argument due to the vagaries of the recently
introduced CourtOnline system in this division , but, over the course of the hearing, I managed to
download them, and I have considered them carefully.
4 The respondent had sufficient time to deliver its replying affidavit. The applicant’s replying affidavit,
which also served as its answering affidavit to the respondent’s counter -application, was delivered on
10 October 2025.

5
applicant together with Mr Aldworth, collectively proceeded to address me on the
merits of the application for several hours. At the very tail end of his argument on the
merits, Mr Harpur stated that he assumed that I had dismissed the application for an
adjournment when I had found the matter to be urgent. I did not do that , for the
simple reason that Mr Harpur did not formally move an application for an
adjournment after I found the matter to be urgent but proceeded to argue the merits
of the matter.

The relief claimed by the applicant
[11] The applicant seeks the following relief in its notice of motion:
‘1. The respondent, and all those holding occupation by, through or under it, are
directed to vacate the premises occupied by it described as a warehouse, offices and yard
area on the property described as Portion 1 of Erf 1[...], U[...], with physical address 1[...]
T[...] Road, Mobeni, Mobeni, Durban (“the premises”) forthwith.
2. If the respondent or any persons occupying the premises by, through or under it fail
to comply with prayer 1 above, the Sheriff of the Court or his deputy is authorised and
directed to do all things necessary to eject the respondent and any persons occupying by,
through or under it from the premises.
3. The respondent is directed to pay the costs of this application on an attorney and
client scale.’

The relief claimed by the respondent
[12] It may be prudent at this juncture to refer to the relief claimed by the
respondent in its counter-application. The relief claimed is clearly intended to blunt, if
not negate, the relief claimed by the applicant. What was claimed was the following:
‘[1] Declaring that the purported cancellation of the lease agreement by the applicant on
14 July 2025 is unlawful and of no force or effect.
[2] Declaring that the Respondent is entitled to remain in occupation of the leased
premises situated at 1[...] T[...] Road, Mobeni, Durban, until expiry of the lease on 30 April

premises situated at 1[...] T[...] Road, Mobeni, Durban, until expiry of the lease on 30 April
2026, subject only to payment of a reduced rental.
[3] Declaring that the rental payable by the Respondent is reduced to such amount as
is consistent with the impaired performance by the Applicant of its obligation to afford
commodus usus of the leased premises.
[4] To the extent that the Applicant may wish to persist with any claim for such reduced
rental against the Respondent the quantum of such reduced rental is to be proved by the

6
Applicant as landlord in an action to be instituted by the Applicant within a period of 30 days
from the date of this order.
[5] To the extent that the Respondent may wish to persist with any claim for a refund of
overpaid rentals, damages and interest in respect of the lease between the parties, the
Respondent is directed to institute same by way of counterclaim in the said action by the
Applicant or by way of a self -standing action within a period of 30 days from the date of this
order.
[6] In the alternative to paragraphs [1] to [5] above that the Applicant is directed to
make discovery under uniform rule 35 (13) within a period of 10 days from the date of this
order and the Respondent is authorised to deliver a further affidavit/s dealing with the
contents of that discovery within a further period of 10 days from the delivery of the
Applicant’s discovery affidavit and copies of documents discovered therein to the
Respondent, whereafter the matter may be set down again on the opposed moti on roll on a
date to be arranged the determination of the relief set out in the said paragraphs [1] to [5]
above.
[7] Costs of suit including the costs of senior and junior counsel on scale C.’

Common cause facts
[13] The premises are utilised by the respondent as a bonded warehouse. A
bonded warehouse is a secure storage facility where shippers are able to store
imported goods without needing to immediately pay the relevant import taxes and
duties. When placed in the bonded warehouse, the imported goods are regarded as
still being in transit to their ultimate destination and the taxes and duties only become
payable once the goods leave the bonded warehouse.

[14] The relationship between the applicant and the respondent is governed by
the lease agreement and other documents ancillary to it , to which reference will be
made shortly. The lease agreement was concluded on 29 January 2021, and it was
agreed that it would run between 1 May 2021 and 28 April 2026. Thus, at the time of

agreed that it would run between 1 May 2021 and 28 April 2026. Thus, at the time of
the hearing of the matter in October 2025, it only has approximately six months of its
life left to run.

