REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION , PRETORIA
CASE NO: 91533/2015
(1 ) REPORTABLE
(2) OF INTEREST TO OTHER JUDGES: i..,o
(3) REVISED: 1 e.,
gA~JviL»~
In the matter between:
GOTTINI LAKE TRADING 177 {PTY) LTD Plaintiff
And
SANDRA BOTES Defendant
JUDGMENT
VAN DER WESTHUIZEN , J
(1] In this action, the plaintiff claimed from the defendant payment of
damages due to the alleged breach of an oral agreement and which
damages relate to the alleged loss of profits and the actual costs of the
additions and improvements to the property, alternatively the amounts
2
with which the defendant was unjustly enriched at the expense of the
plaintiff.
[2] The parties had agreed to a separation in terms of the provisions of Rule
38(4) between the issue of liability and the quantum claimed by the
plaintiff.
[3] It was submitted on behalf of the plaintiff that the court was to determine
the following issues:
(a) Who the parties to the lease agreement were, whether in
respect of the oral agreement, or any subsequent written
agreement to follow on the oral agreement.
(b) Who became the owner of the improvements erected on the
property.
[4] It was common cause: that the plaintiff had effected improvements to the
property known as Portion 7 of the Farm Sterkfontein, 173, Registered
Division IQ, Mogale City Local Municipality, that the defendant was the
registered owner of the said property; and that at all material times the
defendant was represented by a third party.
[5] It was alleged that the plaintiff leased the said property from the
defendant for the purpose of conducting an auctioneering business on a
portion of the said property and that the plaintiff would erect the
necessary buildings for that purpose. The said lease was entered into in
terms of an oral agreement. One Hendrik Jacobus Burger Wright
represented the plaintiff, and the representative of the defendant was
one Carel Bates, her son.
(6] It is gleaned from the evidence presented at the trial, that it was common
cause that the aforesaid oral agreement would be reduced to a written
agreement of lease. In this regard, three draft written agreements were
3
provided to the defendant, none of which was either accepted orally or
in writing. The oral agreement simply remained in place in the plaintiffs
view. Despite no written agreement being reached, the plaintiff
proceeded with the erection of the buildings and commenced with the
business of auctioneering. The auctioneering business dealt specifically
with the auctioneering of live-stock.
[7] At the time of the conclusion of the oral agreement, the basic rubrics of
the agreement, to be reduced to writing, were apparently agreed upon.
It later transpired during the leading of evidence that there was no actual
consensus between the parties in respect of the rental to be paid and
the ownership of the improvements to be made to the property during
the existence of the lease, or who the parties to the written agreement
were. It was furthermore undisputed that the defendant did not dispute
the identity of the parties to the agreement as contained in the draft
written agreements. This issue was only raised during the leading of
evidence on behalf of the defendant.
[8] It is to be noted that the defendant did not personally appear, nor testified
at the trial due to alleged illness. She was apparently satisfied that her
son was to testify on her behalf. Further in this regard, there was a
distinct dispute relating to the defendant's personal knowledge of the
building activities undertaken on the property and the business being
conducted there.
[9] It was alleged on behalf of the defendant that a trust, the Royal Family
Trust, was the alleged owner of the property or alternatively held a prior
lease agreement in respect of the property. The allegation relating to the
issue of ownership was gainsaid by the common cause fact that the
defendant was the registered owner of the property as indicated on the
relevant documentation provided at the trial. The evidence proffered in
respect of a prior lease agreement held by the Royal Family Trust was
respect of a prior lease agreement held by the Royal Family Trust was
equally unsatisfactory and unconvincing. Such fact was never raised in
response to any of the draft written agreements handed to the
4
defendant. It was clearly a lame attempt to derail the plaintiff's claim. At
best for the defendant, the Royal Family Trust may have managed the
affairs of the defendant. Other than that, it had no interest in the property
or could be a party to any agreement entered into by the defendant. In
subsequent drafted agreements, drafted by an attorney on the
instructions of the said Carel Bates, never contained any reference to
the Royal Family Trust.
