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
NORTH WEST DIVISION MAHIKENG
CASE NO.039814/2026
Reportable: NO
Circulate to Judges: NO
Circulate to Magistrates: NO
Circulate to Regional Magistrates: NO
In the matter between:
DNCC GRANITE TOMBSTONES (PTY) LTD APPLICANT
And
LINNTOMBI ORGANISATION (PTY) LTD RESPONDENT
Judgment is handed down electronically by distributing to the parties’ legal
representatives by e-mail. The date that the judgment deemed to be handed down is
01 April 2026 at 10H00.
MAKOLOMAKWE AJ
Introduction
[1] The applicant is DNCC Granite Tombstones Proprietary Limited, with
registration number: 2006/010794/07 being a company, with profit-making as
purpose and duly registered in terms of the Companies Act of the Republic of
South Africa with registered address at 8 [K…] [A…], Brits industrial area,
Brits.
[2] The respondent is Linntombi Organisation (Pty) Ltd with registration
number: 2025/041325/07, a limited liability company for profit incorporated in
terms of the provisions of the Companies Act 2008 with chosen domicilium
citandi et executandi at 180 [D…] Road, [W…] [H…], Pretoria.
[3] This matter concerns an application for the eviction of the respondent
from
the applicant`s property, Erf [2…] [ W…] [ A…] ( ‘the second property ’),
Rustenburg which is a commercial property.
[4] The matter came before me in the urgent court on 6 March 2026.
REASONS FOR JUDGMENT
[5] The respondent opposed the application on the basis that the matter was
not urgent. Further , that it has a bona fide defence against the applicant`s
claims.
[6] Having familiarized myself with the facts and issues, and having heard
both in relation to the question of urgency and merits , I granted the following
order:
‘1. THAT: The eviction forthwith of the Respondent and all such other occupiers that
enjoy occupation through said Respondent from the premises situate at 1 [...]
W[...] Avenue known as Erf 2[...] Rustenburg Extension 2) ("the Premises");
2. THAT: Authorising and directing the sheriff or his lawful deputy to take such steps as
are necessary to evict the Respondent and all persons holding occupation
through the Respondent from the premises in the event of the said Respondent
and such other persons failing to vacate the said premises forthwith upon
service on them of the order herein;
3. THAT: Interdicting the Respondent pending the return of the premises to the
Applicant to remove any equipment and movable items therefrom;
4. THAT: Authorising the Applicant to reasonably access the premises at 1 [...] W[...]
Avenue Rustenburg during business hours pending the return of the premises
to the Applicant;
5. THAT: Costs on scale B against the Defendant;
6. THAT: Reasons for the order will follow.’
BACKGROUND
[7] On 14 June 2025 and at or near Rustenburg the applicant, represented by
Gabriel Stephanus Philippus Van Vuuren (‘Van Vuuren’), its director and Ms.
Lindiwe Ntombiyesiswe Ringane (“Ringane”), its director entered into two
lease agreements in respects of two adjacent commercial premises in
Rustenburg Extension 2, to wit Erf [2…] situated at 3 [W…] [S…] Rustenburg
Extension 2 and “the second property”. The lease agreements are attached to
the application as Annexures.
[8] The lease with respect to “the “first property” was cancelled on 9
December 2025 and the respondent has vacated that property. This application
only pertains to an eviction of the respondent from the second property.
[9] The relevant terms for the lease of “the second property” provides as
follows:
9.1 The agreed rental was R140 000.00 (excluding VAT) per month payable
in advance on the first day of the month (clause 4);
9.2 The agreement also provided for equipment and machinery to be included
in the lease (clause 1);
9.3 A deposit of R140 000.00 (excluding VAT) and a utilities deposit of
R150 000.00 (excluding VAT) prior to occupation (clause 5);
9.4 The commercial lease agreement commenced on 1 July 2025 and
terminated on 31 January 2026 (clause 8)
[10] On the same day that the parties entered into the lease agreement, the
parties, represented as when entering into the lease agreements referred to
above, also entered into agreements of sale of the same abovementioned
properties. The copies of the agreements of sale are attached to this application
as Annexures.
