SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL DIVISION, PIETERMARITZBURG
Appeal case no: AR198/2024
In the matter between:
GENCY TRADING CC APPELLANT
and
MAGNACORP 485 CC RESPONDENT
_______________________________________________________________
ORDER
_______________________________________________________________
On appeal from: KwaZulu-Natal Division, Pietermaritzburg (Shoba AJ sitting as a
court of first instance)
1. The appeal is upheld with no order as to costs.
2. The order made by the court a quo is set aside, and it is replaced with the
following order: The application is dismissed. The applicant is ordered to pay costs
of the application on party and party scale C’
___________________________________________________________________
JUDGMENT
Delivered:
Mngadi J (Chithi J and D. Pillay AJ concurring)
[1] The appellant with leave of the court a quo appeals against the whole
Judgment and Amended Order of the court a quo (Shoba AJ).
[2] The a ppellant applied for an eviction of the responden t from premises,
namely, erf [….] Kokstad (the property). The respondent resisted the application.
The court a quo granted an order in a way staying the eviction application pending
determination of some issues. I will later refer to the order. The appellant is Gency
Trading CC, a Close Corporation. The respondent is Magnacorp 485 CC a Close
Corporation.
[3] The parties on 28 May 2018 concluded a written sale agreement ( sale
agreement). The t erms of the sale agreement (attached to the f ounding affidavit)
were the following . The appellant sold the property to the respondent at a t a
purchase price of R3 500 000.00 excluding VAT (schedule I). The sale agreement
stipulated that R2 250 000.00 of the purchase price had been paid in that it had been
lodged with the agents as directed by the Seller and is to be paid to the Seller by the
Agents or Conveyancers (as the case may be) and are authorized and directed to
deposit such monies in their names ( clause schedule I (a)). The balance of R1,250
000.00 to be lodged with the Agents by the Purchaser in cash, or shall be secured by
such Bank, or other guarantees as are reasonably acceptable to the Seller, to be
paid against registration on or before 30 May 2018 (clause schedule 1(b)). The
property was sold voetstoots (clause 5). Possession shall be given by the Seller to
the Purchaser on registration of transfer from which date the risk and the benefit in
and to the property shall pass to the Purchaser (clause 6) . The S eller shall give
vacant occupation to the Purchaser on the date specified in Item G of the Schedule
(clause7). Occupation is to be given by the Seller at 12 noon on Date of registration
(clause schedule G ). The Purchaser shall pay to the Seller as and by way of
occupation rental with effect from the date mentioned in Item G of the Schedule to
date of registration of transfer, both days inclusive , the sum of R25 000.00 reduced
pro-rata for a period of not less than a calendar month . Such amount shall be
payable monthly in advance on the first day of every month and in the event of the
Purchaser taking occupation during the month, the payment shall be paid on the day
prior to occupation being taken, in the event the occupation extends beyond a
calendar year such occupational (rental) shall be increased by 8% (clause 7(b)).
calendar year such occupational (rental) shall be increased by 8% (clause 7(b)).
From the date of vacant occupation, the Purchaser shall be liable to pay the Seller a
pro-rata portion of the Municipal rates (clause 8). The transfer of the property shall
be effected by the Conveyancer s appointed by the Seller and shall be proceeded
with as soon as reasonable possible after, inter alia, the purchaser has fulfilled its
obligations under Item I of the Schedule and has furnished the required guarantees,
if any; the Purchaser has paid the costs referred to in Clause 17 (clause 9). (Clause
17 provides that all expenses of and incidental to the preparation and registration of
the documents of Transfer, Bond, including transfer and Stamp Duty, and or VAT
thereon, are to be borne by the Purchaser. The documents relating to the transfer
shall be prepared and registered by the Seller’s Conveyancers whose estimated
costs of transfer and bond registration shall be paid by the Purchaser on request)
and Signature by the Purchaser of all necessary bond and transfer documents and
the provision by the Purchaser of all necessary information for the purposes of
transfer and any bond to be passed by the Purchaser which the Purchaser shall be
obliged to do within seven(7) days after being called upon in writing so to do by the
said Conveyancers (clause 9). From date of vacant occupation, the Purchaser shall
be liable to pay to the Seller a pro -rata portion of the Municipal rates (clause 9). The
Seller undertakes to pay to the Municipality all debts relating to the property hereby
sold before registration of transfer and to deliver to the Conveyancer when called
upon to do so, a water and electricity account confirming that no monies are
outstanding in respect of the property sold . The Seller hereby irrevocably authorizes
