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[2025] ZAFSHC 315
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PA Kalil N.O. and Others v Coobah Development CC and Others (3691/2020) [2025] ZAFSHC 315 (3 October 2025)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Not
reportable
Case
Number: 3691/2020
In
the matter between:
PAUL
ANTHONY KALIL N.O.
FIRST
PLAINTIFF
WILHELMINA
CECILIA KALIL N.O.
SECOND
PLAINTIFF
STEPHANUS
ABRAHAM CLOETE BEZUIDENHOUT N.O.
[In
their capacities as Trustees of the Paul Kalil Trust,
Registration
number: TMP550/1997]
THIRD
PLAINTIFF
and
COOBAH
DEVELOPMENT CC
FIRST
DEFENDANT
PANNO
JOANNIDES
SECOND
DEFENDANT
SUZETTE
ROBBERTS
THIRD
DEFENDANT
NIEL
CRONJE N.O
[In
her capacity as executrix in the estate of
late
Johannes Hendrik Cronje]
FOURTH
DEFENDANT
BT
SERVICE PROVIDERS (PTY) LTD
FIFTH
DEFENDANT
MUJAKACHE
RAYMOND CHIMBA
SIXTH
DEFENDANT
Neutral
Citation
:
PA Kalil N.O. and Others v Coobah Development CC and
Others
(3691/2020) ZAFSHC 315 (3 October 2025)
Coram
:
Reinders, J
Heard
:
24 March 2025
Delivered
:
This judgment was handed down in open court on 3 October
2025 and distributed to the parties via electronic mail
communication.
Summary
:
Contract- written lease agreement -
Shifren
principle - tacit
termination - non-variation clause - repudiation or waiver -
principles restated.
ORDER
Judgment
is granted against the second to fourth defendants, jointly and
severally, the one to pay the other to be absolved, for:
1
Payment in the amount of R829122.14;
2
Payment in the amount of R127 617.80;
3
Interest on the aforesaid amounts at the current
mora
interest
rate as determined in the
Prescribed Rate of Interest Act 55 of 1975
,
currently 11,25% per annum
a tempora morae
;
4
Costs of suit on Scale B;
5
The claim against the fifth and sixth defendants are dismissed.
JUDGMENT
Reinders
J
[1]
The three plaintiffs are the trustees of the Paul Kalil Trust (the
Trust/plaintiff),
which owns several properties and lease it out. On
1 September 2015, the Trust concluded a written lease agreement (the
lease agreement)
with the first defendant, Coobah Development CC
(Coobah) in respect of Shop Number 9 (the premises) in the Preller
Walk Shopping
Centre in Bloemfontein.
[2]
The lease agreement was to endure for a period of five years, with a
fixed termination
date of 31 Augustus 2020. In September 2020, the
Trust issued summons against Coobah and the second to fourth
defendants. The second
to fourth defendants are cited as sureties and
co-principal debtors, having bound themselves for Coobah's
indebtedness to the Trust
for the due and punctual payment of all
monies, and performances of all obligations (including the payment of
damages) which may
become due, owing or payable in terms of the lease
agreement. The plaintiff seeks payment against the first to fourth
defendants
in the amount of R829 122.14 in respect of arrear rentals
for the period July 2019 to February 2020. The plaintiff,
furthermore,
seeks payment against the first to fourth defendants in
the amount of R127 617.80 for alleged damages incurred to have the
premises
restored to the same condition as when it was initially
rented out (the so-called 'white box' status), as agreed upon in the
lease
agreement.
[1]
[3]
It is common cause that the mentioned agreement was entered into for
the five years'
period. It is further common cause that the first to
fourth defendants did not pay any rent for the period claimed by the
Trust.
The first to fourth defendants defended itself against the
claims by averring in its plea that the rental agreement between the
first defendant and the plaintiff was tacitly terminated. It is
averred that the fifth defendant (BT Service Providers) took
occupation
of the leased premises, and that the Trust accepted
monthly rental payments from it for the period June 2017 until at
least June
2019.
[4]
It is worth mentioning that Coobah was deregistered on 1 September
2020, one day after
the termination date of the lease agreement
concluded on 1 September 2015. The summons was issued on 30 September
2020. The fifth
and sixth defendants did not defend the matter and
the claim against them was based on the alternative claims in the
event I find
that a lease agreement had been concluded by the Trust
with the fifth defendant (the sixth defendant, MR Chimba, being the
director
of the latter).
[5]
To prove its case, the Trust called five witnesses, to wit Mr P
Kalil, Mr J Botha,
Me A Otty, Me S L Van Wyk and Mr S Wiesenaar. On
behalf of the first to fourth defendants, the testimonies of Mr P
Joannides and
Me S Robberts were presented.
