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IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO.: 2024-122322
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO OTHER JUDGES: YES/NO
(3) REVISED
DATE: 28 November 2025
SIGNATURE:
In the matter between:
HUI ZE FENG INTERNATIONAL TRADING CC Applicant
and
FATOU WEAR (PTY) LTD Respondent
JUDGMENT
EASTES AJ:
[1] This is an opposed commercial eviction. The Applicant prays for the eviction
of the Respondent from Shop 1 […] and 1 […]2, African Trace Centre, 1 […] M[…]
R[…] Road, Amalgam, Johannesburg ("the premises").
[2] It is s common cause between the parties that: (a) the Applicant is the owner
of the premises; and (b) the Applicant and the Respondent entered into a written
lease agreement in terms whereof the Respondent leased the premises from the
Applicant ("the lease agreement"); and (c) that the contents and t erms of the lease
agreement are as per Annexure "AA6" that was annexed to the Respondent's
Answering Affidavit; and (d) that the Respondent is in occupation of the premises.
[3] On 1 March 2024, the Applicant, through its appointed attorneys of record, i n
writing demanded from the Respondent to remedy an alleged the breach of the
agreement, by paying the amount of R72 951.00 in respect of arrear rental and
related charges. The aforesaid breach was remedied.
[4] However, in the demand, the Applicant also informed the Respondent that it
obtained a purchaser for the premises and, provided the Respondent with formal
written notice of its intention to terminate the agreement as provided for in terms of
Clause 57 of the agreement by giving the Respondent 6 (si x) months written notice
of termination of the lease agreement.
[5] The Applicant informed the Respondent that the lease agreement will
terminate on 1 October 2024. Despite 1 October 2024 arriving, the Respondent
failed to vacate the premises. Subsequently, the Applicant initiated the application for
the eviction of the Respondent from the premises. It is the Applicant's main
contention that the lease agreement terminated as far back as 1 October 2024, and
since the aforesaid date the Respondent has been in unlawful occupation of the
premises. The Respondent resists its eviction and raises various reasons why the
application should fail and, it not be evicted.
[6] First, the Respondent contends that the application should fail, by virtue of the
deponent to the Founding Affidavit lacking the required personal knowledge to have
testified in the application. The Applicant is a juristic entity and, the deponent to the
Founding Affidavit testified that: " I have perused all the documents relevant to thi s
matter, have access to all records in this matter and I am fully acquainted with the
facts herein". The deponent therefore obtained knowledge from relevant documents
and, had access to all the records and, acquainted herself with the facts of the
and, had access to all the records and, acquainted herself with the facts of the
matter.
[7] In Rees & Another v Investec Bank Limited, 2014 (4) SA 220 (SCA), the Court
held to the effect that a deponent deposing to an affidavit on behalf of a corporate
entity need not have personal knowledge of every fact. Although the Rees dealt with
an affidavit in support of summary judgment, in my opinion the principle is squarely
applicable when an ordinary Founding Affidavit is considered. The Respondent
concluded on the personal knowledge issue, that the testimony in the Founding
Affidavit amounts to inadmissible hearsay evidence, and accordingly the application
must fail on the personal knowledge issue. I have a threefold difficulty with the
Respondent's contention.
[8] Firstly, the Respondent did not identify specific portions of the testimony in the
Founding Affidavit that it takes issue with on the basis that it constitutes inadmissible
hearsay evidence. It appears to be a general challenge. The only issue made by the
Respondent in this regard is that according to the Respondent, the deponent and (so
it was stated), if she had the required personal knowledge would not have attached
an unsigned version of the agreement to the Founding Affidavit. She, so it was
stated, would have known the agreement was signed. The Respondent then in
support of the envisaged contention, annex to its Answering Affidavit a signed copy
of the agreement.
[9] Secondly, and despite raising a complaint about the evidence being
inadmissible hearsay, the Respondent did not make an application seeking that the
testimony or any specific portion thereof be struck from the Founding Affidavit. In fact
the Respondent in its Answering Affidavit grappled with the testimony in the
Founding Affidavit. T hirdly, the bulk if not all of the essential facts in the matter are
common cause. I therefore find that the personal knowledge point raised by the
Respondent to be without merit.
[10] The Respondent further avers that the clause 57, used by the Applicant to
terminate the agreement amounts to a "wish" and a "wish" so it was averred, is not
enforceable in law. Counsel for the Respondent could not supply me with any
enforceable in law. Counsel for the Respondent could not supply me with any
authority to supp ort this point and, neither could I find any authority. The relevant
portion of clause 57 of the agreement reads as follows:
"57. The lessor may terminate this lease or any renewal thereof by giving the
lessee six months' written notice to that effect if the lessor wishes to ...
57.3 Sell the landlord's property." (Own Emphasis)
[11] The Respondent contends for an interpretation of clause 57 to the effect that,
for the Applicant to have relied on clause 57 to terminate the agreement, there had
to have been an actual sale in terms of a valid written sale of land agreement
between the Applicant and a Third Party purchaser. The Respondent further
contended that the clause 57, is vague and unenforceable and, pointed out that
there is no written sale agreem ent before the Court. The Respondent requested
such a sale agreement but none has been forthcoming and the Applicant failed to
provide it or make it available in the application.
[12] The Respondent also contended the Applicant is mala fide and seeks t hat it
be evicted because it can obtain other lessees at a higher rental. Many of the
Respondents contentions is not supported by any facts or evidence and amounts to
speculation, and is irrelevant. In terms of the lease agreement, the Respondent has
no right to demand to see any possible sale agreement between the Applicant an a
Third Party purchaser. The lease agreement does not supply the Respondent with
such a right and, the legal nexus between the Applicant and the Respondent was
regulated by the lease agreement.