and instructs the Conveyancers to deduct from the proceeds payable to the Seller on
registration of transfer all and any amounts owing to the Municipality and to settle
such debt with the Municipality on registration of transfer (clause 25). In the event of
any amount of the purchase price interest and/or other charges remaining unpaid or
any amount of the purchase price interest and/or other charges remaining unpaid or
in the event of any obligations for which the Purchaser is liable herein remaining
unfulfilled for a period of 5 (five) days of written notice to the Purchaser by/or on
behalf of the Seller, calling upon him to make su ch payment and/or fulfill such
obligations, the Seller shall have the option of either enforcing in Law the terms of
the Contract or cancelling the Contract and re -entering into possession of the
property without further notice to the Purchaser , and in the event of the Seller
cancelling the Contract and retaking possession of the property, any and all
improvements made to the property herein shall become the property of the Seller
without compensation to the Purchaser and any payment made on account of the
purchase price and/or interest shall be forfeited by the Purchaser to the Seller
without prejudice to the Seller ’s rights to recover any damages however incurred as
the result of such cancellation . In accounting to the Seller for the purcha se price or
any portion thereof, the Co nveyancers are hereby irrevocably instructed and
authorized by the parties to deduct the commission payable to the estate agent as
provided for in clause 12. Any extension or extensions of time granted for fulfilment
of any of the terms of this agreement or other indulgencies or concessions granted
shall not prejudice any rights of the Seller under this Agreement. On the other hand
, if the Seller breaches any of his obligations under this agreement and fails to
remedy such within a period of 5 (five) days of receipt of the date of a written notice
addressed by the Purchaser to him, calling upon him to remedy his breach, the
Purchaser shall have the option of either enforcing this contract or cancelling the
agreement and claiming such damages as the Purchaser may have suffered(clause
13).
[4] The parties agreed that the respondent took occupation of the premises on 1
January 2016, and that the respondent paid the initial amount of R2 250 000.00 of
the purchase price of the property as agreed.
[5] The appellant in the founding affidavit stated that the respondent failed to pay
the balance of the purchase price of R1 2 50 000.00. Numerous letters were sent
demonstrating many of the further problems that occurred in the matter , particularly
detailing the respondent’s breaches which confirms why the transfer has not
proceeded. A letter dated 23 September 2020 pointed out that an amount of R1 250
000.00 was to be paid or secured by way of guarantee by 30 May 2018, it pointed
out that occupational rental was to be paid in the amount of R25 000.00 per month,
and pointed out that there were utilities that had been outstanding in respect of the
property as at 17 October 2020 for which the respondent wa s liable in terms of the
sale agreement in the amount of R133 219.56. It was demanded that the
respondent make payment of R1 250 000. 00 as well as the outstanding utility
charges within five days from which the applicant failing which the applicant will avail
itself of its rights. The respondent did not remedy the breach. On 5 November 2020
a letter of cancellation was issued . It pointed out that the previous demand had not
been complied with and consequently the sale agreement was cancelled, and the
respondent was requested to vacate the premises.
[6] The appellant, further, stated that as a matter of precaution again on 16
March 2021 a new letter of demand was sent to the respondent as he remained in
occupation but was still not paying what they were supposed to be paying . Again,
and after the purchase price was not paid , he confirms that the agreement was in
fact cancelled in a letter dated 13 May 2021. The reason for this is that it appeared
after the cancellation, the respondent approached its financial adviser who requested
a meeting . Furthermore, this was after amou nt of R500 000 .00 and R300 000.00
were deposited into the Trust despite the actual cancellation of the agreement.
[7] The appellant stated that on 30 June 2021 it was pointed out that there were
still arrears in respect of rentals and utilities in the amount of R92 923.60. A further
letter dated 6 August 2021 w as sent demanding that the respondent vacate the
premises.
[8] The appellant contended that even if the respondent had complied with the
agreement, the claim for transfer would have arisen in three years from conclusion of
the agreement being 23 May 2018, the righ t to claim transfer would have prescribed
by 22 May 202 1. The appellant is the owner of the property. The respondent ’s
occupation was pursuant to a sale agreement, which sale agreement was breached
by the respondent and thereafter cancelled, even if the agreement was not cancelled
it would have in any event by no w prescribed. C onsequently, the respondent is in
unlawful occupation of the premises.
