REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION, PRETORIA
CASE NUMBER: 2024-072266
In the matter between:
ROSINA SEJA LEDIGA FIRST APPLICANT
REGAL LIQUOR STORE (PTY) LTD SECOND APPLICANT
and
CEHANLI BRINK FIRST RESPONDENT
RAYMOND GRAVETT HOWELL SECOND RESPONDENT
Heard: 27 October 2025
Delivered: 02 April 2026
This judgment is handed down electronically by circulating to the parties or their legal
representatives by email and by uploading the judgment onto CaseLines. The date
and time for hand down of the judgment are deemed to be 10:00 on 02 April 2026.
(1)
(2)
(3)
REPORTABLE: YES / NO
OF INTEREST TO OTHER JUDGES: YES/NO
REVISED: YES/NO
02 April 2026
Date
SIGNATURE
2
JUDGMENT
MATLAPENG A.J
INTRODUCTION
[1] This application is predicated against the Notice of Motion 1, Founding Affidavit2
Answering Affidavit3 as well as Replying Affidavits4 and the Annexure thereto.
[2] In the main, the application concerns the cancellation of a sale agreement5 based
on fraudulent misrepresentation alternatively final interdictory relief6.
[3] The core issue is whether the Respondents, fraudulent misrepresented the
validity of a liquor license in circumstan ces where such license, was allegedly
renewed without the knowledge or consent of its lawful holder.
[4] It is not in dispute that the First Applicant, purchased the business known as
Regal Liquor Store (Pty) Ltd from the Respondents for an amount of R495,000.
1 CaseLines: Notice of Motion 01-2-5
2 CaseLines: Founding Affidavit -01-6-18
3 CaseLines: Answering Affidavit 14-1-13
4 CaseLines: Replying Affidavit 16-1-14
5 CaseLines: Founding Affidavit 01-10 para 11
6 CaseLines: Founding Affidavit 01-1- para 12
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[5] The agreement contemplated the provision and the use of a liquor license. It is
also so that the Applicant paid the purchase price and operated the business as
a going concern. In the main, the dispute concerns the lawfulness and validity of
the liquor license.
THE FIRST POINT IN LIMINE
[6] It is so that the Respondents raise two points in limine namely that the Applicants
have failed to disclose a cause of action 7 and that there exist material disputes
of facts incapable of resolution on the papers.8
THE FIRST POINT IN LIMINE
[7] It is trite that a pleading or Founding Affidavit discloses a cause of action if it sets-
out the material facts relied upon and the legal basis for the relief sought. The
test is whether, on every reasonable interpretation, the pleaded facts sustain a
cause of action.
[8] More pointed, the Court does not evaluate the probability of success, but only
whether a legally recognisable claim is disclosed. The Applicant’s Founding
Affidavit clearly sets-out the conclusion of the sale agreement, the representation
by the Respondents that the liquor license was valid, the falsity of the
representation and the fact that the license was renewed without the knowledge
or consent of the lawful holder.
[9] These allegations, if proven, establish fraudulent misrepresentation which
entitles the Applicants to cancellation and consequential relief. In sum, the
7 CaseLines: Answering Affidavit 14-14-16
8 CaseLines: Answering Affidavit 14-16-18
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Applicants have sufficiently pleaded all the elements and the first point in limine
is accordingly bad in law and must be dismissed with costs.
THE SECOND POINT IN LIMINE
[10] The Respondents’ alleged disputes are not genuine as they fail to deal with the
central allegation that the liquor license was renewed without the consent of its
lawful holder.
[11] The Respondents fail to provide documentary proof of lawful renewal and rely on
bare denials and speculative assertions. More pointed, the Respondents fail to
produce confirmatory affidavits from key individuals which the Respondents
make reference to in their Answering Affidavit and the dispute raised is not real,
genuine nor bona fide.
[12] In sum, there is no genuine dispute of facts which exist, and the matter is properly
capable of determination on the papers. The second point in limine must thus
fail and is dismissed with costs.
