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IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO: 2024-085265
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED.
(4) Date: 08 April 2026
Signature:
In the matter between:
FREESTONE PROPERTY INVESTMENTS (PTY) LTD Applicant/Plaintiff
And
JUNXION TRAMSHED (PTY) LTD First Respondent/Defendant
[registration No. 2019/369268/07]
ALBERT MPHO NGOBENI Second Respondent/Defendant
[ID No. 7[...]]
NKATEKO PEARL NGOBENI Third Respondent/Defendant
[ID No. 8[...]]
JUDGMENT
NYATHI J
A. Introduction
[1] This is an application for summary judgment (limited to Claim 1) in which the
Plaintiff seeks payment of R329 349.94, interest at prime plus 5% from date of
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summons, and costs on an attorney ‑and‑own‑client scale, arising from arrear
rentals and charges allegedly due after the First Defendant vacated the leased
premises on 30 November 2023 and before the Plaintiff cancelled the lease on
service of summons in August 2024.
[2] The Defendants entered an appearance to defend and delivered a plea (since
amended) and an affidavit resisting summary judgment. They raise, in
essence, three clusters of defences:
(a) public ‑policy challenges to the termination clause and the
certificate‑of‑balance clause;
(b) non‑liquidity of the claim; and
(c) a suite of factual/legal arguments (consensual cancellation by operation of
law; supervening impossibility; mitigation; and issues around the deposit).
B. Common-cause background
[3] The parties concluded a written lease commencing 1 March 2020 (extended to
28 February 2031 via addendum). The lease fixed monthly rental and ancillary
charges; provided for default interest at prime + 5% (compounded); recorded
suretyships by the Second and Third Defendants; contained an
acceleration/liquidated damages provision on cancellation by the landlord; an
arbitration clause; and a certificate‑of‑balance clause (clause 40).
[4] On 30 November 2023 the First Defendant vacated the premises. The Plaintiff
treated that as repudiation, did not accept it, and maintained the lease until it
cancelled upon issuance/service of summons in August 2024. A statement
(Annexure “F”) and a certificate of balance (Annexure “G”) underpin the claim
for R329 349.94.
C. Issues for determination
[5] The crisp questions at summary ‑judgment stage are whether the Defendants
have disclosed fully the nature and grounds of a bona fide defence that is
good in law or have otherwise raised a triable issue. The following specific
issues arise on the papers:
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5.1 Whether the termination clause is contra bonos mores or its
enforcement would be contrary to public policy in the
circumstances;
5.2 Whether the certificate ‑of‑balance clause (clause 40) is invalid
as a “conclusive proof ” device or otherwise offends public
policy;
5.3 Whether Claim 1 is for a liquidated amount capable of speedy
ascertainment;
5.4 Whether the lease terminated by operation of law /
consensually when the keys were handed over;
5.5 Whether supervening impossibility or trading hardship
(including alleged competition from “Clicks”) justifies
non‑performance; and whether a contractual no ‑remission /
competition allowed framework precludes that defence;
5.6 Whether any of the above, individually or collectively, defeats
summary judgment.
D. Applicable legal principles
[6] The purpose and standard for summary judgment are uncontentious on the
authorities marshalled by Ms. Kotze on behalf of the Plaintiff:
i. The Plaintiff must establish the claim clearly;
ii. the Defendants must fully disclose a legally cognisable, bona fide defence
with sufficient particularity;
iii. doubt favours the Defendant but mere conclusions are insufficient.
[7] On public ‑policy review of contractual terms, the Constitutional Court in
Barkhuizen v Napier1 and Beadica 231 CC and Others v Trustees for the time
being of the Oregon Trust and Others2 emphasises:
i. That pacta sunt servanda remains a central, constitutional value;
1 (CCT72/05) 904 April 2007) [2007] ZACC 5; 2007 (5) SA 323 (CC).
2 (CCT109/19) [2020] ZACC 13; 2020 (5) SA 247 (CC); 2020 (9) BCLR 1098 (CC) (17 June 2020)
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ii. even a harsh/unfair term is not for that reason alone contrary to public
policy;
iii. a term or its enforcement may be refused only if it is so unfair,
unreasonable, or unjust that it offends public policy; and
iv. the party impugning must establish the facts to justify non‑enforcement.
[8] A certificate ‑of‑balance that purports to be conclusive proof and authored by
the creditor may be void; but where the clause stipulates only prima facie
proof, different considerations apply, and courts (including SB Guarantee v
Botes3) accept such certificates as procedural aids, not conclusive instruments.
