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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case Number: 2024-064941
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: YES
DATE 19 MAY 2026
SIGNATURE OF JUDGE:
In the matter between:
PRESMOOI (PTY) LTD
REG NO: 1983/010594/07 Plaintiff
and
JEPPE EDUCATION CENTRE MPC t/a
JEPPE EDUCATION CENTRE
REG NO: 2007/013226/08 1st Defendant
HLATWAYO, HARRY 2nd Defendant
ID NO: 6[...]
TUNYWA, ABDUL 3rd Defendant
ID NO: 6[...]
TSELE, MOTSHENG JOSEPHINE 4th Defendant
ID NO: 6[...]
JUDGMENT
Klopper, AJ
INTRODUCTION:
[1] This is an application for summary judgment in terms of rule 32 of the Uniform
Rules of Court. The Plaintiff seeks payment of R2,464,905.40, jointly and
severally, arising from unpaid rental and ancillary charges and interest on the
amount, including cost on an attorney and client scale as per the terms of the
agreement.
BACKGROUND FACTS:
[2] The Plaintiff is the lawful owner of the immovable property situated at Erf 4[...],
Johannesburg and known as Jeppe House, 1[...] E[...] Street, Johannesburg.
[3] The Plaintiff and the First Defendant entered into a written lease agreement on
25 February 2019 in terms whereof the First Defendant would lease the
premises for the purpose of conducting education activities in the form of a
school against the payment of a monthly sum, including basic rental and
ancillary costs.
[4] The first lease agreement was entered into for a period of two years,
commencing on 1 January 2019 and expiring on 31 December 2021, subject to
an automatic renewal on a month -to-month basis. The material terms are set
out in paragraph 10 of the particulars of claim.
[5] During June 2022, the parties entered into a second written lease agreement
with the commencement date set out as 1 January 2022 and expiring on 31
December 2022, subject to an automatic renewal on a month -to-month basis.
The material terms of the second lease agreement are set out in paragraph 15
of the particulars of claim.
[6] The Second, Third and Fourth Defendants each executed a deed of suretyship
in favour of the Plaintiff, binding themselves as surety and co -principal debtor
for the due performance of the First Defendant’s obligations to the Plaintiff
under the lease.
[7] The terms and conditions of the second lease agreement is not in dispute.
[8] It is also not in dispute that the Plaintiff provided the First Defendant with
occupation of the leased premises commencing on 1 January 2022.
[9] The First Defendant failed to comply with its obligations under the lease and
following several default notices issued by the Plaintiff against the First
Defendant during the period 6 September 2022 to 27 July 2023, the Defendant
issued a final notice of termination of the lease dated 27 July 2023, effective 30
September 2023.
[10] Again, on 19 September 2023, the Plaintiff addressed a letter of demand to the
First Defendant for all amounts due and owing flowing from the First
Defendant’s breach of the agreement.
[11] On 26 September 2023, the First Defendant responded to the letter of demand
and denied its indebtedness to the Plaintiff.
[12] The First Defendant vacated the premises on 30 September 2023.
[13] In June 2024, the Plaintiff issued summons against the First, Second, Third and
Fourth Defendants claiming outstanding accumulating rental of R2 465 905.40
for the relevant period up and until 30 September 2023 and damages in the
amount of R702 870.44.
[14] On or about 8 July 2024, the First to Third Defendants delivered a notice of
intention to defend and the Fourth Defendant followed suit on 11 July 2024.
Each plea is identical in nature and raised the exact same defences.
[15] The Plaintiff issued an application for summary judgment against the First to
Fourth Defendants on 20 December 2024 in terms of rule 32(2) of the Uniform
Rules of Court.
[16] On or about 10 March 2025, the First to Third Defendants collectively delivered
an affidavit resisting summary judgment, while the Fourth Defendant delivered
an affidavit resisting summary judgment on or about 12 March 2025, together
with an application for condonation of the late filing of her opposing affidavit.
THE DEFENDANTS’ SPECIAL PLEA: POINTS IN LIMINE:
[17] The Defendants raised the following preliminary points in limine in respect of
the Plaintiff’s affidavit in support of summary judgment:
17.1. The affidavit is irregular in that the certification by the Commissioner of
Oaths is irregular;
17.2. The deponent verifies only one cause of action when there are several
causes of action and does not properly identify the cause of action
being verified;
17.3. The amount verified by the deponent is clearly incorrect;
17.4. The deponent to the affidavit in support of summary judgment is not in
a position to verify the cause of action.