[15] Some of the more significant terms of the lease agreement were that:
(a) The respondent was required, at its own cost, to establish the bonded
warehouse;

7
(b) The respondent would be permitted to take occupation of the premises on 1
March 2021 to install its fixtures and fittings and would not be charged rental for the
months of March and April 2021;
(c) The respondent would be required to pay the rental monthly in advance
before the first day of each month;
(d) The respondent agreed that it would not be entitled to withhold the payment
of any amounts due to the applicant in terms of the lease agreement;
(e) The applicant did not warrant or represent to the respondent that the
premises were fit for any purpose, including the purpose for which the premises were
let to the respondent;
(f) In the event of the respondent breaching the lease agreement, the applicant
would be entitled to demand that the respondent pay to it all amounts then
outstanding and to cancel the lease agreement;
(g) If the respondent continued to occupy the premises and the applicant
disputed its entitlement to do so, the respondent was required to pay all amounts
due to the applicant in terms of the lease agreement until the dispute was resolved
and the respondent was, furthermore, required to comply with all of its obligations
pending the resolution of that dispute; and
(h) The lease agreement constituted the whole agreement between the parties.
They consequently could only rely on representations recorded therein and any
variation to the lease agreement would only be effective if reduced to writing and
signed by, or on behalf of, the parties.

[16] Subsequent to the signing of the lease agreement, the parties concluded
three addenda to it. The first was concluded in February 2021 because there was a
reasonable fear that the then occupant of the premises might not vacate timeously,
and it was necessary to amend the lease and rental payment commencement dates.
The second addendum was concluded during May 2024 and was designed to
correct errors in the first addendum regarding the rent -free months of occupation

correct errors in the first addendum regarding the rent -free months of occupation
afforded to the respondent. Finally, the third addendum was concluded in April 2025.
It amended the day of the month by which the respondent was required to make its
rental payments to the applicant.

8
[17] After signing the lease agreement, t he respondent was given occupation of
the premises by the applicant and conducted its business from there . It, rather
swiftly, however, fell into arrears with its rental payments to the applicant . This was
not a matter of any controversy: by signing three acknowledgement of debt
documents in favour of the applicant , the respondent freely admitted its default on
three separate occasions. There is thus objective evidence of the respondent’s
default.
[18] In the first acknowledgement of debt , dated 30 August 2023 (the first
acknowledgement of debt), the respondent acknowledged that it had:
‘… defaulted on its rental obligations in terms of the Lease and had accrued arrear rental in
the amount of R714 785.92 as at 22 August 2023, a fter the Debtor paid R312 480.08 to the
Creditor on 07 August 2023.’

[19] The respondent undertook to pay its arrears to the applicant and further
acknowledged that it was truly and lawfully indebted to the applicant in the amount
described in the extract narrated above.

[20] Almost nine months later, on 24 May 2024, the respondent signed a second
acknowledgement of debt (the second acknowledg ement of debt) in favour of the
applicant, this time in a reduced amount of R431 121.06. Similar to the first
acknowledgement of debt, t he second acknowledg ement of debt contained
acknowledgements regarding the respondent’s default, an undertaking by it to pay
the arrears , and an acceptance by it that it was truly and lawfully indebted to the
applicant.

[21] Five months later, on 2 7 November 2024, the respondent was again in
arrears with its payments to the applicant. It accordingly signed a third
acknowledgement of debt in favour of the applicant (the third acknowledgment of
debt). The indebtedness on this occasion was the amount of R553 356.39, and the
third acknowledgement of debt contained identical terms to those already highlighted
in the first and second acknowledgements of debt.

9
[22] By May 2025, the respondent was again in arrears with its monthly
payments to the applicant. Upon enquiry from the applicant as to why payment had
not been made, a representative of the respondent replied that it was:
‘… experiencing delayed payments from our clients, thus the cause for our delay.’

[23] As a consequence, a formal breach notice, as contemplated by the lease
agreement, was directed to the respondent. A response was received in which the
respondent’s representative stated that:
‘… for the last four years within our five-year contract we have diligently paid our rental in full
and assure the lessor we intend to honour our obligations in terms of our lease.’
[24] A payment of R200 000 was then made by the respondent to the applicant ,
but no further payments were thereafter forthcoming. A meeting was consequently
convened between representatives of the applicant and the respondent on 28 May
2025, in order to attempt to resolve the issue of the arrear rental. At that meeting, the
respondent’s representative mentioned that the respondent had experienced
difficulties with the occupants of the residential properties neighbouring the
premises, who allegedly restricted access to the premises. The applicant accordingly
proposed alternate premises that were within its property portfolio and that were
available at a lower rental. Ultimately, no agreement was reached on the applicant’s
proposal.

[25] The respondent then failed to pay its June 2025 rental, and a further breach
letter was sent to it by the applicant’s erstwhile attorneys . A response was received ,
indicating that the respondent had a:
‘… 100% intention to settle all outstanding amounts.’
Despite the expressed good intentions, t he breach was not, however, rectified and
thus the applicant caused a letter cancelling the lease agreement to be sent to the
respondent by its erstwhile attorneys on 14 July 2025 (the cancellation letter).

respondent by its erstwhile attorneys on 14 July 2025 (the cancellation letter).