[9] Liquidity turns on whether the amount is readily ascertainable from the contract
and arithmetical workings; arrear rentals are typically liquidated; inclusion of
utilities/interest does not necessarily de ‑liquidate if ascertainable from the
account.
[10] A non ‑variation / consensual ‑cancellation‑in‑writing clause bars reliance on
informal, tacit, or oral cancellation. Hand ‑back of keys without a written
agreement is ordinarily not consensual cancellation under such a clause.
[11] Supervening impossibility does not avail where the contract allocates the risk or
excludes remission/claims in broad terms; commercial hardship short of
objective impossibility is insufficient. Competing tenants and fitness for purpose
are often expressly disclaimed in retail leases.
E. Analysis
(1) The termination clause & public policy
[12] The Defendants contend that the lease permits early termination by the
landlord but not the tenant , which—given long duration and retail volatility —
“locks in” the tenant and is contra bonos mores ; they invoke Ubuntu, Botha v
Rich4, and Beadica 5 to argue that enforcement here would be
disproportionately harsh. They add that they warned the landlord of financial
3 [2024] 2 All SA 529 (GP); [2024] ZAGPPHC 161.
4 [2014] ZACC 11; 2014 (4) SA 124 (CC).
5 Supra footnote 2.
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distress, gave several months’ notice, and secured a replacement tenant
(Clicks).
[13] The Plaintiff counters that the Defendants freely contracted, even extended the
lease post ‑COVID by addendum, and had contractual dispute resolution
available (arbitration) yet uninvoked; that Beadica/Barkhuizen do not licence
courts to re ‑write bargains save in exceptional cases; and that hardship
coupled with a unilateral desire to exit do not found a right of cancellation at
common law absent a material breach by the other party.
[14] On the papers, the termination architecture is plain: no tenant right to early
cancellation, landlord remedies on breach/repudiation, and arbitration for
disputes. The Defendants’ public ‑policy case rests largely on general
assertions of inequality of bargaining power and harsh effects, rather than
specific primary facts (e.g., negotiation history, refusals, alternatives
considered). While Ubuntu and substantive fairness inform public policy ,
Beadica cautions that they do not operate as free ‑floating fairness overrides.
The Defendants have not shown that the clause is per se inimical to public
policy, nor that its enforcement here is so unfair as to cross the Beadica
threshold.
[15] I am mindful of the Botha v Rich “disproportionate penalty” language invoked
in the supplementary heads. But that case addressed cancellation where the
purchaser had paid most of the price; here, the Plaintiff claims accrued arrears
between vacating and contractual cancellation, not acceleration of the full
unexpired term; and the Defendants’ thesis of “no prejudice because Clicks
replaced us” is contested and, in any event, does not by itself negate
claimability of arrears for the relevant period on an election to enforce. On the
present facts, the Defendants’ contra bonos mores attack does not raise a
triable exception to enforcement at the summary‑judgment stage.
(2) The certificate-of-balance clause
(2) The certificate-of-balance clause
[16] The Defendants argue clause 40 is void because the creditor is the author and
such clauses are contra bonos mores on the Sasfin (Pty) Ltd v
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Beukes6/Abstein7 approach. The Plaintiff answers that clause 40 creates only
prima facie proof, not conclusive proof, and relies on SB Guarantee v Botes
and Rossouw v First Rand Bank Ltd 8 for the procedural utility of such
certificates even at the hearing.
[17] Clause 40 (as excerpted in the Plaintiff’s heads) indeed stipulates prima facie
proof and contemplates use for provisional sentence/summary judgment,
without purporting to oust rebuttal. On authority, that is not the kind of
conclusive‑proof device invalidated in Abstein. The Defendants’ challenge to
clause 40 fails in law on the papers.
(3) Liquidated amount?
[18] The Defendants say the amount is not liquid because the reconciliation starts
only February 2024 and includes utilities and interest, and because they
dispute the termination date and quantum. The Plaintiff cites Renico
Construction9 and allied authority for the proposition that outstanding/arrear,
agreed-upon rental is a “liquid” amount and that arithmetical working on agreed
rates/charges does not de‑liquidate.