THE ISSUES
[13] It is so that the determinative question to answer is whether the Respondents
misrepresented the validity of the liquor license and that such misrepresentation,
induced the conclusion of the contract.
ANALYSIS
[14] The law regarding fraudulent misrepresentation is settled law and a contract if
induced by fraud, is voidable. It is so that fraud requires:
6.1 A representation;
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6.2 Falsity.
6.3 Intention to mislead.
6.4 Inducement.
6.5 Prejudice.
[15] In the matter of Odendaal vs. Ferraris9 the Supreme Court of Appeals held the
following regarding voetstoots and the consequences thereof:
“[29] It is trite that if a buyer hopes to avoid the consequences of a
voetstoots sale, he must show not only that the seller knew of the latent
defect and did not disclose it, but also that he or she deliberately concealed
it with the intention to defraud (dolo malo).10 Where a seller recklessly tells
a half-truth or knows the facts but does not reveal them because he or she
has not bothered to consider their significance, this may also amount to
fraud.11 But as this court has said, fraud will not lightly be inferred, especially
when sought to be established in motion proceedings.12 And where a party
seeks to do so the allegation must be clear and the facts upon which the
inference is sought to be drawn succinctly stated.13
[16] It is also so that fraud neutralises contractual protections and excludes exclusion
clauses. The representation in this matter, is not merely express, it is inherent in
9 (4) SA 313 (SCA) at para 29
10 R H Christie The Law of Contract in South Africa 5 ed (2006) p 295; Van Der Merwe v Meades 1991 (2) SA 1 (A)
at 8E-F.
11 Christie (above) at p 295.
12 Loomcraft Fabrics CC v Nedbank Ltd and another 1996 (1) SA 812 (A) 822H-I.
13 Breedt v Elsie Motors (Edms) Bpk 1963 (3) SA 525 (A).
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the sale of a licensed liquor business. The Respondents represented that the
business was lawfully operatable and was supported by a valid license.
[17] It is so that the evidence established that the license was renewed without the
knowledge or consent of the lawful holder and that no lawful authority for such
renewal, has been demonstrated by the Applicants.14
[18] A liquor license is a statutory instrument a nd its validity, depends on strict
compliance with regulatory requirements. A license renewed without the consent
of its holder, is invalid in law.15
[19] The Respondent's failure to explain the renewal process is decisive of this case.16
The only reasonable inference is that the representation was false and made with
knowledge, or at least recklessness on the part of the Respondents to the
Applicants.
[20] It is so that the Applicants were induced to conclude the agreement on the
strength of that representation whic h was made by the Respondents. This
prejudice, is self-evident.
[21] In their defence, the Respondents raise the absence of warranties and on the
facts, this absence of an express warranty does not avail a party who has
committed fraud. Fraud is not dependent on contractual wording.
14 CaseLines: Founding Affidavit 01-12 at para 20 as well as para 7.23-24 of the Answering Affidavit where the
Respondents failed to respond directly to the allegations regarding the registration of the owner of the license,
and Annexure “RSJ5” which is the license the Applicants received from the Respondents.
15 CaseLines: Founding Affidavit 01-13 para 21 as well as the Answering Affidavit where the Respondents give a
bare denial as to what the Applicants alleged regarding the true identity of the owner of the license and the role
played by the Respondents in the renewal of the license.
16 See above.
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[22] Regarding the voetstoots clause, cannot shield fraudulent contract this was
confirmed in the matter of Odendaal vs Ferraris above.
[23] Regarding acquiescence, continued performance does not bar cancellation
where fraud has been established by the Applicant. This election, requires full
knowledge of material facts.
The Answering Affidavit of the Respondents
[24] The Answering Affidavit of the Respondents is deficient in material respects. I
say so because it fails to engage with the central allegation of unlawful renewal
of the license and it contains hearsay allegations and the absence of confirmatory
affidavits and more pointed, general denials on the part of the Respondents while
they have knowledge of the full spectrum of the facts.