[26] After the dispatch of the cancellation letter, the applicant formed the view
that the respondent disputed the validity of its cancellation letter and enquired from it,
in writing, whether this was so. In response to this query, a letter dated 23 July 2025
was received from the respondent’s attorneys in which the following was alleged:

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(a) Because of the complaints made by the local community about the way the
respondent conducted its business and the local community’s conduct , the
respondent had not had full use and enjoyment of the premises for the full period of
the lease agreement;
(b) The applicant had failed to ‘disclose material facts concerning the
surrounding circumstances of the premises at the time of the conclusion of the lease
agreement’;
(c) Had the respondent known of the true state of affairs , it would not have
concluded the lease agreement;
(d) The applicant knew of the issue that the respondent had with the local
community but did not intervene and ‘provide remedial action in specific performance
of its duties’; and
(e) As a consequence, the responde nt had a counterclaim against the applicant
for:
(i) The amount of R19 543 006, in respect of the overpayment of rental;
(ii) The amount of R950 000, in respect of the overpayment of rates;
(iii) The amount of R2 157 258.18, in respect of ‘installation costs’; and
(iv) The amount of R44 818 093, in respect of lost profits.

[27] None of this was accepted by the applicant and t his application was always
the inevitable response to the respondent’s attorney’s letter of 23 July 2025. There
was, however, a further letter from the respondent’s attorney s, dated 4 August 2025,
when the respondent, according to Mr Harpur, raised the issue of fraud for the first
time when it stated that:
‘Evidence in our client's possession suggests that your client ’s omissions were deliberate,
having had knowledge of the relevant issues spanning back several years, but failed to
disclose them ostensibly to induce our client to agree to lease the premises on the terms
offered.’

[28] The respondent’s attorney further stated that:
‘The upshot of the above is that through our client ’s discovery of your client ’s
misrepresentation prior to the signature of the Impugned Lease Agreement, the terms

misrepresentation prior to the signature of the Impugned Lease Agreement, the terms
contained in such agreement are not enforceable against our client as such agreement was

11
improperly procured through material nondisclosure, and there was thus no meeting of the
minds on such terms.’

The applicant’s submissions
[29] The applicant’s case is largely as set out in the discussion of the common
cause facts. Each allegation made is meticulously established by a document
recording the fact alleged.

[30] While the applicant appears to accept that the local community did object to
the way in which the respondent conducted its business, the primary complaint s
being the excessive noise that the business generated at nighttime and the occlusion
of the street leading to the premises by large trucks, the applicant submitted that it
had no power over the local community or the manner in which the respondent
conducted its business activities at the premises. It submitted that neither are issues
that call upon it to do anything , nor could it do anything, particularly in the light of the
fact that the parties agreed that the applicant gave no warranty to the respondent
that the premises were fit for the purpose of conducting a bonded warehouse . If the
respondent breached local nuisance by -laws, that, too, had nothing to do with the
applicant. It had merely made available its premises to the respondent and that is
where its involvement in what went on at the premises stopped.

[31] The applicant submitted that the respondent had no defence to the
application and there were no material disputes of fact.

The respondent’s submissions
[32] The respondent’s approach to the applicant’s allegations is neatly summed
up at the commencement of its answering affidavit in the following sentence:
‘The foundation of the Respondent’s case is that the lease was induced by fraudulent
misrepresentation and material non-disclosure on the part of the Applicant.’

[33] The consequence of this, according to the respondent, is that it is entitled to
make an election whether to abide by the lease agreement or to repudiate it. In this
regard, the respondent states that it:

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‘… has made its election: it abides the lease, but only upon terms that neutralize the fraud. In
particular, the respondent is entitled to remain in occupation until the expiry of the lease in
April 2026, but only liable for a reduced rental consistent with the true value of the impaired
use of the premises.’

[34] The respondent explains that when the lease agreement was concluded, the
applicant knew that previous tenants of the premises had come up against sustained
opposition from the local Merebank community. To this, the deponent to the
applicant’s replying affidavit stated that:
‘While I was aware that some of the applicant’s previous tenants at the leased premises had
issues with the local community surrounding the leased premises, such instances have been
few. Those tenants which have conducted their business in compliance with the applicable
municipal bylaws have faced minimal to no interruptions or issues from the local community.
It is only those tenants which have conducted their businesses in contravention of the
applicable municipal bylaws or in such a manner as to cause a direct nuisance to the local
community that have experienced issues with the local community.’

[35] The respondent alleges that it was made clear to the applicant’s
representative at the time of the conclusion of the lease agreement that the
respondent required, inter alia, access to the premises on a 24 hours per day , seven
days per week basis and also stated that large container trucks would be required to
access the premises 24 hours per day, seven days per week.