[19] The claim is confined to the interim arrears ( post‑vacatur to cancellation). The
lease fixes basic rental, provides formulas for ancillary charges and interest,
and the account (“Annexure F”) itemises postings through the relevant months;
the certificate then states the running balance. On these papers, and applying
the Renico line, the amount claimed is capable of prompt ascertainment. The
complaint about missing Nov/Dec 2023 / Jan 2024 invoices could, if
substantiated with concrete counter ‑calculations, raise a factual dispute; but
the Defendants offer no alternate computation or documentary support —only a
speculative possibility of earlier errors by analogy to February reversals. That is
insufficient at this stage to de ‑liquidate the claim or demonstrate a triable
quantum dispute.
6 1989 (1) SA 1 (A)
7Ex Parte Minister of Justice: In re Nedbank v Abstein Distributors (Pty) Ltd and Others 1995 (3) SA 1 (A).
8 2010 (6) SA 439 (SCA).
8 2010 (6) SA 439 (SCA).
9 Standard Bank of South Africa v Renico Construction (Pty) Ltd 2015 (2) SA 89 (GJ).
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(4) Termination “by operation of law” / consensual cancellation
[20] The Defendants contend that vacating and handing over keys, coupled with the
Plaintiff’s acceptance of possession, amounted to consensual cancellation,
alternatively termination by operation of law. The lease, however, contains a
non‑variation / no consensual cancellation unless in writing and signed clause
(clause 38). On orthodox authority adopted in the Plaintiff ’s heads, such
clauses are enforceable, and informal conduct does not cancel. The Plaintiff ’s
position—that it did not accept repudiation and later cancelled on summons—is
consistent with clause 38. The defence therefore cannot stand.
(5) Supervening impossibility / hardship & “Clicks next door”
[21] The Defendants point to COVID ‑era hardship and say the Plaintiff placed a
powerful competitor (Clicks) adjacent, sounding “the death knell ”, making
performance impossible. The lease contains a broad “no claims/no remission ”
clause (cl ause 22.1) and a competition/fitness disclaimer (cl ause 9.2),
allocating those risks to the tenant. Moreover, objective impossibility is the
standard; here, the complaint is of commercial impracticability and
competition—matters the lease anticipates and allocates. On these authorities
and the contract, the defence fails.
(6) Deposit / set-off / mitigation
[22] The Defendants reserve rights to claim the deposit. The Plaintiff indicates the
deposit was set off per clause 7.4, as reflected in Annexure F; the Defendants
do not raise a pleaded set ‑off defence to Claim 1. That issue does not defeat
summary judgment on the arrears. As to mitigation, the Defendants ’ complaint
is misdirected in the face of the Plaintiff ’s election to hold them to the lease
pending cancellation; mitigation does not erase accrued obligations for the
period.
F. Conclusion
[23] The Defendants have not disclosed a bona fide, legally sustainable defence to
Claim 1. Their contra bonos mores attack does not, on the facts they advance,
Claim 1. Their contra bonos mores attack does not, on the facts they advance,
bring this case within the exceptional public ‑policy category contemplated by
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Beadica/Barkhuizen; the certificate ‑of‑balance clause is prima facie in nature
and valid; the amount is liquid; and the remaining defences (consensual
cancellation, impossibility, mitigation, deposit) do not avail them. Granting leave
to defend would only delay the inevitable at unnecessary cost.
G. Order
It is ordered that:
1. Summary judgment is granted in favour of the Plaintiff against the First,
Second and Third Defendants , jointly and severally, the one paying the
others to be absolved, for:
a. Payment of R329 349.94;
b. Interest on the aforesaid amount at the publicly quoted prime rate of
First National Bank plus 5 % per annum, compounded as provided in
the lease, from date of summons to date of final payment;
c. Costs of suit on the scale as between attorney and own client , as
provided for in the lease;
2. The Defendants’ counter‑contentions in relation to the deposit are reserved to
any separate action the Defendants may elect to institute; nothing in this order
determines that issue beyond recognising any set ‑off/appropriation already
reflected in the Plaintiff’s account.
____________________
J.S. NYATHI
Judge of the High Court
Gauteng Division, Pretoria
Date of Judgment: 08 April 2026
On behalf of the Applicant: Adv. L. Kotze
Applicant’s attorneys: GMI Attorneys, Pretoria
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On behalf of the Respondent: Adv. Ndaba V.S. Kgaka
Respondent’s attorneys: Lebala Moloi Attorneys Inc, Pretoria
Delivery: This judgment was handed down electronically by circulation to the parties' legal
representatives by email and uploaded on the CaseLines electronic platform. The date for hand -
down is deemed to be 08 April 2026.