THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
Case 2025/046832
In the matter between:
PETERSON, IZAK SMOLLY N.O.
in his capacity as trustee of MERGENCE AFRICA
PROPERTY INVESTMENT TRUST
First Plaintiff
ASMAL, RIDWAAN N.O.
in his capacity as trustee of MERGENCE AFRICA
PROPERTY INVESTMENT TRUST
Second Plaintiff
AZIZOLLAHOFF, BRIAN HILTON N.O.
in his capacity as trustee of MERGENCE AFRICA
PROPERTY INVESTMENT TRUST
Third Plaintiff
JUNKOON, JUJDEESHIN N.O.
in his capacity as trustee of MERGENCE AFRICA
PROPERTY INVESTMENT TRUST
Fourth Plaintiff
and
PHETOGO SALES (PTY) LTD t/a BOKAMOSO SALES
First Defendant
MAKGATHO PETER MANKU
Second Defendant
RACHEL LUCIA MOHLABI Third Defendant
(1) REPORTABLE: Yes☐/ No ☒
(2) OF INTEREST TO OTHER JUDGES: Yes☐ / No ☒
(3) REVISED: Yes ☒ / No ☐
Date: 09 June 2026
JUDGMENT
DU PLESSIS J
Introduction
[1] This is an opposed application for summary judgment arising from alleged
arrears in rent and related charges, said to be due in terms of a written lease
agreement, together with relief against the second and third defendants as sureties.
[2] A plaintiff requesting summary judgment must meet the criteria of Rule 32 as
developed through case law and prove to the court that the defendant has not
presented a legitimate defence to the claim. In the oft-cited case of Maharaj v Barclays
National Bank Ltd,
1 the Appellate Division laid down the rule: where the defence is
based on facts, in the sense that the facts alleged by the plaintiff in his summons are
disputed and new facts are alleged in the plea, the court hearing the summary
judgment does not attempt to decide the disputed issues or determine where the
balance of probabilities lies. Instead, the inquiry is on whether the defendant has fully
disclosed the nature and basis of the defence, along with the material facts they
depend on, and whether, based on those facts, the defendant appears to have a
defence that is bona fide and legally sound.
[3] In Breitenbach v Fiat SA (Edms) Bpk
2 the court similarly emphasised that it is
sufficient if a defendant raises a defence, valid in law, in a manner that is not inherently
and seriously unconvincing, and sets out the material facts with enough detail to
persuade the court that, if proved at trial, they would constitute a defence.
[4] During argument, counsel for the plaintiffs submitted that, even on the
defendants’ version, the plaintiffs were at least entitled to rent until November 2024,
and suggested that the court grant summary judgment to that extent. Judgment was
1 1976 (1) SA 418 (A) at 427.
2 1976 (2) SA 226 (T) at 229.
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reserved to reflect on the submission in light of the pleaded defences and the material
placed before the court.
[5] Upon a closer rereading of the papers, it is evident that the principal issue
between the parties is whether the contractual relationship is governed by the written
lease relied upon by the plaintiffs or by the oral, alternatively tacit, lease claimed by
the defendants. This question is fundamental to the case. It underpins the plaintiff’s
cause of action and it determines the terms of the lease, duration, the basis upon
which rent and related charges, as well as other issues such as reletting the property
and the counterclaim.
[6] This is because the defendants’ case is that, after the plaintiffs signed the
written lease, they addressed an email stating that they did not wish to proceed on
those terms, and that no binding written lease was therefore concluded between the
parties. The plaintiff, on the other hand, relies on the written lease (signed only by the
plaintiff) and the defendants' subsequent conduct to establish a binding agreement. In
these circumstances, it is not only the existence of a written lease but also the precise
terms on which the parties contracted that are genuinely in dispute.
[7] I will not express a definitive opinion on the case's merits—that is for the trial
court. However, based on these papers, the defendant’s account is not so far-fetched
or untenable as to warrant dismissal outright. The defendants have placed before the
court material that, if proven at trial, may constitute an answer to the plaintiff’s claim.
This includes the submission that they are at least entitled to judgment up to November
2024.
[8] Having reconsidered the matter in light of those authorities and after a closer
reconsideration of the pleadings and affidavits, I am unable to conclude that the
plaintiffs’ case is unanswerable at this stage.
[9] There are, in addition, related disputes concerning the quantification of the
[9] There are, in addition, related disputes concerning the quantification of the
claim, including the basis for certain utility and related charges, and the legal effect, if
any, of the alleged lock-out and the counterclaim said to arise from it. Those issues
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only support the conclusion that the matter is not suitable for final determination by
summary judgment.
[10] As a result, the plaintiffs have not shown that they have an unanswerable case.
The defendants are entitled to leave to defend. Costs to be costs in the cause.
Order
[11] The following order is made:
1. The application for Summary Judgment is dismissed.
2. The defendants are granted leave to defend the action.
3. The costs of the summary judgment application are costs in the
cause.
______________
WJ du Plessis
Judge of the High Court, Gauteng Division,
Johannesburg
Date of hearing:
18 March 2026
Date of judgment:
9 June 2026
For the applicant:
J Dobie instructed by Rooseboom
Attorneys
For the respondent:
B Brammer instructed by J Booysen
Barker & Lesaba Inc