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IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NUMBER: 2026/094554
Reportable: NO
Circulate to Judges: NO
Circulate to Magistrates: NO
Circulate to Regional Magistrates NO
In the matter between:-
BRONKHORSTSPRUIT MALL (PTY) LTD Applicant
and
WASQAR TRADERS (PTY) LTD 1st Respondent
In re joinder of:
MOHAMMED YOUSAF 2nd Respondent
OCCUPIERS OF SHOP NO. 5[...]
BRONKHORSTSPRUIT MALL
3rd Respondent
This judgment is handed down electronically by circulation on the electronic
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medium Case Lines. The date that the judgment is handed down, is
deemed to be 14 May 2026.
JUDGMENT
Reid J
Introduction
[1] This is an urgent application brought by the applicant, Bronkhorstspruit
Mall (Pty) Ltd, for the eviction of the respondent, Wasqar Traders (Pty)
Ltd, from commercial premises situated at Shop 5[...], Bronkhorstspruit
Mall.
[2] The applicant also seeks to join Mr Mohammed Yousaf (the manager
and surety) and all other occupiers of the shop as respondents.
Factual background
[3] The parties entered into a written lease agreement for the occupation
of commercial property, on or about 29 August 2025, for a term of three
years commencing 1 November 2025. The respondent took occupation
and, on its version, expended approximately R492,000 on shop fitting,
tiling, signage, and a deposit.
[4] By February 2026, the respondent had fallen into arrears. On 25
February 2026, the applicant’s attorneys addressed a letter of demand
calling upon the respondent to remedy its breach. The letter did not
specify a time period within which the breach was to be remedied. On 6
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March 2026, the applicant informed the respondent that the lease
agreement is cancelled with immediate effect, relying on Clause 34 –
a lex commissoria clause that entitles the lessor to cancel without
notice upon any breach.
[5] On 7 March 2026, the respondent paid R60,000 towards the arrears,
followed by further payments of R46,000 and R80,000 on 9 and 10
March 2026 respectively.
[6] The respondent also, through Mr Yousaf, sent a WhatsApp message
on 7 March 2026 acknowledging the outstanding amount and stating: “ I
will then vacate the premises at the end of March”.
[7] On 24 March 2026, the respondent launched an urgent spoliation
application after the applicant locked the respondent from the
premises. Francis -Subbiah J granted the spoliation order, restoring
possession to the respondent. In that judgment, the court noted that the
respondent had “ approached court with clean hands ” and had
“remedied its breach”.
[8] The applicant did not thereafter launch any further proceedings until 24
April 2026, when the present urgent eviction application was served on
the respondent’s attorneys. The application was initially set down for 28
April 2026 but was subsequently enrolled for hearing on 5 May 2026.
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The applicant’s case on urgency
[9] The applicant advances several grounds in support of urgency:
9.1. First, it contends that the lease was validly cancelled on 6 March
2026 and that the respondent remains in unlawful occupation.
9.2. Second, it argues that it has concluded a new lease with a third
party who was due to take occupation at the end of April 2026
(alternatively, by 4 May 2026).
9.3. Third, it submits that it stands to suffer irreparable financial harm,
including damages claims from the new tenant and loss of rental
income, if the respondent is not evicted urgently.
9.4. Fourth, it characterises the respondent’s conduct as a “Stalingrad
strategy” and an ongoing violation of the rule of law, which, it
contends, justifies urgent intervention.
[10] The respondent denies that the matter is urgent and states that the
applicant can obtain substantial redress in due course.
Legal principles governing urgency
[11] Uniform Rule 6(12)(b) requires that an applicant in urgent proceedings
“set forth explicitly the circumstances which he avers render the matter
urgent and the reasons why he claims that he could not be afforded
substantial redress at a hearing in due course”.
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[12] The test for urgency is well -established. In Luna Meubelvervaardigers
(Edms) Bpk v Makin (t/a Makin’s Furniture Manufacturers) 1977 (4) SA
135 (W) at 137, the court held that the degree of deviation from the
ordinary rules must not be greater than the exigency demanded by the
facts.
