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IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
CASE NO:111849/2025
(1) Reportable: No
(2) Of nterest to other Judges: No
(3) Revised: No
Date: 1 June 2026
Signature:
In the matter between:
VOORMAX (PTY) LTD APPLICANT
AND
MPILENG FUNERALS (PTY) LTD FIRST RESPONDENT
DONALD KOKETSO KHULONG SECOND RESPONDENT
The matter was heard in open court. The judgment is handed down electronically by
circulation to the parties’ legal representatives by email . The date for hand -down is
deemed to be 01 June 2026.
________________________________________________________________
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J U D G M E N T
________________________________________________________________
Mazibuko J
[1] The applicant seeks an eviction order against the first respondent (‘Mpileng’)
and the second respondent (‘Khulong ’), together referred to as respondents,
from a leased commercial property where the respondents conduct their
business, on the basis that the respondents have breached the terms of the
commercial lease agreement between them by failing to make timely monthly
rental payments, resulting in the termination of the lease by the applicant. The
application is opposed.
[2] The following was common cause between the parties:
[2.1] The applicant was a lawful and rightful owner of the leased property.
[2.2] In October 2024, the applicant and the first respondent entered into a
written lease agreement (‘the agreement’) . It was a term of the
agreement that the respondent would pay all rentals to the applicant in
advance each month.
[2.3] The applicant concluded a deed of surety with the second respondent ,
binding himself as surety for and co -principal debtor in terms of the
written surety agreement, for the payment of rental and other charges,
and for the due fulfilment and performance of all obligations of the first
respondent in terms of the agreement.
[2.4] Despite the applicant's demand for payment of arrears of R392 565.85
as at June 2025 and the applicant’s correspondence regarding
termination of the agreement i n June 2025, the respondents remained
in arrears on their rental payments and continued to occupy the
property.
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[2.5] In June 2025, the applicant instituted a pending action against the
respondents, seeking cancellation of the agreement and damages
arising therefrom.
[2.6] Between July and August 2025, the respondents made payments
totalling R200 000, with R100 000 each month.
[3] Regarding the late filing of the answering affidavit, the applicant averred that it
took no issue with it, as it suffered no prejudice, having filed a reply thereafter.
Further, the issue of the dates on which the second respondent and the
commissioner of oaths signed the answering affidavit was not seriously
contested, as the applicant stated in its replying affidavit that it elected to reply
to the answering affidavit to expedite and finalise the matter. On this basis, I
have accepted the answering affidavit as evidence since the applicant raised
no opposition and had already replied to it.
[4] It was argued on behalf of t he applicant that, as the lawful owner, it was
relying on rei vindicatio and on the respondents’ possession of the property.
[5] The respondents raised a point in limine of lis pendens, stating that there is a
pending action between the parties , claiming cancellation of the agreement
and damages. They further dispute the amount in arrears.
[6] The issue for determination is whether the applicant has made out a case for
an eviction order pending the finalisation of the trial proceedings, and whether
the respondents' point in limine has any merit.
[7] Fundamental to the defence of lis alibi pendens is the requirement that the
same plaintiff has instituted an action against the same defendant for the
same subject matter arising out of the same cause. 1 The defence of lis alibi
pendens is akin to the defence of res judicata in that, in both, the elements of
the defence are that the parties and the issue are the same. The rationale
behind the defence is that it is undesirable to allow two different courts to
decide the same issue independently of one another, either where a dispute is
decide the same issue independently of one another, either where a dispute is
1 Hassan & another v Berrange NO 2012 (6) SA 329 (SCA) paragraph 19.
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still pending (lis alibi pendens), or where the dispute has already been
determined (res judicata).
[8] For the defence of lis alibi pendens to succeed, the respondents must show
that the litigation is between the same parties; the cause of action is the
same; and the same relief is sought in both matters.
[9] The parties in the two matters are the same. The question is whether the
issues for determination are the same . In the action, the applicant sought
confirmation of the agreement's cancellation, payment of arrears in the
amount of R392 565.85, and damages.
