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, JOHANNESBURG)
CASE NO: 2024-115868
In the matter between:
ERVEN 1[…] WADEVILLE (PTY) LTD Applicant
and
JC IMPELLERS (PTY) LTD Respondent
This judgment was handed down electronically by circulation to the parties
and/or parties’ representatives by email and by upload to CaseLines. The date
and time for hand down is deemed to be 10h00 on 25 February 2026
______________________________________________________________
JUDGMENT
______________________________________________________________
S VAN NIEUWENHUIZEN AJ
Introduction
[1] In this matter the Applicant seeks the following relief:
“1 That the Respondent and all those holding title under it at the
property situated at ERF 7[…] , Wadeville, more fully described as
1[…] I[…] Road, Wadeville and held by title deed number T3[…] ("the
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED.
25 FEBRUARY 2026 ………………………...
DATE SIGNATURE
2
property"), be hereby ordered to vacate the property and restore
possession to the Applicant on a date to be determined by the above
Honourable Court;
2. In the event that the Responded and all those holding title under it
fail to comply with prayer 1 above, the Sheriff of this Court or his
lawful deputy be ordered and authorised to evict the Respondent and
all those holding title under it from the property:
3. The Respondent be ordered to pay the costs of this application on
an attorney and client scale.
4. Further and/or alternative relief.”
[2] For the sake of convenience, the applicant will be referred to as
“Wadeville” and the respondent as “Impelllers”.
[3] Wadeville is the owner of the immovable property known as 7[ …]
Wadeville situate at 1[ …] I[… ] Road at Wadeville and held by title
deed no.T3[…] (hereinafter the “property”).
[4] On or around 1 January 2022 and at Wadeville, Dimitrijevic on behalf
of the Wadeville and Impellers entered into a written lease agreement
in respect of the property a copy of which is annexed to the founding
affidavit as annex “AB2”. Wadeville alleges that it substantially
terminated the lease on 18 November 2022 whereafter the lease
continued on the same terms and conditions as the written lease on a
month-by-month basis. Impellers has been in occupation of the
property since 18 January 2022.
3
[5] The commencement date of the lease was 1 January 2022 and the
lease period is 3 years commencing on the commencement date and
terminating on the termination date, The rental for the premises for the
first year of the lease was R50 000 per month excluding VAT and
escalating at a rate of 5% per annum compounded on the anniversary
of the commencement date.
[6] In addition, hereto and due to Impellers remaining in occupation of the
“Old Premises” on the same erf, Wadeville has continued charging
rent for that section as well in terms of clause 53.3. A copy of a letter
from Impellers annexed as “AB1” confirms the amount so being
charged in addition to the R50 000 rental.
[7] The lease further requires Impellers to pay:
“directly to the Landlord, monthly, all amounts due for services,
utilities, operating costs and municipal rates and taxes as provided to
the premises upon presentation of such accounts by the Landlord to
the Tenant (clause 4.2).”
[8] The lease also requires that all amounts be paid to Wadeville “without
deduction, set-off or counterclaim for any reason whatsoever (clause
4.3).”
[9] Clause 7 of the lease reads as follows:
“The premises are hired by the Tenant from the Landlord subject to
the terms and conditions, for the period and use and at the rental set
out in this lease. The Tenant's right to occupy, use and enjoy the
4
premises and to received various services from the Landlord, as set
out in this lease, is unequivocally conditional upon the payment by the
Tenant of the rental and all other amounts and charges payable in
terms of clause 4 and elsewhere in the lease contained ”
[10] Clause 8.1 stipulates that:
“The Tenant shall be liable for and shall on demand pay for all
electricity and water used in or on the premises and the refuse
removal charges payable in respect thereof The Tenant shall also be
liable for and shall on demand pay the basic and service charges in
respect of electricity consumed as aforesaid.”
[11] Clause 16 makes provision that:
“In the event of either party having to institute legal proceedings
against the other arising out of any breach of whatsoever nature of
this lease, then the defaulting party agrees to pay the aggrieved party
all costs incurred in respect of such action on a scale as between
attorney and client, including collection commission, unless otherwise
ordered by the relevant legal forum adjudicating the matter.”
