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
Case No: 2025-124775
In the matter between:
JONNY RUNNER INVESTMENTS (PTY) LTD APPLICANT
and
DEVLAND CASH AND CARRY (PTY) LTD RESPONDENT
_________________________________________________________________
REASONS FOR ORDER
___________________________________________________________________
E Bezuidenhout J:
Introduction
[1] On 5 December 2025, I granted the following order with reasons to follow:
‘1. The Applicant’s cancellation of the lease agreement concluded between the applicant
and the respondent, in respect of the property known as Erf 1 […] and Erf 1[...] N[...] ,
KwaZulu-Natal, in extent of 4 431m2 and 4 047m2 respectively, held by the Applicant under
Deed of Transfer T25581/2009 (“the property”) is hereby confirmed.
2. The Respondent and all other persons and/or entities who occupy the property under
or through the respondent, is hereby evicted from the property.
3. The sheriff of this court is hereby authorised and directed to carry out the aforesaid
eviction in the event of the respondent and / or any other person or entity occupying the
property under or through it, failing to vacate the property on or before 31 January 2026.
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4. The respondent is directed to pay the applicant’s costs on the scale as between
attorney and client…’
These are the reasons.
[2] This matter came before me as a special opposed motion on 14 November
2025. Prior to this date, only the applicant, Jonny Runner Investments (Pty) Ltd, had
filed heads of argument and a practice note. On the morning of the hearing, it
emerged that the respondent, Devland Cash and Carry (Pty) Ltd ’s erstwhile attorney
of record , had filed a notice of withdra wal as attorney of record shortly before the
hearing. A new attorney was appointed and counsel for the respondent , Mr Z Khan,
appeared before me, having been briefed the previous evening. He requested an
adjournment from the bar for the respondent to file a supplementary answering
affidavit, having realised th at the answering affidavit on record was somewhat
lacking in certain respects. He indicated that the sole sh areholder of the respondent,
Mr Gathoo, was now aware of the matter and wanted to participate in the matter. His
son, Mr Yoosuf Gathoo, was the deponent to the answering affidavit. Mr Khan also
requested an opportunity to file heads of argument. He tendered the wasted costs on
the attorney and own client scale.
[3] Mr Pretorious SC , appearing for the applicant , voiced his opposition to the
adjournment, but I indicated to him that I was inclined to grant the adjournment but
that I would be setting very short time periods for the further papers to be filed. I also
indicated that I would adjourn the matter to 20 November 2025 for argument and an
order was later presented to me, setting out the relevant time frames for the filing of
further affidavits, as well as the costs order.
[4] The further papers were filed as specified, save for the respondent’s heads of
argument, which were only filed on the Thursday morning before the hearing. At the
hearing, Mr Potgieter SC now appeared for the respondent, having also only been
hearing, Mr Potgieter SC now appeared for the respondent, having also only been
briefed the evening before. He indicated to me that he was not the author of the
heads of argument and that he would only be addressing me on a few issues.
[5] The applicant sought an order confirming that the lease agreement entered
into between it and the respondent has been cancelled. The respondent was renting
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the applicant’s property known as Erf 1[…] and Erf 1[...] N[...], KwaZulu-Natal (the
property). The applicant also sought an order evicting the respondent from the
property. The relief sought in the notice of motion was almost identical to the order I
had granted, save for the date by which the respondent had to vacate the property.
Background facts
[6] Mr Pretorius set out the background of how the lease came about , as well as
the relevant clauses of the lease agreem ent, all of which are common cause, in his
long heads of argument , from which I intend to borrow liberally and for which I
express my appreciation.
[7] In June 2010, the applicant concluded a lease with Brett Four (Pty) Ltd (Brett
Four) in respect of the property. Later in the same month, the applicant and Brett
Four concluded an addendum to the lease to include a liquor outlet . In April 2023 ,
Brett Four ceded its rights and delegated its obligations arising from the lease and
addendum to Cambridge Food (Pty) Ltd (Cambridge). In September 2017 ,
Cambridge and the a pplicant concluded a further addendum , and in April or May
2019, Cambridge and the a pplicant concluded a third addendum formalising the
name change of the lessee from Brett Four to Cambridge.
[8] During or about September 2019 , Cambridge and the applicant concluded a
fourth addendum in terms of which they explicitly recorded the commencement date
of the lease, being 1 December 2020. During February 2021, pursuant to Cambridge
having changed its name to Massmart Retail (Pty) Ltd (Massmart Retail), the
applicant and Massmart Retail concluded a fifth addendum and a renewal of the
lease.
[9] In terms of a letter dated 6 December 2023, Massmart Retail introduced the
respondent as its preferred successor, suitable tenant and nominated assignee to
the lease agreement . This gave rise to the conclusion between the a pplicant,
Massmart Retail and the r espondent of a cession and an assignment of lease
Massmart Retail and the r espondent of a cession and an assignment of lease
agreement. The material terms of the assignment agreement relevant to this matter
are the following:
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(a) Massmart Retail recorded a written sale of its business agreement with inter
alia the respondent (or a wholly -owned subsidiary nominated by the r espondent),
who purchased the business from Massmart Retail, and which is operated and/or
undertaken from, inter alia, the property.
(b) Massmart Retail and the respondent would notify the applicant of the date
upon which all conditions precedent in the sale agreement would be satisfied,
waived or otherwise fulfilled, once known (the closing date).
(c) Massmart Retail would cede all its rights and delegate all its obligations under
the lease agreement to the respondent, with effect from the closing date.