[36] However, so the respondent claims, approximately one month into the lease
agreement, the local community commenced blocking roads, stoning vehicles and
discouraging drivers from proceeding to the premises. Firearms were even produced
and used to threaten truck drivers and the respondent’s managers , although none of
these managers has confirmed these events in an affidavit. The blockade of the

these managers has confirmed these events in an affidavit. The blockade of the
approach road to the premises would occur:
‘… in the hours leading up to 08h00 and 10h00 am (same varying on a daily basis)
thereafter allow the passage of trucks up until approximately 16h00 and then return to
continue to block access to the premises.’

[37] It is thus claimed that the lease agreement which eventuated was:
‘… induced by either:

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(a) the express representations made by Naidoo 5 in relation to the aforesaid criteria;
alternatively
(b) Naidoo’s silence when he ought to have corrected any misunderstandings in
relation to the above criteria.’

[38] The respondent allege s that it had addressed formal correspondence to the
applicant regarding the difficulties that it was experiencing. No such correspondence
from the early moments of the existence of the lease agreement has, however, been
put up. The only correspondence put up relates to the second half of 2025. When
these issues were allegedly raised with the applicant soon after the lease agreement
commenced, the respondent was allegedly advised by the applicant that if it intended
to withdraw from the lease agreement, it would be liable for the full value of the rental
in respect of the five years remaining on the lease period . The respondent
apparently took legal advice on this issue and was advised by an unnamed attorney
that any issues that concerned it could be raised at the conclusion of the lease
agreement.

[39] As to the applicant’s allegations that the respondent remains in occupation of
the prem ises without paying rental, Mr Harpur submitted that the respondent had
overpaid the applicant, and it is therefore not required to pay anything further to the
applicant in respect of rentals. As regards the payment of utilities consumed whilst in
disputed occupation of the premises, the respondent states that it employs a
company that manages its utility charges but explains that that company:
‘… refused to give the Respondent any of the relevant details including account numbers
and reference numbers into which to make the payments and accordingly the Respondent
has been unable to make any of those payments directly.’

[40] As regards its counter -application, the amounts that were mentioned in the
respondent’s attorney’s letter of 23 July 2025, referred to earlier, are allegedly due to

respondent’s attorney’s letter of 23 July 2025, referred to earlier, are allegedly due to
the respondent , inter alia, because it has not had full beneficial occupation of the
premises. Despite declining to quit the premises, the respondent submits that it is not
required to pay the agreed rental stipulated in the lease agreement, as read with the
three addenda, and is , in fact, entitled to a remission of rental. How much that

5 Mr Naidoo was the applicant’s representative.

14
remission of rental should be is not canvassed by the respondent. Indeed, it does
not believe that it is required to make that calculation. This, so it submits, must be
calculated by the applicant. It therefore asserts that if the applicant wishes to claim
the reduced rental from it, the applicant should prove the quantum of th at reduced
rental in an action that the applicant is required to commence within 30 days of the
date of an order granted in favour of the respondent in terms of its counter -
application. The respondent concludes that:
‘Once the Respondent establishes that the lease was induced by fraudulent
misrepresentation, the onus shifts to the Applicant to establish what reduced rental, if any, is
still fairly payable in light of the impaired performance. To hold otherwise would be to allow
the fraud to operate for the full rental and unjustly enrich the Applicant.’



Analysis
[41] This application turns on the respondent’s claim of fraud, for it forms both the
basis of its resistance to the applicant’s claim and the foundation of the counter -
application.

[42] Where fraud is alleged, it is settled law that the onus of establishing it falls on
the party claiming its occurrence6 and, thus, in this matter, it is for the respondent to
establish the fraud that it alleges.

[43] Mr Harpur mentioned several times in argument the well-known, and often
repeated, words of Lord Denning in the English case of Lazarus Estates Ltd v
Beasley.7 Similar sentiments to those expressed by Lord Denning were also made
by Williams J in the Australian case of Farley (Aust) Pty Ltd v J R Alexander & Sons
(Qld) Pty Ltd,8 where the learned judge stated that:

6 Vivian v Woodburn 1910 TS 1285 at 1287; AMI Forwarding (Pty) Ltd v Government of the RSA
(Dept of Customs and Excise) and Another [2010] ZASCA 62; [2010] 4 All SA 347 (SCA) para 34.
7 Lazarus Estates Ltd v Beasley [1956] 1 QB 702 (CA) at 712, where the following was stated:

7 Lazarus Estates Ltd v Beasley [1956] 1 QB 702 (CA) at 712, where the following was stated:
‘No court in this land will allow a person to keep an advantage which he has obtained by fraud. No
judgment of a court, no order of a Minister, can be allowed to stand if it has been obtained by fraud.
Fraud unravels everything. The court is careful not to find fraud unless it is distinctly pleaded and
proved; but once it is proved it vitiates judgments, contracts and all transactions whatsoever . . .’.
8 Farley (Aust) Pty Ltd v J R Alexander & Sons (Qld) Pty Ltd [1946] HCA 29 ; (1946) 75 CLR 487 at
493.