[12] Clause 17.3 states that:
“17.3 No relaxation or indulgenced which the Landlord may show the
Tenant shall in any way prejudice or be deemed to be a waiver of any
rights hereunder….”
[13] The breach clause reads as follows:
“If the Tenant
49.1.1 - fails to pay rent or any other amount payable in terms of this
lease on due date and fails to effect payment after having received 7
(even) days written notice to do so; or.
5
49.1.2 commits any other breach of this lease and fails to remedy
same after having received seven (7) days written notice to do so, or
……..
then and upon the happening of any one or more of these events a
right shall accrue to the Landlord, but not obligate it, to-
49.2 forthwith cancel the lease and resume possession but without
prejudice to its claim for arrears of rent and/or damages which it may
have suffered by reason of the Tenant's breach of the contract or its
premature cancellation……. ”
[14] At the time of writing this judgment the lease has already expired
through the effluxion of time. During argument Impellers’ legal
representative indicated that it would require at least to the end of
February 2026 to vacate the premises. It is common cause that at the
time Impellers had already defaulted on the monthly rental and was
unable to pay the rent as it fell due from month- to- month.
[15] I was requested to allow Impellers a reasonable period to vacate the
premises (such period was indicated to come to an end by February
2026) on the basis of the decision in AJP Properties CC v Sello
1 in
the event of a conclusion that its right to occupy has expired by 31
December 2025 by effluxion of time rather than on the basis
contended for by Wadeville. In the above matter the lease had run its
course and the parties extended it on a month- to-month basis.
Eventually the landlord terminated same on one month’s notice.
1
6
[16] The Court undertook a thorough examination of our law of commercial
lease before and after the Constitution and concluded that:
“[43] The objective economic realities, which by definition should
have been appreciated by the applicant, and which appear from the
papers may be identified as follows: The respondent's pharmacy
business requires a sustainable floor space considering that it
operates a dispensary. Historically the pharmacy's clientele frequents
the mall and the goodwill of the business included its location.
Termination of a lease should not in cases where the lessee has
complied with its terms result in the demise of the tenant's business.
[44] Unless the respondent is able to find suitable alternative premises
it faces significant financial hardship, if not financial ruin. This also
jeopardises the staff contingent and their dependants; staff is likely to
be laid off temporarily until suitable premises are found or be exposed
to retrenchment if the pharmacy is obliged to downscale.
[45] Another consideration is that the respondent is required not only
to reinstate the applicant's premises to its pre- occupation state but
must also find suitable premises to relocate his pharmacy, negotiate a
new lease, effect necessary alterations and install shop fittings in
order to recommence business. There is a further socioeconomic
factor: a fully fledged pharmacy conveniently located provides for the
essential medical needs, generally on a personal level, for those living
within the area, which would include the elderly.
[46] In my view it would be inimical to the interests of justice to
compel the respondent to vacate immediately instead of affording him
the opportunity of finding suitable alternative premises that would
serve not only his interests but also those of his clientele.
[47] I am satisfied that these constitute sufficient grounds to justify a
delay in enforcing the eviction order.
delay in enforcing the eviction order.
[48] The final issue is the period of the stay of the eviction order. The
respondent contends he requires five months to find suitable
alternative premises. I consider that this is too long bearing in mind
the relative interests of the parties. Nonetheless I am entitled to take
into consideration, and take into consideration, that the applicant
failed to play open cards with the respondent at least from the time it
secured the lease with Pepkor.
[49] In terms of its standard contract the applicant considers
a period of three months necessary in order to secure a suitable
tenant if its lease is not to be renewed. This period happens to
coincide with the length of time the applicant held back informing the
respondent that it had concluded a lease with Pepkor. Had it made
prompt disclosure then the respondent would have had this additional
7
time to find suitable alternative premises. I accept that the lease with
Pepkor has penalty clauses but the applicant only has itself to blame
for jeopardising the respondent's business when there was no need
to.
