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IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG NORTH DIVISION, PRETORIA
CASE NUMBER: 2025-012186
Reportable: NO
Circulate to Judges: NO
Circulate to Magistrates: NO
Circulate to Regional Magistrates NO
In the matter between:-
GIFLO PROPERTIES (PTY) LTD
(REG NO: 2000/021693/07)
1st Plaintiff
ABLAND (PTY) LTD
(REG NO: 1990/005756/07)
2nd Plaintiff
SOM (PTY) LTD 3rd Plaintiff
(REG NO: 2001/022744/07)
and
SMARTOPS (PTY) LTD 1st Defendant
(REG NO: 2015/374924/07)
MAHENE PATRICE BENZANE 2nd Defendant
(IDENTITY NUMBER: 9[...])
Disclaimer: This judgment is handed down electronically by uploading it on
CaseLines. The date of the judgment is deemed to be 5 May 2026.
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JUDGMENT
FMM REID J
Introduction:
[1] This is an application for summary judgment in which the plaintiffs claim
the cancellation of a lease agreement, alleged arrear rental payments,
and eviction. Summons was issued on 30 January 2025 in the amount
of R420,093.29.
[2] The plaintiffs are the joint owners and landlords of the property known
as Ground Floor, Irene Link Building E, [...] I[...] Avenue, Doringkloof,
Gauteng (the property) . The defendants are respectively the tenants
and surety of the lease agreement. The defendants oppose the
application, arguing that they have a bona fide defence against the
claim.
Arguments of the parties
[3] The core factual dispute concerns whether the parties varied the lease
agreement regarding payment dates before the plaintiff cancelled the
lease and issued summons.
[4] The plaintiff s contend that the lease was validly cancell ed on 24
January 2025 by the defendant ’s non payment of the rentals. The
defendants contend that the lease was varied by mutual agreement
between the parties during mid -January 2025. The defendants claim
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that the terms of the amended agreement were that the defendant can
pay the arrear amounts on 31 January 2025 and pay the rent of
February on 14 February 2025. The plaintiffs deny this.
[5] The defendants claim that the p laintiffs drafted an "Acknowledgement
of Debt" (AOD) reflecting this new payment schedule and sent the AOD
to the d efendants on 29 Jan uary 2025. As such, so the defendants
argue, the summons was prematurely issued on 30 January 2025 ,
before the first payment was due on 31 January 2025 . The plaintiffs
argue that the AOD was never signed by them, and that the AOD
cannot novate the lease agreement.
[6] The plaintiffs argue that the summary judgment should be granted on
the following grounds:
6.1. That the defendants raise no triable issues or valid defence. The
defence of an alleged new agreement in the form of an AOD is
invalid on the basis that there is a non -variation clause in the
initial agreement in clause 29.3 , and any amendment to the lease
agreement must be in writing and signed by both parties. The
AOD was not signed by the plaintiffs.
6.2. The cancellation of the rental agreement preceded the AOD and
as such the AOD has no legal effect . The plaintiffs claim that the
lease was already validly cancelled on 24 January 2025, before
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the AOD was even sent to the defendants on 29 January 2025.
6.3. The AOD in itself is not a novation of the original cause of action,
and this term is contained in the AOD itself.
6.4. The AOD does not constitute a new agreement, as it only came
into force (if at all) on 31 January 2025 when it was
communicated to the plaintiffs. At that stage, summons was
already issued on 30 January 2025. Further, the plaintiffs'
covering email to the AOD explicitly stated legal action would
continue.
6.5. The plaintiff argues that they are e ntitled to cost on an attorney-
and-client scale under clause 31 of the lease agreement.
[7] The defendants argue that summary judgment should be dismissed
on the following bases:
7.1. That the defendants' opposing affidavit sets out a defence valid in
law that is not inherently unconvincing. A defendant need not
prove the defence on a balance of probabilities at this stage –
only show a real possibility.
7.2. By entering into negotiations and agreeing to a new payment
schedule (as evidenced by drafting the AOD), the
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plaintiffs waived their right to rely on the original breach or to
cancel the lease agreement. In support of this argument the
defendant cited Aucamp v Morton 1949 (3) SA 611 (A) . The
granting of an indulgence is inconsistent with an intention to
enforce strict compliance.
7.3. Summons was issued on 30 January 2025, but the first revised
payment was only due on 31 January 2025. No breach had
occurred when summons was issued. This conduct amounts to
a repudiation of the varied agreement (the AOD), which the
defendants have rejected, and the defendants claim specific
performance in their counter-claim.
7.4. The court has a discretion to refuse summary judgment where
there is any doubt about whether the plaintiff's case is
unanswerable.
Legal position
[8] The principles governing summary judgment applications are well
established. In Maharaj v Barclays National Bank Ltd 1976 (1) SA 418
(A) at 426A-C, the Appellate Division held that the defendant need not
prove his defence on a balance of probabilities . It is sufficient if the
defendant sets out facts which, if proved at trial, will constitute a
defence to the plaintiff's claim.