[10] The applicant granted its consent to the assignment by Massmart Retail of its
rights and obligations under the lease agreement to the respondent, with effect from
the closing date, subject to the following further conditions, namely:
(a) Should the respondent not purchase the business from Massmart Retail, but
nominate a wholly-owned subsidiary of the respondent, the respondent would notify
the applicant with the full particulars of its nominee on the closing date;
(b) The nominee would co -sign and ratify the acceptance of the assignment on
the closing date;
(c) The respondent would sign a deed of suretyship , together with the nominee ,
in favour of the applicant for the fulfilment of the nominee’s obligations arising from
the lease agreement; and
(d) The respondent would confirm the closing date.
[11] The respondent was placed in occupation and possession of the property by
virtue of the assignment agreement . The applicant contend ed that the respondent
failed to comply with the following obligations. In the event that it was not the
purchaser of the business from Massmart Retail, the respondent was obliged to
advise the applicant of who it nominated as the purchaser on the closing date . The
purchaser had to be a fully-owned subsidiary of the respondent. The respondent had
purchaser had to be a fully-owned subsidiary of the respondent. The respondent had
to sign a deed of suretyship, together with the nominated subsidiary, in favour of the
applicant. The nominated subsidiary would also co-sign and ratify the assignment
agreement on the closing date.
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[12] Massmart Retail only notified the applicant of the closing date on 27 January
2025. The closing date was determined as 24 June 2024. It further appear ed that,
without the applicant being aware of the closing date at the time, an entity unknown
to the applicant, Jwayelani Supermarkets (Pty) Ltd (Jwayelani) took occupation of
the property during June 2024 . On 26 June 2024 , the financial manager of
Jwayelani, Mr Naicker, advised the applicant that J wayelani is part of the Devland
Group, that a deal was concluded between Massmart Retail and the respondent and
that Massmart Retail ’s Nongoma store , undertaken from the applicant’s property,
was handed over to Jwayelani. Mr Naicker requested the a pplicant’s company
information to list the applicant as a vendor, to ensure payment of the monthly rental.
[13] It is common cause that the respondent had not notified the applicant of its
nominee, nor had it provided the full particulars of the nominee to the applicant. The
nominee, presumably J wayelani, did not sign and ratify its acceptance of the
assignment agreement, and the respondent did not sign a deed of suretyship, jointly
with the nominee, in favour of the applicant.
[14] Numerous letters were exchanged b etween the applicant’s attorney a nd the
respondent. On 16 August 2024, the a pplicant, through its attorney, recorded that
the respondent was the applicant’s lessee in respect of the property, that the
respondent would accordingly be invoiced in accordance with the terms of the lease
and that the r espondent seemingly placed J wayelani in the property, which was an
unauthorised occupier and in breach of the lease . The respondent was invited to
respond before 31 August 2024 if the position was salvageable. On 28 August 2024,
the applicant received a phone call from Mr S Doherty, the chief executive officer of
the respondent, who informed him that all the documents needed pursuant to the
the respondent, who informed him that all the documents needed pursuant to the
conditions of the assignment agreement had been drafted by their legal team and
were in the process of being vetted before being sent through.
[15] Further correspondence was exchanged between the applicant’s attorney and
representatives of J wayelani. The applicant’s attorney also telephoned Mr Yoosuf
Gathoo, who signed the assignment agreement on behalf of the respondent, who
indicated that the matter would be dealt with on the following day, 7 October 2024 ,
but nothing happened. On 15 October 2024, the applicant’s attorney sent a letter to
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the respondent, recording , inter alia, that Jwayelani was in unlawful occupation and
that the applicant wanted to legitimise the occupancy. The applicant received an e-
mail from Mr Naicker on 12 November 2024, wherein he stated that Jwayelani was
not a wholly-owned subsidiary of the respondent and suggested that an assignment
be concluded with it directly, effectively bypassing the respondent. It also appeared
that Jwayelani was owned by Kind Investment s (Pty) Ltd (Kind Investments), which
is 100% owned by Mr Yoosuf Gathoo. The applicant contend ed that this disclosure
exacerbated the unlawfulness of Jwayelani’s occupation , as it was not a wholly -
owned subsidiary of the respondent, as required by the assignment agreement.
[16] Further attempts were made by the applicant’s attorney to rectify the situation.
On 6 December 2024, the applicant’s attorney sent a further letter to the respondent,
recording that J wayelani remained in occupation of the property without any
agreement, consent or other commercial arrangement and was an unlawful occupier.
Jwayelani was required to vacate the property within seven days, failing which an
application would be launched enforcing the removal of J wayelani from the property.
It was also recorded that the respondent was the tenant and would be invoiced for
the monthly rental. On the same day, Mr Naicker responded, stating that the
documents were in the process of being signed off. Nothing further happened.
[17] The applicant contend ed that there has been no compliance with the
conditions set out in the assignment agreement. The respondent failed to provide the
applicant with the nomination of a nominee , which was a wholly -owned subsidiary
and failed to provide the applicant with the full particulars of the nominee. The
nominee, presumed to be Jwayelani, failed to co -sign and ratify the assignment
agreement. The respondent also failed to sign the deed of suretyship together with
its nominee.
its nominee.
[18] Around 26 February 2025, the applicant received an email from Ms V Makran,
indicating that she was representing Business Venture Investments No 2243 (Pty)
Ltd, with registration number 2022/207173/07 (Business Venture) , who had taken
over the Jwayel ani stores. The applicant was requested to complete vendor credit
application forms. Investigations revealed that Business Venture was now occupying
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the applicant’s property. It was not wholly-owned or even owned by the respondent
but apparently had a management agreement with the respondent.