15
‘Fraud is conduct which vitiates every transaction known to the law. It even vitiates a
judgment of the Court. It is an insidious disease, and if clearly proved spreads to and infects
the whole transaction.’

[44] In this country, Cameron J likewise observed in Absa Bank Ltd v Moore and
Another that:9
‘Fraud unravels all directly within its compass, but only between victim and perpetrator, at
the instance of the victim. Whether fraud unravels a contract depends on its victim, not the
fraudster or third parties.’

[45] Fraud, thus, does indeed unravel all but it is a difficult and daunting task to
establish it in motion proceedings. As Seegobin J observed in Commissioner for the
South African Revenue Service v Sassin and Others:10
‘Our courts have consistently held that it would be unwise to decide a disputed issue of
whether fraud was committed on motion proceedings without the benefits inherent in the
hearing of oral evidence, including discovery of documents, cross -examination of witnesses,
and so forth.’

[46] Acknowledging this to be the case, Mr Harpur argued that the applicant had
caused this difficulty for the respondent. The applicant had been told in the
respondent’s attorney’s letter dated 5 August 2025 that the respondent accused it of
fraud and yet, instead of commencing proceedings by way of summons, the
applicant had chosen to proceed by way of motion proceedings , to the prejudice of
the respondent. The complaint of Mr Harpur need not detain me. A party is entitled to
assess the advantages , and risks , of proceeding by way of application and is not
obliged to adopt a procedure that is beneficial to the intended respondent.

[47] What evidence is there of the fraud alleged? The respondent broadly
pleaded that the misrepresentation was expressly made , alternatively made by
silence, thereby covering all its bases. It appears to me that there was, contrary to
what the respondent has pleaded, no express representation made by the

what the respondent has pleaded, no express representation made by the
applicant’s representative. I come to this view from the respondent’s own description

9 Absa Bank Ltd v Moore and Another [2016] ZACC 34; 2017 (1) SA 255 (CC) para 39.
10 Commissioner for the South African Revenue Service v Sassin and Others [2015] 4 All SA 756
(KZD) para 47.

16
of what occurred when its representative and the applicant’s representative, the
already mentioned Mr Naidoo, concluded the lease agreement. The following was
stated in the answering affidavit:
‘It was at that time that M r Naidoo advised the Respondent that the property was zoned as
noxious industrial and reference was made to nearby facilities which likewise dealt in heavy
goods. To this end the property which is situated adjacent to the leased premises is an Illovo
Sugar alcohol plant which produces chemicals and other bulk goods.’

[48] The respondent goes on to state that it advised Mr Naidoo of its
requirements for the premises, which included round -the-clock access to them and
the ability for large trucks to be able to access them. The respondent concludes that:
‘Against such requirements Naidoo furnished the respondent with the lease agreement
which has been created as annexure “FA2” to the founding affidavit.’

[49] From that narration of events, it is not suggested that Mr Naidoo said
anything at all. There could therefore be no express representation. It can only be
that the respondent relies on Mr Naidoo’s alleged silence . It appears to be the
respondent’s case, having excluded the possibility of an express misrepresentation,
that there was a duty on the part of Mr Naidoo to speak.

[50] In Absa Bank Ltd v Fouche,11 the Supreme Court of Appeal considered the duty
to speak in a pre -contractual setting. Conradie JA pointed out that the test for determining
wrongfulness in this setting is the same as the general test in delict for omissions: in each
case the court looks to the legal convictions of the community.12 He observed that:
‘[5] The policy considerations appertaining to the unlawfulness of a failure to speak in a
contractual context - a non-disclosure - have been synthesised into a general test for liability.
The test takes account of the fact that it is not the norm that one contracting party need tell

the other all he knows about anything that may be material. That accords with the general
rule that where conduct takes the form of an omission, such conduct is prima facie lawful. A
party is expected to speak when the information he has to impart falls within his exclusive
knowledge (so that in a practical business sense the other party has him as his only source)
and the information, moreover, is such that the right to have it communicated to him “would
be mutually recognised by honest men in the circumstances”.

11 Absa Bank Ltd v Fouche 2003 (1) SA 176 (SCA).
12 Ibid para 4.

17
[6] Having established a duty on the defendant to speak, a plaintiff must prove the
further elements for an actionable misrepresentation, that is, that the representation was
material and induced the defendant to enter into the contract. In the case of a fraudulent
misrepresentation, that must have been the result intended by the defendant. ’ (Authorities
omitted.)