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[9] The full court in Breitenbach v Fiat SA (Edms) Bpk 1976 (2) SA 226
(T) at 228F -G further clarified that the defendant must swear to a
defence "valid in law" which is "not inherently and seriously
unconvincing". At page 277 B-E the following is said:
“The purpose of the procedure known as summary judgment is
well recognised. It is, indeed, implicit in the portion of Rule 32
which prescribes the contents of the affidavit which must be filed
on behalf of the plaintiff. It is a procedure aimed at the
defendant, who, although he has no bona fide defence to the
action brought against him, gives notice of intention to defend
solely in order to delay the grant of judgment in favour of the
plaintiff. In a case where that is what the defendant has done,
the summary judgment procedure serves a socially and
commercially useful purpose. The relevant Rule should,
therefore, not be interpreted with such liberality to defendants
that purpose is defeated.
It is, however, even more important to guard against injustice to
the defendant, who is called upon, at short notice, and without
the benefit of further particulars, discovery or cross -examination,
to satisfy the Court in terms of sub -rule (3) (b). If the
requirements of that sub -rule are too stringently applied, a
defendant who has a defence to the action brought against him
may be denied, unjustly, an opportunity of establishing that
defence by the ordinary procedure of a civil suit.”
[10] The summary judgment procedure is a drastic remedy, intended to
enable a plaintiff with an unassailable claim to obtain swift relief. It
was never intended to shut out a defendant who raises a genuine
dispute of fact or law. Where there is a reasonable possibility that the
defence advanced may succeed at trial, the court should exercise its
discretion in favour of granting leave to defend.
[11] In Maharaj v Barclays National Bank Ltd 1976 (1) SA 418 (A) the
Court of Appeal (as it was then known) held as follows at 426A-C:
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“Accordingly, one of the ways in which a defendant may
successfully oppose a claim for summary judgment is
by satisfying the Court by affidavit that he has a bona
fide defence to the claim. Where the defence is based upon
facts, in the sense that material facts alleged by the plaintiff in
his summons, or combined summons, are disputed or new facts
are alleged constituting a defence, the Court does not attempt to
decide these issues or to determine whether or not there is
a balance of probabilities in favour of the one party or the other.
All that the Court enquires into is: (a) whether the defendant has
'fully' disclosed the nature and grounds of his defence and the
material facts upon which it is founded, and (b) whether on the
facts so disclosed the defendant appears to have, as to either
the whole or part of the claim, a defence which is both bona
fide and good in law.”
[12] The above principles were once again confirmed in the Supreme
Court of Appeal in Joob Joob Investments (Pty) Ltd v Stocks
Mavundla Zek Joint Venture 2009 (5) SA 1 (SCA) as follows:
“[31] So too in South Africa, the summary judgment procedure
was not intended to 'shut (a defendant) out from defending',
unless it was very clear indeed that he had no case in the action.
It was intended to prevent sham defences from defeating the
rights of parties by delay, and at the same time causing great
loss to plaintiffs who were endeavouring to enforce their rights.
[32] The rationale for summary judgment proceedings is
impeccable. The procedure is not intended to deprive a
defendant with a triable issue or a sustainable defence of her/his
day in court. After almost a century of successful application in
our courts, summary judgment proceedings can hardly continue
to be described as extraordinary. Our courts, both of first
instance and at appellate level, have during that time rightly
been trusted to ensure that a defendant with a triable issue is
been trusted to ensure that a defendant with a triable issue is
not shut out. In the Maharaj case at 425G - 426E, Corbett JA
was keen to ensure, first, an examination of whether there has
been sufficient disclosure by a defendant of the nature and
grounds of his defence and the facts upon which it is founded.
The second consideration is that the defence so disclosed must
be both bona fide and good in law. A court which is satisfied that
this threshold has been crossed is then bound to refuse
summary judgment. Corbett JA also warned against requiring of
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a defendant the precision apposite to pleadings. However, the
learned judge was equally astute to ensure that recalcitrant
debtors pay what is due to a creditor.”
[13] The court deciding on an application for summary judgment thus have
a delicate balance to exercise: justice for an applicant (plaintiff) must
be swift where the defendant enters a bogus defence to delay an
inevitable judgment against it. At the same time justice for a
respondent (defendant) must be upheld where there is a possible
bona fide defence and such respondent has the right to have the
defence tested at trial.
[14] On my understanding of the legal principles of summary judgment, it
must be granted where the nature of the defence that is raised, is
clearly doubtful. It is articulated in the Breytenbach matter that “the
summary judgment procedure serves a socially and commercially
useful purpose.” It calls for swift justice and a judicial discretion to be
exercised balancing justice (for both plaintiff and defendant) with the
reality of an ever increasing court roll of litigation.