DISCUSSION OF PRELIMINARY POINTS IN LIMINE:
Purported failure to properly depose to affidavit in support of summary
judgment:
[18] The Defendants raised objection in heads of argument on the basis of non -
compliance with the regulations promulgated in terms of the Justices of Peace
and Commissioners of Oaths Act, 16 of 1963 insofar as it relates to the
Plaintiff’s affidavit in support of summary judgment.
[19] The verifying affidavit represents the cornerstone of summary judgment
procedure under rule 32(2), which permits the grant of a final judgment or order
in a defendant action without full pleadings on a trial. 1 The verifying affidavit
must satisfy the general requirements for affidavits as contained in the
regulations2 (“the Regulations”) promulgated in terms of the Justices of the
Peace and Commissioners of Oaths Act 16 of 1963 (as amended).
[20] In terms of regulation 3(1) the deponent is required to sign the statement in the
presence of the Commissioner of Oaths, and if unable to write, he or she must
affix his mark in the presence of the Commissioner of Oaths at the foot of the
statement. In terms of regulation 4(1) the Commissioner of Oaths is required to
certify that the deponent has acknowledged that he or she knows and
understands the contents of the declaration. Regulation 4(1) reads as follows: ‘
“Below the deponent’s signature or mark the Commissioner of Oaths shall
certify that the deponent has acknowledged that he knows and understands the
contents of the declaration and he is required to state the manner, place and
date of taking the declaration.”
[21] In Absa Bank Ltd v Botha N.O. and Others 3 the following is stated in this
regard:
“[8] Although Rule 32(2) expressly requires that an affidavit accompany
an application for summary judgement, a statement which was merely
affirmed in accordance with the Regulations also complies with the
requirements of Rule 32(2). Subject to whether there has been
substantial compliance with the Regulations, the court has a
discretion to refuse an affidavit which does not comply with the
Regulations. Should a commissioner of oaths not certify that the
1 Arend v Astra Furnishers (Pty) Ltd 1974 (1) SA 298 (C)
2 Promulgated in Government Gazette 3619, Government Notice, R1258 of 21 July 1972 as
2 Promulgated in Government Gazette 3619, Government Notice, R1258 of 21 July 1972 as
amended by Government Notice R1648 of 19 August 1977, Government Notice R1428 of 11
July 1980 and Government Notice of R774 of 23 April 1983.
3 (39228/12)[2013] ZAGPPHC 163; 2013 (5) SA 563 (GNP) (7 June 2013)
verifying affidavit in a summary judgment application had been sworn
to or affirmed, the court will be reluctant to apply the maxim omnia
praesumuntur rite esse acta donec probetur in contrarium 4, also
known as the “presumption of regularity”, for purposes of making the
assumption that the document had, in fact, been sworn to (or
affirmed) and signed in the presence of the commissioner of oaths.”
[22] The affidavit in support of summary judgment is deposed to by Angelique Smit.
She stated under oath that:
“I am a major female South African citizen employed by City Property (Pty) Ltd
(“City Property”) ….”
[23] Below the deponent’s signature the commissioner of oaths certified the
following:
“I certify that the deponent has acknowledged that she knows and understands
the contents of this affidavit which was signed and sworn to before me on this
the 19 th day of December 2024 at Fourways. The regulations contained in
Government Notice No. R1258 dated 21 July 1972 (as amended) and
Government Notice No. R1640 dated 19 August 1977 (as amended) having
been complied with. With the relevant provisions of annexure “A” of the rules
governing the administration of an oath or affirmation no. R1258 of 21 July
1972 (as amended) having been duly complied with, the deponent herein has
acknowledged that he understands the contents of this declaration, has no
objection to taking the prescribed oath and considers the prescribed oath to be
binding on her conscious and that she has uttered the words “so help me –
God”.”
[24] Within the context of the above certification by the Commissioner of Oaths, the
reference to the deponent’s gender appears four times. Only on ce is there a
reference to “he” as opposed to “ she”. Within the context of the Commissioner
of Oaths’ certification the one reference to he appears to be no more than a
typing error. Accordingly, I am of the view that the maxum omnia praesumuntur
4 Acts are presumed to have been lawfully done until proof to the contrary is produced
rite esse acta donec probetur in contrarium finds application. The fact that the
Commissioner of Oaths clearly certified that the deponent “ she” knows and
understands the contents of this affidavit …, considers the prescribed oath to
be binding on her, conscious and that she has uttered the words “so help me
God”.