[19] The applicant had instituted an application on 25 February 2025 for the
eviction of Jwayelani out of this court under case number 3144/2025 P (the first
eviction application). The respondent was cited as the second respondent and as an
interested party. Both the respondent and Jw ayelani opposed the first eviction
application.
[20] The answering affidavit was deposed to by Mr Yoosuf Gathoo , on behalf of both
the respondents . It contained a general denial of any factual allegations not
specifically dealt with by the depone nt. It set out the background of all the differ ent
entities involved. It is almost identical to what was set out in the answering affidavit
filed in the present matter, which I will deal with more fully below . It also referred to a
so-called memorandum of agreement (the memorandum), which was attached to the
affidavit. I will likewise deal with the memorandum below . The respondent s
contended that all concerns of the landlord may be remedied through what was
contained in the memorandum . The respondent s also maintained that the
respondent in the present matter, Devland, was in occupation of the property and not
Jwayelani.
[21] The applicant denied in its replying affidavit that the respondent in the present
matter, Devland, was in occupation of its property. Attached to the affidavit was a
photo taken by Mr K Murphy on 3 June 2025, clearly showing three large signboards
with the name ‘Ingonyama Jwayelani’ displayed on them. The signboards were
attached to the property. Mr Murphy also made a purchase at the store on 2 June
2025. The tax invoice, referred to as a ‘till slip’, was attached to the replying affidavit.
The name displayed on the till slip was ‘Business Venture Investment Ngoma
Superstore’. Mr Murphy made a confirmatory affidavit.
Superstore’. Mr Murphy made a confirmatory affidavit.
[22] The respondents’ insistence that Jwayelani was not in possession of the
property prompted the applicant to institute the present application.
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[23] I pause to mention that this first eviction application was set down to be heard
on the same day as the present application, but Mr Potgieter indicated that he had
no instructions to appear in the matter. After the hearing of the present application,
he and his instructing attorney left the court , whereafter I proceeded to hear the first
eviction application. I granted the eviction order prayed for against Jwayelani in
default of any appearance. The terms were almost identical t o the order granted in
the present application.
[24] In returning to the present application, it was subsequently discovered from
the Nongoma Municipality that an account had been opened in respect of the
property in the name of ‘Ingonyama Jwayelani-BVI 2243 (Pty) Ltd, Business Venture
Investments N.O .: In gomyama Jwayelani’ . There was another account with the
Nongoma Municipality , still in the name of Massmart Retail , with an unpaid
accumulated debt of R663 940.37, which the respondent had failed to pay. An
inspection of the applicant’s property was conducted by an insurance risk assessor,
who found the property to be badly maintained. The report of issues to be addressed
was attached to the founding affidavit and included numerous photos taken during
the inspection.
[25] The applicant’s attorney sent a letter to the respondent on 1 May 2025, giving
it 20 business days to rectify the breaches referred to in the letter and, in particular,
to settle the outstanding municipal account, to convert the municipal account into its
own name, to evict the current unlawful occupier from the property and to take
occupation of the property. It was also requested to repair and maintain the property,
as contractual ly required. It was further stated that the failure to remedy the
breaches within the required time would lead to the cancellation of the lease
agreement. The respondent did not acknowledge receipt of the notice and failed to
comply with it.
comply with it.
[26] On 5 June 2025 , the applicant cancelled the lease agreement. The various
breaches were set out in detail. The respondent was given until the weekend of 28
and 29 June 2025 to vacate the property, failing which the present application would
be launched. The respondent ignored the notices and continued to occupy the
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applicant’s property through a third party. The applicant then launched the present
application on 29 July 2025.
[27] The respondent’s answering affidavit was also deposed to by Mr Yoosuf
Gathoo, its financial manager. It likewise contained the same general denial of any
factual allegations not specifically dealt with by him. He indicated that it was
imperative to set out the background of the matter , as well as ‘the potential for
confusing or misunderstanding ’ that may have arisen between the parties. It was
alleged that the respondent trades as a cash and carry business in fast-moving, low-
cost consumable goods . The r espondent is the holding company for a group of
companies within the Devland G roup. Jwayelani is a chain of supermarkets , trading
in fast -moving consumables in the KwaZulu -Natal area . The shareholder of
Jwayelani is Kind Investments (with registration number 2008/016511/07). Mr Yoosuf
Gathoo is the sole director of Kind Investment s and the sole shareholder of the Kind
Investments Group.
[28] It was also stated that Kind Investments is furthermore the shareholder of the
second arm of the Kind Investment s Group, Business Venture, formally known as
Choppies Supermarkets SA (Pty) Ltd . It was pointed out that Kind Investment s,
Business Venture and J wayelani do not form part of the Devland Group of
Companies.
[29] It was explained that f rom time to time , Jwayelani would enter into a
management agreement with Kind Investment s in order for J wayelani, or
alternatively Business Venture , to manage a store within the Devland Group . The
beneficial ownership of the store would always remain with the respondent. A copy
of the management agreement entered into with Kind Investments for the
management of the store trading from the applicant’s property was attached as an
annexure.
[30] The respondent contended that confusion existed in relation to the occupancy
of the property , as well as the cession of the lease between the a pplicant and
of the property , as well as the cession of the lease between the a pplicant and
Massmart Retail . Previously, Massmart Retail concluded an agreement with the
respondent for the purchase of ten stores, which were subject to the landlords
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ceding the leases to the respondent. The transactions became very drawn out. The
respondent took a decision to have Kind Investment s manage their Nongoma store
on its behalf . It contended that there are a valid cession and a valid management
agreement in place and that there has been no breach of either of the agreements.
