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IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
In the matter between:
INFUSION SOCIAL CLUB CAMPS BAY (PTY) LTD
and
CAMPS BAY INVESTMENT TRUST (PTY) LTD
Coram: FORTUIN, KUSEVITSKY, SLINGERS JJ
Heard: 23 July 2025
Delivered: 13 November 2025
JUDGMENT
Reportable
Case no: A 47/2025
APPELLANT
RESPONDENT
This judgement will be handed down eledronically by email circulation to the parties' legal representatives' email addresses.

JUDGMENT
Kusevitsky J (Fortuin et Slingers J concurring):
• [ 1] The appeal in this matter concerns the validity of a cancellation of a lease
agreement concluded between the parties and the subsequent order of eviction
wh ich followed on 11 July 2024. With leave to appeal having been refused by the
C ourt a quo, leave was subsequently granted by the Supreme Court of Appeal on
09 December 2024.
Factual Matrix
[2] It is common cause that the Appellant ("Infusion") and the Respondent
("CBIT") concluded a written commercial property lease agreement and an
Addendum thereto on 4 March 2024 in terms of which the Respondent let
restaurant premises located in the up-market area of Camps Bay, to the Appellant.
The Respondent owns the building which houses various tenants therein from
doctors, a gym and estate agents. The Appellant through its sole Director, Mr
Arthur Calamaras wished to establish a restaurant and put forward a written
proposal of its planned style of operation to Mr John van der Vyver acting on
behalf of the Respondent.
2

[3] The relevant material, express terms of the written lease signed on 4 March
2024 inter alia are the following:
3.1 The AppeJlant would lease the premises from Respondent for a period of five
(5) years, from 1 March 2024 to end February 2029 (clause 5) for amonthly
rental of R75 000.00 (clause 6.1). The Appellant would pay a deposit of
R150 000.00 to the Respondent (clause 7.1);
3.2 The Appellant would conduct a restaurant business from the premises, which
includes the cooking and selling of food and serving of drinks, including alcohol
(clause 9.1); The premises shall be used for no other purpose whatsoever,
without the Respondent's prior written consent which consent shall not
withheld ( clause 9.1.3).
3.3 The Appellant shall be entitled to carry out such alterations or additions
including carpeting, curtaining, partitioning to the premises as the Appellant
may itself require. Any such work shall be carried out at the expense of the
Appellant (clause 9.4); The nature of such alterations, improvements etc. and
their form of construction shall first have been approved by the Respondent in
writing (clause 9.4.1) and no alterations or additions to the premises shall be
affected by the Appellant save and except with the prior written consent of the
Respondent ("clause 9.5").
[4] The breach of contract is found in clause 20 and provides as follows:
3

"20.1 If the Lessee fails to pay any amount due or commits any other breach of any
other terms of this lease and fails to remedy such breach within (7) seven days
after receipt of the notice delivered by the Lessor, then and in such event the
Lessor shall have the right to terminate this lease without further notice and re­
take possession of the premises and thereupon this lease shall come to an end ... "
20.2 Any written notice sent by the parties by way of prepaid registered post shall be
deemed to be received on the fourth day of posting, or if delivered by hand to
the leased premises, such notice shall be deemed to be received on the date of
delivery, or if sent via email such notice shall be deemed to be received by the
Lessee's email on the same day."
[5] Clause 22 provides that no variation would be of any effect unless reduced
to writing and signed by both parties, and clause 24 provides that the lease
constitutes the whole agreement and that no representations not stated in the
document are binding on the parties.
[6] The Addendum to the lease agreement related to the terms of the previous
tenant, Firefly Cafe (Pty) Ltd ("Firefly"). It is common cause that this restaurant
had run into financial difficulties and was indebted to the Respondent in the
amount of R 226 836.50 in respect of arrear rental. The parties, after attempts to
rescue Firefly had failed, came to an arrangement wherein the Appellant would
purchase the equipment of Firefly and pay its arrear rental in the amount of R 226
4

836.50 to the Respondent. It is not disputed that the Appellant, on the basis that
it would be leasing premises from the Respondent, agreed to purchase the shop
content of Firefly in the amount ofR 1 500 000.00.
[7] The relevant terms of the Addendum are the following:
7 .1 It confirmed that the prev10us tenant's lease, between the
Respondent and Firefly had been terminated on 29 February 2024.
7 .2 The lease between the Appellant and Respondent would commence
on I March 2024 and would terminate at the end of February 2029
with an option to renew for a further 5 years under the same terms
and conditions subject to the Appellant giving the Respondent three
calendar months' notice of its intention to renew this lease. ( clause
2).
7 .3 The Appellant would pay an amount of R226 836.50 to the
Respondent on behalf of Firefly to settle Firefly's indebtedness to
the Respondent ( clause 3 );
5