[50] I believe that in all the circumstances real and substantial justice
requires that the respondent be afforded three clear months to
relocate and bearing in mind that relocation is often cited as the
principal consideration for delaying the execution of an eviction order
in respect of commercial premises. I have stripped the court order of
legal formalism in preference for straightforward layman's language
which will also ensure, by reason of other provisions of the lease, that
rental and other relevant charges remain payable under its
provisions.”
[17] I emphasise the underlined portions. I have in any event concluded
that the lease has been validly terminated on 3 0 September 2025 for
the reasons set out below. The above observations would have
applied if Impellers was discharging its obligations in terms of the
lease. It is common cause that it is unable to do so. Given my
findings below Impellers had ample time to vacate the premises since
the lease was validly terminated and even if I am wrong in my
conclusions it has had ample time to m ake alternative provision for
vacating the property after the lease came to and end through the
effluxion of time. My order t o vacate the premises will therefore be
operative with immediate effect.
[18] On the facts before me it is clear that Impellers has failed to make
regular and timeous payment of its rental obligations and other
charges to Wadeville to such an extent that it was in arrears in an
amount of R445 044,73 as at 7 October 2024. When the matter was
argued before me Impellers took the stance that the lease was not
8
validly terminated and that the dispute regarding the termination was
referred to arbitration. Hence it took the stance that pending the
arbitration it remained a lawful occupier.
[19] Wadeville issued a notice terminating the lease on 24 August 2024
which was subsequently revised on 30 August 2024 requiring
Impellers to vacate the pr operty. Impellers refused to vacate the
property
[20] Impellers invoked clause 48 pertaining to arbitration and clause 49 of
the lease asserting the right to continue occupation of the property
pending arbitration.
[21] The arbitration proceedings remain pending and has as yet not been
finalised.
[22] The above facts were extracted from the joint practice note agreed
upon between the parties. According to this note the following issues
arise from the parties’ respective heads of argument;
“11.1. Whether the Court has jurisdiction to determine the lawfulness
of the lease termination and to grant eviction while the arbitration
clause remains operative.
11.2. Whether the arbitration clause (clause 48) precludes the Court
from adjudicating the eviction application or merely suspends
adjudication of the contractual dispute.
9
11.3. Whether the Respondent's continued occupation constitutes
unlawful possession following the Applicant's termination notice, or
whether it remains lawful pending arbitration.
11.4. Whether clause 48.9.2 of the lease expressly permits the
Applicant to approach the High Court for an eviction order pending the
arbitrator's decision.
11.5. Whether the eviction application is premature, or whether the"
Applicant is entitled to immediate vindicatory relief.””
[23] Wadeville submitted that ownership and unlawful occupation are
established and that the lease was lawfully terminated. In addition, it
argues that clause 48.9.2 expressly permits eviction pending
arbitration proceedings. It further submits that the arbitration clause
does not oust the Court’s jurisdiction and that continued occupation
amounts to unlawful holding over.
[24] Over and above the aforesaid it submits that it is undisputed that the
lease agreement, although cancelled by Wadeville on 24 August 2024
is set to expire by 31 December 2025 and that the Court is entitled to
grant an eviction order.
[25] It accordingly seeks such an order including the costs of counsel.
[26] Impellers submits that the termination of the lease is invalid and has
been referred to arbitration and that the Court must stay or dismiss
the application pending the arbitrator; s determination. Therefore, it
asserts that its occupation is lawful until arbitration is concluded and
10
that the application is premature. It seeks that the application be
stayed or dismissed with costs.
[27] The relevant portions of clause s 48 and 49 of the lease reads as
follows:
48. ARBITRATION
48.1. Save in respect of those provisions of this lease which provide
for their own remedies, which would be incompatible with arbitration, a
dispute which arises in regard to:
48.1.1. the interpretation of; or
48.1.2 the carrying into effect of; or
48.1.3. either of the parties' rights and obligations arising from; or
48.1.4. the termination or purported termination of or arising from the
termination of; or
48.1.5 the rectification or proposed rectification of, this lease, or out of
or pursuant to this lease, shall be submitted to and decided by
arbitration.