The respondent also contend ed that there has been no breach of the lease
agreement, as all the rental amounts have been paid timeously. He did not engage
at all with the various allegations made by the applicant in respect of the listed
breaches of the lease agreement. He simply ‘ acknowledged the concerns’ of the
applicant but stated that such concerns may be addressed in the memorandum of
agreement, which had been sent to the applicant’s attorney, and which was attached
as an annexure. It was the same document referred to abo ve. It was contended that
the eviction application was without merit , as the respondent was occupying the
property.
[31] The memorandum purpo rts to be an agreement entered into between the
applicant, referred to as ‘the landlord’, the respondent , referred to by its registered
name, and Jwayelani , referred to as ‘the lessee’. It records inter alia in para 2 .3 of
the introduction that both Massmart Retail and the respondent had failed to notify the
landlord of the closing date as required in the assignment agreement. It records in
para 2.4 that:
‘Devland Cash and Carry failed to nominate a nominee as Lessee but placed the Lessee in
its stead in the premises which is accordingly in occupation of the premises as purported
Lessee in terms of the lease’.
This clearly contradicts the contention that the respondent was occup ying the
property and that the eviction application was without merit.
[32] In para 2.6 further aspects were recorded to ‘regularise the status quo’ and to
‘remedy and ratify the aforesaid breaches’. The memorandum was only signed by Mr
‘remedy and ratify the aforesaid breaches’. The memorandum was only signed by Mr
Y Gathoo on behalf of the respondent and by Mr ZA Paruk, on behalf of Jwayelani ,
on 26 November 2024. The applicant had not signed the memorandum.
[33] The respondent also raised a point in limine, alleging the non-joinder of Kind
Investments as a party to the proceedings , as it was fundamentally involved in the
management of the Nongoma store trading from the applicant’s property. The
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respondent stated that it had also referred to the involvement of Kind Investment s in
the first eviction application, which should have clarified any confusion regarding the
nature of the agreement. It was contended that Kind Investments, which managed
the store, has a direct and substantial interest in the matter and that its non -joinder
rendered the application fatally defective and incapable of being entertained. That
concluded the answering affidavit.
[34] In the replying affidavit deposed to on behalf of the applicant, it was conceded
that there exists a serious confusion in relation to the occupancy of the property and
the applicant conceded that it has no idea who is occupying its property, despite a
watertight lease agreement and a watertight assignment agreement, which were
designed to regulate the tenancy in respect of the property.
[35] The applicant highlighted the following issues:
(a) Jwayelani is not owned by the r espondent and does not form part of the
Devland Group of Companies and, for purposes of the conditions of the assignment
agreement, is not a wholly-owned subsidiary of the respondent.
(b) It appears that the r espondent did acquire the rights and obligations of
Massmart Retail as purchaser and if that was the case, then it does not have the
right to place anyone else in the property.
(c) As far as Kind Investment s is concerned, it was pointed out that the correct
registration number was 2019/108229/07. The relevant company reports were
attached as annexures. The number mentioned in the answering affidavit, namely
2008/016511/07, in fact, belonged to the respondent. I pause to mention that in the
so-called memorandum of agreement, referred to by the respondent, the registration
number of Jwayelani is reflected as 2008/016511/07. The respondent’s registration
number is reflected as 1997/00337/07. It appears that the respondent is just as
confused about which entity is which in its own papers.
confused about which entity is which in its own papers.
(d) It was also pointed out that the re gistration number of Business Venture is
2022/207173/07. It was not formally known as Ch oppies Supermarkets South Africa
(Pty) Ltd , which entity’s registration number was 2008/00162/07 , which was in the
process of being deregistered. It has never had a name change.
(e) It was clear from the management agreement that Jwayelani was not a
wholly-owned subsidiary of the respondent , as required in the assignment
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agreement. The management agreement, of which the applicant had no knowledge ,
also did not elevate Jwayelani to a subsidiary of the respondent. It was also never
nominated by the respondent, as required in the assignment agreement.
(f) As far as the respondent’s decision to appoint Kind Investments to manage
the Nongoma store was concerned, the applicant contended that the decision was
contractually unlawful and was never communicated to the applicant . The applicant
did not consent to Jwayaleni’s occupancy or to anyone else but the respondent. The
management agreement was irrelevant, and the applicant was not a party to it.
(g) Although the monthly rentals were paid, it was not the only obligation the
respondent had to perform.
[36] The applicant dealt with the memorandum referred to by the respondent in
detail. It was sent to the applicant’s attorney on 5 May 2025. It was submitted that
the respondent , however, failed to disclose the contents of a letter sent by the
applicant’s attorney in reply on the same date. It was pointed out that if Jwayelani
was a wholly-owned subsidiary, it had not co -signed and ratified the acceptance of
the assignment agreement and the respondent had not bound itself as co -principal
debtor and surety . The closing date given by the respondent was different from the
closing date given by Massmart Retail and it appeared that the memorandum of
agreement received on 5 May 2025 had been backdated to 26 November 2024 . The
letter was never replied to.
[37] As far as the poin t in limine was concerned, namely the non -joinder of Kind
Investments, the applicant pointed out that , according to the records of CIPC dated
12 September 2025, it is in final deregistration. There is accordingly no entity to join .
It was contended that even if it was not deregistered, it never had an interest in the
matter and was never a necessary party to the proceedings. It , furthermore, never
applied for leave to intervene.
applied for leave to intervene.
[38] The applicant denied that the application for the respondent’s eviction was
without merit. The respondents in the first eviction application had alleged that it was
the respondent who was in occupation of the applicant’s property.