7.4 The Appellant would be granted free, beneficial occupation of the
premises for the month of March 2024, in order to afford the
Appellant an opportunity to rebrand the premises ( clause 4);
7 .5 Due to the special nature of the business pertaining to the Appellant,
special regard shall be paid by the Appellant to Clause 12 of the
Lease , with reference to not committing or allowing to be
committed any act calculated to be a nuisance or to disturb the peace
and enjoyment of the general public ( clause 5) ("own emphasis");
[8] Clause 7 of the addendum provides that:
''The consent of the Lessor for both the sale of Firefly Cafe (Pty) Ltd agreement and
acceptance as a Lessee, is dependent on the nature of the business as specified. We
require a best in class, well run cafe, restaurant and bar that has occasional DJs and quiz
evenings from time to time, promotes the building, and has a symbiont relationship
with the other tenants and stakeholders."
[9] As alluded to above, the Respondent, following a purported cancellation
of the lease agreement, applied for and was granted an order of eviction in the
Court a quo.
[ I OJ A great amount of evidence was placed before the Court a quo as to
whether or not the Appellant's business would operate as a 'normal' restaurant,
6

or whether it would be a restaurant where, inter alia, food infused with cannabis
products would be served. I will return to this aspect in due course, although it is
interesting to note the special and very specific reference made in clause 5 of the
Addendum to the lease agreement recording "the special nature of the business
pertaining to the Appellant ... ". This clause, on the face of it, seem to indicate an
appreciation by the parties that they were not dealing with a 'normal' restaurant.
In any event, I do not make any definitive finding in this regard.
[11] The Appellant contends that the Respondent set out to terminate the lease
agreement a mere nine days after the lease agreement was signed. Firstly, the
Appellant argues that the Court a quo erred in finding that there was evidence to
support the Respondent's purported cancellation. They argue that the Court relied
upon inadmissible opinion and hearsay evidence put up in the Respondent's
supporting affidavits and furthermore, that the Respondent's evidence was
directly contradicted by the unimpeachable and admissible evidence of the
Appellant. Thus based on this dispute of facts, so the argument goes, the matter
could only have been resolved in accordance with the Plascon Evans1 rule in
favour of the Appellant. This is denied by the Respondent arguing, inter alia, that
the parties are bound by the appeal record and in casu, the Appellant now seeks
to raise a new defence on appeal which is impermissible.
1 P(ascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A) at 634H-634l
7

[ 12] Central to the determination of this matter is whether, pursuant to the
signing of the lease agreements and the subsequent interactions between the
parties, the conduct by the Appellant through its Director, Mr Arthur Calamaras,
amounted to a cancellation of the lease agreement either through a settlement
agreement, alternatively whether there was a cancellation of the lease agreement
due to a material misrepresentation by omission by the Appe llant.
[ 13] In the founding affidavit, which was deposed to by Mr John Van der Vyver,
the Director of CBIT, he advised that soon after the lease agreement was signed,
that he had received reports about the Appellant's 'undisclosed business'2 from
the building's tenants. Concerned, on 11 March 2024, a meeting was held at the
premises where he met with Mr Arthur Calamaras and confronted him regarding
Infusion's intention to sell cannabis from the premises and raised the other
tenants' concerns. According to Mr Van der Vyver, Mr Arthur Calamaras
admitted to him that: Infusion would be selling cannabis to the public from the
premises but explained that he had a legal opinion confirming that in the context
of a 'social club', that this was legal; He also admitted that food offered in the
restaurant would be infused with cannabis products, including
tetrahydrocannabinol ("THC"); and that the Business proposal put forward by
the Infusion Group had not mentioned either of the aforementioned activities. Mr
2 The operation of a social club where cannabis would be sold; offering food in the restaurant which w ould be
infused with cannabis products including THC w ere referred to in the founding affidavit as the 'Undisclosed
Business'.
8

