SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this
document in compliance with the law and SAFLII Policy
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
Case Number: 2024/100997
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: YES
7 November 2025
In the matter between:
LIBERTY GROUP LIMITED First Applicant
PARETO LIMITED Second Applicant
TWO DEGREES PROPERTIES (PTY) LIMITED Third
Applicant
and
NEW AFRICA CAPITAL GROUP (PTY) LIMITED Respondent
(Reg 2019/201360/07)
This Judgment is handed down electronically by circulation to the a pplicant’s legal
representatives and the r espondents by email, publication on Case Lines. The date
for the handing down is deemed 7 November 2025.
JUDGMENT
Mudau, J
Introduction
[1] This is an application for the eviction of the r espondent from commercial
premises known as Sandton City Office Tower, situated at the corner of R […]
2
Road and […] Street, Sandton ( “the property”). The application is founded on
the applicants’ case that they lawfully cancelled a written lease agreement due
to the r espondent’s breach for non- payment of rental and associated charges.
The respondent opposes the application.
Background facts
[2] The following background facts are not in serious dispute. The applicants are
the registered co-owners of the property. The r espondent was in occupation of
the property pursuant to a written Lease Agreement concluded between the
parties on 8 June 2023. The lease was for a fixed term, commencing on 1 June
2023 and terminating on 30 June 2026.
[3] The provisions of the Prevention of Illegal Eviction from and Unlawful
Occupation of Land Act 1 do not apply, as this is a commercial eviction. The
deponent to the founding affidavit details several material terms of the lease,
including base monthly rent starting at R17,357.60 (excluding VAT) and
escalating annually. The respondent was liable for monthly contributions to
rates, taxes, levies (R5,072.76), a City Improvement District Levy, and charges
for a standby power system.
[4] The agreement made provision for payment terms as follows. All amounts were
payable monthly in advance, without deduction, by the first day of each month.
Breach and Cancellation Clause (Clause 21.1) is crucial. It states that if the rent
or any other amount is not paid on its due date, and the r espondent fails to
remedy this within 3 days of receiving a notice, the a pplicants are entitled to
cancel the lease and evict the r espondent. The respondent's Breach: the core
of the applicants' case is that the r espondent fell into arrears with its rental and
other payments as required by the lease. The respondent has not made a
single payment towards the rental and associated charges since November
2023.
[5] As a result of the breach, the applicants previously issued a summons in the
Randburg Magistrates ’ Court (Case No. 1340/2024) in January 2024. In that
Randburg Magistrates ’ Court (Case No. 1340/2024) in January 2024. In that
summons, they cancelled the lease agreement and sought ejectment. They
1 Act 19 of 1998.
3
have since withdrawn the ejectment claim from the lower court to pursue this
application in the High Court. The current application serves as a further notice
to vacate.
[6] The respondent’s answering affidavit is deposed by Daniel Besong, a director
of the r espondent (New Africa Capital Group (Pty) Ltd), who states he is
authorised to make this affidavit on the company's behalf. The r espondent
formally applies for condonation for the late filing of this answering affidavit. The
reasons for the delay are stated as: the applicants' failure to respond to a prior
notice, and an agreed filing date that fell on a public holiday (December 16,
2024), leading to filing on 17 December 2024. The respondent argues that the
applicants will not be prejudiced by this delay because the matter was not yet
scheduled for a hearing, giving the applicants ample time to prepare. The
respondent contends that the applicants were still able to file a full replying
affidavit.
[7] The respondent contends it has "excellent prospects of success" in defending
the main application and refers to the contents of the entire affidavit to support
this claim. Granting condonation merely allows the respondent to state its case
and does not determine the application's outcome.
Grounds for Opposition
[8] The core of the defence is that the applicants' cancellation of the lease
agreement was unlawful. The respondent denies being in arrears on rental
payments at the time the lease was cancelled. It argues that the a pplicants
failed to provide specific details or evidence (like a statement of account) to
prove the alleged arrears, including the amounts and the periods for which they
were due. The respondent states that since it was not in breach of the
agreement, the applicants had no right to cancel it. It co ncludes that the
application should be dismissed on this basis alone.
[9] In reply, the applicants point out that t he respondent does not have a bona
[9] In reply, the applicants point out that t he respondent does not have a bona
fide reason for its failure to file its Answering Affidavit timeously and has
severely prejudiced the a pplicants by remaining in unlawful occupation of
the premises all the while it fails to vacate, or at the very least make
4
payment of its arrears which are accumulating monthly, most especially the
charges considered as out of pocket disbursements, suc h as utility
consumption.
