REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO: 2025 -227501
1. REP O RTA BLE:~/ NO
2. O F INTERE ST TO O THER JUDG ES : ~ /NO
3. RE V IS ED : YES / N O
DA TE: 28-11-2025 :15H15
S IG N ATU RE O F JU DG ES :
In the m atter between:
QUATRO CLEANING SERVICES
and
GROWTHPOINT STUDENT ACCOMMODATIONS
HOLDINGS (RF) LTD
HATFIELD STUDIOS (TY) LTD
Applicant
First Respondent
Second Respondent
2
This Judgment was handed down electronically by circulation to the parties and/or
parties’ representatives by email and by being uploaded to CaseLines. The date and
time for the hand down is deemed to be on this 28th day of November 2025
JUDGMENT
T. STRYDOM AJ:
Introduction
[1] The applicant seeks an interim order, on an urgent basis, to the effect that the
contracts that were entered into between the applicant and the respondents
must remain in esse, with full force and effect, pending the applicant exercising
its rights to declare and/or to proceed with arbitration.
[2] During the hearing I indicate d that the parties should address me on the
merits, rather than the urgency. Urgency thus fell on the wayside.
[3] The contracts were entered into between the applicant and the first and
second respondents on 22 September 2025.
[4] Clause 23 of the agreements read as follows:
“23.1 The Company may elect to terminate this Agreement without cause,
by providing the Supplier with 30 (thirty) days prior written notice
stating the Company’s election to terminate the effective date of
such termination;
23.2 In the event that this Agreement is terminated pursuant to clause
23.1, the Company shall pay to the Supplier, as the Supplier’s sole
remedy in relation to such termination all Service Fees due and
unpaid for Services which have been performed as at the d ate of
termination in terms of this clause 21. For the avoidance of doubt,
no early termination fee of any kind shall be payable by the
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Company to the Supplier or the early termination of this Agreement
for any reason whatsoever.”
[5] On 30 October 2025, a termination notice was sent, informing the applicant
that the contracts are cancelled with 30 days prior written notice.
[6] In the letter, the applicant informed that the termination notice was issued in
terms of clause 23.1 of the agreements, which clause allows such termination
for any cause, subject to 30 days written notice having been given.
[7] The applicant argued in the founding affidavit that the said notice in terms of
clause 23(1) received was a repudiation of the agreements, and argued that
the default clause, clause 24.1.1, did not allow for such cancellation if there
was no breach.
[8] Before me, during the hearing, the applicant’s argument was slightly different,
and I was referred by the a pplicant to two cases being KH Mining &
Engineering Projects (Pty) Ltd , case number 2024 -130458, in the above -
mentioned division, Pretoria (unreported) and Phambili Enviromental
Services v Pikitup Johannesburg Society Limited case number 2018 -
39499 in the above-mentioned division, Johannesburg (unreported)
[9] The argument presented, in a nutshell, based on the two cases, was that this
Court should not venture on an interpretation exercise. The right that is
claimed as a prima facie right, for purpose of the interdict sought, is the right
to refer the dispute (relating to interpretation) to arbitration.
[10] In the cases referred to, so the argument went, similar clauses were branded
“convenience “clauses, and the argument is that the factual issues of
convenience should be dealt with on arbitration.
[11] In the Phambili matter the clause reads:
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“Notwithstanding any other provision of this agreement and subject to clause
9.1.2 below, Pikitup may at any time and at its sole discretion terminate this
agreement by giving 30 days written notice to the Service Provider”
[12] it must be noted that the clause does not refer to convenience at all. The
clause refers to Pikitup’s sole discretion.
[13] In the KH Mining matter, there were two clauses, which read as follows:
“12.1 Evander Gold may terminate this agreement for its convenience by
providing MPC and KH mining with a thirty (30) days prior written
notice informing them of its decision to terminate for its convenience
at the effective date of such termination.”
and
“8.1.2 EGM may in its sole discretion, without cause or reason, terminate
this agreement by giving 30(thirty) calendar days prior written notice
to the Contractor, without being in breach of the Agreement.
Contractor may in its sole discretion, without cause or r eason,
terminate this Agreement by giving 60(sixty) calendar days prior
written notice to EGM, without being in breach of Agreement”
[14] It must be noted that clause 12.1 refers to termination “for its convenience”,
but clause 8.1.2 does not mention convenience at all.
[15] Despite the aforesaid, the learned judge, in the KH Mining matter, concluded
that both clauses conferred the right of the first respondent to cancel the
agreements for convenience.
[16] In conclusion, in the KH Mining matter, the learne d judge relied on the
judgement in the Phambili matter.