[9] The respondent in the answering affidavit stated as follows. The respondent
has been in occupation of the property since 1 January 2016. The property is in a
farm held through two title deeds in extent approximately 42 hectares. There existed
two dwellings, namely, a main house and a stone building. A B & B business was
conducted on the main building, and the stone building was rented out. Over time
the respondent has undertaken substantial development at the property. The
improvements are estimated at R6 710 000.00 to be claimed in an action to be
constructed within thirty (30) days , and as a result the respondent has an
improvement lien on the property.
[10] The respondent stated that since the agreement was concluded in May
2018, he accepts that the respondents right to claim transfer of the property has
prescribed. The issue of cancellation of the agreement is in dispute. The app ellant
has not tendered repayment of the money paid which precludes the appellant to
seek the respondent’s eviction. The monthly occupational rent is not in arrears. It
tenders payment of R450 000.00 the balance of the purchase price. The appellant,
in reply, stated that the lien has not been evidenced in the papers. There is no proof
of payment, there are no qualifications as to the type of lien involved, there is no
explanation or allegation whether the alleged improvements increased the value of
the property. Clause 13 of the sale agreement provides that in the event of breach
by the purchaser, and the seller cancelling and retaking possession of the property
any and all impr ovements made to the property herein shall become the property of
the seller without compensation to the pur chaser and any payments made on
account of the purchase price and /or interest shall be forfeited by the purchase to
the seller without prejudice to the seller’s rights to recover damages however
incurred as a result of such cancellation.
[11] The appellant stated the payment of R500 000.00 and R300 000 00 were
made approximately in January and April 2021 nearly three year s after the sale
agreement was concluded. The appellant disputed that the payments for
occupational rent were up to date stating that occupational rent charges were off set
against the funds paid in January and of April 2021.
[12] The appellant contends that the failure to repay or tender to repay the
purchase price is not a defence to an eviction application. The appellant states erf
9[...], the property, is only 1.4 hectares in size. The area surrounding it is owned by
the Trust, and it is 10 hectares, this could explain why the respondent has been
carrying out construction on property it has nothing to do with it. In any event, pretty
much of the development was done on the property before the date of sale
agreement, and even if there was a lien it would have prescribed.
[13] The appellant stated that it denies that R3 050 000.00 was paid towards the
purchase price . There is a considerable amount of occupational interest not paid
during the period in question. It admits payments of R500 000.00 and R300 000.00
respectively, but it denies that they were towards the purchase price. It disputes that
the sum of R450 000.00 is the balance outstanding to the purchase price.
[14] Shoba AJ found the follo wing to be common cause ; that t he appellant is the
lawful owner of the property ; that a written agreement of sale was concluded on 23
May 2018; that the respondent has been in occupation of the property since 1
January 2016; that the respondent initially paid an amount of R2 250 000.00 towards
the purchase price; and that the respondent made two other payments of R500
000.00 and R300 000.00.
[15] Shoba AJ , as an issue for determination stated the following: Whether the
cancellation of the written agreement of sale by the appellant is valid. In the event it is found
that there has been a valid cancellation of the agreement what is an appropriate remedy for
both parties given public policy concerns involving, inter alia, the respondent’s allegations
that it holds an improvement lien, and further that the appellant is obliged to repay the
purchase price should it seek to enforce its canc ellation of the agreement. In the event that
one or more of the above issues are found in favour of the appellant, whether or not the
appellant is nevertheless precluded from claiming eviction at this stage , inter alia, due to the
deficiencies in the appellant’s papers and considerations of prejudice which arise from
appellant pursuing application proceedings as opposed to action proceedings; whether or
not the proceedings should be stayed or dismissed and the lawfulness of the respondents
possession of the property’.
[16] The court a quo then considered agreements alleged to be contra bonos
mores; contractual terms that are against public policy . It found that cancellation of
the contract by the appellant was valid and the issue that remained was whether the
appellant was entitled to an eviction of the respondent from the property. But before
it could do so, it stated that it had to determine whether the terms of the cancellation
are against public policy. This, in my view , is with respect , confusing the issue .
Once it is found that cancellation is valid the issue cannot be revisited by enquiring
whether cancellation is against public policy. If cancellation is valid in that it is based
on material breach of the contract, it cannot be against public policy.