[10] The applicants also point out that, at the time the replying affidavit was deposed
to in January 2025, the respondent was indebted to the applicants in the
amount of R632 911.54 (Six Hundred and Thirty -Two Thousand Nine Hundred
and Eleven Rand and Fifty -Four Cents). A copy of the statement indicating
such indebtedness is attached and marked “RA4”.
Current status and prejudice
[11] The applicants argue that because the lease has been cancelled, the
respondent’s continued occupation is unlawful. They state that they are
suffering financial prejudice as they derive no income from the property, are
liable for municipal charges for the occupied space, and are unable to re- let or
otherwise deal with the premises.
[12] The matter is before me by way of motion proceedings. The legal principles
applicable to resolving disputes of fact in such proceedings are trite. As
articulated by the court in Wightman t/a JW Construction v Headfour (Pty) Ltd
and Another:
2
“A real, genuine and bona fide dispute of fact can exist only where the court is
satisfied that the party who purports to raise the dispute has in his affidavit
seriously and unambiguously addressed the fact said to be disputed... When the
facts averred are such that the disputing party must necessarily possess
knowledge of them and be able to provide an answer... if they be not true or
accurate but, instead of doing so, rests his case on a bare or ambiguous denial
the court will generally have difficulty in finding that the test is satisfied.”
[13] The respondent's defence consists of nothing more than a bare denial that it
was “owing” at the time of cancellation. It has provided no evidence to
substantiate this denial. It has not, for instance, provided proof of payment,
bank statements, or a reconciling statement of its own to challenge the
bank statements, or a reconciling statement of its own to challenge the
amounts detailed in the applicants’ annexures.
2 2008 (3) SA 371 (SCA) at [13].
5
[14] It is a fundamental principle of our law that he who alleges must prove. In the
context of a defence of payment, the onus rests on the debtor (the r espondent)
to allege and prove that payment was made. 3 The Respondent has done
neither. Its defence remains an unsubstantiated and bald assertion.
[15] Considering the detailed evidence presented by the a pplicants, which stands
uncontroverted by any credible factual rebuttal, I find that the r espondent's
defence is not a genuine, bona fide dispute of fact. It is a patently unmeritorious
denial raised for the purpose of delaying the eviction.
[16] Consequently, I find on a balance of probabilities that the r espondent was in
arrears in the amount alleged as at January 2024. This constituted a breach of
the Lease Agreement. The applicants were therefore entitled, in terms of clause
21.1 of the Lease Agreement, to cancel the lease. The cancellation was lawful.
Following the lawful cancellation of the lease, the r espondent's continued
occupation of the property is unlawful. The applicants, as owners, are entitled
to an order for the eviction of the respondent.
Costs
[17] Clause 29 of the Lease Agreement expressly provides that the r espondent is
liable for legal costs incurred in enforcing the agreement on the scale as
between attorney and client. As held by this court in Vuselela Security SPV
(RF) Pty Ltd v Lizoxola Properties Proprietary Limited and Another ,
4 while a
contractual costs clause does not bind the Court's discretion, a court will
generally give effect to such an agreement unless there is a reason to depart
from it. No such reason exists in this case.
[18] Furthermore, the r espondent's conduct in these proceedings — including the
delivery of procedural notices that were not pursued and the late filing of its
answering affidavit — supports a punitive costs order. The applicants have
been forced to litigate to enforce their clear rights against a defence with no
merit.
Order
merit.
Order
3 See Pillay v Krishna and Another 1946 AD 946.
4 2023 JDR 3649 (GJ) at p2.
6
[19] In the result, the following order is granted:
a. The respondent and all those holding under it are ordered to vacate the
property known as Erf 2[ …], Sandhurst Ext 3, City of Johannesburg and
Erf 6[…], Sandown Ext 4, City of Johannesburg, situate at Sandton City
Office Tower, Corner R […] Road and [ …] Street, Sandton, within five (5)
calendar days from the date of service of this order.
b. If the respondent fails to comply with paragraph (a) above, the Sheriff of
this Court, or his duly appointed deputy, is authorised and directed to evict
the respondent from the property.
c. The respondent is ordered to pay the costs of this application on the scale
as between attorney and client.
___________________________
MUDAU J
JUDGE OF THE HIGH COURT
JOHANNESBURG
Appearances
For the Applicants: Adv A. Kohler
Instructed by: Hadar Inc Attorneys
For the Respondent: No appearance
7
Instructed by: Besong Attorneys Inc
Date of hearing: 4 November 2025
Date of judgment: 7 November 2025
8