[13] The Applicant contends for an interpretation of clause 57, to the effect that
once the Applicant has the mere intention or hope, to sell the property, clause 57
becomes operative and entitles the Applicant to terminate the lease agreemen t on
six months' notice, and it does not mean that at the time there must be a valid lease
agreement of sale between it and, a Third party purchaser.
[14] The rules of interpretation is trite and, has been trite for a period of time. [See
Natal Joint Mu nicipal Pensions Fund v Endumeni Municipality, 2012 (4) SA 593
(SCA) and Botha-Botho Transport (Edms) Bpk v S Bothma & Seun Transport (Edms)
Bpk, 2014 (2) SA 494 (SCA) ]. It will serve no purposes for repeating it herein. Also,
Bpk, 2014 (2) SA 494 (SCA) ]. It will serve no purposes for repeating it herein. Also,
when written instruments ar e interpreted a businesslike meaning is preferred above
an unbusinesslike meaning [See KwaDukuza Municipality v Lahaf (Pty) Ltd, [2020] 2
ALL SA 356 (SCA)].
[15] Clause 57 does not state that the Applicant may terminate the lease
agreement only "when there is a valid and binding sale agreement concluded". In my
opinion, the purpose of clause 57 is to put the Applicant in a position to for instance
sell to a Third Party purchaser that is disinterested in purchasing if there are lessees.
A Third Party purchaser may want to demolish the premises . The Applicant then has
the contractual right to terminate the lease agreement with six months' notice and so
also supply lessees with ample time to make suitable arrangements. The Court
therefore agrees with the businesslike interpretation of clause 57 c ontended for by
the Applicant.
[16] The Court do not find the interpretation by the Respondent of clause 57 to be
businesslike interpretation. The lease agreement for instance does not make
provision therefore that the Applicant must make available any po ssible sale
agreement it may have to the Respondent. Many commercial dealings and
transaction in the world of business are highly confidential and subject to non -
disclosures.
[17] Third, the Respondent also raises the issue of "huur gaat voor koop". The
Respondent indicates that this legal maxim is coupled with clause 80 of the lease
agreement which reads:
"80. If the landlord's property or the premises is sold by the lessor to any
third party or if the lessor transfers its rights and obligations unde r this lease
to a third party, the lessee agrees to treat the third party as the lessor for
purposes of this lease."
[18] In my opinion, reliance on " Huur Gaat Voor Koop" and, clause 80 of the lease
agreement does not assist the Respondent. Clause 80 on my interpretation thereof
caters for a different scenario. It may become operative in circumstances such as
when the Applicant for instance sold the premises to a Third Party purchaser subject
to the existing lease agreements, because such a Third Party purchaser is interested
to the existing lease agreements, because such a Third Party purchaser is interested
in having lessees. Furthermore, for the Respondent successfully invoke clause 80
herein, it must be a party to a valid and existing lease agreement. But as indicated
already the lease agreement was already terminated in as envisaged in clause 57.
[19] The Respondent raises a so-called lien over the property that allegedly has. In
this regard, the Respondent's case on this point is that it has spent an amount of
approximately R400 000.00 in respect of alterations, improvements and fix tures and
fittings to the property so as to conduct its trade from the property. If it is to be
evicted, the Respondent contends the Applicant would be unjustifiably enriched/it
has a lien. It does not mean if a party has spent R400 000.00 in respect of
alterations or improvements and fixtures to a property that by doing so, the value of
the property increased.
[20] Furthermore, a party relying upon a lien in this regard will only be entitled to
the lesser amount between the amount actually spent and paid (R400 000.00) and
the increase in the market value of the immovable property because of the
alterations, improvements, fixtures and fittings. There is simply no such a case made
out in the Answering Affidavit by the Respondent.
[21] In addition clause 38 of the lease agreement indicates that the Respondent is
liable for any costs of alterations and/or additions to the property. In my opinion
therefore, the Applicant cannot rely on a lien. Even if I am wrong, the Respondent
has not made out a case in the Answering Affidavit to rely on a lien.
[22] In the premises, I find that the Applicant lawfully terminated the lease
agreement, which was effective as from 1 October 2024, and since then, the
Respondent has been in unlawful occupation of the property. 31 January 2026 will
be a suitable date to vacate the premises. The Respondent had to have been aware
of the termination as far back as 1 October 2024 already, and even if it disagreed, it
must have been aware of the risk that this court might finds, as it did against it. It had
more than enough ti me to make suitable alternative arrangements. If the
Respondent ignored the risks associated with litigation, it did so at its own peril.
Respondent ignored the risks associated with litigation, it did so at its own peril.
[24] On the issue of costs, the lease agreement makes provision for costs on an
attorney and client scale and there is no reason in this matter for me to deviate from
the lease agreement between the parties on this aspect.
[25] I therefore order the following:
[25.1] An order is issued evicting the Respondent and all those occupying the
premises through and under t he Respondent from the premises known as
Shop 1[…] and 1[…], African Trade Centre, 1[…] M[…] R[…] Road, Amalgam,
Johannesburg ("the premises").
[25.2] In the event that the Respondent and/or all persons claiming occupation
through or under the Respondent fa il to vacate the premises by the date
determined by this Honourable Court (31 January 2026), the sheriff or his
deputy is hereby directed and authorised to forthwith enter the premises and
to evict the Respondent and all those persons who occupy the premis es
through or under the Respondent.
[25.3] The Respondent is ordered to pay the Applicant's cost of the application
on a scale as between attorney and client.
J EASTES
ACTING JUDGE OF THE HIGH COURT
PRETORIA
APPEARANCES: