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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
CASE NUMBER: 2024-134454
In the matter between:
EMM PROPERTY HOLDINGS (PTY) LTD APPLICANT
And
WORDLWIDE RAIL AND MINING SOLUTIONS (PTY) LTD FIRST RESPONDENT
JASON VISAGIE SECOND RESPONDENT
Heard: 2 February 2026
Delivered: 8 April 2026
(1) REPORTABLE: YES / NO
(2) OF INTEREST TO OTHER JUDGES: YES / NO
(3) REVISED: YES / NO
8 April 2026 __________________________
DATE SIGNATURE
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JUDGMENT
WINDELL J:
Introduction
[1] This is an application for summary judgment brought in terms of Rule 32 of the
Uniform Rules of Court. The plaintiff seeks payment of alleged arrear rent al and
charges in the amount of R35 414.00, together with interest, and the ejectment of the
first defendant from leased premises following cancellation of a written lease
agreement.
[2] The defendants oppose the application, raising both points in limine and
defences on the merits. Central to their opposition are contentions that the matter is lis
alibi pendens, that the lease was not validly cancelled, that the amount claimed is not
liquidated or easily ascertainable, and that a substantial counterclaim defeats summary
judgment.
Background facts
[3] The plaintiff, EMM Property Holdings (Pty) Ltd, concluded the lease agreement
with the first defendant, Worldwide Rail and Mining Solutions (Pty) Ltd, on 10 May 2023.
In terms of the lease, the first defendant occupied commercial premises situated at Jet
Park, Boksburg, comprising portions of Erf 4[ …] and Erf 4[ …] , Jet Park Extension 15
Township, and portions of the farm Witkoppie No. 64, Registration Division IR, Gauteng
Province (collectively, “the premises”).
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[4] The first defendant utilised the premises for the repair of rail carriages and
related engineering work, together with the administration thereof.
[5] In terms of the lease agreement and addenda, the first defendant was , inter alia,
obliged to pay to the plaintiff: (a) with effect from 1 June 2024, a basic monthly rental of
R600 000.00, escalating at 7% per annum, compounded; ( b) municipal rates in the
amount of R40 300.00 per month, together with such increases as contemplated in the
lease agreement; (c) all charges for electricity and water consumed on or attributable to
the premises, as measured by the relevant meters or sub- meters; and ( d) all sanita ry,
refuse removal (including special refuse removal), sewerage and other local authority
charges attributable to the premises.
[6] The second defendant bound himself as surety and co- principal debtor for the
obligations of the first defendant in terms of the lease.
[7] The agreement provided that a certificate of balance by the p laintiff would
determine and prove the balance of the first defendant's indebtedness arising from the
lease agreement at any time and be prima facie proof of the fact of the f irst defendant's
indebtedness and the amount thereof.
[8] It is alleged that during October 2024 the first defendant fell into arrears. On 8
October 2024 the plaintiff addressed a written demand to the first defendant, in terms of
the lease agreement, affording it seven days to remedy the breach. At that stage, the
first defendant was in arrears in the sum of R1 050 490.00. The breach was not
remedied, and on 16 October 2024 the plaintiff cancelled the lease agreement for non-
payment. The first defendant nevertheless remained in occupation of the premises.
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[9] Thereafter, the first defendant made payment towards the outstanding amounts.
The plaintiff contends that such payment did not extinguish the indebtedness and that
an amount of R35 414.00 remained outstanding. In support of its monetary claim, the
plaintiff relies on a statement of account and a certificate of balance reflecting arrears in
that amount, which it contends is liquidated and readily ascertainable.
[10] The plaintiff issued summons on 15 November 2024. In the action, the plaintiff
advances two claims. Claim 1 is for payment of the amount of R35 414.00, together with
interest and ejectment from the premises. Claim 2 is a claim for damages in the amount
of R31 850 248.42. The present application for summary judgment is confined to Claim
1 and the claim for ejectment.
The defendant’s case
[11] The defendants oppose summary judgment on both procedural and substantive
grounds.