Van der Vyver contends that Mr Arthur Calamaras explained that it would not be
feasible to exclude the undisclosed business from Infusion's business model and
Mr Van der Vyfer advised that he considered the manner in which this was not
disclosed as a serious problem, and that he would have to consult the board of
directors and relevant stakeholders and revert to him.
[14] On 12 March 2024, Mr Van der Vyver addressed an email to Mr Arthur
Calamaras referring to their meeting of the previous day with feedback from their
stakeholders. He attached the Infusion presentation that formed the basis of their
proposal and advised that the presentation had not mentioned the sale of cannabis
and the CBD with a THC component being used. He asked Mr Calamaras to
"clarify the component of [l}nfusion with THC as well as legal opinion that
supports this" as the stakeholders were not comfortable with, and would not
permit the sale of cannabis on site. He concluded that both their legal teams would
need to be happy with that and that "before we can proceed with the project, we
would need this detail and the other stakeholders will need to understand this and
be comfortable accordingly with this."
[15] On the following day, 13 March 2024, Mr Van der Vyver sent a further
email to Mr Calamaras, saying that things had progressed further. He referred in
this regard to the fact that two further tenants had requested meetings and had
9

indicated that they would leave if the Respondent continued with the restaurant.
He referred also to ostensibly many sectors of the Camps Bay community that
had voiced their disapproval. He said that there had been a material non­
disclosure. He concluded by stating that as a result, they 'therefore intend to
cancel the lease' and put forward a proposal in the manner in which this could be
achieved.
[ 16] Shortly after on the same day, Mr Arthur Calamaras replied advising that
he would reply soon. A telephonic conversation between the two ensued. Mr Van
der Vyver then emailed Mr Arthur Calamaras confirming their telephonic
discussion wherein they ostensibly agreed in principle to the termination of the
lease agreement in the terms stated. The email reads as follows:
"Hi Arthur
Thank you for your call.
The key principles of the agreement that hopefully can be distilled by Lawrence and
Shayne as a one pager are:
1. Lease between CBIT (Pty) Ltd and Infusion CB, is cancelled forthwith.
2. CBIT refund monies paid being arrears and deposit (R 150k + R 223k)
3. All keys returned.
4. An AOD is drafted between CBIT and Luzanne for arrears net of deposit, R
223k less R 62k approx.
5.
10

6. Can we endeavour to draft, agree, sign, by Friday 15/3/24. We shall give notice
for funds on call today.
Regards
John"
[17] On 15 March 2024, Mr Arthur Calamaras responded per return email. He
lamented the concerns raised by the tenants as skewed or ill-informed prejudice,
and maintained that Infusion's business model prides itself on being a
professional business committed to upholding the highest standards of
professionalism, responsibility and compliance, having established Infusion
Social Clubs in both Sea Point and Durbanville and other areas of Cape Town.
He further addressed two financial aspects which hinged upon the cancellation of
the lease.
[ 18] It is common cause that the Appellant failed to sign the draft agreement
presented to Mr Arthur Calamaras on 18 March 2024 and on 25 March 2025
through their erstwhile legal representatives, informed the Respondent that they
denied that the lease agreement was void ab initio, but to the extent that they
wished to cancel, that they would consider the cancellation of the lease agreement
by mutual agreement upon further proposed terms. 3
3 "11.1 CBIT to pay Infusion R 150 000.00 plus R 226, 850.00 on or before the close of business, 31 March
2024;
11.2 CBIT to pay Infusion R 1500000 .00 on or before dose of business, 31 March 2024 in lieu of the
restaurant equipment and furnishing purchased by Infusion from Firefly Cafe (Pty) Ltd."
11

Court a quo
[19] The Court a quoin its reasoning found that:
(a) Infusion (and the Infusion Group) had materially misrepresented
the true nature of its business to CBIT by failing to disclose its
cannabis business;
(b) Infusion then belatedly undertook not to trade cannabis on the
premises, but this undertaking came after the material
misrepresentation of its business and after a number of breaches of
the lease by Infusion;
( c) The parties had settled the matter and Infusion had agreed to
terminate the Lease; and
( d) Even after termination, certain other breaches manifested in the
form of disturbances emanating from the premises, including
cannabis being smoked, complaints from tenants, breach of the law
by allowing smoking inside the premises, and the fact that Infusion
embarked on branding and alterations of the premises without
CBIT's consent.
Was the Respondent's termination of the lease valid?
[20] To evaluate the Appellant's first defence as to whether or not the
cancellation was invalid firstly necessitates an evaluation as to whether or not the
defence of Lex commissoria is available to the Appellant.
12