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[39] The respondent filed its supplementary answering affidavit, as mentioned
above, before the hearing of the matter. It was again attested to by Mr Y oosuf
Gathoo. He stated that this supplementary affidavit had to take precedence over the
initial answering affidavit , as it did not ‘adequately’ address the respondent’s
position. He did not explain why he had not previously set out the respondent's
position adequately. He addressed the alleged breaches relied upon by the applicant
and now sought to introduce a number of alleged disputes of fact.
[40] As far as the issue concerning the muni cipal account was concerned, he
stated that the respondent had under no circumstances requested Jwayel ani to
change the municipal account into its name. The respondent has since attempted to
change the municipal account into its name. An employee, Mr Rogers, attended at
the municipality during May to July 2025 but experienced difficulties , as he did not
have the ownership details of the property and the municipality was furthermore
‘offline’ and could not give effect to the change. It was contended that the respondent
could therefore not have been in breach of the lease agreement arising from the
failure of the municipality to assist it. It was also pointed out that the applicant billed
the respondent on a monthly basis in lieu of municipal charges , which the
respondent has paid. An amount of R84 482.03 was due but would be paid before
the hearing of the matter. The respondent did not address the arrears of Massmart
Retail’s municipal account, referred to above.
[41] The respondent denied that it had sub -let the property or ceded the lease
agreement in any manner or form to any third party. It could not do so without the
consent of the applicant. The respondent insisted that it was and rem ained in
possession of the property. The party referred to by the applicant as being in
possession of the property is the management agent of the respondent. The
possession of the property is the management agent of the respondent. The
respondent contended that the applicant was approached by national retailers, and
that it then began finding fault in order to evict the respondent and escape from its
lease. It was, however, conceded that whilst it was dealing with the ac quisition of the
Massmart stores, there were oversights , which have now been rectified, especially
after the first eviction application was launched. The respondent stated that there is a
dispute of fact . The respondent failed to address in any manner the memorandum
previously relied upon by the respondent, the terms of which were highlighted above.
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[42] As far as the maintenance issues were concerned, the respondent stated that
the applicant failed to provide it with a snag list, as required by clause 21 of the lease
agreement. It was alleged that clause 21 was vague as to what was to be maintained
and the extent of such maintenance. The respondent furthermore simply stepped
into the shoes of Massmart Retail and at the time it took over the store, there was no
maintenance required. It disputed the correctness of the insurance assessor’s snag
list. There was no qualification of the expertise of the author of the report by way of a
confirmatory affidavit, and it therefore constituted hearsay. It was contended that this
was a further dispute of fact. The respondent did not dispute the authenticity of the
photos attached to the report.
[43] The respondent also made submissions regarding its employees. It stated
that 105 employees stand to lose their jobs due to ‘a simple miscommunication’
between the parties. The court was asked to consider the number of people who
would be affected by the proceedings. The respondent assumed responsibility for
the employees who were transferred from Massmart Retail into the respondent’s
employment. It was also contended that the respondent pays close to R1 million in
rental a month and cannot be accused of being a ‘squatter’.
[44] The respondent concluded by stating that the applicant was aware of the
disputes of fact or ought reasonably to have been aware of the disputes of fact . The
matter should therefore be referred for trial. It was submitted that , notwithstanding
the disputes of fact , and should the court be inclined to order an eviction, the order
be suspended for 90 days to allow its employees to regulari se their circumstances
and to allow the respondent to remove frozen and other perishables.
[45] The applicant likewise filed a supplementary replying affidavit. It pointed out
that all the evidence had to be considered in totality and that the respondent’s
that all the evidence had to be considered in totality and that the respondent’s
supplementary affidavit could not take precedence over its answering affidavit. The
applicant pointed out that Mr Rogers attended at the municipal offices during May to
July 2025, whilst the respondent had already assumed the rights and obligations of
Massmart Retail in June 2024 , some ten months earlier. The respondent never
contacted the applicant to keep it abreast of the difficulties or to seek assistance.
15
The applicant attached a municipal account in the name of Ingo nyama Jwayelani
BVI, referred to above, dated 31 March 2025, from which it appears that an account
was opened, just not by the respondent. The applicant added that the obligation on
the respondent did not stop at the opening of an account in its name. It also had to
make payment to the municipality. The account in the name of Massmart Retail,
whose obligations the respondent acquired and took over, remains in arrears with
R663 940.37. This was the position when the lease was cancelled on 5 June 2025. It
was also pointed out that , in terms of the Local Government: Municipal Systems Act
32 of 2000, an owner of an immovable property can be held liable for the obligations
of the tenant towards the muni cipality. The applicant was therefore at risk in this
regard. The applicant confirmed that the respondent was up to date with its rental
and its electricity consumption but that it remained in default in respect of the other
municipal charges.
[46] When dealing with the respondent’s denials regarding the sub-lease to any
third party, the applicant referred to its dealings with Mr Naicker, who suggested to
the applicant that it should conclude an assignment agreement with Jwayelani in
such a way as to bypass the resp ondent. Mr Yoosuf Gathoo, who attested to the
answering affidavits, and who owns 100% of the shares in Kind Investment s, which
is the shareholder in Jwayelani, made no mention of this issue. The respondent’s
attorneys also forwarded the memorandum to the applicant’s attorney on 5 May
2025. As mentioned above, it was signed by both the respondent and Jwayelani (
described as the ‘Lessee’ ). The applicant contended that there could be no d oubt
that the respondent had given up possession of the property.
