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
GAUTENG DIVISION, PRETORIA
CASE NO: 248625/25
HEARD ON: 22 JANUARY 2026
JUDGMENT: 23 JANUARY 2026
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO THE JUDGES: YES/NO
(3) REVISED.
DATE: 23 JANUARY 2026
SIGNATURE:
In the application of:
Wandering Investments (Pty) Ltd Applicant
and
Muk Bus Trucks and Trailers (Pty) Ltd Respondent
JUDGMENT
Strijdom J
1. This is an urgent application in terms of Rule 6(12) in which the applicant, the
registered owner of the immovable property known as ERF 5[...] Willow Park Manor
X65 ("the property"), s eeks the eviction of the respondent following the cancellation
of a commercial lease agreement.
2. The applicant seeks that this matter be heard as one of urgency on the basis
that it is presently being deprived of possession and use of the property whic h it
lawfully owns.
3. Condonation was granted for the late filing of the respondent's answering
affidavit.
4. The urgency was in dispute on mainly two bases: that the applicant has not
shown an inability to be afforded substantial redress at a hearing in due course,
because they can always sue for damages; and that the urgency was self-created.
5. As to the first point: Rule 6(12) provides (my emphasis):
"(12) (a) in urgent applications the court or a Judge may dispense with the
forms and service provided for in these Rules and may dispose of such matter
at such time and place and in such manner and in accordance with such
procedure (which shall be as far as practicable be in terms of these Rules) as
to it seems meet.
(b) In every affidavit filed in support of any application under paragraph (a) of
this subrule, the applicant shall set forth explicitly the circumstances in which
he avers render the matter urgent and the reasons why he claims that he
could not be afforded substantial redress at a hearing in due course."
6. The reference to "substantial redress" does not in my view, refer to some
other remedy, but to the remedy that the applicant brings before the court for
determination in its urgent application.
7. It was conceded by counsel for the respondent that this is a matter of
commercial urgency.1
1 See Mbita Consulting Services CC v Passenger Rail Agency Of South Africa (Pty)
Ltd trading as PRASA Real Estate Solutions [2019] 7 ALL SA 794 (GJ) and Avis
Southern Africa (Pty), Ltd and Others v Porteous and Another 2024 (2) SA 396 (GJ).
8. As to self -created urgency, I am of the view that the applicant explored the
possibility of resolving the present impasse with the respondent, prior to bringing
these proceedings.
9. In South African Informal Traders Forum and Others v City of Johannesburg
and Others 2014 (4) SA 371 (CC), the Constitutional Court recognizes that a litigant,
faced with an urgent situation, acts prudently and salutary if it engages with the
respondent before rushing to Court.
10. I am therefore prepared to condone non -compliance with the provisions of
Rule 6 in this case, and I rule that this matter is urgent.
11. That brings me to the substance of the application. The following facts are
either common cause or not in dispute between the parties:
11.1 The applicant is the registered owner of the property;
11.2 The parties concluded a written commercial lease agreement ("the
Lease") on 11 April 2024, commencing 1 May 2024 and terminating 30 April
2027.
11.3 The material terms of the Lease Agreement included inter alia:
11.3.1 The agreed monthly rental of R105 812,50 (exclusive of VAT)
was payable monthly in advance, together with utilities and other
charges (without deduction).
11.3.2 The respondent was prohibited from h olding over, deferring or
making any deductions from rental payable.
11.3.3 The respondent is to remedy any breach within 7 days of notice.
11.3.4 In the event that the respondent:
11,3.4,1 breaches any term of the agreement and
thereafter breaches again within a 12 month period; or
11.3.4.2 consistently breaches the agreement
11.3.4.3 the applicant is entitled to immediately cancel the
Lease or give one month notice and cancel the Lease.
11.3.5 The respondent will be deemed to have breached the
Lease consistently for clause 26.1.5 to 26.1.7 to be exercised if
two or more notices have been sent to the respondent in terms
of clauses 26.1.1
11.4 The respondent persistently failed to pay ren tal and associated
charges timeously and in full.
