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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
Case Number:
2025-077523
In the matter between:
In the matter between:
K2012150042 (SOUTH AFRICA) (PTY) LTD Applicant
(Registration no: 2012/150042/07)
and
CASUAL DINING CONCEPTS (PTY) LTD First Respondent
Trading as Chicking
Registration no: 2019/504570/07)
NATHANAEL PERSEFONI Second Respondent
This Judgment is handed down electronically by circulation to the Applicant’s Legal
Representatives and the Respondents by email, publication on CaseLines as well as
Saflii. The date for the handing down is deemed to be 15 June 2026.
Summary- Contract law – whether an eviction order can be properly granted –
whether the applicant has a right to cancel the lease agreement without a proper
notice as agreed
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: YES
15 June 2026
DATE SIGNATURE
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JUDGMENT
MUDAU, J:
Introduction
[1] The Applicant (“the Landlord”) seeks final relief against the First Respondent
(“the Tenant”) and the Second Respondent (“the Surety”) arising from a
commercial lease agreement in respect of retail premises situated at T[…] Z[…]
[…] R[…] Johannesburg. The relief comprises (i) the eviction of the Tenant; (ii)
payment of R323 081.68 for arrear rental and charges as at July 2024; (iii)
payment of R689 834.49 for holding- over damages from August 2024 to May
2025; and (iv) ancillary relief, including costs on an attorney -and-client scale
and interest at 2% per month.
[2] The matter was set down as an opposed motion. Both parties filed extensive
affidavits and heads of argument. Having carefully considered the papers and
the submissions, I have concluded that the application cannot succeed. The
Landlord has failed to prove a valid cancellation of the lease; there are material,
bona fide disputes of fact that cannot be resolved on the papers; and the
monetary claims are not properly before the court. Each of these grounds is
independently fatal to the application.
[3] Below I set out the factual background, the legal framework, and a detailed
analysis of the determinative issues.
Factual background
The lease agreement
[4] The parties concluded a written commercial lease agreement during July 2022.
The material terms, which are common cause, include:
a. Lease period: 5 years, commencing 1 March 2022 and terminating 28
February 2027.
b. Beneficial occupation date (for shopfitting): 1 February 2022.
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c. Monthly rental: escalating annually by 7% compounded, with the initial
amount of R51 203.75 (VAT inclusive).
d. Additional charges: municipal charges, marketing fund contribution,
utilities, and turnover rental.
e. Deposit: R145 700.00.
f. Suretyship: The Second Respondent bound herself as surety and
co-principal debtor.
[5] The Tenant took occupation and commenced trading as a “Chicking” fried
chicken franchise. It is not disputed that the Tenant fell into arrears in the
course of 2023 and 2024.
The termination correspondence
[6] On 9 May 2024, the Landlord’s managing agent sent letters of demand to the
Respondents claiming R217 617.71. The Tenant did not remedy the breach.
[7] On 1 July 2024, the Landlord’s agent sent a notice of cancellation (Annexure
“FA8”). The notice demanded payment of R323 081.68 within seven days and
required the Tenant to vacate the premises by 31 July 2024. The Tenant did
not vacate and remains in occupation.
The answering and supplementary affidavits
[8] The Tenant and Surety oppose the application. Their answering affidavit
(deposed to by Stylianos Costa Nathanael) raises three principal defences:
a. Delayed occupation: The Landlord failed to give the Tenant beneficial
occupation by the agreed date of 1 March 2022. Keys were only handed
over in mid- September 2022, and trading only commenced on 22
October 2022. Nevertheless, the Landlord levied rental and operating
charges for the period March to October 2022, which the Tenant paid
under protest (R409 630.00).
b. Removal of communal seating: More than 12 months ago, the Landlord
removed all granite tables and chairs from the food court area outside
the Tenant’s premises. This has severely reduced the ability of
customers to eat immediately after purchasing food, which is critical for a
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fast-casual restaurant. The Tenant’s turnover has dropped by
approximately R200 000 per month, and profits have declined by at least
R60 000 per month, equating to a loss of R720 000 over the past year.
