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[2026] ZAGPJHC 67
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Marindafontein (Pty) Ltd v 16 Ten Properties (Pty) Ltd (A2022/046908) [2026] ZAGPJHC 67 (2 February 2026)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, JOHANNESBURG
Case Number:
A2022-046908
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER JUDGES: NO
(3)
REVISED: YES
2
February 2026
In
the matter between:
MARINDAFONTEIN
(PTY) LTD
Appellant
(Applicant in the Court
a
quo
)
and
16TEN
PROPERTIES (PTY) LTD
Respondent
(First Respondent in the
Court
a quo
)
Coram:
Dippenaar, Crutchfield JJ et Pullinger
AJ
Heard:
03 September 2025
Delivered:
This judgment was handed down electronically by circulation to
the parties’ legal representatives by e-mail and uploading it
onto the electronic platform. The date for hand-down is deemed to be
2 February 2026.
Summary:
Appeal against dismissal of eviction application –
respondent breached various provisions of the lease agreement
concluded
between the parties – demand sent not to the
respondent but to a third party, the director of the respondent –
demand
defective – appellant did not prove a complete cause of
action – fatal to relief sought.
ORDER
On
appeal from:
The Gauteng Division of the High Court, Johannesburg
(Noko J sitting as the court of first instance)
1. The appeal is
dismissed with costs, including the costs of counsel on scale B.
JUDGMENT
CRUTCHFIELD J
(DIPPENAAR J and PULLINGER AJ CONCURRING).
[1] The appellant,
Marindafontein (Pty) Ltd, appeals against the dismissal by the court
a quo
of its application for the eviction of the respondent,
16Ten Properties (Pty) Ltd, from Hangar H10/2 at the Petit Airfield
and
relief ancillary thereto.
[2]
This appeal comes before us with the leave
of the Supreme Court of Appeal against the entirety of the judgment
and costs order of
Noko J, save for those aspects of the
judgment in terms of which the court a
quo
dismissed the three points
in limine
raised by the respondent, and found
that it was irrelevant whether Hangar H10/2 was owned by the
appellant or the respondent.
[3]
The respondent opposes the appeal.
[4]
The appellant is the registered owner of
the immovable property on Rudi Street, Benoni on which the Petit
Airfield is situated.
[5]
On
13 May 2019 the appellant entered into a written lease
agreement with the respondent for a portion of land within the
Petit
Airfield measuring 205.4m
2
and defined as “the premises”
[1]
(“the
Lease Agreement”).
[6]
The terms of the Lease Agreement entitled
the respondent, at its own cost, to erect a hangar, garage or
structure of a movable nature
for the exclusive purpose of aircraft
storage and aviation related activities save that, with the
appellant's prior written consent,
it could also be used for purposes
of personal storage and other personal uses.
[7]
The erection of the aforesaid structure was
subject to the submission of building plans, diagrams and engineering
requirements to
the relevant local authority and its approval.
[8]
The Lease Agreement prohibited, without the
appellant's prior written consent, any sub-letting or parting with
occupation or control
of the premises or any part thereof, the
cession, assignment, making over, alienation, charging or encumbering
of rights in terms
of the Lease Agreement and, upon termination of
the lease period, the respondent would be entitled to remove that
structure.
[9]
In the event that the respondent breached
the Lease Agreement, the appellant would be obliged to provide
written notice to the respondent
to remedy such breach within 30 days
whereupon the appellant would be entitled to cancel the Lease
Agreement.
[10]
The Lease Agreement contained a “whole
agreement” clause and stipulated that no variations to,
additions or deletions
or agreed cancellation would be of any force
or effect unless reduced to writing and signed by the parties.
[11]
At all material times, a structure, Hangar
H10/2, or H9 as it became known after the extensions and renovations
made thereto (“the
Hangar”), was erected on the Premises.
The respondent occupied the Hangar as did certain third parties who
were cited as
the second respondent in the court
a
quo
. These third parties did not
participate in this appeal.
[12]
The appellant contends that the respondent
breached or repudiated the Lease Agreement culminating in the valid
cancellation thereof.
[13]
During November 2022, the appellant
instituted an application for the eviction of the respondent, and the
third parties, in
this court. Noko J heard the application on an
opposed basis. The learned judge dismissed the appellant's
application with costs.
[14]
This is the appeal of Noko J’s
judgment.