Evaluation
[15] The critical question is whether the defendants have disclosed a bona
fide defence that raises a triable issue.
[16] The defendants' version, set out in the affidavit of the second
defendant, is that the parties mutually agreed to vary the payment
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terms of the lease. The variation was subsequently recorded in a
written document drafted by the plaintiffs' representatives.
[17] The existence of the AOD is not disputed; the plaintiffs contend that it
was not signed by them. However, the fact that the AOD was sent by
the plaintiffs' attorneys to the defendants on 29 January 2025, and
that it expressly records payment dates of 31 January 2025 and 14
February 2025, is indicative of a meeting of the minds. Whether this
constituted a binding variation of the lease or a waiver of the plaintiffs'
rights to enforce strict compliance with the original payment terms is a
dispute that cannot properly be resolved on paper in these summary
judgment proceedings.
[18] The plaintiffs place reliance on clause 29.3 of the lease, which
provides that no amendment shall be of any force or effect unless in
writing and signed by both parties. While this non -variation clause is
an obstacle for the defendants, it is not necessarily insurmountable.
The doctrine of waiver operates independently of a non -variation
clause. As was held in Aucamp v Morton 1949 (3) SA 611 (A), a party
may, by conduct, waive its rights under a contract, including the right
to enforce a non-variation clause.
[19] Whether the plaintiffs' conduct in negotiating new payment terms,
drafting the AOD, and leading the defendants to believe that payment
would be accepted by 31 January 2025 constituted a waiver of their
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right to rely on the strict terms of clause 29.3 is a question that can
only be answered in a trial where evidence is lead and tested under
cross examination.
[20] Similarly, the issue of whether the cancellation was premature raises
factual questions. The defendants contend that at the time of
cancellation on 24 January 2025, the parties were already engaged in
renegotiations and had reached an agreement in principle , thus
negating the cancellation. The plaintiffs' email of 29 January 2025,
annexed to the plea, expressly reserved their rights and stated that
they were continuing with legal action. However, the existence of that
reservation does not automatically negate the possibility that a
separate agreement was concluded. Th is C ourt is not required to
determine where the probabilities lie at this stage; it might be sufficient
that the defendants have advanced a version that is not inherently
and seriously unconvincing.
[21] The plaintiffs further argue that the defendants breached the AOD in
any event by failing to pay on 31 January 2025. However, the AOD
was signed on 30 January 2025 and only communicated to the
plaintiffs' attorneys on 31 January 2025. Whether payment could
reasonably have been expected to be made on that same day, and
whether the plaintiffs were obliged to afford the defendants a
reasonable opportunity to comply with the AOD, are additional factual
disputes that require ventilation at trial.
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[22] This is not a case where the defendants have merely advanced bald,
vague, or sketchy allegations. The second defendant has provided a
detailed account of the negotiations, the agreement reached, the
drafting and signing of the AOD, and the timeline of events. The
defence advanced is coherent and, if proven at trial, could constitute a
complete defence to the plaintiffs' claim.
Conclusion
[23] Summary judgment is a drastic remedy that should be granted only in
clearest of cases. This is not such a case.
[24] The defendants have raised genuine triable issues relating to the
variation of the payment terms, waiver, the validity of the cancellation,
and the prematurity of the summons. These issues can only be
properly resolved after oral evidence and cross-examination at trial.
[25] For the reasons set out above, I am persuaded that the defendants
have disclosed a bona fide defence that raises a triable issue.
Order
[26] In the premise, the following order is made:
(i) The application for summary judgment is dismissed.
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(ii) The defendants / respondents are granted leave to defend the
action.
(iii) The costs of this application shall be costs in the cause.
________________________________
FMM REID
JUDGE OF THE HIGH COURT
NORTH WEST DIVISION MAHIKENG
SEATED AT GAUTENG NORTH, PRETORIA
DATE OF HEARING: 09 FEBRUARY 2026
DATE OF JUDGMENT: 04 MAY 2026
APPEARANCES:
FOR PLAINTIFF/APPLICANT: ADV VAN HEERDEN
INSTRUCTED BY: GIDEON PRETORIUS INC
Plaintiffs’ Attorneys
C/O VAN STADE VAN DER ENDE
INC
Unit 2, Guild Forum
240 Lange Street
Nieuw Muckleneuk
Pretoria
Tel: 012 348 1894 / 940 8345 / 083
280 4774
Po Box 429, Pretoria
Docex 429, Pretoria
Ref: Mr. Derek J Van Stade
Email: Derek@Vanstade.co.za
FOR DEFENDANT/RESPONDENT: MR MOHALE
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INSTRUCTED BY: MOTA AFRICA INC
Defendants’ Attorneys
194 Bancor Avenue
Park Lane West Building
Menlyn Maine
Pretoria, 0181
Tel: 010 900 0838
Fax: 087-230-1752
Email: martin@mota.africa