[1 O] The evidence led on behalf of the plaintiff in respect of the ownership of
any improvements to the property as allegedly agreed upon during the
concluding of the oral agreement, and which would lie with the plaintiff,
indicated such fact in all three draft agreements prepared by the plaintiff
and handed to the defendant. The issue of the ownership of
improvements were contained in specific clauses of those draft written
agreements. Those clauses also contained a term that in the event of
the defendant repudiated, or cancelled the agreement without a breach
being alleged, the plaintiff would be entitled to compensation in respect
of the improvements. It is further of importance that the draft lease
agreement prepared by the attorney on Carel Botes's instructions,
contained a similar clause. It was common cause that the said attorney
had the draft agreements prepared by the plaintiff when he drafted the
new version in terms of which the plaintiff was to be substituted by
another party.
[11) Further in the aforesaid regard of ownership in the improvements,
counsel for the plaintiff drew attention to the fact that Carel Bates
conceded in cross-examination that the plaintiff was the owner thereof.
Accordingly, the issue of ownership of the improvements became
settled.
[12) A further issue requires some consideration. That issue relates to the
alleged repudiation of the oral agreement on the part of the defendant.
In this regard, the plaintiff testified that at some point he required a
In this regard, the plaintiff testified that at some point he required a
financial input to continue with the erecting of the improvements and
5
conducting the auctioneering business. He identified certain possible
entities or persons to assist in that regard. He eventually opted for the
assistance from one Jade Cahi, a person well known in the
auctioneering field. It was subsequently agreed between the plaintiff and
the said Cahi to substitute the plaintiff in a new lease agreement with the
defendant and the plaintiff to be substituted with an entity to be renamed
as Cahi Landbou (Pty) Ltd. However, the said new lease agreement so
concluded, although plaintiffs substitute was cited as Cahi Landbou
(Pty) Ltd, had a registration number of an entity known as Mixaware (Pty)
Ltd, of which the sole shareholder and director was the said Jade Cahi.
[13] From the foregoing, it is apparent that the oral lease agreement was not
reduced to writing between the plaintiff, renamed as Cahi Landbou (Pty)
Ltd, and the defendant as intended. In this regard the plaintiff alleged
that due to the aforesaid fact, the oral agreement was repudiated on the
defendant's behalf and that the plaintiff was misled into signing a
document terminating the oral agreement. The plaintiff never received
the new written agreement which was intended to be handed to him
together with the document to terminate the oral agreement, so
substituting it with a new lease agreement. In this regard, the evidence
of Carel Botes is not only untruthful, but wholly unconvincing and smacks
of opportunistic gymnastics. It is apparent that the plaintiffs business
was high-jacked by Jade Cahi assisted by Carel Botes. It is clear that
the 'new' lease agreement did not contain the reservation of ownership
of the improvements as well as the term relating to compensation, as
was indicated in an earlier draft thereof that was handed to the plaintiff
earlier and prior to the appearance of the cancellation document
presented to the plaintiff. That draft, prepared by the attorney of Carel
Botes, and who had copies of the plaintiffs draft agreements, in fact
Botes, and who had copies of the plaintiffs draft agreements, in fact
contained the reservation of ownership and the term relating to
compensation. Carel Botes conceded in evidence that he was aware
that the plaintiff and the said Jade Cahi were in partnership , when he
met with the said Cahi earlier in the year. Nevertheless, he pressed on
6
with the drafting of the final new lease agreement in terms of which the
plaintiff was not a party.
[14] From the immediate foregoing, it is apparent that the oral agreement
between the defendant and the plaintiff was repudiated on the
defendant's behalf. The contrived cancellation of the oral agreement did
not deprive the plaintiff of its ownership in the improvements and the
value thereof.
[15] Consequently, on the findings:
(a) that the defendant was the owner of the property to be leased.
(b) that the defendant was at all times represented by Carel Bates
and that the Royal Family Trust was not a party to any
agreement and had no interest in the property; and
(c) that the ownership of the improvements remained with the
plaintiff as well as the value thereof,
the plaintiff discharged its onus.
I accordingly grant the following order:
1. The plaintiff is entitled to claim compensation from the defendant in
respect of the improvements undertaken to the property known as
Portion 7 of the Farm Sterkfontein, 173, Registered Division IQ,
Mogale City Local Municipality.
2. The defendant is to pay the costs of the action.
On behalf of Plaintiff: HF Geyer
Instructed by: OF Oosthuizen Incorporated
On behalf of Respondent J H van den Berg Lubbe
Instructed by: Smith van der Watt Incorporated
Date of hearing: 25-29 August 2025
Date of Judgment: 28 January 2026
7