11.5 Numerous written notices of breach and demands were addressed to
the respondent.
11.6 On 28 October 2025 the applicant sent a Notice cancelling the Lease
on one month notice in terms of clause 26.1.6.
11.7 On 7 November 2025, the applicant demanded the respondent to
vacate the property by 30 November 2025.
11.8 The respondent failed to vacate by 30 November 2025 and remains in
occupation.
12. Despite undertakings to regularize the arrears, the respondent:
12.1 Failed to pay May and June 2025 rental;
12.2 Made only partial payments thereafter;
12.3 Continued to default notwithstanding written demands;
12.4 Has made no payment since 22 October 2026.
13. In light of the multiple breaches the applicant issued multiple breach notices in
compliance with cause 26 of the Lease.
14. Despite termination, the respondent has failed to make any payments and
vacate and continue to hold over.
15. The respondent disputes that t he Lease was validly cancelled on the basis
that the applicant failed to comply with clause 35 when exercising clause 26.
16. It was argued by the respondent that the applicant varied the Lease
agreement and ignored clause 35. It was further argued that t he applicant went and
looked for a new tenant whilst the Lease agreement still subsists and signed a new
agreement with another tenant.
17. Clause 35 of the Lease agreement provides as follows:
"35. No variation, amendment or consensual cancellation here of or addition
hereto, shall have any force or effect unless reduced to writing and signed by
the Lessor and the Lessee or their duly authorized agents. No indulgence,
extension of time, relaxation or latitude shown. granted or allowed by the
Lessor to the Lessee, shall in any way constitute a waiver by the Lessor of
any of its rights hereunder, nor shall the Lessor be stopped from exercising
any of its rights hereunder by virtue thereof and the Lessor shall not in any
way, be prejudiced by its having shown , granted or allowed such indulgence,
extension or time, relaxation or latitude to the Lessee."
18. Clause 35 of the Lease agreement regulates consensual variation s and
amendments and ha s no application to the exercise of a contractual right of
cancellation expressly provided for in clause 26.
19. The Lease agreement expressly and specifically regulates the consequences
of breach and cancellation in clause 26, which entitles the applicant, upon the
respondent's material breach and failure to remedy aft er notices were given, to
cancel the Lease and require the respondent to vacate the premises.
20. Where a contract contains both general and specific provisions dealing with
the same subject matter, the specific provision prevails. This is in keeping with the
legal maxim lex specialis derogat legi generali.
21. The applicant exercised an express contractual right of cancellation arising
from the respondent's breach. In my view no variation or amendment occurred.
22. I conclude that the Lease agreement was lawfully cancelled. That the
respondent's continued occupation is unlawful, and that the applicant, as the lawful
owner, is entitled to the evacuation relief sought in order to restore possession of its
property.
23. In the result, the following order is made:
1. This application is heard as one of urgency in terms of Rule 6(12), and
that the noncompliance with the ordinary forms, service and time periods
prescribed by the Uniform Rules of Court is hereby condoned.
2. The respondent is hereby directed to provide vacant occupation within
a period of 14 days fro m date of this order of the immovable property known
as ERF 5[...] Willow Park Manor x65, situated at 5 […] G[…] Street, N4
Gateway Industrial Park, Willow Park Manor x65 ("the Property") to the
applicant, failing which the Sheriff of this Court is hereby order ed and directed
to take such necessary steps to provide the vacant occupation of the Property
to the applicant, including evicting the respondent and any person (who holds
under it) from the premises.
3. The respondent to pay the costs of this application on the scale as
between attorney and own client.
Strijdom JJ
Judge of the Hight Court, South Africa
Gauteng Division, Pretoria
Appearances:
For the applicant: Adv FA Darby
Instructed by: Kisch Africa Inc
For the first respondent: Adv YK Ndziba
Instructed by: Risenga Attorneys