[6]
I find it appropriate at the onset to convey my indebtedness to
counsel for both parties
for their able submissions and comprehensive
heads of arguments, which I found of great assistance in adjudicating
this matter.
Both counsel dealt thoroughly, not only with the oral
evidence tendered by the witnesses (inclusive of documentary
evidence), but
also with the leading authorities of relevance. I do
not intend to regurgitate all the evidence tendered before me, and I
agree
with the submission by counsel for the first to fourth
defendants that none of the witnesses on behalf of either of the
parties
'intentionally or maliciously attempted to misrepresent the
facts of the matter'.
[7]
Mr Kalil is a Trustee of the plaintiff which owns and rents out
approximately 28 properties.
He testified that, due to his vast
experience in the rental business spanning more than 40 years, only
written agreements were
being entered into on behalf of the Trust. He
confirmed the written lease agreement between the Trust and the first
defendant.
It was common cause that Broll Property Group (Pty) Ltd
(Broll) was the managing agent on behalf of the Trust for the leasing
of
the latter's properties. This entailed that Broll would provide
draft lease agreements for the Trust to consider and, if satisfied,
Mr Kalil would proceed to sign a lease agreement on behalf of the
Trust, being the sole person authorised to do so. Broll held
no
mandate to conclude any lease agreements on behalf of the Trust. He
conceded that during September 2017, BT Service Providers
made an
offer to lease the premises or put differently, to take over the
lease from the first defendant. No agreement, however,
came into
place with BT Service Providers as the Trust was not satisfied with
the sureties offered in respect of BT Service Providers.
He only
learned that BT Service Providers was occupying the premises after
the rental payments fell in arrears. He did not sign
any draft nor
final lease agreement with BT Service Providers. Mr Kalil also
testified as an expert witness on the restoration
of the premises to
a white box.
[8]
Mr Botha was the divisional director at Broll at the time when the
Trust and Coobah
entered into the lease agreement, a position he held
until 10 October 2018. He confirmed the process that ensues before a
rental
agreement would be concluded between a potential lessee and
the lessor, namely the completion of an internal application form,
the drafting of so-called heads of agreement, to be signed by both
the lessor and lessee, followed thereafter by the actual rental
agreement to be signed. He was referred to e-mail communication and
documentation in the trial bundle, compiled and utilised by
both
parties. BT Service Providers had filled out an application in
September 2017 to rent the premises, however, the heads of
agreements
were signed only by BT Service Providers and never by the Trust, as
Mr Kalil refused to do so, not being satisfied with
the sureties
preferred by BT Service Providers. Mr Botha testified about an
incident during 2024 when Mr Joannides made certain
accusations
against the Trust which confirmed that no lease agreement was
concluded with BT Service Providers.
[9]
The testimonies of both Me Otty (the lease administrator at Broll)
and Me Van Wyk
(the credit controller of Broll at the time) dealt
with the administrative functions performed by them at the time. Both
were referred
to the aforementioned trial bundle, and they explained
their respective actions and inputs. Neither of them was directly
involved
in the final conclusion of a rental agreement between any of
the parties. Me Otty confirmed the statement of account attached to
the particulars of claim and the calculation of the total amount of
arrears as claimed by the plaintiff. Mr Wiesenaar is a craftsman
and
owner of a construction business who testified on the work that he
had performed in restoring the premises to a white box as
fully set
out in the particulars of claim, and which amounts he considered to
be reasonable.
[10]
Mr Joaniddes was a member of the first defendant and, as stated, a
surety. He testified that
Coobah conducted the business of a
restaurant at the premises until approximately June 2017 whereafter
the restaurant was sold
to BT Service Providers. The late Mr Cronje
(replaced by Mrs Cronje as executric of his estate, as fourth
defendant) was the member
who actually managed the administration of
business. To his knowledge and understanding, a new tacit lease
agreement was concluded
between the plaintiff and BT Service
Providers when the latter took occupation of the premises in June
2017, rendering BT Service
Providers, in his view, liable for rental
payments and the premises' reinstatement upon vacation thereof. He
confirmed that the
written rental agreement between Coobah and the
Trust was never cancelled in writing as stipulated; he assumed that
it was cancelled
tacitly. During cross-examination, Mr Joannides
testified that he had a telephonic discussion with Mr Chimba, on or
about March
2019, during which an upset Mr Chimba informed him that
the Trust refused him as tenant. Me Robberts, also a member and
surety
of Coobah, testified that she started working at the
restaurant during 2010 and remained its manager once it was sold to
BT Service
Providers. The restaurant was still called Coobah and
remained on the premises.