[15]
In issue before us is, firstly, the
question whether the respondent breached the Lease Agreement,
secondly, the validity of the
appellant's termination of the Lease
Agreement and, thirdly, whether the respondent repudiated the Lease
Agreement and whether
the appellant accepted the repudiation.
[16]
In
this matter, the appellant bears the onus to prove the alleged breach
upon which it relies and to show that it made a valid demand
of the
respondent.
[2]
Proper
demand is a necessary precursor to the right of cancellation.
[17]
In
the discussion that follows, we commence with an analysis of the
demand on which the appellant relies for its assertion that
it
validly cancelled the Lease Agreement. If there was no valid
demand made on the respondent or it was bad or ineffectual
then the
appellant was not entitled to cancel the Lease Agreement and the
appeal on these grounds must fail. We then interrogate
the grounds
upon which the appellant contends for the respondent's breach of the
Lease Agreement, whether these grounds have been
established and
found the appellant’s case for the repudiation of the Lease
Agreement. For these purposes, a demand in terms
of the Lease
Agreement is unnecessary.
[3]
If
the appellant established a repudiation of the Lease Agreement, it
was open to the appellant to accept that repudiation which,
upon
communication thereof, brings the Lease Agreement to an end.
[4]
In
this case, the appellant communicated its acceptance of the
respondent’s alleged repudiation by service of its
application.
[5]
[18]
It is common cause that the respondent
sub-let the Hangar and affected additions and alterations thereto. I
return to the effect
of these facts on the appellant’s case
below.
[19]
The demand clause in the Lease Agreement
provides that:
“
18.1.
Should the lessee - ...
18.1.2.
breach any term or condition of this lease and fail to remedy such
breach within thirty (30) days of receipt
of written notice calling
upon the lessee to remedy such breach; or ...”
Then and in such event
the Lessor shall be entitled to terminate this lease without
prejudice to any rights or the Lessor to sue
for and recover any
payment or monies due, together with interest as herein provided for,
or damages for breach of contract or
otherwise howsoever.”
[20]
The demand takes the form of correspondence
dated 4 October 2022, sent by the appellant’s attorneys to
the respondent’s
attorneys. The demand is headed
“Marindafontein (Pty) Ltd / George Mienie”.
[21]
The demand records
"1. We act for
Marindafontein (Pty) Ltd.
2. Your client, Mr.
George Mienie, entered into a lease agreement with our client, in
terms of which he leased a hangar at
the Petit Airfield.
3. In terms of the
agreement your client may not sub-let the hangar without my client's
consent. It has come to my client's
attention that your client is
currently sub-letting the hangar without the necessary consent.
4. This letter
serves as a demand that unless your client terminates the sub-lease
of the hangar within 30 (thirty) days of
this letter our client will
terminate its lease agreement with your client.
5. It is also our
instruction that your client has made certain improvements and/or
alterations to the hangar. In terms of
the contract that should have
been done only with the written consent of our client. Our client
also does not have the written
consent nor the relevant building
plans, diagrams and engineering requirements of the local authority
for the improvement/alterations
to the hangar, nor the latter's
approval. Should your client have these documents he is requested to
forward it to us as a matter
of urgency. If not, our client's rights
are reserved."
[22]
Ex facie
the
demand, it is one made on behalf of the appellant, to Mr George
Mienie (“Mr Mienie”) represented by a firm of attorneys.
[23]
The demand is in two parts.
23.1.
The first part states that Mr Mienie
entered into a lease agreement with the appellant for the lease of
the Hangar. It purports
to record a contractual prohibition on Mr
Mienie to sub-let the Hangar without the appellant’s consent.
It states that it
had come to the appellant’s attention that Mr
Mienie was sub-letting the hangar without the necessary consent. The
first
part concludes with a demand that unless Mr Mienie terminated
the sub-lease of the hangar within thirty days of the date of the
demand, the appellant would terminate the lease agreement with Mr
Mienie.
23.2.
The second part of the demand deals with
the allegedly unauthorised improvements and/or alterations to the
Hangar by Mr Mienie.
He is requested to provide certain documents, if
they are in his possession, to the appellant’s attorneys. The
second part
concludes “[i]f not, our client’s rights are
reserved.”
[24]
The demand is defective in every
manifestation.
24.1.