………………………
48.9 This clause shall not preclude any party from:
48.9.1. obtaining relief by way of motion proceedings on an urgent
basis, or from instituting any interdict, injunction or any similar
proceedings in any court of competent jurisdiction, pending the
decision of the arbitrator;
48.9.2. seeking an interim and/or urgent rent interdict, a summons, a
summons in respect of a claim for rental and other imposts, relief with
11
regard to an application to attach any Items falling under the
Landlord's hypot hec, an i nterim interdict interdicting the removal of
any items from the premises o r the property of which the premises
form part), or an eviction order from a court of competent jurisdiction,
and insofar as the High Court is approached in respect of any such
relief, the parties hereby consent, insofar as it is legally permissible, to
the applicable High Court that has the necessary jurisdiction over the
area within which the leased premises area located. (my underlining)
………………………
“49.1. If the Tenant: -
49.1.1. fails to pay rent or any other amount payable in terms of this
lease on due date and fails to effect payment after having received 7
(seven) days written notice to do so ; or
49.1.2. commits any other breach of this lease and fails to remedy
same after receiving 7 (seven) days written notice to do so;
(provided that the Landlord shall not be obliged to give the Tenant
more than 2 (Two) notices of breach (in respect of clauses 49.1.1
and/or 49.1.2) in any period of 12 (Twelve) months and upon a
subsequent breach of either of these provisions, the Landlord shall be
entitled to invoke the provisions of clauses 49.2 without notice); or
49.1.3. so consistently breaches the conditions of this lease (whether
by non-payment of rent or any other amount on due date or by non-
compliance with its terms) so as to justify the Landlord in holding that
the Tenant's conduct is inconsistent with an intention or an ability to
carry out these conditions; or
……………
then, and upon the happening of any one or more of these events, a
right shall accrue to the Landlord, which shall entitle the Landlord but
not obligate it, to –
49.2 forthwith cancel the lease and to resume possession of the
premises but without prejudice to its claim for arrears of rent and/or
damages which it may have suffered by reason of the Tenant's
breach of the contract or of the premature cancellation, in which case
breach of the contract or of the premature cancellation, in which case
the Tenant shall pay to the Landlord, over and above any rental and
12
other monies which may be in arrears in terms of the lease
Agreement as at date of cancellation, the following amounts (if
applicable) –
……………………
49.3. vary this lease by making it thereafter terminable by 1 (One)
calendar month's written notice given by the Landlord. OR cancel this
lease and permit the Tenant to remain in occupation of the premises
as a monthly Tenant on the basis that the tenancy will be terminable
by the Landlord (but not by the Tenant) on 1 (One) month's written
notice but subject otherwise to all the terms and conditions, mutatis
mutandis, of this lease, save as regards renewal.
49.4. If the Landlord cancels the lease and the Tenant disputes the
right to cancel and remains in occupation of the premises, the Tenant
shall, pending settlement of any dispute either by negotiation,
arbitration or litigation, continue to pay an amount equivalent to the
monthly rental provided for in this lease, monthly in advance on the
first day of each month and the Landlord shall be entitled to accept
and record s uch payments, and the acceptance thereof shall be
without prejudice to and shall not in any way whatsoever affect the
Landlord's claim for the cancellation then i n dispute. If the dispute is
resolved in favour of the Landlord, the payments made and received
in terms of this clause shall be deemed to be amounts paid by the
Tenant on account of damages suffered by the Landlord by reason of
the cancellation of the lease or the unlawful holding over by the
Tenant.
49.5. In the event of the Landlord cancelling this lease for whatsoever
reason and it being held that it was so entitled to cancel or if the
Tenant is placed under business rescue pursuant to Chapter 6 of Act
71 of 2008, then the full balance of the rental and other charges
payable in terms of this lease shall immediately become due, owing
and payable by the Tenant to the Landlord notwithstanding the fact
that the lease would, but for the cancellation, still have a period to run.
that the lease would, but for the cancellation, still have a period to run.
49.6. The delay by the Landlord in making any election to cancel or
otherwise enforce its rights in terms of this lease and Suretyship, shall
not constitute a waiver of such rights, which shall remain vested in the
Landlord.