[10] None of these issues arise s in th e application before me , nor is the same
relief sought in the two matters . In this application, the applicant sought
confirmation of the cancellation of the agreement and ejectment of the
respondents from the leased property. The applicant has demonstrated that
the agreement governing the parties' relationship was cancelled in June 2025,
and has sought confirmation thereof in both the action and this application.
Nothing turns on the fact that , in both the action and the application, the
applicant sought confirmation of cancellation of the agreement , as it had
already been cancelled, and such was conveyed to the respondents in writing.
Consequently, the point in limine regarding the defence of lis pendens is
found to be without merit and dismissed.
[11] In order to succeed in an eviction application based on rei vindicatio , the
applicant must allege and prove the following: a) The respondent's right to
possess, which is a lease agreement between the parties; b) A valid
termination of the respondent's right to possess; c) Continued occupation by
the respondent or by someone holding on the respondent's behalf or through
the respondent; d) Compliance with any statutory requirements; and e)
Damages (if any) suffered as a result of the holding over.2
[12] It was undisputed that the applicant terminated the agreement because the
[12] It was undisputed that the applicant terminated the agreement because the
respondents were in arrears on the rent. However, the respondents disputed
2 Amler’s Precedent of pleadings Eight Edition p 188.
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the amount of the arrears. The respondents did not dispute that they were in
arrears; they only disputed the actual amount in arrears, as payments were
made in July and August.
[13] In its reply affidavit, the respondent admitted that, although the agreement
was terminated in June 2025, it accepted payments from the respondents for
July and August rentals after initiating this application on 9 July, as the
respondents were still in occupation. I find that the fact that the actual arrears
amount is in dispute does not assist the respondents, as the application was
not to claim arrears, which would be dealt with in the pending action
proceedings. Their reliance on an incorrect arrears fi gure cannot serve as a
defence to the eviction application once the agreement has been terminated,
even if the termination was based on those incorrect arrears. There is no
dispute that the respondents are in arrears; the dispute is only the exact
amount of the arrears.
[14] Further, the applicant stated that the payments made in July and August were
allocated to the respective months' rentals, as the respondents were still in
occupation of the leased property. It is apparent that the applicant's
acceptance of th ose payments in July and August did not revive the
terminated agreement. I am persuaded that, because the agreement has
been validly terminated, the applicant is not precluded from recovering its
immovable property. Accordingly, there is no reason why the applicati on for
an eviction order against the respondents should not succeed , whilst the trial
proceedings on a different cause of action continue.
[15] Regarding costs, there is no reason they should not follow the cause.
[16] In the circumstances, the following order is made;
Order:
[16.1] The lease agreement between the applicant and the first respondent is
terminated.
[16.2] The first and second respondents, and all other occupants, whether
occupying through or under them, are to vacate the premises situated
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at Warehouse 0014 Hofmil (The Showroom), 2[...] S[...] Street,
Pretoria, Gauteng Province (the premises), together with any movable
property on or in the said premises, within 30 (thirty) days of service of
this order upon the respondents.
[16.3] Should the first and second respondents, and all those occupying
through or under them, fail to vacate the premises known as
Warehouse 0014 Hofmil (The Showroom), 2[...] S[...] Street, Pretoria,
Gauteng Province, within the time period stated in paragraph 2 above,
the sheriff of the area where the immovable property is situated is
authorised to assist the applicant in evicting the first and second
respondents, and all those occupying through or under them, from the
premises.
[16.4] The first and second respondents are ordered to pay the costs of this
application, jointly and severally, the one paying, and the other to be
absolved.
_________________________
N G M MAZIBUKO
Judge of the High Court
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Date of Hearing: 3 March 2026
Judgment delivered on: 1 June 2026
APPEARANCES:
For the Appellant: Adv Z Schoeman
Attorneys for the Applicant: Savage Jooste & Adams Inc
For the Respondents: Adv L Mello
Attorneys for the Respondent: ME Makgopa Attorneys