Mr
Mienie is not a party to the Lease Agreement. The demand does not
refer to 16 Ten Properties (Pty) Ltd. As there is no privity
of
contract between the appellant and Mr Mienie, the appellant does not
enjoy any contractual right arising from the Lease Agreement
that it
can enforce against him – even if he is a member or director of
the respondent - our law recognises the clear distinction
between a
juristic entity and its members or directors.
[6]
24.2.
The
demand requires Mr Mienie to terminate the sub-lease of the Hangar
within thirty days of the demand of 4 October 2022,
failing
which the appellant would terminate its lease with him. The subject
of the Lease Agreement is not, however, the Hangar.
There is no
prohibition on sub-letting the Hangar in the Lease Agreement. The
Lease Agreement makes numerous clear distinctions
between the
“premises”, being the subject of the Lease Agreement, and
the “structure” which the respondent
was entitled to
erect and use. Again, our law requires the court to determine
contracting parties’ rights and obligations
towards each other
with reference to the terms of the contract in its contextual
setting,
[7]
regard
being had to the principle that a change in language is
prima
facie
taken to import a change in intention.
[8]
[25]
The purpose of a demand is to place the
debtor in
mora
.
A demand serves to give notice of the alleged breach to the
defaulting party, to inform the latter of the action required of it
in order to remedy the breach, the time period in which it must
rectify the breach, and, to give notice to the defaulting party
of
the consequence/s to it if it does not rectify the breach within the
time period specified in the demand.
[26]
In
order for a demand to be valid, it must identify the parties clearly
and correctly, unequivocally identify the obligation to
be performed
by the debtor, the time in which the debtor is required to perform
the obligation and stipulate the consequences of
a failure by the
debtor to perform the obligation.
[9]
In addition, the demand must be received by the debtor.
[27]
The respondent’s attorneys, in the
latter’s response of 25 October 2022, very properly state
that they act on behalf
of both Mr Mienie and the respondent, 16Ten
Properties (Pty) Ltd. The fact that the respondent’s attorneys
act on behalf
of the respondent as well as Mr Mienie does not serve
to assist the appellant as the demand was not addressed to the
respondent
nor sent to the respondent’s attorney on behalf of
the respondent.
[28]
The appellant’s reliance on the
respondent’s attorneys admitting receipt of the demand in the
latter’s response,
does not assist the appellant. It matters
not that the correspondence came to the attention of the respondent’s
attorneys
as the demand was directed to Mr Mienie, not to the
respondent.
[29]
In addition to the aforegoing, the demand
does not sustain a claim for the cancellation of the Lease Agreement
based on the alleged
unlawful additions and alterations to the
Hangar. The appellant did not place the respondent in
mora
in respect of the alleged unlawful additions and alterations.
[30]
Properly
construed, the second part of the demand is a request that the
appellant’s attorneys be provided with certain documents
(if in
the respondent’s possession) coupled with a reservation of
rights – the purpose of which is not readily understood
in the
context of the demand – but may be a reference to clause 10.12
of the Lease Agreement.
[10]
If
that is the case, the appellant did not avail itself of that remedy.
[31]
The respondent disputes that proper demand,
in terms of the Lease Agreement, was made of it. I agree.
[32]
The demand did not place the respondent in
mora
. It
follows that the appellant’s purported cancellation of the
Lease Agreement is bad.
[33]
Notwithstanding the respondent’s
attorneys alerting the appellant’s attorneys that they did not
conclude the lease with
Mr Mienie and that Mr Mienie was not the
appropriate party upon whom demand could be made, the appellant
proceeded with this litigation
based on a demand made by appellant on
Mr Mienie, not on the respondent.
[34]
In the circumstances, the finding of the
court a
quo
that the appellant did not make demand of the respondent in terms of
the Lease Agreement was not contrary to the common cause facts,
as
contended by the appellant. Thus, the conclusion of the court a
quo
cannot be faulted.
[35]
In these circumstances, absent a valid
demand, the appellant did not establish its cause of action based on
a breach and cancellation
of the Lease Agreement.
[36]
The further questions that arise are
whether the sub-lease and the additions and alterations were effected
in accordance with the
Lease Agreement; whether these constitute a
breach or breaches of the Lease Agreement that found a case for
repudiation, entitling
the appellant to cancel the Lease Agreement.
[37]
On the issue of repudiation, the case in
the founding affidavit is two-fold. It is said to be the respondent’s
insistence
on a right to sub-let the premises (and its continued
sub-letting thereof in the face of the demand) and the respondent’s
failure to have obtained building plan approval in respect of
additions to the Hangar.