[21] The Respondent argues that this is an impennissible ground of appeal
because this was not raised in the Appellant's answering affidavit. During
argument, counsel for the Appellant conceded that this was a new defence.
[22] According to the Respondent, whether or not there has been compliance
with an agreed method of cancellation is a factual question. It must therefore be
raised in evidence. They say had it been raised by Infusion in its answering
affidavit, CBIT would have had an opportunity to address this defence. They
argue that it would be prejudicial to CBIT to allow the defence to be raised now,
without its having had an opportunity to address the contention on a factual level.
[23] In support of this contention, they argue that the Constitutional Court has
held that it would not be in the interests of justice ''for an appeal court to overturn
the judgment of a lower court on the basis of an issue that Court was never asked
to decide".4 Whereas some leeway may be granted where a new point of law is
raised for the first time on appeal, there is no such leeway where a new factual
issue is raised. 5 Thus, in order to permit a new legal argument to be made, the
court of appeal "must be satisfied that the point truly emerges on the papers, that
the facts relevant to the legal point have been fully canvassed and that no
4 Mighty Solutions CC Ila Orlando Service Station v Engen Petroleum Ltd and another 2016 (1) SA 621 (CC)
para 62.
5 Provincial Commissioner, Gauteng South African Police Services and another v Mnguni [2013) 2 All SA 362
{SCA) para 27; Mighty Solutions supra para 63; Moroka v P remier of the Free Stale Province and others [2022)
ZASCA 34 para 36.
13

prejudice will be occasioned to the other parties by permitting the point to be
raised and argued. 6
[24] During argument, counsel for the Appellant argued that the question of the
lawfulness of a cancellation is a question of law. They argue that as a fact, no
notice to remedy a breach was given. It is apparent from inter alia the
correspondence of the Respondent's legal representative dated 25 March 2024
that reference was made to all of the specific clauses in the lease agreement that
the Appellant had ostensibly breached. Notably absent given these ostensible
breaches and reliance on these clauses was the Respondent's notice to remedy the
said breaches. It is also clear from this correspondence that the Respondent
accepted that no settlement had occurred, stating that "[s]hould your client no
longer wish to settle this matter, all of our client's rights are reserved ... ". On the
13th May 2024, the first indication of a letter headlined "Notice of Breach" was
sent to the Appellant. The letter referenced various ostensible breaches and
concluded in paragraph 14 thereof that it reaffirmed the cancellation email sent
on 13 March 2024, but nevertheless afforded the Appellant a further 7 days from
receipt of the latter to make representations regarding the aforementioned
breaches. On 20 May 2024, the Appellant through its legal representatives
replied, referring to the "Notice of Breach" dated 13 March 2024 and denied that
6 Minister of Justice and Constitutional Dev elopm ent and others v Southern African Litigation Centre and others
2016 (3) SA 317 (SCA) para 24 (emphasis added).
14

it had materially breached the lease agreement and that a right to cancel the lease
agreement had accrued to the Respondent to warrant the "cancellation email"
transmitted on 13 March 2024.
[25] From the above correspondence at the very least, it is clear that the validity
of the cancellation of the lease agreement was at issue and raised and dealt with
by both parties on the papers. It is also important to remember that the issue of
the purported settlement does not yet arise here, as that the legal personality of an
entity remain sacrosanct. In the founding affidavit, the Respondent averred that
Infusion was advised that it was required to vacate the premises and that they had
failed to remedy its material breaches of the lease agreement and the Addendum .7
This was again reiterated in paragraph 80 of the founding affidavit where the
Respondent inter alia listed the breaches complained of and declared in
paragraph 82 of the founding affidavit that Infusion had failed to remedy the
breaches. Tellingly, perhaps having appreciated that no valid notice to remedy
those breaches were sent, it contended that "even if the Lease agreement had not
already been validity cancelled by way of the First Cancellation email and the
Notice of Breach ... CBIT hereby cancels the Lease Agreement if found to be still
valid."
7 Paragraph 70 of the founding affidavit
15

[26] In the answering affidavit, the Appellant denied that it materially breached
the lease agreement and that the Respondent had a right to cancel the lease
agreement and demand its ejection.
[27] Based on the aforementioned evidence, I am satisfied that the defence of
the Lex Commissoria is available to the Appellant. In fact, this clause forms the
very basis in any contract in order to compel or demand specific performance by
one party from the other contracting party. To say otherwise would be absurd.
Furthermore, such clauses are valid and enforceable according to their terms and
the court has no equitable jurisdiction to relieve a debtor from the automatic
forfeiture resulting from such a clause.8 In sum therefore, a court cannot assess
the validity of a termination without evaluating compliance of the very enabling
provision or clause rendering the termination or cancellation valid.
[28] I am also of the view that, bar the purported settlement, which I will deal
with in due course, that the Court a quo erred in not assessing these allegations
in accordance with the Plascon-Evans rule and in my view, it seems as though
the issue of the deponent to the answering affidavit, which seemed to occupy the
court's attention, was a conflation of the issues. I am therefore in agreement with
8 Christie GB Bradfield Christie's Law of Contract in South Africa (7th ed) at 599
16