[51] In Speight v Glass and Another,13 a decision of this division, Fannin J
observed that:14
‘There is in our law no general duty upon contracting parties to disclose to each other any
facts and circumstances known to them which may influence the mind of the other party in
deciding whether to conclude the contract . . . There is authority for the proposition that in
Roman and Roman-Dutch law, and therefore in South African law, a seller who knows of the
existence of defects in the thing sold, but deliberately refrains from disclosing them to the
buyer, is guilty of fraud, justifying the cancellation of the contract by a buyer who is not
aware of them . . . There is still some controversy as to whether mere silence is enough, or
whether the silence must itself amount to a representation or be accompanied by some
deliberate act of concealment . . . I have examined all the authorities which are cited or
referred to in the foregoing cases. They all, without exception I think, deal with cases of the
deliberate suppression or the calculated withholding of information regarding the subject
matter of the sale, which is known to the seller and unknown to the buyer, and which might
affect the buyer’s mind . . . In none of them, save one, can I find any suggestion that, where the
seller has not made any misrepresentation, express or otherwise, on the matter in question, the mere
failure to disclose the relevant facts can found an action, or any statement that, in the case of a sale,
there is a duty of disclosure such as is set out in the passages from Spencer Bower [Actionable Non-

Disclosure]. The exception is the passage in Norman [Purchase and Sale in South Africa 2 ed] op.
cit. at p. 84, where, dealing with fraud, the learned author says: -
“Non-disclosure will always amount to fraud where there exists a duty to disclose the full
facts, e.g.:
(i) In contracts where a fiduciary relationship arises between the parties – contracts
uberrimae fidei, such as insurance contracts, partnership and agency contracts,
(ii) where the facts concealed are accessible only to the party concealing them.”’

[52] There is accordingly no general common law rule that in the pre -contractual
phase all material facts must be disclosed and that non -disclosure inexorably

13 Speight v Glass and Another 1961 (1) SA 778 (D) (Speight) at 781H-783B.
14 Ibid at 781H-782G.

18
amounts to a misrepresentation by silence. The duty to speak only arises in the
circumstances mentioned in the reference to Norman’s Purchase and Sale in South
Africa in the extract from Speight above. Loss caused by an omission can be
actionable where there is a legal duty to act positively. ‘But where the conduct
complained of takes the form of an omission, such conduct is prima facie lawful.’15

[53] There is, moreover, no duty to speak:16
‘… where matters are equally open to common observation, or ascertainable by ordinary
diligence, or accessible to both parties alike …’

[54] In my view, the lease agreement is not the type of contract contemplated in
Speight referred to above. Nor was the applicant required to inform the respondent
that it was required to abide by municipal by -laws. Any information relating to the
community’s views and its alleged activism was accessible to the respondent.

[55] The respondent, however, appeared to me to have made a statement that
indicated that it well knew of the views of the local community. It appeared in the
following extract from the answering affidavit:
‘At the time of contracting, the Applicant’s representative was aware that previous tenants
had faced sustained opposition from the Merebank community, resulting in restrictions on
24-hour access and threats to operations. These facts were knowingly and deliberately
withheld from the respondent despite express inquiries . The fraudulent omission and
misrepresentation strike at the root of the lease agreement.’ (My emphasis)

[56] I found the reference to ‘despite express inquiries’ to be interesting and I
asked Mr Harpur if what was intended by it was that the respondent had specifically
asked the applicant about the existence of community protests. Mr Harpur denied
this to be the case and suggested that I was considering the statement ‘too
narrowly’. I was never told what the ‘express inquiries’ were if they did not relate to
community activism.

community activism.


15 BOE Bank Ltd v Ries 2002 (2) SA 39 (SCA) para 12 . See also Cape Town Municipality v
Bakkerud 2000 (3) SA 1049 (SCA).
16 McCann v Goodall Group Operations (Pty) Ltd 1995 (2) SA 718 (C) at 723G-H.

19
[57] The respondent claims that it told Mr Naidoo of its requirements.
Surprisingly, those requirements are not mentioned in the lease agreement that the
respondent admits signing nor are t hey mentioned in th at section of the lease
agreement where the applicant made certain warranties to the respondent. 17 Nor is
there any correspondence put up by the respondent contemporaneous to, or prior to,
the conclusion of the lease agreement that records these requirements , or provides
any evidence that the applicant knew of them . All that the respondent puts up is a
chronology that it prepared itself of telephone calls to the applicant, with no objective
proof of what it states those calls dealt with. Moreover, the lease agreement
recorded that neither party could rely on any representation not recorded in the lease
agreement.

[58] In support of what it now claims, the respondent state s that it has had
discussions with three previous tenants of the premises. The previous tenants are
named. None of them has put up a confirmatory affidavit. Each of them allegedly told
the re spondent that they could not work outside ordinary working hours due to
community activism. Only two of them mentioned that they informed the applicant of
this. None of them appeared to have blamed the applicant for this turn of events. In
the absence of confirmation of this information under oath in an affidavit, the
information is hearsay in nature and is inadmissible.

