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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
Case Number: 2024-121804
(1) REPORTABLE : NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: YES
17 November 2025
In the matter between:
REDEFINE PROPERTIES LIMITED Applicant
and
BUNTU FOODS (PTY) LIMITED Respondent
(REGISTRATION NUMBER: 2017/4795
This Judgment is handed down electronically by circulation to the applicant’s legal
representatives and the respondents by email, publication on Case Lines. The date for the
handing down is deemed 17 November 2025.
Contract – Lease agreement – Application – eviction of lessee- Order of eviction granted
JUDGMENT
Mudau, J
Introduction
[1] This is an application for the eviction of the respondent from commercial premises
described as Warehouse – XX00001 and Warehouse – XX00001A, M[…] P[…], 6[…]
O[…] P[…] Road, H[…] H[…], Midrand ("the Premises"). The application is opposed.
Background
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[2] The applicant is the registered owner of the Premises, a fact established by the deeds
search annexed to the Founding Affidavit. As such, the a pplicant has the necessary
locus standi to institute these proceedings. It is common cause that the parties were in
a landlord- tenant relationship governed by a written lease agreement dated 11
November 2021, as amended by an addendum dated 23 March 2022 and a Heads of
Agreement dated 5 February 2024 (collectively, "the Lease Agreement").
[3] The Heads of Agreement of 5 February 2024 constituted a settlement of prior litigation
between the parties. In terms of this settlement, the a pplicant granted significant
concessions to the respondent, including a rent -free period and a structured payment
plan for arrears. The applicant successfully obtained an eviction order against the
respondent in a prior case (2023/048977). The parties later entered into a Heads of
Agreement, referred to above, to settle the dispute which required the r espondent to
comply with the lease terms and make payments. It is the applicant's case that the
respondent, again, breached its obligations flowing from the Heads of Agreement. The
applicant consequently cancelled that agreement.
[4] The Heads of Agreement made provision, inter alia, that the leased premises would be
used for "Light Beneficiation, storage, and distribution of dry good food products". The
rental and other amounts payable by the tenant to the landlord as set out in item 9 of
the schedule (read with clauses 5 and 6 of the Standard Terms and Conditions of
Lease) shall be payable monthly, in advance, on or before the first day of each
calendar month (Clause 4.1). It also provides that all payments to be made in terms o f
the lease by the tenant to the landlord “ shall be made free of exchange, without
deduction, set-off or demand at the landlord's address or any amended address given
in terms of clause 26 of these Standard Terms and Conditions of Lease” (Clause 4.2).
in terms of clause 26 of these Standard Terms and Conditions of Lease” (Clause 4.2).
[5] In terms of clause 7.2 , it provides that the landlord does not warrant that the leased
premises are fit for the purposes for which they are let or that the tenant will be
granted a license in respect of the leased premises for the conduct of the business of
the tenant or that any license will be renewed. There shall be no liability on the
landlord to do any work or make any alteration or repairs to the leased premises to
comply with the requirements of any relevant authority.
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[6] The Heads of Agreement makes provision that, upon the respondent taking
occupation of the premises for whatever purpose or on the commencement date,
whichever was the earlier, the respondent would be liable for and would on demand
pay (Clause 23.1), any charges arising out of the use of electricity, water and gas in
respect of the premises, as well as any charges arising out of all electricity, water and
gas consumed by the respondent in or on the premises, whether directly or indirectly,
which would include water and electricity consumed by any air -conditioning unit/s
serving the premises ( Clause 23.1.1); as well as the basic and service charges in
respect of the services referred to in clause 23.1.1 of the agreement ( Clause 23.1.2).
Importantly, as per clause 27,it provides that, while the tenant remains in occupation
of the leased premises and irrespective of any dispute between the parties, including,
but not restricted to, a dispute as to the landlord's right to cancel the lease, t he tenant
shall continue to pay all amounts due to the landlord in terms of this lease on the due
dates.
[7] The Heads of Agreement provides that the respondent would pay 40% (forty percent)
of the outstanding rental arrears for the period 1 January 2023 to 31 December 2023
("the arrears") to the applicant (clause 1.1). The arrears would be in 12 (twelve) equal
instalments commencing on 1 September 2024 ( as per clause 1.2 of the Heads of
Agreement):
[8] The respondent has, by its own admission or by the undisputed evidence of the
applicant, failed to meet its payment obligations under the Lease Agreement as
indicated below. The r espondent is in arrears with its rental and other charges. The
respondent is indebted to the a pplicant in the amount of R11,212,685.62 for arrears
from rental and associated charges. The r espondent has not made any payments
since March 2023.
[9] The Lease Agreement provides that a failure to pay any amount on its due date
[9] The Lease Agreement provides that a failure to pay any amount on its due date
constitutes a material breach. The a pplicant complied with the contractual and
common law requirements for cancellation in the following ways:
a. It dispatched a written notice of breach via email on 13 September 2024,
demanding that the respondent remedy the breach within 72 hours.
b. The respondent failed to remedy the breach.
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c. The applicant then dispatched a written notice of cancellation via email on 4
October 2024.
[10] The respondent filed an affidavit that is a detailed rebuttal of the applicant's claims,
arguing that the respondent should not be evicted because the applicant failed to
provide premises fit for its intended purpose, thereby depriving the respondent of
beneficial occupation. The respondent contends that the applicant's failure to perform
its obligations, particularly regarding repairs, means the respondent's rental
obligations are not yet due. In sum, the respondent opposes the eviction because, on
the respondent’s version, the applicant did not have the right to cancel the L ease
Agreement. According to the respondent, t he applicant failed to provide the
respondent with beneficial occupation of the Premises due to numerous defects and a
failure to perform necessary repairs as required by the Lease Agreement.