[11]
It is necessary to refer to certain undisputed clauses in the lease
agreement entered into between
the Trust and first defendant. In
clause 19.6 of the agreement the parties agreed that:
'The Tenant shall
further not give up occupation or possession of the Premises, or any
portion thereof to any person or permit any
person, whether a
licensee, agent, occupier, custodian or
otherwise, to enter into
possession or occupy or take possession of the Premises or any
portion thereof for either a definite period
or at all without the
Landlord's prior written consent. '
This should naturally be
read in conjunction with clause 35 of the rental agreement, which
reads as follows:
'This lease and all
the Annexures hereto constitute the whole agreement between the
parties and no warranties or representations
whether express or
implied not stated herein shall be binding on the parties. No
agreement at variance with the terms and conditions
of this lease nor
any consensual cancellation hereto shall be binding on the parties
unless reduced to a written agreement signed
on behalf of the
parties. No relaxation or indulgence which the Landlord may show to
the Tenant shall in any way prejudice its
rights hereunder, and in
particular no acceptance of the Landlord of rental after due date
(whether on more than one occasions)
shall preclude or stop it from
exercising any rights enjoyed by it hereunder by reason of any
subsequent payment not being made
strictly on due date. Unless
otherwise stated by the Landlord in writing, the receipt by the
Landlord or its agents of any rental
or any other payment shall in no
way whatsoever prejudice or operate as a waiver, rescission or
abandonment of any cancellation
effected or acquitted prior to such
receipt. '
[12]
From the aforementioned clauses, it is evident that it was expressly
agreed that the tenant shall
not give up occupation or possession to
any person without the plaintiff's written consent.
[2]
It was further agreed that any cancellation of the agreement must be
reduced to writing and signed on behalf of the parties. Furthermore,
the plaintiff’s receipt of any rental or other payment will in
no way operate as a waiver, rescission, abandonment, or cancellation
of the agreement.
[13]
Counsel for the first to fourth defendants summarized the gist of the
issues to be adjudicated
to be whether the parties tacitly agreed or
could have agreed to terminate the lease contract contrary to the
written clause 35
in the lease agreement which required that a
variation to the written contract would only be valid and enforceable
if reduced to
writing and accepted by both parties in writing. It was
also submitted that the court is additionally required to determine
whether
the Trust entered into a tacit lease agreement with BT
Service Providers and whether the acceptance by the Trust of BT
Service
Providers' use and occupation of the rental premises as well
as their monthly rental payments and deposit amounted to waiving the
reliance placed on the non-variation clause contained in the written
contract. The first to fourth defendants pleaded that the
lease
agreement between the Trust and Coobah was tacitly terminated when BT
Service Providers moved into the premises in September
2017.
Accordingly, so the argument of counsel went, not only was the
suretyships resultantly terminated, but the averred termination
of
the lease agreement at that time consequently had the effect that the
claim for the reinstatement had prescribed, as summons
was issued
more than three years after the said date.
[14]
As was expected, counsel for the plaintiff relied heavily on the
Shifren
principle as enunciated
in
Sentrale
Co-op Graanmaatskappy Bpk v Shifren en Andere
,
[3]
governing non-variation clauses in agreements which requires that
once parties agreed in writing that an agreement cannot be altered
or
varied unless certain conditions are met, no amendments or variations
to the contract will be valid unless such prescribed condition
has
been met. In
HNR
Properties CC and Another v Standard Bank of SA Ltd
[4]
the Supreme Court of Appeal held:
'The appellants contend
that they were released as sureties by virtue of the conduct of the
Bank, coupled with a consensual waiver
of the provisions of clause
15. In my view, a factual basis for such a contention was not
established on the evidence. But even
if it had been, it would have
amounted, in the circumstances of the present case, to no more than a
variation of clause 15 which
was not in writing. This is precluded by
clause 16.
To
hold otherwise, would render the principle in
Shifren
wholly
ineffective
.'
[5]
(emphasis
added)
Counsel for the plaintiff
referred me to
Metalmil
(Pty) Ltd v AECI Explosives and Chemicals Ltd
[6]
where an agreement contained a clause which stated that in the event
of either party breaching a material term of the agreement
and
failing to remedy such breach within 30 days of being called upon in
writing by the other party to do so, the other party shall
be
entitled, by notice in writing to the other party in breach, to
forthwith cancel the agreement without prejudice to any claim
for
damages or other relief to which it may be entitled.