[38]
As
stated in
Datacolor,
[11]
the
test for determining repudiation is objective. It requires an
unequivocal intention no longer to be bound by the agreement or
the
obligations forming part of the contract. The intention to repudiate
is to be determined objectively-thus to act in a manner
that would
lead a reasonable person in the position of the appellant to believe
that the respondent did not intend to fulfil or
completely fulfil
their part of the agreement.
[12]
[39]
In this context, the appellant advanced
three sets of facts,
prima facie
,
constituting breaches of the Lease Agreement, without more, as the
sole basis upon which it contends for respondent’s conveyance
of its unequivocal intention to not perform any obligation it owes
the appellant under the Lease Agreement.
[40]
In
Discovery
Life
,
[13]
the
question of repudiation was determined by an examination of “the
entire factual matrix” leading to, what it found,
was a
repudiation of an insurance contract by the insured. But, in
Discovery
Life
,
the facts and the effect of those facts are very different.
[14]
The
respondent, in that case, not only expressly advised Discovery Life
that she was cancelling her policy, she instructed her bank
not to
pay the premium. On this basis, the respondent’s conduct, the
court held, could not be interpreted any way other than
that she no
longer wished to be bound to the terms of the policy.
[15]
[41]
The
dearth of facts adduced by the appellant in its founding affidavit
herein make it very difficult to infer that the respondent’s
objective intention is to not perform in terms of the Lease
Agreement. The criterion for that inference is the objective
conclusion
to be drawn from the respondent’s conduct.
[16]
[42]
So, while the respondent’s reliance
on the oral or impliedly written consent of the appellant’s
representative to the
sub-lease or the appellant’s knowledge of
the sub-lease and that this does not meet the requirement that such
consent must
be written, it does not demonstrate an outright refusal
to have sought and obtained that consent.
[43]
Moreover, it is doubtful that any sub-lease
of the Hangar is axiomatically a breach of the Lease Agreement. The
Lease Agreement
stipulates in respect of sub-letting that the
sub-letting of the premises, being “the ground footprint”
of the hangar
used by the respondent, requires the appellant’s
prior written consent. The Hangar does not form part of the
definition of
“premises”. The Lease Agreement does not
refer to the Hangar or a sub-lease of the Hangar and the ownership of
the
Hangar vests, at all times, in the respondent. It is trite that
one cannot simultaneously be the owner and the lessee of the same
property and that being so, there is no “sub-lease” of
the Hangar that came into being. Accordingly, the sub-letting
of the
Hangar does not, axiomatically, constitute a breach of the Lease
Agreement.
[44]
The submission in the appellant’s
heads of argument that the sub-letting constituted a repudiation of
the Lease Agreement,
cannot be sustained.
[45]
On
the issue of the alterations and renovations, the respondent’s
reliance on the appellant’s representative being made
aware of
and consenting to the renovations and alterations the respondent
would undertake, and the WhatsApp messages and email
communications
between the parties’ respective representatives adduced by the
respondent, do not, properly interpreted,
demonstrate
that the respondent obtained the appellant’s consent.
[17]
The
fact that the appellant was aware of the alterations and did not
object thereto, does not equate to prior written consent to
the
proposed additions and alterations as required by the Lease
Agreement. Again, the respondent’s conduct, while not in
precise accordance with the terms of the Lease Agreement, is not
demonstrative of a refusal to be bound to the terms thereof.
[46]
Finally, and on the issue of the building
plans, the respondent relies on the appellant’s representative
being present throughout
the renovation work and not raising the
issue whilst, at the same time, labouring under the impression that
building plan approval
from the local authority was not required
given the alleged zoning of the land and that no other hangars on
that land had been
erected with building plan approval. This is not,
as I see it, a refusal to obtain building plan approval if it is
necessary to
do so.
[47]
On
a conspectus of the evidence, the respondent’s conduct viewed
objectively does not unequivocally demonstrate its refusal
to be
bound by the terms of the Lease Agreement.
[18]
[48]
In
the result, the appeal must fail. It is trite that an appeal lies
against an order and not against the reasons for the order.
[19]
Although
there are certain findings made by the court a
quo
with which we do not agree, the ultimate conclusion of the court a
quo
in dismissing the application, cannot be faulted.
[49]
As to the costs of the appeal, there is no
reason why the costs of the appeal should not follow the result.