the Appellant's submission that the Court a quo failed to deal at all with the
Respondent's version and simply accepted the Respondent's version in toto.
[29] A classic lex commissoria clause affords an innocent party the right to
cancel in the event of a default on the part of the defaulting party after the latter
had given written notice to remedy the breach, in casu, within 7 days. If there is
no compliance, that should be the end of the matter. A lex commissoria is
peremptory and non-compliance would prevent a party from relying on any of
the breaches on which it purports to rely to cancel an agreement.9
[30] What then of the other purported breaches such as the noise nuisance and
the apparent building without permission? Whilst no more weight was placed on
these purported breaches, supporting affidavits were obtained by tenants to
support these alleged breaches. In the Court a quo 's reasoning, certain additional
breaches of the lease manifested in the form of disturbances emanating from the
premises; complaints from other tenants impacting their business; allowing
smoke inside their premises and embarking on alterations and branding without
prior approval from the Respondent.10 Again, in accordance with clause 20.1 of
the lease agreement, the Respondent had to afford the Appellant 7 days within
which to remedy the breach. The Respondent failed to do this. Instead, it sent out
9 See Hano Trading CC v JR Investments (Pty) Ltd and Another 2013 (I) SA 161 (SCA) at paras 33 to 34
to Paragraph 24 of the Judgement
17

a 'notice of breach' stating that 'by virtue of the cancellation email, reinforced
by the fresh termination notice contained in this letter, /CB is afforded 7 days
from receipt of this letter to make representations regarding the aforementioned
breaches,failing which to vacate the premises ... ". ("my emphasis")
[31] What is apparent from the letter is the following: The Appellant was not
afforded time to remedy these purported breaches in accordance with clause 20. I
of the lease agreement; the notice referred to a previous notice of cancellation;
and the present notice invited the Appellant to 'make representations' about the
alleged breaches. In my view, this does not meet the threshold of a notice to
remedy a breach nor does it comply with clause 20.1 in that the Appellant is not
granted an opportunity within the stipulated timeframe to remedy the supposed
breach. This was also the case in Hano Trading where the Court, on a closer
analysis of the notice itself, held that it entirely failed to indicate and call on the
respondent to remedy any particular breach complained of and accordingly failed
to comply with the lex commissoria.
[32] I am in agreement with the Appellant's contention that where an agreement
lays down a procedure for cancellation, that procedure must be followed or a
purported cancellation will be ineffective. 11 It is clear from the evidence that the
11 See B ekker v Schmidt Bou-Ontwikkelings CC and Others 2007 (!) SA 600 (C) at 605; Standard Bank oJSA
Ltd v Koekemoer2012 JDR 2223 (GNP) (70014/2011) [2012) ZAGPPHC 300 (20 November 2012) at para 15
18

Respondent failed to comply with this provision and as a consequence, the
Respondent's purported cancellation is invalid.
Misrepresentation
[33] What then remains to be determined is whether or not the Respondent was
entitled to cancel the lease agreement on account of misrepresentation. As already
stated, at the meeting of 11 March 2024, a discussion was had between Mr Van
der Vyver and Mr Arthur Calamaras about the purported undisclosed business.
The founding affidavit records that the meeting of the 11 th March 2024 was for
the purpose of discussing Infusion's proposed branding, which in terms of clauses
9.4.1 and 9.5 of the lease agreement, had to be approved by the Respondent. The
email recordal of their meeting stated that the material non-disclosure would need
to be resolved "before we can proceed with the project".
[34] A reading of the 12 March 2024 email indicates that the Respondent
sought clarification that the business model of Infusion was indeed lawful;
required their legal opinion relied upon and re-iterated that they would require
this information so that their stakeholders would understand and be comfortable
with that.
[35] The email of 13 March 2024 indicated further unhappiness from
neighbouring tenants about the proposed restaurant as well as " ... many sectors of
19

the Camps Bay community, our long standing customers, including the CID, of
which we are a founding member, have clearly voiced their disapproval and
along with ourselves do not find this acceptable." The letter stated that they
therefore "intend to cancel the lease". It is trite that contracts that are void ab
initio are invalid from inception and are of no legal effect. Where contracts are
void ab initio, the doctrine of election finds no application.12 Here, it is evident
that the Respondent made an election based on his conduct and the
correspondence that followed. I am therefore in agreement with the contention
that to the extent that the lease agreement was voidable, that the Respondent
elected at this point to seek further clarification in the manner stated and elected
to keep the contract alive at that point.
[36] On 19 March 2024, a draft agreement dated 18 March 2024 was sent. It is
not necessary for me to quote the letter in full since it is neither an agreement, nor
a notice of termination. At best for the Respondent's it was a proposal to navigate
a proposed election to tenninate the lease agreement. On 25 March 2024, the
Appellant directed a letter via their erstwhile legal representatives denying that
there was a breach of clause 7 of the Addendum to the lease agreement.
Importantly, the following was recorded:
12 See Christie at 349.
20