[17] The court a quo, in my view, did not confine itself in the manner the parties
pleaded the matter. The respondent resisted the application by challenging
cancellation of the sale agreement and tendering payment of the balance of the
purchase price against tran sfer to it of the property. Secondly, it relied on an
improvement lien that even if it is found that the contract has been cancelled it was
entitled to remain in possession of the property until it has been compensated for the
improvements made to the property. Thirdly, the respondent contended that
cancellation of a contract creating reciprocal obligations is effect ive only if
accompanied by the return of what has been performed in terms of the contract ,
which the appellant failed to do. This contention is based on the following authority;
namely; Botha and Another v Rich NO and Others 2014 (4) SA 124 (CC) par [43] the
court held: ‘… This is an instance of the principle of reciprocity. The other side of the coin
is that the party from whom performance is claimed may raise the failure of counter -
performance as a defence. This defence is well known as the exception of a non-performed
contract ( exception non adimpleti contractus). In bilateral contracts the obligations of the
parties are prima facie reciprocal. For the principle to operate the obligations of the parties
must be reciprocal in the sense that performance of the one cannot be enforced without
performance of the other’. The court in Botha also stated on cancellation of a contract
a tender for repayment must be made and where there is reliance on a forfeiture
clause in the agreement, it needs to be determined whether the forfeiture does not
constitute a disproportionate penalty that falls to be equitably reduced in terms of the
Conventional Penalties Act 5 of 1962 Section 3. The question of forfeiture and
restitution must be dealt with together with the question of cancellation. In
restitution must be dealt with together with the question of cancellation. In
Abrahams and Others v De Wet (Appeal) (A249/2024) [2025] ZAWCHC 187 (30
April 2025) at par 19 & 20 the court held: ‘The key question is not whether the Placaeten
apply but whether the appellants have a valid enrichment lien. In principle, a lien holder
does not acquire an independent cause o f action against the owner of the property over
which such lien is asserted. The lien is dependent on the existence of an underlying
enrichment claim. To rely on a lien, the appellants need to prove the following: 1. Lawful
possession of property. 2.That the expenses incurred were necessary or usefu l for the
improvement of the property. 3.The actual expenses incurred and extent and the extent of
the respondents’ enrichment. 4.That there was no contractual arrangement between the
parties in respect of the expenses.’ (references omitted) A bona fide purchaser is
entitled to recover useful expenses and to exercise a lien over the property until paid,
and for necessary expenses a claim for reimbursements for expenditure of money
or mate rial on the preservation of property, the amount limited to the amount by
which the value of the property has been increased or the amount of the expenses
incurred, whichever is the lesser. The court has a wide discretion . See Rhoode v
De Kock and Anot her (45/12) [2012] ZASCA 179;2013 (3) SA 123 (SCA ); [2013] 2
All SA 389 (SCA) (29 November 2012) parag 14 & 15. On the authority of Botha set
out above, par 23 of Rhoode might no longer be the correct legal position.
[18] The appellant in its founding affidavit did not allege the failure to pay
occupational rental as a further ground for cancellation of the contract and ground for
eviction. Further, the appellant did not in its founding papers refer to a forfeiture of
the purchase price paid. It is trite that a party cannot make its case in reply. It
matters not that the appellant attached a copy of a contract with a term of a contract
dealing with forfeiture of part of the purchase price paid on cancellation of the
dealing with forfeiture of part of the purchase price paid on cancellation of the
contract. The issue raised by the respondent that the sale agreement created
reciprocal obligations on cancellation performance rendered must returned had
merit, and it was not addressed by the court a quo. The appellant was entitled to
receive payments for occupational rent and payments towards settling the balance of
the purchase. These payments were for different purposes and had to be kept and
accounted for separately. The appellant in terms of the contract had no right to
allocate monies as it wished. The payments made towards the purchase price
reduced the balance of the purchase price. It now stands at R450 000.00 . The
appellant by allocating payments meant for the purchase price to occupational rent
resulted in the appellant not to be able to issue a correct breach notice as stipulated
in the sale agreement without which the respondent could not be placed in mora and
the sale agreement could not be cancelled. The result is that the tender of the
payment of the balance of the purchase price against the transfer of the property
remains extant and the appellan t is not entitled to ignore it. See Kragga Kamma
Estates CC and Another v Flanagan 1995 (2) SA 367 (A) p374.
[19] The court a quo initially on 14 December 2023 made the following order: ‘The
application to give effect to the conditions of cancellation of the agreement (inter alia)
eviction and forfeiture of the purchase price) is stayed until the determination of the
respondent’s action for payment in respect of the improvements carried o ut by the
respondent a the immovable property, which shall be instituted within 60 days from the date
of this order . 2. Costs reserved ’. On 21 December 2023 the above order was
amended, replaced with an order adjourning the eviction application pending the
outcome of an action to be instituted by the Respondent. (amended order not part of
the papers) These orders were not part of the relief sought by the appellant and
although alluded to by the respondent in the answering affidavit, the respondent did
not file a counter application. The genesis of these orders is the conflating by the
court a quo of the issues for determination. The court was seized with an eviction
application. If the respondent showed that at that time the eviction could not be
granted, the court was required to dismiss the application. The dismissal merely
means that once the appellant has dealt with the issues that resulted in the court
refusing to grant the eviction, it can re-institute a new eviction application against the
respondent.