[50]
Both parties made use of senior junior
counsel. The appeal is relatively complex. In the light thereof, the
respondent is entitled
to costs on scale B. Costs on scale C is not
warranted.
[51]
Accordingly, the following order issues:
1. The appeal is
dismissed with costs, including the costs of counsel, on scale B.
CRUTCHFIELD
J
JUDGE
OF THE HIGH COURT
JOHANNESBURG
For
the Appellant:
Adv
L Hollander instructed by Alice Swanepoel Attorneys.
For
the Respondent:
Adv
A Bishop instructed by Dewey McLean Levy Inc.
Date
of the hearing:
3
September 2025.
Date
of the judgment:
2
February 2026.
[1]
The
“premises” is defined in clause 1.1.3.5. as meaning “
the
ground footprint of the hanger (sic) used by the Lessee.
”
Clause 2.2 states “
it
is recorded that the Lessee only leases the premises…
”
and clause 2.3 provides “
Ownership
of the hanger (sic), garage or any other structure erected or
purchased by the Lessee shall only vest in the Lessee
and shall not
at any time transfer to the Lessor
.”
[2]
G
& C Shelf 103 (Pty) Ltd v Chemical Specialities (Pty) Ltd
2012 (4) SA 335
(KZD) at [26].
[3]
Discovery
Life Ltd v Hogan
2021 (5) SA 466
(SCA) at [19] and [20].
[4]
Nash
v Golden Dumps (Pty) Ltd
1985 (3) SA 1
(A) at 22 D – F.
[5]
Thelma
Court Flats (Pty) Ltd v McSwigin
1954
(3) SA 457
at 462 B/C to E/F.
[6]
Salomon
v Salomon
and
Co Ltd
[1897] AC 22
(HL) at [30];
Dadoo
Ltd v Krugersdorp Municipal Council
1920 AD 530
at 550 to 551;
City
Capital SA Property Holdings Ltd v Chavoness Badenhorst St Clair
Cooper and Others
2018 (4) SA 71
(SCA) at [27].
[7]
Bothma-Botha
Transport (Edms) Bpk v S Bothma & Seun Transport (Edms) Bpk
2014 (2) SA 494
(SCA) at [12];
Wilkinson
and Another v Crawford N.O and Others
2021 (4) SA 323
(CC) at [42];
University
of Johannesburg v Auckland Park Theological Seminary
2021
(6) SA 1
(CC) at [80] and [81].
[8]
Port
Elizabeth Municipal Council v Port Elizabeth Electric Tramway Co Ltd
1947 (2) SA 1269
(A) at 1279/1280
;
Saidi
and Others v Minister of Home Affairs and Others
2018 (4) SA 333
(CC) at [77].
[9]
Kragga
Kamma Estates CC v Flanagan
[1994] ZASCA 137
;
1995 (2) SA 367
(A) at 374 D – 375 B.
[10]
The
clause provides: “
In
the event of any non-compliance with the Lessor’s written
approval or the requirements of the engineer or local authority,
the
Lessor shall be entitled to appoint its own contractors to prepare
the necessary plans, diagrams etc, and thereafter to employ
a
contractor of its’ choice, to complete or rectify any
structure/hanger/garage to which this lease agreement applies
.”
[11]
Datacolor
International (Pty) Ltd v Intamarket (Pty) Ltd
[2000] ZASCA 82
;
2001 (2) SA 284
(SCA) at
[16]
.
[12]
University
of Johannesburg v Auckland Park Theological Seminary
2021
(6) SA 1
(CC) at [104].
[13]
Supra
at [14].
[14]
Supra
at [15].
[15]
At
[15] and [18].
[16]
Discovery
Life
at [17] citing
Datacolor
supra.
[17]
On
a contextual, purposive and grammatical interpretation as envisaged
in
Natal
Joint Municipal Pension Fund v Endumeni
2012
(4) SA 593
(SCA). See, further,
KPMG
Chartered Accountants (SA) v Securefin Ltd and Another
2009 (4) SA 399
(SCA) at [39].
[18]
Datacolor
at [1];
University
of Johannesburg v Auckland Park Theological Seminary
2021
(6) SA 1 (CC).
[19]
Western
Johannesburg Rent Board v Ursula Mansions (Pty) Ltd
1948 (3) SA 353
(A) at 355;
Cape
Empowerment Trust Ltd v Fisher Hoffman Sithole
2013 (5) SA 183
(SCA) at [39].