[25] Having considered the affidavit in support of summary judgment within the
context of the certification by the Commissioner of Oaths, I am satisfied that
there has been substantial compliance with the regulations.
Purported non-compliance with rule 32(2)(b):
[26] Rule 32(2)(b) of the Uniform Rules of court prescribes that the plaintiff shall in
an affidavit verify the cause of action and the amount, if any, claimed and
identify any point of law relied upon and the facts upon which the plaintiff’s
claim is based, and explained briefly why the defence as pleaded does not
raise any issue for trial.
[27] In Airports Company South Africa (SOC) Ltd v Tswelokgotso Trading
Enterprise CC5, the following was stated:
“The ancillary charges such as the operating costs and disbursements, form
part of the Defendant’s monthly rental obligation, the fixed rental forming one
component and the variable components forming the other part of the rental
obligation. The agreement is clear as regards to both components of the
monthly rental obligation. The Plaintiff correctly contended that its cause of
action remains the same as that which was pleaded at the outset, namely
payment of the arrear rentals owed in terms of the lease agreement. The
ancillary charges are exactly that - ancillary – to the rental. Rather than
introducing a new cause of action, the effect of the proposed amendment will
be an expansion of the base of the existing cause of action.”6
[28] It is clear from the content of the affidavit in support of summary judgment that
the Plaintiff’s claim is based on the First Defendant’s breach of the lease
the Plaintiff’s claim is based on the First Defendant’s breach of the lease
5 Unreported (13733/2017) [2022] ZAGPJHC 263 (26 April 2022) per Acting Justice Meyer
6 Par 11 thereof
agreement, which manifest in the fact that the First Defendant failed to effect
due payment in respect of arrear rent, municipal charges, water, sewerage,
interest and other related charges up to and including the date of termination
and vacating of the subject premises on 30 September 2023.
[29] The Plaintiff’s cause of action is verified in detail with reference to the
particulars of claim and specific reference to arrear rent, municipal charges,
water, sewerage, interest and other related charges up to and including the
date of termination.
[30] The deponent to the affidavit in support of summary judgment further verified
the liability of the Second, Third and Fourth Defendants by virtue of the
suretyship agreements.
[31] The verification of the cause of action as required by rule 32 is done by
referring to the facts alleged in the summons, and it is unnecessary to repeat
the particulars.7
[32] The terms and conditions of the lease agreement are clear and have been
admitted by the Defendants. The Plaintiff’s right to claim all charges set out in
clause 5.3 of the agreement includes “any other costs incurred by the tenant as
a result of the use of the leased premises and/or enjoyment of the common
areas and/or vacant areas (if and to the extent applicable)”.
[33] Clause 5.9 of the agreement provides for all amounts payable in terms of the
agreement to be payable by the tenant free of deduction, exchange and/or set
off. In terms of clause 5.13 of the agreement, the First Defendant shall be liable
for interest on any amounts due in terms of the lease agreement and any
unpaid amount, calculated at the prime rate plus 4% per annum. Clause 5.5 of
the agreement provides for the calculation of charges, irrespective of whether
estimated amounts have been provided by the Plaintiff under the agreement, or
otherwise. Clause 5.14 further provides that:
7 Van den Berg v Weiner 1976 (2) SA 297 (T) at 299 G
“The landlord shall be entitled to appropriate any amounts received from the
tenant towards the payment of any debt or amount owing by the tenant to the
landlord irrespective of when the debt arose.”
[34] In terms of clause 6 of the agreement, the First Defendant was obliged to
maintain the leased premises at his own cost, including damage or breakage to
the interior of the property (including all doors); to replace any fire extinguishing
equipment; and to maintain the drainage and plumbing installations. As per
clause 6.1.5, without prejudice to any rights and/or remedies available to the
landlord in terms of the agreement, any failure by the tenant to attend to any
obligation as set out in clause 6 shall entitle the landlord to attend to the
necessary and to recover the reasonable cost therefrom from the tenant.
[35] The transactions as set out in annexure “FA1” to the Plaintiff’s summary
judgment affidavit, 8 also clearly reflects the First Defendant’s indebtedness in
the amount of R2 465 905.40 as at 4 September 2023. It further appears from
annexure “FA1” that interest is reversed on the statement as of 1 August 2023.
Purported defective verification and apparent lack of personal knowledge:
[36] The Defendants challenge the quantum of the Plaintiff’s claim in summary
judgment without having raised this defence and/or objection in its plea.
However, under the disguise of the above point in limine, the Defendants seek
to impugn the amount claimed by the Plaintiff by arguing that the amount is
manifestly incorrect and that the Plaintiff seeks to duplicate the recovery of
certain amounts. The Defendants argue that the rental and related charges are
not liquidated and cannot be claimed in summary judgment.
[37] In NPGS Protection and Security Services CC and Another v First Rand
Bank Ltd9, Makgoka JA stated the following:
“[11] Rule 32(3) of the uniform rules requires an opposing affidavit to disclose
fully the nature and grounds of the defence and the material facts relied
fully the nature and grounds of the defence and the material facts relied
upon therefor. To stave off summary judgment, a defendant cannot
8 CaseLines: 02 – 16 to 02 - 54
9 (314/2018)[2019] ZASCA 94; [2019] 3 All SA 391 (SCA); 2020 (1) SA 494 (SCA) (6 June
2019)
content him or herself with bald denials, for example, that it is not clear
how the amount claimed was made up. Something more is required. If a
defendant disputes the amount claimed, he or she should say so and set
out a factual basis for such denial. This could be done by giving
examples of payments made by them which have not been credited to
their account.”
[38] As already stated, the terms of the lease agreement are clear, which terms and
conditions have been admitted by the Defendants. If the Defendants were
adamant to place the amount claimed in dispute, it was incumbent on the
Defendants to provide a factual basis of such denial in its plea and not as a
“point in limine” in its affidavit resisting summary judgment.
[39] As to the objections raised by the Defendants against the deponent’s personal
knowledge, it is trite that any person who can swear positively to the facts may
make an affidavit in support of a summary judgment application. The essential
requirement is that the person should state, at least, that the facts are within his
or her personal knowledge.10
[40] It has been held that the affidavit by a legal advisor of a plaintiff bank, in which
it is stated that the facts deposed to fall within the knowledge of the deponent
and that the deponent can swear positively to these facts and confirms them, is
sufficient.11
[41] In this respect, the deponent clearly identifies herself as a legal advisor in the
employ of City Property, the managing agent in relation to the immovable
properties and the lease agreements which forms the subject matter of the
application; confirms that due to her position she possesses over the necessary
firsthand knowledge and has under her direct supervision and control the
relevant documents forming the subject matter of the Plaintiff’s claim and
further confirms that the facts fall within her personal knowledge.
10 See: Forhat Stud Farms (Edms.) Bpk. v Barclays Nasionale Bank Bpk. 1978 (3) SA 118
(T) at 120 - 1
(T) at 120 - 1
11 Nedcor Bank Ltd v Behardine 2000 (1) SA 307 at 310 F – 311 C
[42] The deponent’s possession and control over the relevant documents forming
the subject matter, is corroborated by the relevant documents attached to the
affidavit.
[43] Insofar as the Defendants allege that the deponent has failed to certify the
“data messages” as required under section 15(4) of the Electronic
Communications and Transactions Act, 25 of 2002 (“ECTA”), section 15(1)
provides that in any legal proceedings, the rules of evidence must not be
applied so as to deny the admissibility of a data message, in evidence:
“(a) On the mere grounds that it is constituted by a data message; or
(b) if it is the best evidence that the person adducing it, could reasonably
be expected to obtain, on the grounds that it is not in its original form.”
[44] Section 15(3) and (4) merely pertain to the evidential weight of the data
message and its admissibility upon its mere production if certified as correct.
[45] In the premise, I am not persuaded that the deponent lacks the ability to verify
the cause of action.
Purported non-compliance with rule 32(4):
[46] It is trite that were evidence in an affidavit is included same does not
necessarily invalidate the application. The court may simply ignore such
evidence.12
[47] Following the amendments to rule 32, it has, however, been held on various
occasions that documents annexed to the affidavit in support of summary
judgment may be considered.
[48] In Absa Bank Ltd v Mashinini N.O and Another13 the following was stated:
“[t]he Rule as amended clearly did not envisage a mini-trial by the production of
extensive facta probantia, but were, as in the present instance that which would
have been a bare or bold denial can be refuted or, in the imprecise words of the
12 AE Motors (Pty) Ltd v Levitt 1972 (2) SA 658 (T)
13 (32016/2019; 32014/2019)[2019] ZAGPPHC 976 (22 November 2019) at par 3.11
amended rule, “briefly” be explained by way of annexed document or
documents that should in my view be allowed. To not do so would be to revert
to the unsatisfactory position which was in existence prior to the amendment of
the rule.”
[49] I am in agreement with the above dictum.
THE TEST: SUMMARY JUDGMENT:
[50] In the appeal of South African Land Arrangements CC v Nedbank 14 the
Supreme Court of Appeal succinctly summarised the principles applicable to
summary judgment:
“[13] The legal principles governing summary judgment proceedings are
well-established. In Maharaj v Barclays National Bank Ltd, Corbett JA
outlined the principles and what is required from a defendant in order to
successfully oppose a claim for summary judgment as follows:
‘…[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
enquiries into is: (a) whether the defendant had ‘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 that 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. If satisfied on these
matters the court must refuse summary judgment either wholly or in
part, as the case may be. The word ‘fully’, as used in the context of the
rule (and its predecessors), has been the cause of some judicial
14 2015 JDR 2364 (SCA)
controversy in the past. It connotes, in my view, that, while the
defendant need not deal exhaustively with the facts and the evidence
relied upon to substantiate them, he must at least disclose his defence
and the material facts upon which it is based with sufficient particularity
and completeness to enable the court to decide whether the affidavit
discloses a bone fide defence.”
[51] With reference to the remedy provided by summary judgment proceedings,
Navsa JA said the following in Joob Joob Investments (Pty) Ltd v Stocks
Mavundla Zek Joint Venture15:
“[31] 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 applications in our courts, summary judgment
proceedings can hardly continue to be described as extra ordinary.”
[52] In Raumix Aggregates (Pty) Ltd v Richter Sand CC16 the full court explains
what is required of a respondent in summary judgment:
“[15] Under the amended Rule the applicant is required, 15 days after the
date of delivery of a plea or an exception, to deliver a notice of
application for summary judgment, together with an affidavit
identifying any point of law relied upon and the facts underpinning the
claim, briefly explaining why the defence, as pleaded, does not raise
any triable issue. Under the old Rule, the plaintiff was required to file a
brief affidavit ‘verifying a cause of action’ and opining that the
15 2009 (5) SA 1 (SCA)
16 2020 (1) SA 532 (GJ)
defendant has no bona fide defence. These requirements are no
longer applicable under the new procedure. The question is whether
this change in procedure would, if applied retrospectively, adversely
affect substantive rights.
[16] The purpose of a summary judgment application is to allow the court
to summarily dispense with actions that ought not to proceed to trial
because they do not raise a genuine triable issue, thereby conserving
scarce judicial resources and improving access to justice. Once an
application for summary judgment is brought, the applicant obtains a
substantive right for that application to be heard, and, bearing in mind
the purpose of summary judgment, that hearing should be as soon as
possible. That right is protected under s 34 of the Constitution.”
[53] Rule 32(2)(b) of the Uniform Rules of Court prescribes that the plaintiff shall in
an affidavit verify the cause of action and the amount if any, claimed and
identify any point of law relied upon and facts upon which the plaintiff’s claim is
based, and explain briefly why the defence as pleaded does not raise any issue
for trial.
[54] In terms of rule 32(3)(b) of the Uniform Rules of Court, the defendants resisting
summary judgment application must set out in their affidavit’s facts, which if
proved at trial, shall fully disclose the nature and grounds of the defence and
the material facts relied upon.
[55] In Breitenbach v Fiat SA (Edms) Bpk17 the court held:
“I respectfully agree… that the word “fully” should not be given its literal
meaning in rule 32(3), and that no more is called for than this: that the
statement of material facts be sufficiently full to persuade the court that what
the defendant has alleged, if it is proved at the trial, will constitute a defence to
the plaintiff’s claim. What I would add, however, is that if the defence is averred
in a manner which appears in all circumstances to be needlessly bald, vague or
17 1976 (2) SA 226 (T) at 228 C and 228 E
sketchy, that will constitute material for the court to consider in relation to
requirement of bona fide.”