[47] The applicant also contended that the respondent stepped into the shoes of
Massmart Retail as far as its maintenance obligations were concerned. It pointed out
Massmart Retail as far as its maintenance obligations were concerned. It pointed out
that clause 21, mentioned by the respondent, did not deal with the maintenance
obligations. It was , in fact , clause 25 , which can under no circumstances be
described as vague. I do not intend quoting the clause in full but it refers in no
uncertain terms to very specific items, such as sewerage pipes, water taps, water
pipes, interior ceilings and walls, to name but a few , and what is expected in respect
of the particular items.
16
[48] As far as the contentions regarding the respondent’s employees were
concerned, the applicant submitted that they were irrelevant to the proceedings but it
did consider that it was not easy ‘to simply move a business ’. It would accordingly
allow the respondent grace until 31 December 2025 within which to vacate the
property.
[49] This concludes the background facts and circumstances set out in the
application that came before me.
Requirements for a commercial eviction
[50] In respect of a commercial eviction, the applicant is required to prove:
(a) Its locus standi, in the sense that it is either the owner of the property or an
entity which is otherwise in law entitled to possession and occupation thereof.
(b) That the respondent is in occupation of the property.
(c) That the respondent does not have any right in law to be in possession and
occupation.
[51] There can be no doubt that the applicant has locus standi and that the
respondent, or whoever is occupying the property through it, is in occupation of the
property. It is clearly only the third requirement that requires discussion and
consideration.
Submissions by the parties
[52] Mr Pretorius submitted that t he respondent, and any other entity occupying
under or through it, had no right to occupation. The respondent was clearly in breach
of its obligations in terms of the lease and other agreements and has failed to raise
any defence valid in law. It was also submitted that t he respondent had breached its
contractual obligations in that it unilaterally abandoned or gave occupation of the
property in favour of foreign and unknown third parties , with disregard for the
applicant as landlord and, in particular, since it has failed to open, manage and pay
the municipal services due to the municipality, in breach of its contractual
obligations. It further failed to maintain and keep the property as it was contractually
obliged to do . I was also referred to the various clauses of the lease agreement
obliged to do . I was also referred to the various clauses of the lease agreement
relevant to the matter and the cancellation letter, which set out clearly the grounds of
17
cancellation. I was reminded that in the month before the cancellation of the lease,
the municipal account was in arrears in the amount of R666 000.
[53] Mr Potgieter submitted that the matter had to be dealt with on the
respondent’s version of the events. He, however, accepted that what was set out in
the respondent’s affidavits was not necessarily sufficient to address the relevant
issues. It was submitted that it was the applicant’s case that there were breaches of
the lease agreement and that the respondent has failed to raise any defences.
Although the respondent’s affidavits were not very thorough, there were clear
disputes of fact, which had to be referred to oral evidence. It was also submitted that
it was a strange situation where the payments of rentals and municipal charges were
up to date, but the applicant nonetheless wanted to evict the respondent. It was
further submitted th at there was a dispute of fact in respect of the sublease issue,
which, once again, had to be referred for oral evidence. The issue s regarding
maintenance, the changing of the municipal account and the respondent’s difficulties
in respect thereof, and the outstanding municipal account are all disputes requiring
oral evidence . It was again emphasised that the matter had to be decided on the
respondent’s version, as is customary when an applicant approaches a court by way
of an application.1
[54] Mr Potgieter also submitted that a court has a discretion when it comes to the
eviction of tenants, even though there may have been breaches. The court must
consider whether it is proper to order an eviction and must consider factors such as
the position of the respondent’s employ ees. I was urged to consider granting the
respondent a grace period of 90 days, should I decide to grant the order , as I had a
discretion in this regard.
[55] Mr Pretorius submitted in reply that the respondent did not at any stage deny
[55] Mr Pretorius submitted in reply that the respondent did not at any stage deny
that the municipal account was in arrears in the amount mentioned above. It only
1 It was held in Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984(3) SA 623(A) at
634E- 635C that if disputes of fact became apparent on the affidavits, a final order may only be
granted if the allegations in the applicant’s affidavit, which have been admitted by the respondent,
considered together with the allegations made by the respondent in its answering affidavit, justifies
such an order.
18
paid the rentals and the electricity charges as invoiced by the applicant but not the
municipal account. The respondent did not deny that the amount had accrued to it.
A court’s discretion in commercial evictions
[56] In AJP Properties CC v Sello ,2 it was held that a court does not have the
power to refuse a commercial eviction, but has the discretion to suspend the
execution of the order:
‘Although the court has no equitable jurisdiction to decline the grant of an eviction order it
has nevertheless given the erstwhile tenant time within which to vacate.’ (Footnote omitted.)
And further:3
‘There is accordingly a history of case law spanning close on a century which has,
irrespective of its pedigree, become solidified and which has accepted that courts can
exercise a discretion which, it appears, is not derived from its inherent jurisdiction but from
a common-law power to stay or suspend the execution of an ejectment order.’ (Footnotes
omitted.)
[57] In AJP Properties , the court referred to Potgieter and Another v Van der
Merwe,4 where the Appellate Division referred to, but did not decide, the issue of
whether a court has the discretion, when granting an ejectment order, to give the
party time to vacate. The following was held by the Appellate Division:5
‘The question arises whether we should accede to the request made by the defendants'
counsel. I shall assume that the Court has a discretion, in granting an ejectment order, to
give the defendants time within which to vacate the premises. No authorities were cited to
the Court on this point, but there are many cases where a Court has granted an ejectment
order simpliciter cf. Frank v Ohlsson's Breweries (1924 AD 289) and Herison v SA Mutual
Life Assurance Society (1942 AD 259) … It is, however, unnecessary for me to decide
whether a Court of law has the discretion referred to, but I may add that in my view, if it has
that discretion, it must exercise it judicially.’ (My emphasis.)
that discretion, it must exercise it judicially.’ (My emphasis.)