[7]
It was, however, held that the innocent party in that matter was not
compelled to comply with the machinery created in the aforesaid
clause because the conduct of the defaulting party is such as to
constitute a repudiation of the contract.
[8]
[15]
Counsel for the first to fourth defendants relied on
Standard
Bank of South Africa Ltd v Ocean Commodities lnc
[9]
(
Ocean
Commodities
)
where Corbett JA held that:
'In order to establish a
tacit contract it is necessary to show, by a preponderance of
probabilities, unequivocal conduct which
is capable of no other
reasonable interpretation than that the parties intended to, and did
in fact, contract on the terms alleged.
It must be proved that there
was in fact consensus ad idem.'
[10]
I was also referred to
Buffalo
City Metropolitan Municipality v Nurcha Development Finance Pty
Ltd
[11]
where the Supreme Court of Appeal found that the party alleging a
tacit contract need to prove unequivocal conduct giving rise
to an
inference of consensus on a balance of probabilities.
[12]
The same Court also held in
Butters
v Mncora
[13]
that
‘
[a]t
the end of the exercise
,
...
the
court must be satisfied, on a conspectus of all the evidence, that it
is more probable than not that the parties were in agreement,
and
that a contract between them came into being in consequence of their
agreement
.'
[14]
[16]
My attention was specifically invited to the matter of
Ocean
Echo Properties v Old Mutual
[15]
(
Ocean
Echo Properties
)
as counsel for the defendants submitted that the facts therein are on
all fours with the facts in
casu
;
The following summary followed in his heads of argument:
'... the Supreme Court of
Appeal had to consider the correctness of an exception taken against
pleadings dealing with the claim
of a landlord who sued his tenant
for rental and other charges which were in arrears. The landlord who
sued his tenant for rental
and other charges which were in arrears.
The tenants pleaded that they had abandoned the premises at an
earlier date when they
were not in arrears, and alleged that the
landlord had subsequently entered into a tacit agreement with a new
tenant. In opposition,
the landlord pleaded that the lease agreement
contained a non-variation clause and that the alleged tacit
termination amounted
to an alteration or variation of the lease
without reducing it to writing and signatures by the parties, thus
denying that the
tacit termination was valid, since it was contrary
to the express provisions of the lease contract. The Supreme Court of
Appeal
held that such a termination does not mean that there is a
variation of the terms of the original contract. Even though there
was
a non-variation clause, the defence of a tacit election to
terminate was a proper defence.'
[17]
Heavy reliance on the aforementioned judgment was placed by counsel
for the defendants in bolstering
his arguments. Counsel for the
plaintiff, however, argued that reliance on
Ocean
Echo Properties
is
misplaced as the facts therein are distinguishable from the facts in
casu
.
Firstly, the matter was decided on exception with no evidence having
been led by the parties, and adjudication of the matter was
thus not
on a balance of probabilities at that stage. Moreover, so the
argument went, the non-variation clause relied upon in
Ocean
Echo Properties
read:
'No alteration, variation of or addition to the Lease shall be of any
force or effect unless it is reduced to writing and
signed by both
the Plaintiff and the First Defendant'
[16]
whilst clause 35 of the agreement in
casu
states, with my emphasis:
'No agreement at variance with the terms and conditions of this Lease
nor any
consensual cancellation
hereto
shall be binding on the parties unless reduced to a written agreement
and signed on behalf of the parties.'
[18]
Reliance was also placed on
Ocean Echo Properties
for the
first to fourth defendants' allegation that the Trust elected not to
enforce the lease agreement against them, and that
election cannot be
altered. Counsel for the Trust, in my view, correctly submitted that
the Trust had an election to either cancel
or enforce the agreement
and was well within their rights to elect enforcement of the
agreement, as they did in issuing summons
against the first to fourth
defendants.
[19]
Counsel for first to fourth defendants pressed upon me not to enforce
the harsh consequences
of the non-variation clause on the defendants,
relying on
Ocean Echo Properties
where the Supreme Court of
Appeal found good reason not to enforce such. Even though I have
sympathy with the first to fourth defendants,
their defence of a
tacit termination of the written agreement cannot be sustained in
light of the aforementioned authorities in
respect of the
Shifren
principle. The principles enunciated in
Ocean Echo Properties
also do not assist the defendants. Although the court found that a
defence of a tacit election to terminate could indeed be a proper
defence, the evidence in
casu
, in my view, does not establish
that the parties agreed to any tacit election. Moreover, they were in
any event prevented from
doing so in light of clause 35 of the rental
agreement. Additionally, neither witnesses on behalf of the plaintiff
nor the first
to fourth defendants testified to a written
cancellation of the agreement. Based on the authorities, I have to
conclude that the
plaintiff has proven its case. Having reached the
conclusion that the rental agreement between the Trust and Coobah had
not been
terminated in any way (specifically not tacitly as pleaded
by Coobah), it follows that the second to fourth defendants'
indebtedness
to the plaintiff as sureties, remains binding. For the
same reason, the defence of prescription in respect of the claim for
the
reinstatement costs of the premises, cannot be sustained.