[56] In Jily v First Rand Bank Ltd18 Willis JA held:
“It is indeed trite that a court has a discretion as to whether to grant or refuse an
application for summary judgment…. It is a different matter where the liability of
the defendant is undisputed: the discretion should not be exercised against a
plaintiff so as to deprive it of the relief to which it is entitled. Where it is clear
from the defendant’s affidavit resisting summary judgment that the defence
which has been advanced carries no reasonable possibility of succeeding in the
trial action, a discretion should not be exercised against granting summary
judgment. The discretion should also not be exercised against a plaintiff on the
basis of mere conjecture or speculation.”
DEFENCES RAISED:
[57] The First, Second, Third and Fourth Defendants raised the following defences:
57.1. A special plea based on an alleged non -compliance with the dispute
resolution clause set out in the written lease agreement;
57.2 The existence of an alleged oral agreement constituting a p actum de
non petendo, concluded between the Plaintiff and the First Defendant
in terms whereof the Plaintiff’s debt has purportedly been
extinguished;
57.3 As to the conclusion of suretyship agreements by the Second, Third
and Fourth Defendants, same were met with bare denial by the
Defendants.
ISSUES FOR DETERMINATION:
[58] The issues for determination are the following:
58.1. Whether the Fourth Defendant’s late filing of the affidavit resisting
summary judgment ought to be condoned;
18 [2014] ZASCA 183 (26 November 2014 (763/13))
58.4 Whether the defences raised by the Defendants are bona fide and
whether the defences raised any triable issues;
58.5 Whether the Plaintiff is entitled to summary judgment for the arrear
rental and ancillary charges against the Defendants.
DISCUSSION:
Condonation:
[59] The Fourth Defendant’s opposing affidavit resisting summary judgment was
filed two days late. The application for condonation is unopposed. Having
considered the application, I am satisfied that good cause is shown for the non -
compliance with the rules and that the Plaintiff suffered no prejudice as a result.
DEFENCES RAISED IN DEFENDANTS’ PLEA:
Non-compliance with dispute resolution clause:
[60] The lease agreement between the parties contains an alternate dispute
resolution clause, which states the following:
“13.3.1 Where a dispute arises regarding indebtedness under this agreement,
such dispute shall first be referred to a senior manager of the
intermediary and failing resolution within 15 (fifteen) days shall
thereafter be referred to an independent practicing-chartered
accountant of not less than 5 (five) years standing for determination,
whose decision shall be final and binding on both parties.”
[61] On the basis of the above clause 13.3.1, read in isolation, the Defendants
argued that there is clearly a dispute between the Plaintiff and the First
Defendant regarding the indebtedness under the lease agreement, that the
Plaintiff was aware of this dispute prior to institution of the action and that the
resolution clause was triggered as soon as a dispute as to indebtedness arose,
making the referral to the resolution pre-emptory.
[62] However, clause 3.13 of the lease agreement is preceded by clause 13.2 which
reads as follows:
“13.2.1 Without excluding any rights of the tenant prescribed by the
Consumer Protection Act, 2008 or any other legislation applicable,
from time to time, either party may elect whether a dispute in terms of
this agreement is to be brought in a court with competent jurisdiction
or by way of dispute resolution as set out in clause 13.3 below.”
[own emphasis]
[63] Upon due consideration of the content of clauses 13.2 and 13.3 of the lease
agreement, it is evident that the agreement presupposes an election to follow
either the process under clause 13.2 or clause 13.3.
[64] In the absence of the existence of any declared dispute between the parties at
the time, I find that the Plaintiff was entitled to make an election of process as
provided for in clause 13.2.1.
[65] Accordingly, the Defendants’ denial of this court’s jurisdiction based on the
“resolution dispute clause” is without merit.
Pactum de non petendo:
[66] The apex of the Defendants’ defence against the Plaintiff’s claim appears to be
based on the allegation that the parties concluded an oral pactum de non
petendo (an agreement not to sue) during or about June or July 2023.
[67] The pleaded version of this alleged agreement provides that the parties agreed
as follows:
67.1. The First Defendant’s indebtedness to the Plaintiff as at the end of
June 2023, would be reduced to a total sum of R250,383.51;
67.2 The First Defendant would make payment of the total reduced
indebtedness to the Plaintiff, in four equal monthly instalments of
R62,595.75 from August 2023 to November 2023, both months
inclusive; and
67.3 The Plaintiff would not enforce clause 13.6 of the lease agreement, in
orally agreeing to varying the terms of the lease agreement until
December 2023, in the event of the First Defendant failing to make
payment of the total reduced indebtedness to the Plaintiff by
November 2023.