[58] In MV Andre Builder Joiner CC v Nordien,6 the following was held:
2 AJP Properties CC v Sello 2018 (1) SA 535 (GJ) (AJP Properties) para 17.
3 Ibid para 21.
4 Potgieter and Another v Van der Merwe 1949 (1) SA 361 (A).
5 Ibid 373-374.
6 MV Andre Builder Joiner CC v Nordien [2021] ZAWCHC 255.
19
‘[39] The legal position is that our Courts has no equitable discretion to refuse the granting
of an ejectment order if the applicant has established all the grounds. See AJP Properties
CC v Sello 2018 (1) SA 535 (GJ) (“AJP v Sello”).
[40] What remain is to determine an equitable date on which the respondent should be
ordered to vacate the premises. During argument the applicant contended for between 3 -14
days.
[41] According to AJP v Sello supra although a Court’s discretion is limited if all the
grounds for an ejectment order has been established, our law does recognise that courts
can exercise a discretion, derived from a common law power to stay or suspend the
execution of an ejectment order. This discretion is in line with the discretion afforded to a
Court in terms of Uniform Rule 45A to suspend execution of its orders. Eviction or Ejectment
is a species of execution.’ (Footnote omitted.)
[59] In Parkhurst Investments CC v Pauls Homemade (Pty) Ltd ,7 no reference is
made to the discretion of the court to grant an equitable date for eviction. The court
merely stated that having regard to the fact that the business employs various staff
and is trading, it would not be appropriate to grant the immediate eviction of the
respondent:8
‘The respondent operates a business at the premises at which it employs various members
of staff. Accordingly, an order for the immediate eviction of the respondent is not
appropriate.’
Disputes of fact and referral to oral evidence
[60] In light of the respondent raising various alleged disputes of fact and its bare
denials in respect of other issues, it is perhaps appropriate to con sider what was
held in Soffiantini v Mould 9:
‘If by a mere denial in general terms a respondent can defeat or delay an applicant who
comes to court on motion, then motion proceedings are worthless, for a respondent can
always defeat or delay a petitioner by such a device. It is necessary to make a robust,
always defeat or delay a petitioner by such a device. It is necessary to make a robust,
common-sense approach to a dispute on motion as otherwise the effective functioning of the
court can be hamstrung and circumvented by the most simple and blatant strat agem. The
court must not hesitate to decide an issue on affidavit merely because it may be difficult to
7 Parkhurst Investments CC v Pauls Homemade (Pty) Ltd [2023] ZAGPJHC 767.
8 Ibid para 71.
9 Soffiantini v Mould 1956(4) SA 150 (E) at 154.
20
do so. Justice can be defeated or seriously impeded and delayed by an over -fastidious
approach to a dispute raised in affidavits’.
[61] In Wightman t/a JW Construction v Headfour (Pty) Ltd and Another 10 held that:
‘ A real, genuine and bona fide dispute of fact can exist only where the court is satisfied that
the party who purports to raise the dispute has in his affidavit seriously and unambiguously
addressed the fact said to be disputed. The re will, of course , be instances where a bare
denial meets the requirement because there is no other way open to the disputing party and
nothing more can therefore be expected of him. But even that may not be sufficient if the fact
averred lies purely within the knowledge of the averring party and no basis is laid for
disputing the veracity or accuracy of the averment. When the facts averred are such that the
disputing party must necessarily possess knowledge of them and be able to provide an
answer (or countervailing evidence ) if they be not true or accurate but, instead of doing so,
rests his case on a bare or ambiguous denial, the court will generally have difficulty in finding
that the test is satisfied. I say ‘generally’ because factual averments seldom stand apart from
a broader matrix of circumstances , all of which needs to be born e in mind when arriving at a
decision. A litigant may not necessarily recogni se or understand the nuances of a bare or
general denial as against a real attempt to grapple with all the relevant factual allegations
made by the other party. But when he signs the answering affidavit, he commits himself to its
contents, inadequate as they may be and will only in exceptional circumstances be permitted
to disavow them’.
The court also held that:
‘ …a n applicant who seeks final relief on motion must in the event of conflict, accept the
version set up by his opponent unless the latter’s allegations are, in the opinion of the court,
not such as to raise a real , genuine or bona fide dispute of fact or are so far far-fetched or
clearly untenable that the court is justified and rejecting them merely on the papers’.11
[62] In deciding to refer disputes of fact to oral evi dence, a court has a wide
discretion. ‘In every case the court must examine an alleged dispute of fact and see
whether in truth there is a real dispute of fact which cannot be satisfactorily
determined without the aid of oral evidence . If this is not done the respondent might
be able to raise fictitious issues of fact and thus delay the hearing of the matter to the
prejudice of the applicant. The taste is a stringent one that is not easily satisfied.
10 Wightman t/a JW Construction v Headfour (Pty) Ltd and Another 2008(3) SA 371 (SCA) at para 12.
11 Ibid para 12.
21
Vague and insubstantial allegations are insufficient to raise the kind of dispute o f fact
that should be referred for oral evidence.’12 (footnotes omitted.)
Analysis
[63] The respondent’s initial answering affidavit raised very litt le in defence to the
relief being sought. It engaged with a few aspects raised by the applicant and
accordingly the majority of the applicant’s allegations were met with a bare or
general denial. The respondent claimed that it was in possession of the property and
that it had merely entered into a management agreement with Kind Investments ,
which turned out to be deregistered. The respondent also denied that it was in
breach of the lease agreement as all the rental payments were up to date.