49.7. In addition to the Landlord's rights in terms of clause 49.1.4 and
without derogating therefrom, the Tenant agrees that in the event that
13
it commences business rescue proceedings and the Landlord is of the
opinion (acting in its sole discretion):
49.7. In addition to the Landlord's rights in terms of clause 49.1.4 and
without derogating therefrom, the Tenant agrees that in the event that
it commences business rescue proceedings and the Landlord is of the
opinion (acting in its sole discretion):
49.7.1. that the Tenant is financially distressed, in accordance with the
definition of this term in the Companies Act, and is reasonably likely to
become insolvent in the immediate future; and
49.7.2 there is no reasonable prospect of rescuing the Tenant,
the business rescue practitioner agrees to consent to the immediate
termination of the lease, and the Landlord shall be entitled to apply to
court for the eviction of the Tenant, notwithstanding the provisions of
section 134(1)(c) of the Companies Act.
49.8. If the Landlord commits any breach of this lease and fails to
remedy same after having received 14 (Fourteen) days written notice
to do so, then the Tenant shall be entitled, at its sole and absolute
discretion, to cancel this lease and claim damages, alternatively to
abide thereby and claim damages without prejudice to any other rights
then vested in the Tenant at law.”
Impellers’ breaches
[28] On the undisputed facts Impeller conducted itself in such a way that
the lease was terminated by 18 November 2022 and thereafter
continued on a month -to-month basis. By 7 October 2024 it s
breaches had led to an amount of R448 044,73 being in arrears. On
12 August 2024 Wadeville caused a letter of demand to be delivered
demanding that the then arrears of R322 663,23 be paid within 7 days
of delivery of such demand failing which Wadeville would cancel the
lease agreement and Impellers would be required to vacate. A copy of
14
this letter of demand is annexed marked “AB5”. This demand includes
a demand for payment of the arrear amounts due and makes it clear
that Martin attorneys hold instructions to terminate the lease
agreement and evict Impellers.
[29] On 24 August 2024 by when Impellers had failed to make payment of
the arrear payments as demanded Wadeville terminated the lease
agreement and requested impellers to vacate the premises on or
before 31 October 2024. This notice is annexed as “AB 6”. Impellers
replied to the aforesaid notice in an email annexed as “ AB 7” that it
could not secure the funds it anticipated and were making plans to get
alternate funds. It envisaged a part payment by 17 September 2024
and the balance by 27 S eptember 2024. It also made it clear that it
could not settle the funds for the Ekurhuleni account for July 2024. By
now it was 27 August 2024 and the next month’s rent payment for
September 2024 would fall due shortly.
[30] As a consequence, Wadeville responded to this letter on 30 August
2024 and in an attempt to mitigate its damages caused a revised
letter of lease cancellation to be delivered to Impellers requiring it to
vacate the property by 30 September 2024. This notice is annexed
marked “AB 8”.
[31] The Applicant changed the vacation date due to the fact that Impellers
admitted it cannot afford to be there and the rental and electricity
charges are on average in the region of R300,000.00 per month, so
15
getting them out sooner was paramount . The content of the notice
annexed as “AB 7”.is a classic example of breach of contract in
anticipando.2 I thus view the attempt made by Wadeville to mitigate its
damages as legitimate,
[32] Wadeville alleges in its founding Affidavit that to date Impellers remain
in occupation without Wadeville’s consent and against its will.
[33] Wadeville pleads that it suffers prejudice as it is being prevented from
letting the property out whilst still obligated to pay for all the municipal
services provided at the property notwithstanding no or only partial
payments from Impellers.
[34] It submits it has no other effective remedy to reclaim possession of its
property.
[35] Impellers raises two points in limine i.e. That Mr Bosman is not
authorised to depose to Wadeville’s affidavit and that the purported
termination of the lease agreement shall be referred to arbitration in
terms of clause 48.1 of the lease agreement. It alleges that same was
referred to arbitration as per annex “NTM 2”
2 See Tuckers Land and Development Corporation (Pty) Ltd v Hovis
1980 (1) SA 645 (A)
16
[36] The first point in limine is of no consequence. It is by now trite law that
in motion proceedings the deponent’s authority should be challenged
by wat of Rule 7 of the Uniform Rules of Court. This was not done.