[12] As a point in limine, they contend that the application is lis alibi pendens. They
rely on earlier proceedings between the same parties concerning the same lease and
premises, in which judgment was granted against the first defendant by Noko J on 9
May 2025. They argue that entertaining the present application undermines the pending
appeal and offends section 18 of the Superior Courts Act 10 of 2013.
[13] The defendants further submit that ejectment was not properly pleaded, as the
particulars of claim do not contain sufficient averments to sustain such relief and
cancellation cannot competently be confirmed at the summary judgment stage.
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[14] On the merits, the defendants deny that the lease was validly cancelled. They
contend that the plaintiff attempted to cancel the lease on several occasions, that those
cancellations were disputed and ineffective, and that the plaintiff cannot repeatedly
cancel the same agreement. They further rely on the plaintiff’s acceptance of rental and
municipal payments over an extended period as demonstrating waiver of any prior
cancellation or, alternatively, reinstatement of the lease. The defendants also rely on an
alleged lien over the premises.
[15] In relation to the monetary claim, the defendants contend that the amount of
R35 414.00 is not liquidated or easily ascertainable. They argue that the internal
statement of account relied upon by the plaintiff does not reconcile, that supporting
municipal invoices are absent, and that the certificate of balance is tainted by
inaccuracies.
[16] The defendants also persist with a counterclaim for damages arising from alleged
water damage to a diesel locomotive, quantified in foreign currency and said to far
exceed the plaintiff’s claim. They contend that this counterclaim constitutes a bona fide
defence and gives rise to set-off.
Evaluation
[17] It is trite that Rule 32 is not intended to shut a defendant out of court where a
triable issue is disclosed. At the same time, it is designed to prevent defendants from
delaying judgment by raising defences that are illusory, vague or bad in law.
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1 See Maharaj v Barclays National Bank Ltd 1976 (1) SA 418 (A).
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[18] A defendant resisting summary judgment must disclose fully the nature and
grounds of the defence and the material facts relied upon. The question is whether the
facts alleged, if established at trial, would constitute a defence in law.2
[19] The plaintiff submits that the defences raised by the defendants are bald,
unsubstantiated, and do not disclose facts which, if proved at trial, would constitute a
defence to the claims. It accordingly seeks summary judgment as prayed.
Lis alibi pendens
[20] The defendants rely on lis alibi pendens arising from the prior proceedings before
Noko J.
[21] A plea of lis pendens is a matter of substance which is ordinarily required to be
raised by way of a special plea. In this matter, the defence was raised in the answering
affidavit resisting summary judgment, but not in the plea.
[22] While a court is not precluded, in an appropriate case, from considering such a
defence even if not formally pleaded, the failure to plead it is not without consequence.
It underscores the absence of a properly formulated factual foundation for the defence
and the fact that it was raised only at a later stage of the proceedings.
[23] In any event, even if the defence is considered on its merits, it cannot succeed.
[24] A plea of lis pendens is dilatory in nature. Its purpose is to prevent the duplication
of litigation and the risk of conflicting judgments where there is pending litigation
2 PCL Consulting (Pty) Limited t/a Phillips Consulting SA v Tresso Trading 119 (Pty) Limited 2009 (4) SA
68 (SCA), paragraph 8.
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between the same parties, based on the same cause of action, and in respect of the
same subject matter. The requirements for its successful invocation are well
established: there must be pending litigation; between the same parties; based on the
same cause; and in respect of the same relief. 3
[25] While the parties and the lease are common to both sets of proceedings, the
present claim is founded on alleged arrears arising in October 2024 and a cancellation
effected on 16 October 2024.
[26] The earlier proceedings relied upon by the defendants concerned a different
alleged cancellation and arose from a different factual matrix. In those proceedings, the
first defendant breached the lease by failing to pay rates charges, despite a demand
made on 2 August 2023. The breach was not remedied, and the plaintiff cancelled the
lease by written notice.
[27] Proceedings were thereafter instituted, which were defended, and on 9 May 2025
Noko J granted an order ejecting the first defendant from the premises. That order is the
subject of an appeal.