[68] However, the pleaded version of this oral agreement is inherently implausible
and logically inconsistent. What the Defendants seems to suggest is that the
First Defendant’s indebtedness towards the Plaintiff as of June 2023, was
reduced from R2,112,881.77 to a fraction of R2 50,383.51, conditional only
upon the First Defendant making payment of the reduced debt and only the
reduced debt by November 2023, whilst remaining in occupation of the leased
premises (against no further charge and purportedly indefini tely) and whilst the
written terms of the agreement became completely absolute in relation to its
further occupation of the premises until December 2023 (conditional upon the
First Defendant making payment by November 2023).
[69] Insofar as the Defendants argue that they complied with the agreement as
pleaded, three proofs of payment are relied upon in the plea, being:
69.1. An amount of R250,000.00 paid on 14 February 2023;
69.2. An amount of R250,000.00 paid on 17 March 2023; and
69.3. An amount of R100,000.00 paid on 19 June 2023.
[70] The Defendants alleged pactum de non petendo stand in stark contrast to the
fact that all these payments were made prior to June 2023, whereas the
indebtedness as at end of June 2023, was to be reduced.
[71] Inconsistent with the allegations in the plea, the Defendants state in their
affidavit resisting summary judgment that the agreement was concluded in July
2023 and argue that payments are evident from the Plaintiff’s statement and
were made on or about:
71.1. 1 August 2023;
71.2. 4 September 2023;
71.3. 3 October 2023;
71.4. 1 December 2023.
[72] Consequently, on Defendants’ own version, they failed to comply with what
they alleged was a pactum de non petendo.
[73] In their affidavit resisting summary judgment, the Defendants aver that their
attorneys of record made a bona fide error of annexing three incorrect payment
proofs to the plea for the period preceding the conclusion of the alleged oral
agreement and further that the Defendants intend to amend their plea in due
course to rectify the bona fide error in respect of the payments and dates of
payment.
[74] The affidavit s resisting summary judgment w ere deposed to on 10 and 12
March 2025, respectively. However, after a lapse of a considerable period of
approximately 8 months up until the hearing of this application on 5 November
2025, the Defendants appear to have taken no steps to amend their plea in
accordance.
[75] The pleaded terms of the pactum are also inconsistent with the amounts
reflected in the Plaintiff’s evidence (statement), which exceed the purported
“reduced debt” and were not payments of four equal monthly instalments of
R62,595.75, as alleged . On their own version, it appears that the Defendants
failed to comply with what they alleged was a pactum de non petendo.
[76] In addition to the inconsistencies referred to above, the First to Third
Defendants further attempted to add a further defence in paragraph 58 of their
opposing affidavit by stating the following:
“58 The First, Third and Fourth Defendants and I, are advised that this
constitutes a pactum de non petendo and/or a waiver .” (own
emphasis).
[77] No reference of a waiver is made in the Defendants’ plea.
[78] In SA Sentrale Ko -op Graanmaatskappy Bpk v Shifren en Andere 19 the
“Shifren” principle was set out that once parties to a written agreement agree
that an agreement cannot be altered unless certain conditions are met, no
amendment are valid unless the prescribed conditions have been met.
[79] In Muller and Another NNO v Dennecker 20 special weight was given to the
judgment of Hiemstra in Impala Distributors v Taunus Chemical
Manufacturing Co (Pty) Ltd21 where it was held that a pactum de non petendo
did not amount to a variation or a waiver which is required to be in writing by
the contract, but co -existed with a contract in the sense that it merely
suspended the enforceability of a contract for a specified period or the
occurrence of some contingency.
[80] In Brisley v Drosky 22 the importance of the Shifren principle was reiterated
and the court rejected an argument, with reference to the Muller case, that a
court may refuse to enforce a non -variation clause if it would amount to a
breach of the principle of good faith.23
[81] Counsel for the Plaintiff argued that an oral pactum non petendo in itself cannot
justify the violation of the Shifren principle as suggested by the Defendants in
casu and that the non-variation clause is conclusive with the lack of a bona fide
defence.
[82] It is clear from the numerous notices of default to the First Defendant
throughout the period of June 2023 to September 2023, that there was no
agreement in line with what the Defendants suggest, particularly that the
Plaintiff did not conduct itself in accordance with the purported pactum or
waiver of its right to rely on the written lease agreement and evidently relied on
the First Defendant’s breach and communicated such breach and its intention
to cancel the agreement to the First Defendant.