[37] In annex “NTM 2” impellers challenges the 7 -day notice period to
remedy the breach as unreasonable and failing to meet the
exigencies of commercial reality and business. It also complains that:
“2.1.3 Furthermore, in terms of clause 30.2 our clients may be
required to reinstate the premises to the condition in which they were
at the date of original occupation, and our clients will be obliged to
dismantle all interior building work and or alterations effected within
the premises and make good any damage caused thereby and by its
removal.
2.1.4. Considering this clause 30.2 makes the eviction notice
unreasonable as it fails to provide our clients with a reasonable time
to effect these alteration on the premises.
2.1.5. The eviction notice is further against public policy as it fails to
allow our clients reasonable time to find suitable premises to relocate
its business. Our clients currently employ a significant number of staff,
people whose jobs are affected, and our client has occupied the
premises for several years and has created a strong clientele in the
area.
2.1.6. The common law principles applicable to the termination of
periodic leases is that, prior to termination of such a lease, the
landlord must take into account the economic circumstances of the
lessee as well as the industry in which the leasee operates .
Therefore, a reasonable termination of the lease should, at the least,
be six months which would give the Tenant reasonable time required
to settle its affairs and find alternative space.
2.1.7. Your client further created the impression to our client that it
was willing to negotiate a part payment because on 30 August when
the revised notice was sent to our clients, a separate email was also
the revised notice was sent to our clients, a separate email was also
sent to negotiate a part payment to this effect. This reassured or
clients into believing that your client was considering payment
17
proposal our clients sent on 27 August 2024 and that they do not have
to find alternative premises.
2.2. Furthermore, your client's conduct of disconnecting our client's
electricity is in breach of the lease agreement for the following
reasons.
2.2.1. Clause 8.4 of the lease agreement states that: "without
detracting from anything else provided for in this lease, where any
electricity, gas, water, refuse removal or sanitary services is/are
rendered by the Landlord to the Tenant, the Tenant agrees, and
consents, to the Landlord acquiring and possessing all rights vis -à-vis
the Tenant which the relevant Local Authority or other competent
authority possess against the Landlord in respect thereof or would
have possessed against the Tenant had such electricity, gas water
refuse removal or sanitary services been rendered directly by such
relevant local authority or other competent authority to the Tenant."
2.2.2. In terms of this clause your client is entitled to act as our client's
"local authority" with regards to the electricity in the premises. In terms
of the Ekurhuleni Electricity supply by -kg "The City shall have the
right, after giving 14 (fourteen) business days' written notice to the
owner and/or occupier and/or consumer and/or affected party, to
disconnect the supply of elect ricity-" (electrical energy) to any
premises if: - the person liable to pay for the supply, fails to pay any
amount due to the City in connection with any supply of municipal
services which he may at any time have received from the City in
respect of the premises and/or any amounts due to the City as per the
City's policy or by-laws dealing with debt collection and credit control".
2.2.3. As such, your client's disconnection of the electricity supply
after only 7 days' notice is a contravention of the lease agreement.
Our client is, therefore, entitled to claim damages for loss of income
due to your unlawful and deliberate interruption supply of electricity to
due to your unlawful and deliberate interruption supply of electricity to
their premises, and intends to claim such damages at arbitration and
further a declaratory order that the disconnection was unlawful and
your client to refrain from such disconnection in future till the dispute
has been resolved.
3. Further, our clients dispute your client's right to cancel the lease
agreement and takes the position that such purported cancellation
constitutes a repudiation of the lease agreement. Our clients hereby
reject your client's repudiation of the Agreement and demands that
your client complies with the provisions of the lease agreement.
Furthermore, our client strictly reserve all their rights in this regard.
18
4 In light of the above, there exists two arbitrable matters pertaining to
the Agreement. First, the interpretation of the Electricity Clause.
Second is the issue as to whether or not your client unlawfully
terminated the Agreement.