"6. It is of significance that the "Infusion-brand" is an established business with
Infusion Social C lubs in both Sea Point and Durbanville and other areas of
Cape, and having brand exposure, inter alia, on social media and the internet
(website). Prior to the conclusion of the Lease, the representative of CBIT was
invited to view and inspect the existing Infusion Social Clubs.
7. In consideration of the conduct of CBIT , it is significant to take cognizance of
the fact that CBIT voluntarily and by agreement concluded the Lease -as such,
our client denies that the Lease is void ab initio.
8. To such extent that the lease may have been voidable (which our client denies),
and to such extent that C BIT m ay have had the choice to elect whether to keep
the contract alive or to cancel it, CBIT forfeited the ricllt to rescind or cancel
the lease when it affirmed the contract by accepting paym ent of the requisite
deposit on 4 March 2024, and then by having approved the shop front branding
on 11 March 2024." ("own emphasis")
[37] The letter further indicated that Infusion was a party to a binding lease
agreement in terms whereof the Appellant had the right to run a cafe, restaurant
and bar and any attempt by the Respondent to prohibit them from doing so would
be a breach of the lease agreement.13
13 Clause I O of the letter dated 25 March 2025
21

[38] The Respondent in the founding affidavit reiterated its contention that
Infusion materially misrepresented the business conducted by them and the
business intended to be conducted. They averred that CBIT entered into the lease
agreement on the basis that the business was as disclosed to it as in the business
proposal; that the Camps Bay subsidiary would conduct the same business as the
rest of the Infusion Group conducted had not been disclosed, and had it been
done, then they would not have entered into the lease agreement had it known the
true nature of the Infusion Group's business, even if the Infusion Group had given
an undertaking not to conduct certain elements of that business from the premises.
It concluded that this misrepresentation was material and the misrepresentation
itself founded a right on the part of CBIT to terminate, which it exercised.14
The purported tacit oral settlement
[39] What then does one make of the purported oral agreement to cancel the
lease? The Court a quo found that a settlement had been reached by which
Infusion agreed to terminate the lease and vacate the premises. However, this
purported settlement would not have been binding on the parties since, although
the proposal was reduced to writing, the agreement itself was not signed by the
parties as envisaged in clause 22 of the lease agreement. Reliance could therefore
14 Paras 77 to 79 of the founding affidavit.
22

not have been placed on this purported oral agreement to terminate. The Court a
quo therefore erred in the acceptance of this purported settlement agreement.
[ 40] Furthermore, the reliance by the Respondent on the uncontroverted facts
of the founding affidavit15 - given that the answering affidavit was not signed by
Mr Arthur Calamaras who had negotiated and signed the lease agreement and
was party to the meeting with Mr van der V yver -but instead deposed to by his
son Mr Duan Dongas-Calamaras, does not assist the Respondent. This is because
whilst it may be that the evidence of Mr Van der Vyver stands uncontroverted
vis-a vis the purported settlement, again, there was no comp liance with clause 22
of the lease agreement.
[41] Ponan JA in Ocean Echo Properties 327 CC and Another v Old Mutual
Life Assurance Company (South Africa)16 recognized that agreements can be
concluded tacitly to replace previous agreements, but held that a contracting
party, when faced with a breach of the contract by the other party, must elect
whether to terminate or to enforce the contract. Once an election is made, the
party's bound by it. Whether such an election has been made is a factual question.
Two questions flow from this finding. In the first instance, the Respondent relies
15 According to the founding affidavit, Mr Arthur Calamaras admitted to Mr V an der V yfer that Infusion wo uld
be selling food infused with cannabis products including THC . See also para 24 of the Co urt a quo judgrnent.
16 (288/2017) [2018] ZA SC A 9; 2018 (3) SA 404 {SCA ) (1 March 2018)
23

on this dictum to support its argument that there was a tacit agreement to cancel
the lease, and as a result, the /ex commissaria is not applicable.
[42] If one assumes that an election was made to cancel, a letter giving notice
of a breach or termination would not have been required. The facts, however,
indicate that based on the email correspondence, Mr. Arthur Calamaras did not
agree or confirm the oral tacit agreement to cancel the lease. It is therefore evident
that Mr. Arthur Calamaras elected not to cancel the agreement. Ponan JA in
Ocean Echo held that the tacit agreement pleaded by Ocean Echo would have the
effect of terminating the operation of the contract in futurum only, in other words,
obligations already accrued remain enforceable, but the operation of the contract
ceases as far as future obligations are concemed.17 That case centred around an
exception to plea where the court a quo upheld an exception and dismissed the
action. Central was whether an informal agreement without written prior consent
is not a cancellation of the agreement, but a variation of the prohibition because
no prior written consent had been given.
[43] He further held that the tacit agreement, if proved, would have extinguished
the contract as a source of future obligations whilst keeping alive already accrued
obligations by virtue of its operation in the past. This would not, the court held,
17 Ocean Echo supra at para 13
24