[28] The present proceedings are, however, founded on alleged arrears arising in
October 2024 and a cancellation effected on 16 October 2024. A subsequent breach of
contract may give rise to a fresh cause of action, notwithstanding the existence of prior
litigation between the same parties. The distinction between the earlier cancellation and
3 Caesarstone Sdot-Yam Ltd v The World of Marble and Granite 2000 CC and Others (741/12) [2013]
ZASCA 129 paras [1] to [3]; 2013 (6) SA 499 (SCA); [2013] 4 All SA 509 (SCA).
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the October 2024 cancellation lies at the heart of the defendants’ reliance on lis
pendens.
[29] Section 18 of the Superior Courts Act regulates the execution and operation of
orders that are the subject of appeal. It does not preclude the institution of fresh
proceedings based on subsequent events. The defence of lis alibi pendens was, in any
event, not pleaded, but raised only in the answering affidavit.
[30] In these circumstances, the defence does not, on the facts alleged, constitute a
bona fide defence to the present claims.
The alleged arrears
[31] The defendants’ denial of arrears is not supported by any factual detail. They
state that have been paying rental in the amount of R600 000 per month. It is common
cause, however, that the total monthly rental is approximately R645 000 plus VAT. On
the defendants’ own version, they were therefore not paying the full rental due in terms
of the lease and were in arrears.
[32] The defendants do not set out what amounts were due, what payments were
made, when such payments were made, or how any alleged arrears were extinguished
prior to cancellation. A bare denial of indebtedness, unsupported by factual detail, does
not constitute a bona fide defence.
[33] It is further common cause that, after the cancellation of the lease on 16 October
2024, the first defendant made a payment. The plaintiff alleges that this payment did not
extinguish the indebtedness and that an amount remained outstanding.
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[34] The timing of the payment is significant. A payment made after cancellation does
not cure the breach that entitled the plaintiff to cancel, nor does it retrospectively
invalidate a cancellation lawfully effected. To resist ejectment, the first defendant was
required to show that it had discharged its obligations prior to cancellation. This it has
not done.
[35] The defendants’ reliance on a subsequent payment, coupled with a bare denial
of arrears, does not constitute a bona fide defence.
Alleged lien
[36] In their plea, the defendants make reference to an alleged lien over the premises.
However, no facts are set out in the answering affidavit in support of such a defence.
The nature of the lien, the basis upon which it is said to arise, and the factual
circumstances giving rise to it are not disclosed.
[37] A defendant resisting summary judgment is required to set out fully the material
facts upon which the defence is based. A bare assertion of a lien, without supporting
facts, does not constitute a bona fide defence and falls to be disregarded.
Waiver and reinstatement
[38] Waiver is not lightly inferred. It occurs where a party, with full knowledge of a
right, intentionally relinquishes or abandons it. The test is objective: the party’s intention
is assessed with reference to their outward conduct, whether expressed through words,
actions, or a combination of both. In Coppermoon Trading 13 (Pty) Ltd v Government,
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Eastern Cape Province, 4 the court held that where waiver is not expressly stated, the
conduct relied upon must, on a reasonable interpretation, be more consistent with an
intention to waive the right than to assert it.
[39] The onus rests on the party alleging waiver to establish it on the facts. The
defendants rely primarily on the plaintiff’s acceptance of rental and municipal payments
over a period of time, as well as the dispatch of a further demand and cancellation in
October 2024. They contend that this conduct is indicative of a waiver of the plaintiff’s
right to cancel, or alternatively, a reinstatement of the lease.
[40] This contention is not supported by the facts alleged. The acceptance of
payments, without more, does not constitute a waiver of a prior breach or cancellation. It
is not inconsistent with an intention to enforce contractual rights, particularly where the
underlying breach has not been remedied.
[41] Significantly, the defendants do not allege the conclusion of any agreement —
whether express or tacit —by which the lease was reinstated. Nor do they set out facts
demonstrating conduct that is unequivocally consistent only with an intention to
abandon the right to cancel.
[42] The plaintiff’s conduct in issuing a fresh demand and cancelling the lease in
October 2024 is, if anything, indicative of an intention to enforce its rights under the
lease, rather than to waive them.
4 2020 (3) SA 391 (ECB) at para 23.
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[43] The issue is not whether the defendants’ version is probable, but whether the
facts alleged, if proved at trial, would constitute a defence in law. On the facts alleged,
the reliance on waiver or reinstatement is untenable and does not constitute a bona fide
defence.