5. Given the arbitrable nature of the disputes between our respective
clients, this letter serves as the written notices for arbitration in terms
of clause 48.10 of the Agreement.
6 Additionally, and in accordance with 49.4 of the lease agreement,
our clients shall remain in lawful occupation of the premises pending
the settlement of the arbitration and shall continue to pay monthly
rentals in terms of the lease agreement.”
[38] Wadeville replied to the aforesaid suggesting that Impellers is
clutching at straws. On its own version it cannot pay the outstanding
amount. Wadeville also contends that the services issue is the
subject matter of another case. In my view Impellers’ attorney’s
suggestion that its client remains in possession pending the arbitration
while it pays the rent rings hollow and at the hearing of the matter no
proof was forthcoming that the arrears in rent or electricity were paid
or that any new arrangement had been arrived at.
[39] I was informed that the reference to Arbitration took place and at the
time the matter was heard the Arbitration was postponed indefinitely
on certain conditions.
[40] There is thus no prospect of the disputed issues being resolved in
arbitration and in any event clause 48.9.2 of the lease permits this
court the right to evict Impellers upon proper termination of the lease.
19
The Arbitration cannot prevent this. It can at best provide Impellers
with damages should it succeed.
[41] The 7 day -period is in my view standard in commercial leases and by
now Impellers had ample time to rectify the position or to vacate the
premises.
[42] As stated above by the time this judgment is being delivered Impellers
can no longer be entitled to remain on the premises and claim an
extended period for an orderly removal of its business preventing its
demise a going concern. At the time the matter was heard it was
already for all practical purposes a “gone concern” otherwise its
attorneys of record would have tendered the arrear rent and other
charges in “klink ende munt ” so as to bolster its rights to remain in
possession pending the finalisation of the arbitration.
[43] In the circumstances I am of the view that Wadeville was entitled to an
eviction order as of 30 September 2025 with costs – such costs to
include the costs of counsel on the attorney and client scale.
Impellers have had ample time to arrange its affairs and by now
require no further extension so as to vacate the premises and perform
its obligations to make good. If it has not yet done so it only has itself
to blame.
[44] Hence I make the following order:
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1. The Respondent and all those holding title under it at the property
situated at ERF 7[…] , Wadeville, more fully described as 1[…] I[…]
Road, Wadeville and held by title deed number T3[ …] ("the
property"), is hereby ordered. to vacate the property and restore
possession to the Applicant forthwith..
2. In the event that the Respondent and all those holding title under it
fail to comply with 1 above, the Sheriff of this Court or his lawful
deputy is ordered and authorised to evict the Respondent and all
those holding title under it from the property;
3. The Respondent is ordered to pay the costs of this application on
an attorney and client scale including costs of counsel.
___________________________
S VAN NIEUWENHUIZEN AJ
ACTING JUDGE OF THE HIGH COURT
Date of hearing: 25 November 2025
Date of judgment: 25 February 2026
Representation for plaintiff
Counsel: Adv J.C. Carstens
Group 21 Chambers
Sandton
Email: jacocarstens12@gmail.com
Mobile: 072 120 3853
Instructing Attorney: Martin Attorneys
366 Orion Avenue
21
Waterkloof Ridge
Pretoria
Tel:+27 12 348 1066
Mobile: +27 83 388 4576
Email:jason@martinattorneys.co.za
Postal Address: Postnet Suite 483
Private Bag X1
The Willows
0041
Ref: EWA 1/006
Tel: 086 488 4576
c/o Gittins Attorneys
2 Goodman Terrace
Fairwood
Johannesburg
Tel:010 001 2002
reception@gittinsattorneys.co.za
Ref: Martin Attorneys
Representation for respondent
Attorneys Appearing:: T Mohale
MOTA AFRICA
Colab Menlyn Maine
Park Lane West Building
194 Bancor Avenue
Pretoria
Waterkloof Glen Ext 2
Email:Thabo@mota.africa
/Martin@mota.africa
Ref: MM/L00368
C/o Fisha Attorneys
106 Johan Avenue
Dennehof
Gauteng