[13] In East Rock Trading 7 (Pty) Ltd v Eagle Valley Granite (Pty) Ltd
2011 JDR 1832 (GSJ) the following guidelines were given by Notsche
AJ in determining whether a matter should be treated as urgent:
“[5] The issue of whether a matter should be enrolled
and heard as an urgent application is governed by the
provisions of 6(12) of the Uniform Rules. The aforesaid
sub rule allows the court or a Judge in urgent applications
to dispense with the forms and service provided for in the
rules and dispose of the matter at such time and place in
such manner and in accordance with such procedure as
to it seems meet. It further provides that in the affidavit in
support of an urgent application the applicant "… shall set
forth explicitly the circumstances which he avers render
the matter urgent and the reasons why he claims that he
could not be afforded substantial redress at a hearing in
due course."
[6] The import thereof is that the procedure set out in
rule 6(12) is not there for taking. An applicant has to set
forth explicitly the circumstances which he avers render
the matter urgent. More importantly, the Applicant must
state the reasons why he claims that he cannot be
afforded substantial redress at a hearing in due course.
The question of whether a matter is sufficiently urgent to
be enrolled and heard as an urgent application is
underpinned by the issue of absence of substantial
redress in an ap plication in due course. The rules allow
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the court to come to the assistance of a litigant because if
the latter were to wait for the normal course laid down by
the rules it will not obtain substantial redress.
[7] It is important to note that the rules require
absence of substantial redress. This is not equivalent to
the irreparable harm that is required before the granting
of an interim relief. It is something less. He may still
obtain redress in an application in due course but it may
not be substantial. Whether an applicant will not be able
obtain substantial redress in an application in due course
will be determined by the facts of each case. An applicant
must make out his cases in that regard.”
[14] Urgency is not a mere formality. An applicant cannot create its own
urgency by delaying the launch of proceedings or by contracting with a
third party on the assumption that relief will be granted on an expedited
basis. Self -created urgency is not a ground for invoking Rule 6(12).
See Soobedar & another v Minister of International Relations &
Cooperation & another (2021) 42 ILJ 1761 (LC).
Analysis
[15] The applicant’s primary grievance is that the respondent remains in
occupation of the premises after the purported cancellation of the
lease.
[16] However, the respondent disputes the validity of that cancellation,
raising several arguable defences:
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16.1. that the lex commissoria clause is unconscionable and contrary to
the Consumer Protection Act 68 of 2008.
16.2. that the letter of demand failed to specify a reasonable time for
performance.
16.3. that the breach was in fact remedied by payment of the arrears
before the applicant took any steps to enforce the cancellation.
[17] Importantly, the applicant did not act with the expedition one would
expect of a party genuinely facing an urgent crisis. The lease was
cancelled on 6 March 2026. On 7 March 2026 the applicant received
the respondent’s written undertaking to vacate by the end of March
2026. When the respondent failed to vacate, the applicant did not
immediately approach the court. Instead, it waited.
[18] The applicant wrote letters on 2, 7, 10, and 13 April 2026. It engaged in
settlement discussions. The applicant launched this application on 24
April 2026 , some seven weeks after the purported cancellation and
nearly four weeks after the respondent’s undertaking to evict, expired.
[19] The applicant seeks to explain this delay by pointing to the spoliation
proceedings, b ut those proceedings were concluded on 24 March
2026.
[20] From that date until 24 April 2026, the applicant took no step s to
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enforce its rights. That is not the conduct of a litigant for whom every
day of delay causes irreparable harm.
[21] The applicant’s reliance on the new lease agreement is also misplaced.
The applicant chose to contract with a new tenant on the assumption
that the respondent would vacate by the end of April 2026. That
assumption was commercially optimistic, given that the respondent had
already disputed the cancellation and had obtained a spoliation order
restoring its possession.