[20] The order is vague and impractical. It does not answer the following questions.
Is the sale contract extant or is it cancelled. If cancelled, does the respondent
remain liable for the occupational interest or not. W hat is the position about the part
of the purchase price paid, is it refundable or not. If the respondent does not institute
an action what will happen. If the respondent institutes an action and it fails what will
happen relating to purchase price paid, the liability for occupational interest. Does it
mean once the claim for im provement is finalized, the application for eviction must
resume and proceed but the improvement lien serves as security for an improvement
claim. Is it not that e viction precedes determination of an improvement claim but
where there is a lien execution of eviction is suspended.
[21] The claim by the appellant that the sale agreement had prescribed and it could
not be enforced even if it had not been cancelled is without merit . The contract
remained extant it is only that the respondent to enforce it needed to tender the
performance due b y him. Similarly, remarks by the respondent that since the
contract was concluded in May 2018 the right to claim transfer against payment of
the balance of the purchase price prescribed three years from that date is meritless.
In fact, it contradicts his challenge to the cancellation of the contract , and since it
relates to a legal conclusion it can be ignored.
[22] The respondent in the answering affidavit raised the reliance on a lien as one
of the grounds to resist eviction. The appellant does not deny that improvements
were made by the respondent during his possession of the property although
suggesting that improvements were effected on a neighboring property, which is a
strange contention. The appellant obviously does not admit the nature and extent of
the improvements and whether they increased the value of the property or not.
[23] The appellant relies on the le tter dated 23 September 2020 as breach
notice. The letter refers to alternative arrangements having been made for the
payment of the outstanding balance without specifying what were those ‘alternative
arrangements. It then states that the respondent is placed in breach of clause 13 of
the sale agreement, states that it is given 5(five) days from the date of receipt hereof
to remedy such breach by effecting payment of the full outstanding amount being the
sum of R1 250 000.00 together with arrear occupational interest and electricity
charges in the sum of R133 219.56 payable to the Seller’s banking account a s
previously provided to you, failing which , the seller shall have the option of either
enforcing or cancellation of the agreement.
[24] The payment of the balance of the purchase price was payable against
registration of transfer. The respondent before placed on breach it was required that
it be advised that the appellant was ready to attend to the registration of transfer and
that the balance of the purchase price and the specified costs and expenses be paid
not later than the specified date. It is clear that reliance on the date 30 May 2018
stipulated in the sale agreement had fallen away. The sale agreement provided that
the balance of the purchase price be lodged with agents either in cash or by means
of a bank guarantee. It was not for the seller to unilaterally change the terms and
conditions of the payment of the purchase price. There was no provision in the sale
agreement that the respondent needed to pay the balance of the purchase price and
at the same time ensure that there was no arrears in the occupational rental. The
letter fails to state the amount of the arrear occupatio nal interest required to be paid,
which rendered it void for vagueness.
[25] The appellant, despite having issued notice of breach on 23 September 2020,
it was only on 5 November 2020 when it purported to cancel the sale agreement ,
when it issued a notice of cancellation of the contract. The delay meant that the
appellant had excused the breach and the failure to remedy it. This is consistent
with appellant issuing subsequent breach notices on 16 March 2021, 13 May 2021
and 30 June 2021. In addition , post 23 September 2020, it accepted payments
towards payment of the purchase price stated above, and called for compliance with
the sale agreement even after the purported cancellation. As a result, the reliance on
abandoned notice of breach dated 23 September 2020 is misplaced. Th e act of
cancellation must be clear and unambiguous . See Nel v Cloete 1972 (2) SA 150(A)
at 159 H; Datacolour International (Pty) Ltd v Intermarket (Pty) Ltd [2001] All SA 58
581 (A); 2001 (2) SA 284 (SCA) par 29; Kragga p373 & p375.