[59] There is, furthermore, a disturbing contradiction in the respondent’s version
in relation to the previous tenants. In its answering affidavit, the following is stated:
‘In the time available the Respondent has not been able to yet obtain confirmatory affidavit
(sic) from these persons but wishes to pursue this avenue of obtaining corroborative
evidence…’

[60] However, in the respondent’s attorney ’s letter dated 4 August 2025 , when
considering the likelihood of protracted legal proceedings stretching into the future in

considering the likelihood of protracted legal proceedings stretching into the future in
the absence of an amicable resolution of the matter, the respondent’s attorney stated
the following:

17 Clause 26.

20
‘Furthermore, such proceedings will involve several disputes of fact which will necessarily
call upon a process involving discovery and oral evidence being led (with our client intending
to call prior tenants who have confirmed their position in writing).’

[61] The two propositions cannot be reconciled. If the previous tenants had
confirmed their position in writing, why was that writing not put up?

[62] The basis for the allegation of fraud is not of long standing but only emerged
recently. In fact, it was never mentioned at all during the first four years of the lease
agreement. At all prior times du ring the existence of the lease agreement , the
respondent acknowledged that it was the wrongdoer in not paying its rental
obligations to the applicant and never suggest ed that the applicant had behaved
dishonestly towards it. Had the applicant been set on fraud in order to unlawfully
extract a benefit to which it may not otherwise have been entitled, as appears to be
alleged by the respondent, a valid question to ask would be why it was prepared to
engage with the respondent in order to find it cheaper premises within its own
portfolio of properties. It is common cause that this is what happened and there are
documents attached to the founding papers that deal with these negotiations. That
these negotiations ultimately did not lead to the respondent moving to cheaper
premises was as a result of a decision taken by the respondent, not the applicant.
That does not appear to me to be the conduct of a fraudster.

[63] After a conspectus of all the evidence, I must conclude that no fraud has
been established. That, in effect, puts an end to the respondent ’s opposition to the
applicant’s claim as well as its counter-application. However, if I am incorrect in that
conclusion, I briefly consider the relief claimed in the counter-application.

[64] While there may be no material disputes of fact , there was a significant

[64] While there may be no material disputes of fact , there was a significant
dispute between counsel as to what the legal position is on the remedies available to
a party who has been fraudulently induced to enter into a contract. I am not certain
why this should be the case , as the legal position is certain and clear. Mr Stokes, in
his heads of argument, stated the position to be the following:
‘It is an elementary principle of our law that a party discovering it was fraudulently induced
into concluding a contract faces an election to uphold or rescind. Where the innocent party

21
chooses to abide, it takes the contract on all its terms and must comply with all its terms .
There is no provision in our law for the innocent party to abide on some qualified basis . This
remedy allows that party to take the contract as it stands (subject to a separate damages
claim) or to reject it. There is no halfway mark.’

[65] This submission is in accordance with the accepted legal position. In
Bowditch v Peel and Magill,18 Innes CJ stated that:
‘A person who has been induced to contract by the material and fraudulent
misrepresentations of the other party may either stand by the contract or claim a rescission.
(Voet, 4.3, secs. 3, 4, 7). It follows that he must make his election between those two
inconsistent remedies within a reasonable time after knowledge of the deception. And the
choice of one necessarily involves the abandonment of the other. He cannot both approbate
and reprobate.’

[66] Mr Harpur, on the other hand , submitted that the victim of a fraudulent
misrepresentation is not bound to accept the contract as it is but may accept it on
terms suitable to itself. His only authority for this prop osition appears to be found in
this extract from Christie’s The Law of Contract in South Africa:19
‘The innocent party who elects to stand by the contract may claim specific performance or
damages for breach or whatever remedy may be appropriate, and the maker of the
misrepresentation cannot rely on his own misrepresentation and argue that the innocent
party ought to have rescinded. The election lies solely with the innocent party .’ (Footnote
omitted.)

[67] According to Mr Harpur, the words ‘or whatever remedy may be appropriate’
permit the respondent in this instance to accept the contract but subject to a reduced
rental. The respondent thus submits that:
‘The concern that a party cannot approbate and reprobate does not assist the Applicant. The
Respondent has made its election: it abides by the lease. But that election does not bind it to

pay the full fraudulent rental. The Respondent is entitled, consistently with its election, to
remain in occupation on the basis of paying only the reduced rental, to be established by the
Applicant. This is not a case of “cherry -picking” provisions; it is the proper application of the
principle that fraud vitiates contractual rights and that public policy prevents a party from
profiting from its own fraudulent inducement.’

18 Bowditch v Peel and Magill 1921 AD 561 at 572-573.
19 G B Bradfield Christie’s The Law of Contract in South Africa 8 ed (2022) (Christie’s) at 352.