[22] The applicant cannot now use its own contractual exposure to a third
party as a justification for urgency. To hold otherwise would permit any
landlord to manufacture urgency by simply entering into a back -to-back
lease and then claiming that delay would cause damages.
[23] The respondent states that it co ntinues to pay rental. This is disputed
by the applicant. The respondents do not attach any proof of payment
of the lease. On the respondent’s version, it is currently up to date with
its rental obligations. The respondent argues that t he applicant is not
suffering a complete loss of income. I f the applicant is receiving
payment for the respondent’s occupation , the applicant’s claim of
irreparable harm rings hollow. The respondent does not attach
payments proving the payment of the rental amounts. However, the
applicant has a monetary contractual claim against the respondent for
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the rental amounts that are not paid.
[24] The applicant also invokes the rule of law and the vindication of
property rights as grounds for urgency. I have no difficulty with the
proposition that unlawful occupation is a serious matter. But not every
unlawful occupation case is automatically urgent. Th is Court must
assess the specific facts. Here, the respondent has been in occupation
for months.
[25] The dispute over the validity of the cancellation is a justiciable
controversy that can be resolved in due course. The applicant has not
shown why it cannot obtain substantial redress in the ordinary motion
proceedings.
[26] The timing of the application is telling. The applicant served the papers
on 24 April 2026 – a Friday, before a long weekend. It initially sought to
have the matter heard on 28 April 2026, giving the respondent virtually
no time to answer. When that proved untenable, the matter was set
down for 5 May 2026. Even on the applicant’s own timeline, the crisis
of the new tenant needing occupation by the end of April had passed
before the hearing.
[27] The hearing took place on 5 May 2026. The new tenant had already
been deprived of occupation. The applicant cannot contend that a
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decision on 5 May 2026 would provide substantial redress for a
deadline that expired at the end of April 2026.
[28] This is not a case where the applicant has shown that the ordinary rolls
are so congested that it would wait months for a hearing. Nor has the
applicant explained why it could not have launched this application
immediately after the spoliation order, in March 2026. The delay is
unexplained and, in my view, inconsistent with the required degree of
exigency.
Conclusion on urgency
[29] The applicant has failed to set forth explicitly the circumstances that
render the matter urgent. The grounds advanced (loss of a new tenant,
ongoing unlawful occupation, and commercial harm ) are, on the facts
of this case, not so compelling as to justify the drastic departure from
the ordinary Rules that an urgent application entails.
[30] The applicant has created its own urgency by delaying the launch of
proceedings and by entering into a new lease without first securing
vacant possession.
[31] The application is accordingly to be struck from the roll for lack of
urgency.
Joinder application
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[32] In light of the finding on urgency, it is strictly unnecessary to determine
the joinder application. However, for the sake of completeness, I note
that the joinder of Mr Yousaf and the other occupiers would, in any
event, have been premature given that the main application has not
been enrolled in the ordinary course.
[33] If the applicant wishes to pursue the eviction, it may do so by way of
ordinary motion proceedings, and at that stage it may also consider
whether joinder is necessary or appropriate.
Costs
[34] The respondent has been successful in opposing the urgent
application.
[35] There is no reason to depart from the ordinary principle that costs
follow the result. The applicant shall pay the respondent’s costs.
[36] I am not persuaded that cost on Scale C or Scale B is warranted; the
matter raised no exceptionally complex legal issues. Costs shall be on
Scale A as between party and party.
Order
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[37] In the premises, I make the following order:
(i) The application is struck from the roll for lack of urgency.
(ii) The applicant is to pay the respondent’s costs of the urgent
application, such costs to be taxed on Scale A as between party
and party in terms of Rule 69(7).
(iii) The joinder application is not determined and may be re -
enrolled, if necessary, in the context of ordinary motion
proceedings.
___________________________
FMM REID
JUDGE OF THE HIGH COURT
GAUTENG DIVISION PRETORIA
Date of hearing: 5 May 2026
Judgment delivered: 14 May 2026
Appearances:
For the Applicant: Adv FJ Labuschagne
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For the Respondent: Adv Omar