Ejectment and cancellation
[44] The particulars of claim allege the existence of the lease, breach by non-
payment, demand, cancellation, and continued occupation. Ejectment is the natural
consequence of a valid cancellation and holding over.
[45] The defendants’ contention that the plaintiff cannot cancel the lease more than
once is not supported by principle. Where a lessee commits fresh breaches, the lessor
is not precluded from cancelling on the basis of those breaches, provided the
contractual requirements are met.
[46] The defendants do not allege that the amounts demanded were paid prior to the
October 2024 cancellation, nor do they allege any agreement reinstating the lease after
cancellation. Reliance on post-cancellation negotiations or the acceptance of payments,
without more, does not in itself establish waiver or reinstatement.
[47] The defence to ejectment is largely argumentative and does not disclose facts
which, if proved, would probably defeat the plaintiff’s claim.
Quantum/Counterclaim
[48] The defendants contend that the amount claimed is not easily ascertainable.
While the claim arises from agreed charges under the lease and is supported by a
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certificate of balance, the defendants have raised issues concerning the reconciliation of
the account.
[49] The defendants further rely on a counterclaim sounding in damages. While such
a claim does not, without more, constitute a defence to ejectment, it underscores that
there are disputes relating to the monetary aspects of the claim.
[50] In the circumstances, and notwithstanding the deficiencies in the defendants’
version, I am not persuaded that the plaintiff is entitled to summary judgment in respect
of the monetary claim, which is more appropriately determined at trial.
Guarantee
[51] The defendants also rely on the existence of a guarantee, contending that it
ought to be taken into account in determining the plaintiff’s claim. This contention is not
advanced as a defence to cancellation or ejectment, but rather as part of the
defendants’ challenge to the quantification of the amount allegedly owing and, implicitly,
as a basis for set-off.
[52] In any event, the defendants do not allege that the conditions for repayment of
the guarantee have been met. They remain in occupation of the premises and dispute
the validity of the cancellation. In those circumstances, the reliance on the guarantee
does not constitute a defence to ejectment and does not, on the facts alleged, avail the
defendants in resisting summary judgment on that aspect of the claim.
Conclusion
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[53] The defence of lis alibi pendens is without merit. The defendants have failed to
disclose any facts which, if proved at trial, would constitute a defence to the plaintiff’s
entitlement to cancel the lease and seek ejectment.
[54] On the defendants’ own version, they were not paying the full rental due and
were accordingly in arrears at the time of cancellation. They have failed to establish that
the breach was remedied prior to cancellation or to advance any factual basis upon
which it can be said that the plaintiff was not entitled to cancel the lease. The plaintiff
has accordingly established its entitlement to ejectment.
[55] In relation to the monetary claim, however, I am not persuaded that summary
judgment is appropriate. That aspect is more suitably determined at trial.
[56] In the result, summary judgment is granted in favour of the plaintiff to the extent
set out below:
1. Summary judgment is granted in favour of the plaintiff in respect of the
ejectment of the first defendant.
2. The lease agreement between the plaintiff and the first defendant is declared
to have been validly cancelled on 16 October 2024.
3. The first defendant is ordered to vacate the premises within 14 days from
date of this judgment , that is o n or before 21 April 2026, failing which the
sheriff is authorised to eject the first defendant.
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4. The defendants are granted leave to defend the plaintiff’s claim for payment
of R35 414.00 and any related monetary relief.
5. Costs are costs in the cause.
________________
L. WINDELL
JUDGE OF THE HIGH COURT
GAUTENG LOCAL DIVISION,
JOHANNESBURG
Delivered: This judgement was prepared and authored by the Judge whose name is
reflected and is handed down electronically by circulation to the Parties/their legal
representatives by email and by uploading it to the electronic file of this matter on
CaseLines. The date for hand-down is deemed to be 8 April 2026.
APPEARANCES
For the applicant: J G Dobie
Instructed by: Reaan Swanepoel Attorneys
For the respondent: A Allison
Instructed by: Vardakos Attorneys
Date of hearing: 2 February 2026
Date of judgment: 8 April 2026
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