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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case No: 061502-2026
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: YES
DATE 30 MARCH 2026
SIGNATURE
In the matter between:
In the matter between:
WASQAR TRADING (PTY) LTD APPLICANT
and
BRONKHORSPRUIT MALL (PTY) LTD RESPONDENT
JUDGMENT
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____________________________________________________________________
[1] The matter is considered to be urgent in light of the Respondent locking up the
premises on 07 March 2026 depriving the Applicant from continuing to engage
in business resulting in a loss of customers attending at the shop and thereby a
loss of revenue.
[2] It is common cause that the Applicant was in peaceful and undisturbed
possession of the premises described as:
“Shop No: 5[…]
Internal area, measuring approximately 308m 2 (three hundred and eight square
meters), as per centre plan annexed hereto marked “A”, forming part of the
development situated on Portion 17 of the Farm Nooitgedacht, 525 JR, Corner
of general Louis Botha and R25, Bronkhortspruit.”
before the Respondent locked the premises with a chain and padlock, which
dispossessed the Applicant of the property.
[3] The question before the Court is whether the dispossession was lawful.
[4] The requirements for a Spoliation Order are:
1) That the Applicant was in possession of the property; and
2) That the Respondent deprived him of possession forcibly or wrongfully
against his consent (as set out in Erasmus Superior Court Practice D7 – 6)
[5] The Applicants were dispossessed of the property without their consent, and
without due legal process being followed.
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[6] It is trite to note that a notice to vacate a property encourages voluntary
compliance as it can be seen to be brought in good faith, and results in
procedural fairness.
[7] The Respondent relies on the lease agreement between the parties, in
particular clause 34 quoted as follows:
“Any breach by the Lessee of the terms and conditions in this Offer to Lease
shall entitle the Lessor, without prejudice to any other rights and without giving
notice, either to cancel this Offer to Lease, or to claim specific performance.
The Lessor shall be entitled to recover from the Lessee all legal costs incurred
by it, including Attorney and own client charges, hereof, from the Lessee. The
Lessor shall be entitled to institute any claim for the payment of rental or other
amounts and/or damages, in any court having jurisdiction.”
[8] The Respondent, however, cannot resort to self -help by locking the Applicant
out of the property under the auspices of eviction, notwithstanding that clause
34 of the lease agreement (quoted above) provides for proceeding with legal
action without giving notice.
[9] On their own version , the Respondent has placed the Applicant on terms
contained in letter dated 25 February 2025 (transmitted to the Applicant on 25
February 2026), to launch a liquidation application with an eviction notice.
[10] The terms read as follows:
“We confirm that if your breach is not rectified, our client will proceed to cancel
the lease agreement with immediate effect and demand payment of R102 000-
00 immediately and further to request that you vacate the premises immediately
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failure to do so will resolve our client in proceeding to launch a liquidation
application together with an eviction notice as well as an application for
sequestration to the sureties who committed an act of insolvency in writing, as
such, we trust such drastic measures are not necessary and that you would
comply with this reasonable request.”
[11] A reasonable interpretation submitted is , if the Applicant made payment of
the abovementioned R102 000.00, the arrears would be expunged and the
contract proceed.
[12] In this instance, the Applicant has expunged all the arrears, and approaches
the urgent court with proverbial “clean hands”.
[13] The respondent , by s tating that they intend to evict the Applicant by notice
thereof, has acknowledged that the Applicant was in possession of the
property. Notice to vacate encourages voluntary departure and avoids legal
costs. It is indicative of showing good faith and procedural fairness.
[14] Any self-help to evict the Applicant by locking up the premises is disingenuous
and results in unlawful conduct.
[15] The urgent application succeeds and the Court Order is as follows:
[15.1] The Respondent is ordered to forthwith restore peaceful and
undisturbed possession to the Applicant of the shop premises situated
at shop 58, Bronkhorsprui t Mall and which trades as SOHI HOUSE &
HOME.
[15.2] The sheriff of the court is orde red to forthwith open up premises
mentioned in (2) above and to hand free and undisturbed possession of
same, to the Applicant’s representative.
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[15.3] Respondent is ordered to pay Applicants costs of suit on Scale B.
_______________________
R. FRANCIS-SUBBIAH
Judge of the Gauteng High court: Pretoria
Date of hearing: 24 March 2026
Date of Judgment: 24 March 2026
Appearances
For Applicant: Adv. Y Omar
Instructed by: Omar Attorneys
For Respondent: Adv. J Gregory
Instructed by: Frik Van Schalkwyk Attorneys Inc