[20]
What remains is the issue of costs and it should follow the result.
Counsel representing the
plaintiff requested costs to be taxed on
Scale B, which is in my view warranted.
[21]
For legal certainty, the claims against the fifth and sixth
defendants should be dismissed, although
it has no cost implications
since the matter was not defended. In view thereof that the first
defendant had been deregistered,
I shall make no order against it.
[22]
Accordingly, I make the following order:
Judgment
is granted against the second to fourth defendants, jointly and
severally, the one to pay the other to be absolved, for:
1
Payment in the amount of R829 122.14;
2
Payment in the amount of R127 617.80;
3
Interest on the aforesaid amounts at the current
mora
interest
rate as determined in the
Prescribed Rate of Interest Act 55 of 1975
,
currently 11,25% per annum
a tempora morae
;
4
Costs of suit on Scale B;
5
The claim against the fifth and sixth defendants are dismissed.
C
REINDERS
JUDGE
OF THE HIGH COURT
Appearances
:
On
behalf of the Plaintiffs:
WJ Groenewald
Instructed
by:
Bezuidenhouts Inc
Bloemfontein
On
behalf of the First to Fourth Defendants: S Rautenbach
Instructed
by:
Van der Merwe Sorour Attorneys
Bloemfontein
[1]
Clause 11.2 of the lease agreement inter alia provides as follows:
"
If
any alterations and/or additions are made by the Tenant, it shall,
on the expiry of the lease or the expiry of any renewal
hereof,
remove them and
reinstate the Premises to the condition in
which they were before the additions and alternation were effected
,
unless the landlord otherwise notifies in writing ..."
(Emphasis added)
[2]
See also clause 29 of the agreement which deals with acts which
constitute a breach of the agreement: '29. Should the Tenant:
29.1.1
fail to pay any rental
or other amount due by the Tenant in
terms of this lease agreement on due date; or
29.1.9
repeatedly breach any of the terms of the Lease
in such
manner as to justify the Landlord in holding that the Tenant's
conduct is inconsistent with an intention and ability to carry
out the terms of the lease
; or
29.1.10
commit any breach of any other provision of the lease other than
referred to above and fail to remedy that breach within
7 (seven)
days after the Landlord has given the Tenant written notice calling
upon it to do so, then and in any of such events,
the Landlord
shall have the right but shall not be obliged either
: to
forthwith cancel the Lease on written notice and retake possession
of the Premises without prejudice to any other rights
under the
Lease or at law including the right to claim damages ...
or
to claim the fulfilment of all the terms and conditions of this
Lease.'(Emphasis added)
[3]
Sentrale
Co-op Graanmaatskappy Bpk v Shifren en Andere
1964
(4) SA 760
(A)
See
also
Sadar Investments (Pty) Ltd v Caldeira
1971 (1) SA 193
(O) at 196H and
Barnett v Van der Merwe
1980 (3) SA 606
(T)
at 609H-610A.
[4]
HNR
Properties CC and Another v Standard Bank of SA Ltd
[2003]
ZASCA 135; 2004 (4) SA 471 (SCA).
[5]
Ibid para 21. See also
Cecil
Nurse (Pty) Ltd v Nkola
[2007]
ZASCA 154
;
2008 (2) SA 441
(SCA) para 17.
[6]
Metalmil
(Pty) Ltd v AECI Explosives and Chemicals Ltd
1994
(3) SA 673 (A).
[7]
Ibid at 678E.
[8]
Ibid at 683G.
[9]
Standard
Bank of South Africa Ltd v Ocean Commodities Inc
1983 (1) SA 276 (A).
[10]
Ibid at 2928.
[11]
Buffalo
City Metropolitan Municipality v Nurcha Development Finance
(Pty) Ltd
[2018] ZASCA
122
;
2019 (3) SA 379
(SCA).
[12]
Ibid para 20.
[13]
Butters
v Mncora
[2012]
ZASCA 29; 2012 (4) SA 1 (SCA).
[14]
Ibid para 34.
[15]
Ocean
Echo Properties 327 CC and Another v Old Mutual Life Assurance
Company (SA) Limited
[2018]
ZASCA 9
;
2018 (3) SA 405
(SCA).
[16]
Ibid para 4.