19 1964 (4) All SA 520 (A) at 675
20 2002 (1) SA 928 (C)
21 1975 (3) SA 273 (T)
22 2002 (4) SA 1 (SCA)
23 See par 13 thereof
[83] The lack of bona fides in the Defendants’ defence is further evidenced by the
fact that on the Defendants own version, the pactum was solely based on its
indebtedness, which accrued prior to June 2023. The remaining three months
of its occupation of the rental premises being unaffected.
[84] With regards to the issue of bona fide defence Binns -Ward J stated the
following in Tumileng Trading v National Security and Fire24:
“[40] However, does the fact that the bones of a triable defence have been
made out in the plea mean that summary judgment must be refused?
The answer is clearly ‘no’! The reason for the negative answer is that
the enquiry is not whether the plea discloses ‘an issue for trial’ in the
literal sense of those words, it is whether the ostensible defence that
has been pleaded is bona fide or not. As discussed earlier, that that
is the relevant enquiry in a summary application follows from the rule
maker’s decision to leave subrule 32(3) substantively unamended. If
one were to apply the amended rule differently, it would be impossible
to marry the requirement of a plaintiff apparently posited by subrule
32(2)(b) (viz. showing that ‘the defence as pleaded does not raise any
issue for trial’) with what is demanded of a defendant in terms of
subrule 32(3)(b) (viz. showing that its defence to the action is bona
fide; i.e. that its ostensible defence is not a sham). The respective
supporting and opposing affidavits would pass each other like ships in
the night if one were to understand the notion of ‘issue for trial’ in
subrule 32(2)(b) as denoting something different from a ‘bona fide
defence’ within the meaning of subrule 32(3)(b).”
[85] Accordingly, I find that the averments in the Defendants’ opposing affidavit fall
far short of what is required in terms of rule 32(3)(b) of the Uniform Rules of
Court.
Suretyship agreements:
24 2020 (6) SA 624 at 640, par 40
[86] The Second to Fourth Defendants each signed a deed of surety in favour of
the Plaintiff as co -principal debtor and surety for the performance of the First
Defendant in terms of the lease agreement. The Second, Third and Fourth
Defendants raised no bona fide defence insofar as it relates to the sureties and
has met the allegations relating to the existence of suretyship agreements with
a bare denial. However, the denial of liability on the part of the suretyships only
applies insofar as the principal debt has been extinguished.
[87] I am satisfied that the suretyship agreements comply with the necessary
requirements and in the absence of any evidence on which the court can find
that a valid oral “pactum” agreement was concluded, or that the First Defendant
discharged its debt towards the Plaintiff, the liability of the Second, Third and
Fourth Defendants as co -principal debtors and sureties for the performance of
the First Defendant in terms of the lease agreement, remains.
[88] In the result, I am satisfied that the Plaintiff is entitled to summary judgment as
prayed for and accordingly I make the following order:
ORDER:
Having heard counsel and having considered the written heads of argument and
having read the documents filed of record, the following order is made:
1. Condonation is granted to the Fourth Defendant for the late filing of her
opposing affidavit.
2. Summary judgment is granted against the First, Second, Third and Fourth
Defendants in the following terms:
2.1 That the summary judgment be granted against the First, Second, Third
and Fourth Defendants, jointly and severally, the one paying the other
to be absolved, as follows:
2.1.1 Payment in the amount of R2 465 905.40;
2.1.2. Interest on the amount of R2 465 904,40 calculated at 4%
above the prime bank overdraft interest charge rate by
Nedbank Ltd per annum a tempora morae to date of payment
or the maximum amount or rates set by law from time to time,
whichever is the higher amount (prime interest rate 11.75% +
4% = 15.75%);
2.2 Payment of cost, such cost to be taxed on the attorney and client scale.
JA KLOPPER
ACTING JUDGE
HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
This Judgment was handed down electronically by circulation to the Plaintiff’s
legal representatives and the Defendants by email and by being uploaded to
Case Lines . The date and time for the hand down is deemed to be on 3
February 2026
Appearances
Counsel for the Plaintiff: Adv J Strubel
Instructed by: Attorneys Raath Law Inc
Ref.:
Appearance for Defendants: Adv A Campbell
Defendants’ attorneys: Abdul Bacus Attorneys
Date of Hearing: 5 November 2025
Date of Judgment: 19 May 2026