in any way, involve a variation of the terms of the original lease agreement. He
however emphasized, that these were not firm findings and much depended on
the evidence to be led in the main trial. In other words, the court's findings were
based on the prima facie evidence presented by a party, in exception proceedings.
The Court stressed that these were not firm findings. Much will depend on the
acceptability and the admissibility of the evidence. But that will only be known
once the appellants have been the given the opportunity to adduce evidence. In
my view therefore, Ocean Echo is distinguishable from the present in so far as
the proceedings in that court were interlocutory in nature whereas the proceedings
in casu in the Court a qua were proceedings of final relief sought and the
application of the Plascon-Evans rule ought to have found application.
[44] It is therefore clear that based on the evidence provided, the Respondent's
contention that Mr Arthur Calamaras agreed to terminate the lease agreement is
not supported by the further evidence on record in the form of the
correspondence. In Ferreira & Another v SAPDC (Trading) Ltd,18 Botha JA,
opined, extracting the following principle from Neethling 's case as follows: that
while an oral agreement varying (at least materially) the terms of a contract of the
kind in question is not permissible, there is no objection to allowing proof of an
oral agreement relating to the cancellation of the contract by which its terms are
18 (I 983] 3 All SA 346 (A) at 346, see also O cean Echo at para 11
25

not placed in issue. In casu, substantial evidence was placed on record placing in
issue the various terms, not only of the lease agreement, but also the good faith
negotiations of the terms of the purported settlement, which ultimately was
rejected. On this basis alone, a reliance on any purported settlement was a
misdirection.
[ 45] In any event, Ocean Echo ultimately found that in that case that a tacit
agreement as pleaded, would have had the effect of only terminating the operation
of the contract in futurum, so as to leave intact the remaining obligations that
arose from the past operation of the contract with all of its terms. 19 In other words,
whilst a provisional finding of the facts as presented, the court did not find that a
tacit agreement nullified the contract as being void ab initio.
[ 46] In it heads of argument, the Respondent contends . that the Appellant,
'impennissibly', sought to add new grounds to its original defence, such as
contending that the doctrine of election precluded CBIT from alleging that it was
entitled to terminate the lease and that the lease may also be void/voidable due to
m isrepresentation. It then relied upon the Court a quo 's reasoning to support the
finding that the Respondent's termination of the contract was valid and entitled it
to evict the Appellant.
19 O cean Echo at para 15
26

[ 4 7] The Appellant argued that the Respondent in fact clearly elected to accept
the contract and that this is incompatible with an election that renders it void
based on any misrepresentation. The doctrine of election proceeds from the point
that an injured party in a contract, owing to his or her contracting party's failure
to perform, has options20. They can elect to treat the contract as binding or cancel
the contract. Once an election has been made, it is binding. The rationale for the
binding nature of the election stems from the principle that no one can take up
two positions which are inconsistent with each other21. I am in agreement with
the Appellant's argument that had the misrepresentation been important enough
to have resulted in a voidable contract, then the election must have been made to
rely on voidability.
[ 48] In casu, the evidence indicates that the decision to terminate by the
Respondent was more informed by the threats of the tenants to terminate their
lease agreements and the perceived perception of Infusion's business model. Had
the Respondent done its due diligence, as it was invited to do by the Appellant
prior to entering into the lease agreement, then it would have realised that the
restaurant might not have been a good 'symbiotic' fit to the rest of the premises.
It failed to do this. Instead various correspondence ensued about ostensible
breaches; that the trust relationship had broken down; that the business was not
2° Cradle City (Pty) Ltd v Lindley Farm 528 (Pty) Ltd 2018 (3) SA 65 (SCA) paragraph 20.
21 Sandown Travel (Pty) Ltd v Cricket South Africa 2013 (2) SA 502 (GSJ) at pages 511 -512
27

