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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, JOHANNESBURG
CASE NUMBER: 2024-087390
In the matter between:
NUVUE INVESTMENTS (PTY) LTD APPLICANT
And
MMASELLO BUSINESS ENTERPRISE CC
t/a KEYALENA PHARMACY RESPONDENT
Heard: 2 March 2026
Delivered: 21 April 2026
(1) REPORTABLE: YES / NO
(2) OF INTEREST TO OTHER JUDGES: YES / NO
(3) REVISED: YES / NO
21 April 2026 __________________________
DATE SIGNATURE
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JUDGMENT
WINDELL J:
Introduction
[1] The applicant, Nuvue Investments (Pty) Ltd, seeks an order for the eviction of the
respondent, Mmasello Business Enterprise CC t/a Keyalena Pharmacy, from
commercial premises situated at the F[ … ] G[…] Shopping Centre. The application is
framed as a so- called “no-fault” commercial eviction, in that the applicant relies on the
termination of the lease on notice, rather than any breach on the part of the respondent.
The application is opposed.
[2] In addition, the notice of motion includes a claim for damages arising from the
respondent’s alleged holding over. The claim for damages is not persisted with.
[3] The central issue is the nature of the lease agreement and whether it has been
validly terminated. The applicant contends that the respondent occupies on a month- to-
month basis following tacit relocation of an earlier signed lease agreement, which
terminated on 31 March 2019. The respondent disputes this and contends that the
relationship is governed by an amended offer to lease (‘OTL’) concluded in September
2021, alternatively a binding agreement arising from acceptance by conduct.
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Background
1 See Reid Bros (South Africa) Ltd v Fischer Bearings Co Ltd 1943 AD 232; Tactical Reaction Services
CC v Beverley Estate II Homeowners Association (2007/16441) [2010] ZAGPJHC 102 ( 5 November
2010).
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[4] The applicant is the owner of the F[ …] G[…] Shopping Centre, within which the
respondent conducts the business of a retail pharmacy from Shop FG13.
[5] The respondent has occupied the premises since February 2014, initially in terms
of a written lease concluded with the previous owner of the shopping centre, Balvest
CC. That lease expired on 31 March 2019.
[6] During 2019, the shopping centre was sold to the applicant, together with the
existing tenant occupancy and lease arrangements. The respondent remained in
occupation of the premises after the expiry of the initial lease.
[7] The applicant’s case is that, following the expiry of the written lease, the
respondent continued to occupy the premises on a month- to-month basis arising from
tacit relocation on the terms of the original lease.
[8] The respondent disputes this. It contends that, although no formal written lease
was concluded immediately after March 2019, he parties continued their relationship on
terms substantially similar to those of the previous lease, subject to agreed increases,
until 2021. In or about July 2021, the applicant, through its managing agent, presented
the respondent with a written offer to lease (the ‘ OTL’), which set out the terms upon
which a further lease would be concluded.
[9] The respondent raised concerns regarding certain provisions of the OTL. It
amended certain clauses, signed the document on 24 September 2021, and returned it
to the applicant. The respondent contends that this was done with the knowledge and
agreement of the applicant.
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[10] The applicant’s case is that the amended OTL, which was annexed to the
founding affidavit, constituted a counter -offer which it did not accept. The respondent,
however, contends that the OTL was accepted, alternatively that a binding agreement
arose through the conduct of the parties.
[11] In support of that contention, the respondent relies on the subsequent conduct of
the parties, including the implementation of the terms reflected in the OTL, the issuing of
invoices consistent with those terms, and the provision of a bank guarantee in favour of
the applicant.
[12] It is common cause that no formal lease agreement, as contemplated in the OTL,
was subsequently signed. During May 2024, the applicant, through its attorneys,
addressed a letter to the respondent purporting to terminate the respondent’s right of
occupation on one month’s written notice, requiring the respondent to vacate the
premises by 30 June 2024.
[13] The respondent did not vacate the premises and disputed the validity of the
termination. It contended that the relationship between the parties was governed by the
OTL and that the applicant had not validly terminated the agreement in accordance with
its terms.
[14] The present application was thereafter instituted for the respondent’s eviction.
Evaluation
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[15] The dispute between the parties centres on the nature of the lease agreement
governing the respondent’s occupation and, in particular, whether the applicant validly
terminated that agreement.
[16] In my view, it is not necessary to resolve the factual dispute between the parties
as to the precise characterisation of the lease agreement. In motion proceedings, where
disputes of fact arise, the matter must be determined on the respondent’s version,
together with those facts admitted by the applicant, unless the respondent’s version is
so far-fetched or untenable that it can be rejected on the papers. If, on that version, the
applicant is entitled to relief, the court may grant it without resolving the dispute.2
[17] I proceed accordingly on the respondent’s version. On that version, the
relationship between the parties is governed by the OTL, which the respondent
contends constitutes a binding agreement, alternatively one arising through the conduct
of the parties.
[18] Clause 28 of the OTL provides that the landlord has the right, in its sole
discretion, to cancel the offer to lease if the formal agreement of lease is not signed and
returned within 30 days of delivery to the tenant.
[19] Clause 32.4 further provides that, should the tenant fail or refuse to sign the
landlord’s standard agreement of lease within 30 days, the OTL will constitute the
agreement of lease between the parties, subject to a right of termination at the instance
of the landlord on one calendar month’s written notice.
2 See Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A); National Director of
Public Prosecutions v Zuma 2009 (2) SA 277 (SCA).
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[20] Clause 32.7 specifically provides that:
‘The Landlord reserves the right to terminate this agreement by giving the tenant 1 (one)
months written notice of termination.’