22

[68] I am unable to agree with Mr Harpur. The position is unequivocal. The
contract must be accepted as it stands. There is but one contract. For Mr Harpur to
be correct, there would have to be a second contract, which there is not , nor can the
court make one for the parties . If the respondent remains in occupation , it must
adhere to the lease agreement , as concluded. What is proposed by the respondent
seems to be a partial acceptance of the original lease agreement and a partial
rejection of some of its terms. That the extract from Christie’s relied upon by the
respondent does not mean what it is claimed to mean , is evidenced by a further
extract from Christie’s:20
‘So as a general rule there can be no such thing as partial affirmation and partial repudiation
because a party who takes and retains any benefit under a contract must be deemed to
have elected to abide by it, but the parties may agree to the contrary.’ (Footnotes omitted.)

[69] It is clear that in this instance , there is no such agreement between the
parties, nor has the respondent alleged such an agreement . T he election that the
respondent would have been required to make in the event that fraud was
established was whether it wished to reject the lease agreement in its entirety or
whether it wished to adhere to it in its entirety. It has chosen neither in advancing it s
counter-application. The counter-application could not therefore succeed, even in the
event of fraud being established.

Conclusion
[70] There is no dispute that the respondent did not pay what it was required to
pay to the applicant. The applicant was entitled to regard that as a breach of the
lease agreement and when the breach was not remedied after the respondent was
given the contractually agreed notice to do so, the applicant cancelled the lease
agreement. It was entitled to do so, and its cancellation was valid.

[71] The defence of fraud appears to me to be a recent creation by the

[71] The defence of fraud appears to me to be a recent creation by the
respondent in order to muddy the wate rs of what is, essentially, an extremely simple

20 Ibid at 350.

23
dispute. Sir Winston Churchill, speaking of the duty of a democracy in wartime , said
that its duty was to confuse by utilising: 21
‘… not the silence of the oyster serene in its grotto, but the smudge and blur of the
cuttlefish.’
I detect the presence of the smudge and blur of the cuttlefish in th e counter -
application.

[72] Even if fraud had been established by the respondent , which it has not, the
relief claimed by the respondent in its counter -application is not in accordance with
the law and cannot be granted.

[73] In the absence of any fraudulent conduct on the part of the applicant , no
defence of any kind has been raised to the application for ejectment. That application
must consequently be granted and the respondent’s counter-application rejected.

[74] The applicant has sought that the respondent be ordered to forthwith vacate
the premises. That appears to me to be an unrealistic expectation given the nature of
the business conducted by the respondent. I was not addressed on what a realistic
time frame might be in the event that I found for the applicant . Despite this, I am
confident, however, that there will be administrative and bureaucratic requirements
to either shut down, or relocate, a bonded warehouse which may consume some
time. This judgment will be handed down on Thursday, 6 November 2025. In my
opinion, it would be fair , in the circumstances, to order the respondent to vacate the
premises on or before the last day of November 2025.

Costs
[75] The applicant has sought costs on the attorney and client scale. Given the
contrived defence and counter -application raised by the respondent , I am prepared
to grant such an order. Both sides have employed two counsel to present their
respective cases, and I can see no reason why the costs awarded should not include
those costs.

Order

21 R M Langworth Churchill’s Wit: The Definitive Collection (2009) at 146.

24
[76] I accordingly grant the following order:
1. The respondent, and all those holding occupation by, through or under it, are
directed, on or before the last day of November 2025, to vacate the property situated
at 1[...] T[...] Road, Mobeni, Durban (the premises).
2. If the respondent or any person occupying the premises by, through or under
it, fails to comply with the order in paragraph 1 above, the sheriff of the court, or his
deputy, is authori sed and directed to do all things necessary to eject from the
premises the respondent and any persons occupying the premises by, through or
under it.
3. The respondent is directed to pay the costs of this application on an attorney
and client scale, such to include the costs of two counsel where so employed.
4. The respondent’s counter -application is dismissed with costs, such to be
payable on the attorney and client scale, and to include the costs of two counsel
where so employed.




_____________________________

MOSSOP J

25
APPEARANCES


Counsel for the applicant : Mr A Stokes SC with Mr D W D
Aldworth

Instructed by: Pather and Pather Attorneys Inc
3 Nollsworth Crescent
Nollsworth Park, La Lucia Ridge

Locally represented by:

Botha and Olivier Attorneys
239 Peter Kerchoff Street
Pietermaritzburg

Counsel for the respondent: Mr G D Harpur SC with Mr D Bond

Instructed by: Thomson Wilks Incorporated
Inanda Greens Business Park
1st Floor Building 8, Pebble Beach
54 Wierda Road, Wierda Valley
Sandton

Locally represented by:

Thomson Wilks Incorporated
Ground Floor, Robert House
5 Nollsworth Park
La Lucia Office Estate
Durban