'symbiotic'; and that there had been a settlement agreement. I am in agreement
that one cannot cure ex post facto a misrepresentation. Furthermore, this cannot
be done where reliance is placed on the existence of the contract and its terms.
This is so because the Respondent invited the Appellant in the letter of 12 March
2024 to find solutions going forward. The Appellant gave their undertaking that
they would undertake the business of a cafe and restaurant in accordance with
clause 7 of the Addendum.
[49] On 13 May 2024, the Respondent's legal representative sent an email that
dealt with, inter alia, the reconsideration of a branding proposal that omitted any
reference to 'infusion', 'social club' and derivatives and imagery that might be
reasonably associated with Infusion or with cannabis. Notwithstanding the above
proposal, the Respondent proceeded to reiterate the first cancellation email of 13
March 2024 based upon purported breaches and incorporated a 'fresh'
termination notice to 'make representations regarding the aforementioned
breaches' within 7 days, failing which, to vacate the premises. I have already
expressed my finding on this purported 'notice'.
[50] In my view, the undertaking to comply with clause 7 of the Addendum was
akin to a tender to perform. In NKP Kunsmisverspreiders (EDMS) Bpk v Sentrale
Kunsmis Korporasie (EDMS) Bpk en 'n Ander 1973 (2) SA 680 (T) at p685,
Nicholas J said the following:
28

'The purpose of a tender of perform ance is to enable the other party to take the necessary steps
to perfonn his part of the contract. But if the latter expressly declares that he is under no
circumstances prepared to perform, the w hole purpose of a tender falls away. In my view, the
first defendant by its continuing repudiation of the contract waived its right to a tender of
performance by the plaintiff (cf. Van Z ijl Steyn, M ora Deb itoris volgens die Hedendaagse
R omeins-Hollandse Reg. pp. 80 -82).'
[51] The Respondent, having given the Appellant an opportunity to make
representations, 1s bound by his election to keep the contract alive. The
undertaking by the Appellant to not conduct the business complained of, in my
view, amounted to a tender by the Appellant to continue with his reciprocal
obligations under the agreement. If the Respondent on the other hand, made it
clear that even that undertaking or tender would not be accepted, it then waivered
the formalities of that tender. The resultant consequence of that would be that the
Appellant would be protected against costs or a claim for damages by the
Respondent in futurum. 22
[52] The order of the Court a quo held that "the valid cancellation of the lease
agreement . . . is confirmed''. The necessary implication is that the Court
considered that a valid lease came into being so that it was capable of being
cancelled. The corollary of this is that there was no basis for asserting that the
lease was void ab initio based on the alleged misrepresentations. The Court a
22 See in general Sandow n Travel supra at 518-520
29

quo confirmed in paragraph 823 of the judgment that a commercial lease
agreement came into being.
[53] Then, with a valid lease in place, with there being no question of the lease
being void ab initio, the crux of the Respondent's claim is that at least one of the
several attempts made by it to cancel had been successful. In its judgment, the
Court a quo referred, at paragraph 1624, to the Respondent having "terminated
the lease agreement because of' the "impasse concerning the appellant's trading
activities". It followed "because of the alleged non-disclosure", because the
business model "was not a symbiotic fit', because settlement discussions led to
the appellant agreeing "that the lease agreement had been validly terminated".
Paragraph 18 of the judgment, however, concludes that the Appellant made a
material misrepresentation about the true nature of its business and that: "The
lease agreement was conditional on a complete and accurate disclosure". The
Appellant argued, correctly so, that if this were correct, no lease contract was
concluded because the condition had not been fulfilled.
[54] The Appellant further argued that paragraph 23 of the judgment
compounded this error when it reasoned that "the applicant would not have
entered into the lease agreement had it known the true nature of the respondent's
23 Record Judgment p 58
24 Record Judgment p 60
30

business". I am in agreement that the Court a quo erred in finding that the lease
was conditional, especially as it had already held that the contract had come into
being. These are mutually destructive conclusions. A finding that the lease had
come into being necessarily means that there were no antecedent
misrepresentations justifying it being declared void. Furthermore, no party relied
on the non-fulfilment of any conditions as a ground for escaping the terms of the
contract. In fact, the Respondent confirmed that the conditions, such as they were,
had been fulfilled and that the contract was concluded.
[55] For all the reasons stated above, I am of the view that the appeal must be
upheld.
ORDER
1. The Appeal is upheld.
2. The order of the court a quo is set aside and substituted with the following:
"The application is dismissed with costs, including the costs of two
counsel where so employed on scale B."
3. The Respondent is to pay the costs of the application for leave to appeal
and the costs of the appeal on scale B.
31

Fortuin J ( concurring)
I agree. It is so ordered.
I agree.
32
DS KUSEVITSKY
JUDGE OF THE HIGH COURT
CFORTUIN
JUDGE OF THE IDGH COURT
HSLINGERS
JUDGE OF THE HIGH COURT

Appearances:
For the Appellant:
Adv M Seale SC
Adv L Zazeraj
Instructed by LDS Attorneys & Assoc
For the Respondent:
Adv E Fagan SC
Adv C Fehr
Instructed by W erksmans Attorneys
33