[11] The purchase pr ice in respect of the first property was R4,2 million
(excluding VAT) and was payable on 1 November 2025. The agreed purchase
price was not paid on the due date and the respondent was placed on terms and
the agreement was cancelled. I will not deal with th e terms of the sale
agreement of that property.
[12] The relevant terms for the sale agreement of the second property, are
inter alia the following:
12.1 The purchase price was R12 million (excluding Value Added Tax)
payable on 31 January 2026 (clause 2.1);
12.2 The respondent was responsible for the payment of all municipal charges
from date of occupation (clause 6);
12.3 The respondent was responsible for the payment of the monthly insurance
premium in the amount of R18 673.90, which insurance covered loss or damage
to property and equipment (clause 7);
12.4 All buildings and permanent improvements, equipment, granite waste
blocks and a Rolls Royce Generator were included in the sale;
12.5 Ownership of all the movable and immovable property sold in terms of
the agreement remained vested in the applicant until transfer of the property into
the name of the respondent (clause 15);
12.6 The respondent undertook to return possession of the property on
termination of the agreement in the same condition, excluding fair wear and tear
(clause 22.2);
12.7 In the event of breach of the agreement the applicant as seller had to give
the respondent 7 days` notice to remedy the breach failing which the applicant
would be entitled to cancel the transaction (clause 2.3).
[13] The agreed purchase price was not paid on the due date and the
respondent was placed on terms. A notice dated 10 February 2026, was served
by email on the director of the respondent as well as the respondent`s attorney
of record. The agreement was cancelled as per.
[14] The applicant instituted action in the Rustenburg Magistrates` Court, inter
alia for the outstanding rental and utility accounts with regard to both lease
agreements as per the summons. The rental interdict was granted by the
Rustenburg Magistrate’s Court.
Pertaining Urgency
[15] I f ind that the application was urgent, and the rules relating to forms,
service and time periods, as prescribed by the Uniform Rules of Court, be
dispensed with for following reasons: According to the Practice Directive of
this division, 1 urgent applications are ordinarily brought with less than five
days` notice from the time of the application and semi - urgent applications are
brought with more than five days` notice from the time of the notice of the
application to the respondent (s) to the time of the hearing of the application.
[16] The respondent was served on 23 February 2026 with an urgent
application, the respondent`s attorney filed notice of intention to oppose on 27
February 2026 and the answering affidavit was delivered on 04 March 2026.
According to the practice directive , this app lication does not fall under
1 Practice Directive 14.
extremely urgent application, as it was brought with more than five (5) days`
notice from the time of the notice of the application to the respondent to the
time of the hearing.
[17] It was argued on behalf of the respondent that the applicant is relying on
issues that came to the knowledge of its director during November to December
2025, which amount to self -created urgency. Further , that the matter be struck
off roll as it is not urgent. The submission on behalf of the applicant was that
the matter is urgent and the delay in not lodging the application earlier was due
to the negotiations that were ongoing between the parties.
Applicable Law
[18] Rule 6 (12) 2 enables the court to dispense with the normal rules relating
to the forms and service as provided for in the rules and dispose of the matter at
such time and place and in such manner and in accordance with procedure
(which shall as far as practicable be in terms of these rules) as it deems fit. It is
trite law that each urgent application must be determined on its own facts and
merits. An applicant seeking to be heard on an urgent basis must set forth
explicitly the circumstances which she avers renders the matter urgent and the
reasons why she claims that she could not be afforded substantial redress at a
hearing in due course.
[19] In Luna Meubel Veraardigers v Makin and Another ,3 it was highlighted
that the degree of urgency must justify the deviation from the rules. Further the
2 Rule of the Uniform Rules of Court.
3 1977 (4) SA 135 (W), at 137F-G.
court di stinguished between real urgency (such as imminent harm) and self -
created urgency, where a litigant delay and then invokes urgency to fast -track
relief.
[20] The correspondence between the parties` legal representative annexed to
the founding affidavit confirms the submissions on behalf of the applicant that
from November to February 2026 there were negotiation between the parties .
The respondent did not dispute the aforementioned in the answering affidavit.
Therefore, it remains undisputed. Counsel for the respondent argued that those
correspondences are ‘without prejudice’ and the applicant cannot rely on them.