The Tenant invested over R2 million in specialised equipment, and the
viability of the business is now in peril.
c. Invalid cancellation: The notice of cancellation was not delivered in
accordance with clause 18 of the lease, which requires hand delivery or
prepaid registered post to the parties’ chosen domicilia citandi et
executandi. The Landlord did not prove compliance. There is no proof of
service to the domicilium address or hand delivery of the notice. It is trite
that strict compliance with the prescribed requirements is necessary
concerning notice of breach.1 I expand on this aspect below.
[9] In a supplementary answering affidavit (filed with condonation), the deponent
amplified the defence regarding the removal of seating, attached photographs
of the food court before and after, and provided a company resolution and
power of attorney to cure any earlier authority defects.
The replying affidavit
[10] The Landlord’s replying affidavit attacks the Respondents’ defences as bald,
unsubstantiated, and opportunistic. It points to the offer to lease (December
2021) which states that rental is payable from 1 March 2022 “notwithstanding
the completion status of the premises, unless delays have been caused by the
Landlord or its agents”. It also relies on an Acknowledgement of Debt signed by
the Second Respondent on 17 June 2022, acknowledging arrears of
R395 228.20 for the period March to June 2022 and undertaking a repayment
plan. The Landlord argues that this AOD estops the Respondents from now
disputing the rental for that period.
[11] Regarding the removal of seating, the Landlord contends that the lease
contains no clause obligating it to maintain communal seating and that the
“whole agreement” clause (clause 19) precludes reliance on any alleged
“whole agreement” clause (clause 19) precludes reliance on any alleged
representations or expectations.
1 See Datacentrix (Pty) Ltd v O-Line (Pty) Ltd [2022] ZASCA 162 at para 11
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Legal framework for motions proceedings
[12] It is trite that in motion proceedings, a final order can only be granted if the facts
averred in the applicant’s founding affidavit, together with the facts admitted by
the respondent, justify such an order. Where the respondent raises a bona
fide dispute of fact, the court must accept the respondent’s version unless it is
so far -fetched or untenable that it can be rejected on the papers. This is the
well-established Plascon-Evans rule: Plascon-Evans Paints Ltd v Van Riebeeck
Paints (Pty) Ltd [1984] ZASCA 51; 1984 (3) SA 623 (A) at 634E-635C.
[13] A court will not be drawn into resolving complex factual disputes on affidavit
alone, particularly where credibility findings are required and where oral
evidence would be necessary to determine the facts. As was stated
in Stellenbosch Farmers’ Winery Group Ltd v Martell et Cie 2003 (1) SA 11
(SCA) at para [5], motion proceedings are unsuitable for the resolution of real,
genuine, and material disputes of fact. The applicant bears the onus of
establishing its case on the papers. If the respondent’s version raises a
plausible defence, the application must be dismissed or referred for oral
evidence.
[14] I apply these principles throughout this judgment.
Validity of the Cancellation: Non-compliance with clause 18
[15] The lease agreement, at clause 18, provides:
“All notices shall be delivered by hand or posted by prepaid registered mail and
shall be deemed to have been received by the addressee on the fifth business
day after posting thereof, or forthwith upon hand delivery. The parties may
change their domicilia to another address in the Republic of South Africa of
which they may advise each other in writing on not less than seven (7) days’
notice.” (Emphasis)
[16] The domicilium citandi et executandi of the Tenant and the Surety is stated in
the Schedule as: “Unit […] , 3 [… ] R[…] Crescent C [… ] Park, Randjiespark,
Gauteng, 1685”
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[17] The notice of cancellation (Annexure “FA8”) is addressed, on its face, to three
different destinations: The leased premises (Shop F […] , T[…] Z[… ] […] R[…] );
Two email addresses (p[ …] and s[…] ); and the domicilium address (Unit [ …] ,
3[…] R[…] Crescent…).
[18] The deponent to the founding affidavit, Ms Chetty, states only that “the
Applicant’s agent caused a notice of cancellation of lease to be delivered to the
Respondents” (paragraph 21). She does not state: who delivered the notice;
whether it was delivered by hand or by prepaid registered post (as required); to
which address it was delivered; and the exact date of delivery.