[26] The question of the existence of the improvement lien only arises if it is found
that the contract has been cancelled. The appellant as stated above conceded that
the respondent made improvements on the property. The nature of the improvement
are such that it appea red they increased the value of the property. It is conceded
that the respondent from 1 January 2016 was in bona fide possession of the
property. The improvements were made to the property whilst the respondent was
the bona fide possessor of the property . C lause 13 only purported to entitle the
appellant to all improvements made to the property after May 2018 without payment
of compensation. The respondent’s lien on improvements made prior to May 2018
is not affected by clause 13 because they were made before the conclusion of the
contract. The issue of prescription can only be determined once it is raised in the
pleadings wherein the improvement action is dealt with. The respondent is only
required to show that it has a claim to be compensated for improvements made to
the property . It will be when an action has been inst ituted wherein, he will be
required to prove his claim. Even if the respondent has established tha t it has a
claim for improvements, the court has a discretion whether to let him exercise a lien
over the property until compensated or not. The court in the exercise of the
discretion would consider all the relevant factors, including the fact when the action
when it is heard it might be found that the respondent’s claim is defeated by the term
of the contract that no claim for improvements is sustainable agai nst the Seller , (if
that term is upheld ); the consequences of letting the respondent continue being in
possession of the property with no contract between the parties ; prejudice to the
Seller; whether the Purchaser was refunded the purchase price in partic ular if a
substantial portion of the purchase has been paid ; whether whilst the Purchaser
remains in possession of the property any occupational rental shall be paid; the
financial position of the Seller to pay improvement claim if it is sustained against him;
the benefit to the Purchaser in remaining in possession of the property.
[27] The respondent has not sought to counter-appeal the order made by the court
a quo. The court a quo held that to order the respondent to vacate the property
before the value of its improvement lien is adjudicated upon will be tantamount to
denying the Constitutional right that everyone has the right to have any dispute that
can be resolved by the applic ation of law decided in a fair public hearing before a
court or where appropriate another independent and impartial tribunal or forum. I am,
with respect, unable to follow this reasoning. The court a quo was seized with the
issue to decide whether to refuse the eviction application in that the respondent was
entitled to remain in possession o f the property in terms of the improvement lien.
Even if evicted, the respondent is entitled to institute an improv ement claim against
the appellant. The decision the court a quo arrived at can only be as a result that it
conflated the issues that needed to be determined, and it cannot be supported.
[28] The appellant as part of the relief did not seek an order for forfeiture of the
payments made by the respondent towards the purchase price. It did not in the
notice of breach nor in any manner when it c ancelled the contract convey to the
respondent that it regarded the money paid towards the purchase price as forfeited .
A purported cancellation that does not deal with refund or repayment of performance
made in terms of a reciprocal contract is invalid. The appellant in clear and
unequivocal terms, when it was ready to attend to the registration of transfer of the
property, did not call upon the respondent as required in the contract to pay balance
of the purchase price in cash or provide guarantee for the payment thereof and to
pay the expenses and charges for which it was liable. It also failed to place the
respondent in breach and act in terms of the notice of breach , and it relied as a
cause of action on a breach it had either waived, excused or abandoned . Lastly, it
failed when it opted to cancel the contract to tender return of the performance
rendered by the respondent or to give lawful justification for failing to do so which
rendered the purported cancellation invalid.
[29] The court a quo ought to have found that the app ellant failed to prove
cancellation of the contract, which is equivalent to absolution from the instance, and
dismiss the application. The costs to follow the result. The appellant in substance
has not succeeded on appeal as its application ought to have been dismissed. It is
therefore not entitled to costs on appeal. The main reason for pursuing the appeal
as advised by Mr. Tucker counsel for the appellant during oral arguments was the
nature of the order made by the court a quo at the instance of the respondent and
the factual findings made which would be binding on the parties. The respondents’
counsel, Mr. Stuart in oral argument, did not support the findings made by the court a
quo, fairly conceding that the respondent is not asking for costs of appeal , it asked
that the appeal be removed from the roll . In our view this would not have done
justice to the matter. The appeal ought to succeed.
[28] It is ordered as follows:
1 The appeal is upheld with no order as to costs.
2. The order made by the court a quo is set aside, and it is replaced with the
following order: The application is dismissed. The applicant is ordered to pay costs
of the application on party and party scale
__________
Mngadi J
I agree.
_________
Chithi J
I agree
_________
D. Pillay AJ
APPEARANCES
Case Number: AR 1718/2022P
For the Appellant: MC Tucker
Instructed De Wet Leitch Hands
Inc. BALLITO
For the Respondent: M Stuart
Instructed by: DMI Attorneys
MORNINGSIDE
Heard on: 31 October 02025
Judgment delivered on: 02 December 2026