[21] It was contended on behalf of the applicant that they are relevant and the
applicant is entitled to use them. In Dimension Data (Pty) Ltd and Another v
Rory Niall Pearton ,4 a without prejudice ‘meeting’ was cited to demonstrate
that the applicant had attempted to resolve the dispute, yet the respondent failed
to act within a promised timeframe, thus creating an urgent need to approach the
court. This authority supports the submissions made on behalf of the applicant.
[22] Applying the above principle to the present matter, I f ind that the without
prejudice letters relied upon by the applicant, are relevant as they demonstrate
that the applicant had attempted to resolve the dispute, and that the respondent
failed to made payment of the purchase price of ‘the second property’ within a
promised timeframe, and created an urgent need for the applicant to approach
the court.
Analysis
4 (2388/2020) [2021] ZAECPEHC 54.
[23] According to the founding affidavit, ‘Van Vuuren’ ascertained around 21
January 2026 from Envirocycle that the generator of the applicant was sold to
them as scrap metal for R41 614.50 and that it made payment to the respondent
on 15 January 2026 .5 Further, that o n 30 January 2026 after ‘Van Vuuren ’
gained access to the building with the Sheriff, he ascertained that two of the
granite saws were in the process of being dismantled.6
[24] It is common cause that the lease agreement expired on 31 January 2026
and that t he sale agreement was cancelled after the respondent was placed on
terms on 10 February 2026. In Chiodaroli N.O and Others v Yeboprop 7
Investment (Pty) Ltd and Others,7 the court found continued occupation after the
lease expired to be unlawful and severely prejudicial.
[25] In the present matter the effects of the expiry of both the lease agreement
and the sale agreement in respect of the second property are that the respondent
became an unlawful occupier of that property. Further, the continued occupation
by the respondent after the lease expired was unlawful and severely prejudicial
to the applicant. I f ind that urgency under Uniform Rule of Court 6(12) was
justified.
Pertaining whether the Applicant can get “substantial redress” in due
course
[26] It is common cause that the applicant issued summons in the Rustenburg
Magistrates` court for arrear rental, the rental interdict was granted by that court
and on 30 January 2026 the Sheriff attached some of the items at “the second
5 Paragraph 33.
6 Paragraph 38.
7 (18020/2022) [ 2024] ZAGPPHC 990, at paragraph 37.
property”. It is further common cause that the respondent is in arrears with
rental, municipal bills or taxes and rates, and that the insurance of the
equipment lapsed due to non-payment by the respondent.
[27] It was argued on behalf of the respondent that the applicant will not suffer
irreparable harm as it has already approached the Rustenburg Magistrates`
court, which has granted the rental interdict prohibiting the respondent from
removing any equipment that was attached by the Sheriff. It was contended on
behalf of the applicant that it will suffer irreparable harm.
[28] According to the founding affidavit on 20 February 2026, ‘Van Vuuren’
received a call from ‘Bester’, who had left the respondent`s services who
informed him of items that were removed by the respondent after being attached
and prior to him leaving the respondent`s services. The respondent denied this
allegation in the answering affidavit. The applicant in its replying affidavit
annexed the affidavit of “Bester” in which he stated in paragraph 3 that despite
the attachment, the granite continued to be processed on the instruction of
“Ringane” and thereafter sold to customers. It was argued on behalf of the
respondent that the affidavit of ‘Bester’ contradicts what he telephonically
conveyed to ‘Van Vuuren’ on 20 February 2026. It was submitted on behalf of
the applicant that there is no contradiction.
[29] In the telephonic conversation “Bester” mentioned the removal of some
of the attached items. In his affidavit he specified the item that was removed
after being processed as being granite and the details of the vehicle which was
used daily to continue with business operations of the respondent. I agree with
the submissions on behalf of the applicant that there is no contradiction. Instead,
“Bester” specified the item that was removed and sold and the particulars of the
vehicle that was used daily despite having been attached. The affidavit of
“Bester” states clearly how the respondent disregarded the attachment and
continued with its daily business of processing granite and transporting it to its
customers with a Toyota Land Cruiser. The remedy provided by the granting of
the rental interdict did not yield the results as the respondent continued with the
business of the day as if the order was not granted.