[21] It follows from these provisions that the agreement was terminable at the
instance of the landlord on one calendar month’s written notice. This arises both from
failure to conclude a formal lease agreement within the stipulated period and from the
express termination right reserved to the landlord.
[22] It is common cause that the respondent did not sign a subsequent formal lease
agreement as contemplated in the OTL. It is further not disputed that the applicant,
through its attorneys, delivered a written notice of termination on 10 May 2024,
terminating the respondent’s right of occupation on one month’s notice, with effect from
30 June 2024.
[23] While the notice of termination cited several reasons, including the respondent’s
failure to conclude a formal lease agreement, it is well established that a party
terminating an agreement is not confined to the reasons stated in the notice and may
rely on any valid ground for termination that existed at the time. The enquiry is
accordingly whether, on the facts, a lawful basis for termination existed.
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[24] The respondent further contends that the applicant’s termination was motivated
by a desire to accommodate a competing tenant and was therefore improper. That
contention does not avail the respondent. The motive for termination is, in any event,
3 Putco Ltd v TV & Radio Guarantee Co (Pty) Ltd and other related cases 1985 (4) SA 809 (A) at 832C-D;
Datacolor International (Pty) Ltd. v Intamerket (Pty) Ltd 2001 (2) SA 284 (SCA) at para 28.
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legally irrelevant. In Montle and Neo Transport Service, 4 the Court, relying on
Bredenkamp, 5 reaffirmed that a party invoking a contractual right of termination is not
required to justify its reasons for doing so. A termination on notice may be effected for
commercial or subjective reasons, whether well -founded or not. What is decisive is
whether the contractual right to terminate exists and has been properly exercised.
[25] The respondent does not dispute receipt of the notice of termination. Its case is
rather that the applicant, having pleaded a month- to-month lease and having denied
that the OTL governed the relationship between the parties, is not entitled to rely on the
termination provisions of the OTL. That contention cannot be sustained. The matter falls
to be determined on the respondent’s version. On that version, the OTL governs the
relationship between the parties and contains the termination provisions now in issue.
[26] The respondent’s reliance on the amended OTL gives rise, at best, to a dispute
as to the contractual framework governing the relationship between the parties,
including the terms upon which any holding over would be assessed. That dispute may
have been relevant to a claim for damages. It does not, however, establish a right to
remain in occupation.
[27] Moreover, the respondent’s version contains an inherent inconsistency. It seeks
to rely on the amended OTL as governing the relationship between the parties, while at
the same time contending that the applicant cannot rely on the termination provisions
4 Montle and Neo Transport Service and Another v Engen Petroleum Limited and Another (20420/2022)
[2023] ZAWCHC 212 (18 August 2023).
5 Bredenkamp and Others v Standard Bank of South Africa Ltd 2010 (4) SA 468 (SCA).
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contained therein. That is not a sustainable position. The respondent cannot both rely
on the OTL and deny the operation of its terms.
[28] Properly considered, the respondent’s reliance on the amended OTL does not
constitute a defence to the eviction claim. The OTL expressly permits termination on
one calendar month’s written notice. The respondent’s case therefore does not
demonstrate that the applicant was not entitled to terminate the agreement.
[29] The respondent raised a number of further defences, including that the
application is premature, that the applicant impermissibly sought to make out a new
case in reply, and that the applicant failed to comply with the provisions of the
Consumer Protection Act 68 of 2008. None of these defences avail the respondent.
[30] The prematurity argument is founded on the contention that the applicant is not
entitled to rely on the termination provisions of the OTL. For the reasons already given,
the matter falls to be determined on the respondent’s version, on which the OTL
governs the relationship between the parties. That argument cannot be sustained.
[31] The respondent’s complaint that the applicant impermissibly sought to make out
a new case in reply is u nfounded. The applicant’s case has consistently been that the
respondent’s right of occupation has been validly terminated. The reliance on the
provisions of the OTL arises in response to the respondent’s own version that the OTL
governs the relationship between the parties. In determining the matter on the
respondent’s version, the court is entitled to have regard to the contractual provisions
relied upon by the respondent. This does not amount to the making out of a new case,
but rather constitutes a proper engagement with the respondent’s defence.
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[32] As to the Consumer Protection Act, the respondent contends that, by virtue of
clause 34 of the OTL, the agreement is subject to the Act where its annual turnover falls
below the prescribed threshold. It further contends that the applicant was required to
afford it an opportunity to remedy any alleged breach prior to termination.
[33] The respondent has not established, on the papers, that the Act applies to the
agreement in question. In any event, the termination relied upon by the applicant is not
based on breach, but on the exercise of a contractual right to terminate on notice. There
is accordingly no basis to conclude that the provisions of the Act would preclude
termination in the circumstances of this case.
[34] In the result the following order is made:
1. The respondent is ordered to vacate the premises known as Shop F[ …] ,
F[…] G[…] Shopping Centre, within 14 days of this order.
2. In the event that the respondent fails to vacate the premises within that
period, the Sheriff is authorised to evict the respondent and all those holding
under it.
3. The respondent is ordered to pay the costs of the application on Scale B.
________________
L. WINDELL
JUDGE OF THE HIGH COURT
GAUTENG LOCAL DIVISION,
JOHANNESBURG
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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 21 April 2026.
APPEARANCES
For the applicant: S Mohammed
Instructed by: Dasoo Attorneys
For the respondent: E A Lourens
Instructed by: Ramabulana Attorneys
Date of hearing: 2 March 2026
Date of judgment: 21 April 2026