[64] The respondent further claimed that there was a valid cession and management
agreement in place but later denies that it had ceded the lease agreement. Just a
cursory glance at the detai led facts and circumstances set out above will
demonstrate that the respondent has not adhered to a number of the terms of the
lease agreement . The respondent has failed to seriously address the facts
surrounding the occupation of the property by Jwayelani , who in my view, clearly
occupied the property. This much is clear from the photo and till slip obtained by Mr
Murhpy and the municipal account in its name. The respondent had an opportunity to
address these specific allegations and failed to do so.
[65] The supplementary answering affidavit only made things worse for the
respondent. It attempted to disavow the original answering affida vit but failed to
show any exceptional circumstances which would permit the respondent to do so.
What immediately comes to mind is the so -called dispute regarding the respondent’s
denial that it sub-let the property. This was in direct contrast to the memorandum, put
up by the respondent, signed by it and by Jwayelani , wherein it is clearly stated that
up by the respondent, signed by it and by Jwayelani , wherein it is clearly stated that
it had placed Jwayelani in occupation of the store and acknowledged that it had
failed to nominate a nominee. It also indicated that it wanted to remedy and ratify its
breaches. This is in my view a clear ack nowledgement that what the respondent had
12 See: The commentary on uniform rule 6(5)(g) in Van Loggerenberg Erasmus Superior Court
Practice (RS 24, 2024) at D1 Rule 6-37 to 6-38 and the authorities referred to.
22
done, amounted to a breach of the lease agreement. The dispute created in this
regard is in my view clearly far-fetched and untenable.
[66] The respondent also referred to the payment of the municipal charges as being
in dispute. As mentioned above, on its own version, the respondent was in breach of
the lease agreement as its employee, Mr Rogers, only att empted to from May to July
2025 (around the time the breach and cancellation letters were sent) to change the
municipal account into the respondent’s name. The respondent failed to
comprehensively deal with the issue of the account being in the name of Jwayelani ,
simply denying that it requested Jwayelani to change the name of the account. There
could only be one explanation for the account being in Jwayelani’s name . It was
because it was in occupation of the property and trading from it, having been placed
there by the respondent as is borne out by the terms of the memorandum , in clear
breach of the lease agreement. The respondent failed to engage at all with the
applicant’s allegations regarding its dealings with Mr Naicker, Jwayelani’s financial
manager.
[67] The respondent failed to address the fact that there was a substantial amount
due to the municipality in respect of Massmart Retail’s municipal account , for which
the respondent was responsible, having stepped into the shoes of Massmart Retail.
This was another undisputed breach of the lease agreement.
[68] The respondent’s response to the allegations that it failed to properly repair and
maintain the pro perty, was to dispute the report’s correctness, to state that the
author was not an expert and to claim that it constituted hearsay. The respondent
could have addressed the contents of the report , and particularly the attached
photos. Its contents would have been within the respondent’s knowledge as it
claimed to be in possession of the property and it should have been able to provide a
claimed to be in possession of the property and it should have been able to provide a
comprehensive answer in this regard. This is in my view not a bona fide dispute of
fact and amounts to another bare denial. The respondent’s contention that the
maintenance clause was vague, holds no water.
[69] I was satisfied that the applicant had established that the respondent was in
breach of the lease agreement and that the so-called disputes of fact could safely be
23
rejected on the papers alone. In my view the applicant had succeeded in proving that
the respondent does not have any right in law to be in possession and occupation of
the property.
[70] As far as the eviction was concerned, I align myself with the views referred to
above, namely that once the grounds for the granting of a commercial eviction have
been established, a court has no discretion to refuse the granting of the order. I do
however belief that I have a discretion to determine an equitable date on which the
respondent and those occupying the property under or through it is to be evicted
from the property. I took into consideration that the respondent had arrangements to
make in respect of all its employees, for whom I had some sympathy and that a large
amount of stock would have to be moved. I was also aware that we were about to
enter the festive season, and that to order the eviction by 31 December 2025 would
in my view lead to an unfair situation. I n my view a n equitable date for the
respondent to vacate the property would be 31 January 2026.
Conclusion
[71] It is for the aforementioned reasons that I granted the order mentioned above.
________________________
E BEZUIDENHOUT J
Date of hearing: 20 November 2025
Date of order: 5 December 2025
Date of reasons: 9 March 2026
The reasons were handed down electronically by circulation to the parties’ legal
representatives by email and released to SAFLII. The date and time for hand down is
deemed to be 12h00 on 9 March 2026.
Appearances:
For the applicant: Mr C Pretorius SC
Instructed by: GJ Vonkeman Attorneys
211 Mark Street
Vryheid
24
Tel no 034 980 7545
Email: admin@vonkeman.co.za
Ref: MLK/01J121001
C/O Tatham Wilkes Attorneys
Office F008, First Floor
Athlone Circle
1 Montgomery Drive
Athlone
Pietermaritzburg
Tel no: 033 345 3501
Email: jaco@tathamwilkes.co.za
Ref: Mr JA vd Merwe/ds/09ZG78925
For the respondent: Mr A Potgieter SC
Instructed by: Shaheed Dollie Inc
3 Rockridge Road
Parktown
Johannesburg
Tel no: 011 482 9933
Email: reception@sdollieinc.co.za
Ref: R Moosa/S1363
C/O Grant & Swanepoel
Suite 1, The Mews
Redlands Estate, George Macfarlane Lane
Pietermaritzburg
Tel no 033 342 0375
Fax: 086 501 0102
Email: Shakira@gsalaw.co.za