[30] It was argued on behalf of the respondent that it has a bona fide defence
in the action instituted or pending in the Rustenburg Magistrates` court. It was
contended on behalf of the applicant that the defences raised by the respondent
are vague and lack details. In paragraph 3 of the without prejudice letter dated
12 January 2026 the respondent acknowledged that there are certain outstanding
amounts, including the arrear rental amounts and that the respondent will pay
them on or before 26 January 2026. In KDL Residential CC v Empire Earth
Investments 17 (Pty) Ltd8 it was held that without prejudice communications can
be admitted for the specific purpose of proving an acknowledgement of liability
or a crucial fact, particularly when the lack of such evidence would allow a
party to abuse the court process.
[31] In the present matter, the respondent did not place the applicant on terms
for such a breach after the applicant`s attorneys placed them on term s for their
breach. Instead, the respondent acknowledged that certain outstanding amounts,
including the arrear rental amounts in the without prejudice letter. Applying the
principle in KDL Residential CC v Empire Earth Investments , supra, to the
present matter , I find that the ‘without prejudice’ letters are relevant and the
applicant is entitled to rely on them for purpose of proving that the respondent
8 [2017] ZASCA 98.
acknowledged liability for arear rental and certain outstanding amount as is a
crucial fact in this matter.
[32] In Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd ,9 the
Supreme Court of Appeal stated how the court should deal with uncreditworthy
denials, including denials that are far -fetched or clearly untenable, and stated
that the court is justified in rejecting them merely on the papers. In the present
matter the respondent`s acknowledgement of the arear rental and certain
outstanding amount s in the ‘without prejudice’ letters is an admission of the
facts averred by the applicant.
[33] Amongst other defence raised is that the applicant breached the
agreement by misrepresenting the conditions of some of the equipment on the
property. Further that the sale was a going concern. It was submitted on behalf
of the applicant that the defence raised by the respondent are vague and do not
have details. In clause 19 of the sale agreement the respondent declared that it
was granted a fair opportunity to inspect the property to its satisfaction…, all
the items listed are sold “voetstoots” in their present condition without
guarantees and/or representations , and will not hold the seller liable for any
other damages and defects to the property which might become apparent at a
later stage.
[34] In terms of section 11(1)( e) of Value Added Tax, 10 the parties to the sale
agreement of a commercial property must agree in writing that the sale is a
going concern and that the price includes VAT at 0%. In the present matter
there is no such clause in the sale agreement between the parties. Applying the
9 1984 (3) SA 623 (A) at 634-635.
10 89 of 1991.
principle in the Plascon -Evans to the present matter, most of the averments of
the applicant were admitted by the respondent. The above mentioned justifies
the granting the relief sought by the applicant as the applicant will suffer
financial loss due to t he pilling billing, the use of the Toyota Land Cruiser
vehicle continually, exposes the applicant to risk as the vehicle is not insured.
Further, the removal and sale of the generator without the consent of ‘Van
Vuuren’ of the applicant prejudiced the applicant and warranted the granting of
the order.
Order
[35] Consequently, the following order is made:
1. THAT: The eviction forthwith of the Respondent and all such other
occupiers that enjoy occupation through said Respondent from the
premises situate at 1 [...] W[...] Avenue known as Erf 2[...]
Rustenburg Extension 2) ("the Premises");
2. THAT: Authorising and directi ng the sheriff or his lawful deputy to take
such steps as are necessary to evict the Respondent and all persons
holding occupation through the Respondent from the premises in
the event of the said Respondent and such other persons failing to
vacate the sai d premises forthwith upon service on them of the
order herein;
3. THAT: Interdicting the Respondent pending the return of the premises to
the Applicant to remove any equipment and movable items
therefrom;
4. THAT: Authorising the Applicant to reasonably ac cess the premises at
1[...] W[...] Avenue Rustenburg during business hours pending the
return of the premises to the Applicant;
5. THAT: Costs on scale B against the Respondent;
____________________
L MAKOLOMAKWE
ACTING JUDGE
NORTH WEST DIVISION, MAHIKENG
APPEARENCES
Date of Hearing 6 March 2026
Judgment Handed down 01 April 2026
For the Applicant Adv J Moller