[17] Although Phambili created the tag of convenience, that clause cannot be
interpreted to refer to convenience as a factor at all.
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[18] The learned judges, in the Phambili and KH Mining matters, inadvertently
applied an interpretation to the clauses that they considered, which is
evidenced by the simple fact that they concluded that th e clauses are
convenience clauses. The courts then conflated the issues, whether the
interpretation or factual enquiry regarding convenience should be dealt with
by way of arbitration.
[19] I do not agree with the judgements. I do not accept that clauses 23.1 and 23.2
can be interpreted as convenience clauses and do not accept that the
interpretation of the clauses or for that matter the factual enquiry (which is not
to be applicable at all), should be subject to arbitration.
[20] I am of opinion that each case should be considered with its own merits. I am
furthermore of opinion that the wording of the current two agreements,
especially with reference to clauses 23.1 and 23.2, should be considered in the
context of the said agreements under consideration. The current clauses 23.1
and 23.2 make no mention of convenience whatsoever and give the
respondents the unfettered right to terminate even without cause.
[21] Considering the content of the agreements and applying Natal Joint Pension
Fund v Endumeni 2012(4) SA 593 SCA at para [18], with reference to the text,
context and purpose, there can be no doubt, considering the meaning of the
words in the agreements that the intention of the parties were that the
agreements could be cancelled by election, without showing any cause, with
30 days written notice by the respondents.
[22] This clause, allowing the cancellation by election, is unconnected to the clause
allowing cancellation in the event of breach.
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[23] I cannot see why the court should allow interim relief, if there are no prospects
of success in the event of the matter eventually being considered by the court
or arbitrator.
[24] In this case, if the matter will ever come before a court or arbitrator, the
interpretation attached to clauses 23.1 and 23.2 would be the same as my
conclusion, being that there is a right given to terminate the contract without
any cause. The two clauses should be read together, and a reading of clause
23.2 assists in showing and confirms what the intentions of the parties were
when they entered into clause 23.1, being that such termination should be
allowed without cause.
[25] In Eskom Holdings SOC v Vaal River Development Ass 2023 (4) SA 325
(CC) at [251], it was decided that if there are legal questions that are capable
of easy resolution any judge should decide it.
[26] Considering this finding, the applicant does not have any prospect of success
in showing any right to continue with the agreements. The applicant therefore
also does not have any prospect of success with any arbitration as
contemplated.
[27] The fact that clause 28 of the agreements, allow for a reference to arbitration,
is not disputed, and appears to be correct. The applicant can still proceed with
arbitration, if it deems it appropriate. This is subject to showing a dispute
capable of being arbitrated.
[28] However, the applicant seeking an interim interdict from this court, the relief
claimed falls within the discretion of the court to allow it or not.
[29] Factors such as prima facie right, irreparable harm, balance of convenience
and other satisfactory remedies should be considered.
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[30] The simple right to refer the dispute to arbitration is not enough. Surely the court
should consider the interpretation of the agreements, as a matter of law, and
take into consideration the prospects of success in arbitration.
[31] I find that no prima facie right, allowing an interim interdict , has been
demonstrated.
[32] The consequence is that there is also no irreparable harm to be suffered by the
applicant (in fact it is rather the respondents will suffer irreparable harm if they
are forced to continue with a contract against the ir will), and the balance of
convenience also does not favour the applicant.
[33] A party can never be forced to comply to a contract or to carry on with it, if it
was cancelled. It will be at odds what the parties have agreed upon.1
[34] A cancellation clause, such as Clause 23.1 and 23.2 , cannot be said to be
unfair, and is generally found to be acceptable.2
Order
Accordingly, I make the following order:
[1] The applicant’s application is dismissed;
[2] The applicant is ordered to pay the costs of the application on a party
and party scale, two counsel, scale C for senior counsel for and scale B
for junior counsel.
1 See Multichoice Support Services (Pty) Ltd v Calvin Electronics and Another 2021 JDR 2529
(SCA) para [18].
2 See Bredenkamp and Others v Standard Bank of South Africa and Another 2009(6) SA 277 (GSJ)
para [27],and [30]; Bredenkamp and Others v Standard Bank of South Africa and Another 2010
(4) SA 468 (SCA)
Appearance s
For the Applicants:
Instructed by:
For the Responden ts:
Instructed by:
Da te of H earing:
Da te of Judgmen t:
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T. STRYDOM AJ
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
Adv J Sullivan
Adv Van Gas
Janse van Rensburg &Partners
KW Luderitz SC
Adv K Harding- Moerdyk
Adams and Adams
28 November 2025 1 0H00 -11 H20
28 November 2025