[11] The respondent avers that, from the outset (Dec 2021/Jan 2022), the P remises were
handed over in a poor state. The respondent notified the applicant of critical defects,
including holes in the roof and walls, dampness on the north wall and general dirtiness
and disrepair. These issues caused the respondent to fail a critical audit by its major
client, Nestlé, on 6 January 2022 and as a result preventing it from commencing
production. Although the applicant acknowledged the defects and undertook to fix
them, the repairs were never fully completed, as evidenced by an Entry Inspection
Form from 14 February 2022 and subsequent photos and videos. On 20 November
2022, a poorly installed fire sprinkler pipe burst, flooding the premises with stagnant,
pathogen-filled water. This event contaminated the facility and rendered it unusable for
food production.
[12]
According to the respondent, t he applicant's purported cancellation of the lease in
October 2024 is invalid because the respondent was not in breach but the applicant
October 2024 is invalid because the respondent was not in breach but the applicant
was. The respondent denies that its occupation is unlawful, asserting it remains in
possession under the valid Lease Agreement and Heads of Agreement. In addition to
that, the applicant's demand for payment is incorrect, as it includes charges (like
interest, legal fees, and refuse charges) that are not payable under the terms of the
Heads of Agreement. The core argument is that the applicant cannot claim rent or
seek eviction when its own fundamental breaches of contract have made the Premises
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unusable for the respondent's business, thus suspending the respondent's obligation
to pay.
[13] In its replying affidavit, the applicant points out that the respondent’s failure to pay rent
was not justified by any outstanding repairs. The applicant argues that the
respondent’s reliance on the exceptio non adimpleti contractus (defence of non-
performance) is misplaced. The lease agreement explicitly requires rent to be paid
without deduction or set -off. The respondent’s obligation to pay rent was not
contingent on the a pplicant completing repairs . The applicant highlights that if the
respondent was truly deprived of beneficial occupation, Clause 21.1 of the L ease
Agreement would apply, leading to cancellation of the lease, not suspension of rent.
Analysis
[14] The replying affidavit systematically dismantles the r espondent’s defences,
emphasising, inter alia, t he respondent’s failure to pay rent despite continued
occupation, and the applicant’s compliance with repair obligations . The premises,
however, according to the respondent as indicated above, are not fit for the
respondent's purposes because there are still "pathogens" caused by the flooding in
the premises, and these "pathogens" have not been removed. This has resulted in the
respondent being unable to conduct its business. The absurdity of this contention is
that the respondent continues to have full use and enjoyment of the premises, which it
refuses to give up, as the applicant pointed out. The Lease Agreement specifically and
expressly excludes any warranty that the premises are fit for the purposes for which
they are let. As indicated, the Lease Agreement specifically contemplates that rental is
payable in advance, and must be made free of exchange, without deduction, set -off,
or demand.
[15] The Supreme Court of Appeal in Tudor Hotel Brasserie & Bar (Pty) Ltd v Hence Trade
15 (Pty) Ltd
1 interpreted such a clause to have the effect of altering the usual position,
15 (Pty) Ltd
1 interpreted such a clause to have the effect of altering the usual position,
that in the absence of contractual provisions, rent is payable in arrear at the end of
each period in the case of a periodical lease, after the lessor has fulfilled his
obligation. The lease agreement, therefore, altered the reciprocal nature of the
obligations of the lessor and the lessee. The obligation of the lessee to make payment
1 [2017] ZASCA 111 at paras 11 and 14.
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of the rent was no longer reciprocal to the obligation of the lessor to grant beneficial
occupation of the premises to the lessee.
[16] This court held in Balvest CC t/a Fourways Garden Shopping Centre v Rainbow
Pepper Trading 76 (Pty) Ltd 2 that if you are in occupation of the premises and use
them, whether it has defects or not, then you must pay rental. In light of such a clause,
the defence of exceptio non adimpleti contractus is accordingly not available to the
respondent.3
Conclusion
[17] I am satisfied that the Lease Agreement was validly cancelled by the a pplicant with
effect from 4 October 2024. Following the cancellation of the Lease Agreement, the
respondent no longer has any lawful right to occupy the Premises. Its continued
occupation is therefore unlawful. In my view , the respondent has raised no defence
that discloses a bona fide triable issue. Its continued occupation is without legal
foundation. The Premises are commercial in nature. Accordingly, the provisions of the
Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 do
not apply to this matter.
Order
[18] In the result, the following order is granted:
1. The respondent, and all other persons occupying t hrough or under the
respondent, are evicted from the premises situated at Warehouse – XX00001 and
Warehouse – XX00001A, M[…] P[…], 6[…] O[…] P[…] Road, H[…] H[…], M[…]
("the Premises").
2. The respondent and all such persons are directed to vacate the Premises within
five (5) calendar days of the date of service of this order.
3. In the event that the respondent and/or any such persons fail to vacate the
Premises within the period stipulated in paragraph 2 above, the Sheriff of this
2 [2019] ZAGPJHC 327 at para 53.
3 See Pacific Paramount Properties (Pty) Ltd v Apexviva Construction (Pty) Ltd [2023] ZAGPPHC 25 at
paras 31 to 41.
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Court, or his lawful deputy, is hereby authorised and directed to evict them from
the Premises.
4. The respondent is to pay the costs of this application on the attorney and client
scale, as provided for in the Lease Agreement.
___________________________
T P MUDAU
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, JOHANNESBURG
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Appearances
For the Applicant: : A W Pullinger Instructed by Hadar Incorporated
First Respondent : No appearance (MJD Law Incorporated withdrew on
17 September 2025 after setting down)
Date of hearing : 04 November 2025
Date of Judgement : 17 November 2025