[25] In Wightman T/A JW Construction vs Headfour (Pty) Ltd 2008 (3) SA 371 (SA)
and at para 13, the Supreme Court of Appeal held as follows:
“A real, genuine and bona fide dispute of fact can exist only where the Court
is satisfied that the party who purports to raise the dispute has in his affidavit
seriously and unambiguously addressed the fact said to be disputed.”
[26] It is so that the Respondents do not meet this standard. There is no documentary
evidence which is provided by the Respondents that demonstrate the authority
to renew the license and compliance with the licensing requirements.
[27] The Respondents silence, on this issue alone is dispositive of the matter.
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[28] It is so that credibility and probabilities, in motion proceedings are governed by
the Plascon-Evans rule. However, where a version is unattainable it may be
rejected, and this was neatly summarised in the matter of NDPP vs Zuma 17:
[26]Motion proceedings, unless concerned with interim relief, are
all about the resolution of legal issues based on common cause
facts. Unless the circumstances are special they cannot be used
to resolve factual issues because they are not designed to
determine probabilities. It is well established under the Plascon -
Evans rule that where in motion proceedings disputes of fact arise
on the affidavits, a final order can be granted only if th e facts
averred in the applicant's (Mr Zuma’s) affidavits, which have been
admitted by the respondent (the NDPP), together with the facts
alleged by the latter, justify such order. It may be different if the
respondent’s version consists of bald or uncredi tworthy denials,
raises fictitious disputes of fact, is palpably implausible, far -
fetched or so clearly untenable that the court is justified in
rejecting them merely on the papers. 18 The court below did not
have regard to these propositions and instead d ecided the case
on probabilities without rejecting the NDPP’s version.19
17 2009 (2) SA 277 (SCA) at para 26
18 Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A) 634-5; Fakie NO v CCII
Systems (Pty) Ltd 2006 (4) SA 326 (SCA) para 55; Thint (Pty) Ltd v National Director of Public Prosecutions;
Zuma v National Director of Public Prosecutions 2008 (2) SACR 421 (CC) para 8-10.
19 Sewmungal NNO v Regent Cinema 1977 (1) SA 814 (N); Trust Bank van Afrika Bpk v Western Bank Bpk NNO
1978 (4) SA 281 (A).
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[29] The Respondent's version is unsupported by evidence and is inherently
improbable and contradicted by objective facts contained in the Founding
Affidavit of the Applicants.
[30] The Respondents also failed to explain how a liquor license could be validly
renewed without the holder's consent. In the matter of Elgin Brown and Hamer
(Pty) Ltd vs Industrial Machinery Supplies (Pty) Ltd20 where the Court dealt with
exemption clauses and held:
“… The clause is in my view to be construed as affording limited protection to
the plaintiff against faults or imperfections in the product of its labours, which is
otherwise substantially in accordance with the contract.
CONCLUSION
[31] The Applicants have established fraudulent representation, unlawfulness of the
license, the entitlement to cancellation of the agreement. The Respondent’s
defences must thus fail.
[32] The parties must thus be put to the original position prior to the conclusion of the
agreement.
ORDER
20 1993 (3) SA 424 (A)
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[33] The following order is made:
39.1 The sale agreement between the First Applicant and the First Respondent
for the purchase of the Second Applicant being the Real Liquor Store (Pty)
Ltd is hereby declared void ab initio.
39.2 The First Respondent is ordered and directed to repay the First Applicant
the purchase price for the liquor store as well as the license, being an
amount of R495 000.00 immediately upon being served with the Court
Order.
39.3 That the Respondents, jointly and severally be liable for the costs of this
application and costs of appearance on Scale B.
MT Matlapeng
Acting Judge of the High Court, Gauteng
Division, Pretoria
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Appearances:
Applicant’s Counsel: Adv C.T Malatji
Applicant’s Attorneys: NG Dlamini Attorneys
Respondents Counsel: Adv J.C Viljoen
Respondents Attorneys: Jacques Classen Attorneys Inc