[19] In her replying affidavit, she does not cure this deficiency. There is no
confirmation from the agent who allegedly effected delivery, no registered post
receipt, and no affidavit from the process server. The Landlord simply assumes
that delivery to multiple addresses, including email, is sufficient because the
notice was “sent”. This is not compliance with the peremptory terms of clause
18.
[20] The law is clear: where a contract prescribes a specific mode of giving notice,
that mode must be strictly followed, failing which the notice is invalid.
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[21] It is not enough for the Landlord to assert that the Respondents “received” the
notice or that they were aware of it. The right to cancel flows from proper
compliance with the contractual machinery. Without proof of hand delivery or
registered post to the correct domicilium, the cancellation is legally ineffective.
[22] Consequently, the lease agreement remains in force. The Landlord’s claim for
eviction, which is predicated on a lawful cancellation, must fail. Likewise, the
claim for holding-over damages (Claim C) – which assumes that the lease has
been terminated and that the Tenant is in unlawful occupation – falls away
because there has been no valid termination.
Material dispute of fact regarding delayed occupation and the acknowledgement of
debt
Material dispute of fact regarding delayed occupation and the acknowledgement of
debt
2 See Maphango v Aengus Lifestyle Properties (Pty) Ltd 2012 (3) SA 531 (CC) at para 46
(concerning the Rental Housing Act, but the principle of strict construction of notice provisions
is general).
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[23] Even if I were wrong on the cancellation issue, the Respondents have raised a
genuine factual dispute about whether the Landlord itself breached the lease by
failing to deliver beneficial occupation timeously.
[24] The lease provides for a beneficial occupation date of 1 February 2022 and a
commencement date of 1 March 2022. The Respondents allege that keys were
only handed over in mid- September 2022, and trading began on 22 October
2022. They claim that they paid rental for the intervening months (March to
October 2022) under protest and under duress, fearing cancellation.
[25] The Landlord’s answer is threefold:
a. Clause 8 of the offer to lease makes the Tenant liable for rental from 1
March 2022 “notwithstanding the completion status of the premises,
unless delays have been caused by the Landlord or its agents”. The
Landlord argues that the Tenant has not proved that any delay was
caused by the Landlord.
b. The Tenant signed an Acknowledgement of Debt (AOD) on 17 June
2022 acknowledging arrears of R395 228.20 for the period up to June
2022.
c. The Tenant’s current dispute is a late-raised, opportunistic defence.
[26] The difficulty for the Landlord is that the AOD does not expressly waive the
right to later dispute the cause of the delay or the quantum of the charges. The
AOD was signed in the context of the Landlord’s threat to cancel the lease if the
Tenant did not agree to the terms set out in the email of 13 June 2022. Those
terms included that “BO [beneficial occupation] will only be granted upon items
1-5 being finalised”. This suggests that the Landlord itself had not yet granted
beneficial occupation by 13 June 2022 – which is consistent with the
Respondents’ allegation that keys were only handed over in September 2022.
[27] Moreover, the AOD was a compromise to avoid cancellation and to regularise
the Tenant’s position. It does not constitute an admission that the Landlord was
not in breach. The question whether the Landlord caused the delay is a factual
not in breach. The question whether the Landlord caused the delay is a factual
issue that cannot be resolved on the papers. The Respondents’ version is not
so implausible as to be rejected without oral evidence. Indeed, the Landlord
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has not produced any contemporaneous record (such as a handover certificate
or a key register) to prove exactly when occupation was given.
[28] This dispute goes to the root of the Landlord’s claim for arrear rental (Claim B).
If the Landlord was in breach by failing to provide beneficial occupation, the
Tenant might be entitled to a set -off or a counterclaim for damages. That is a
matter for trial.
The removal of communal seating: Derogating from Grant
[29] The most substantial defence raised by the Respondents concerns the
Landlord’s removal of all granite tables and chairs from the food court outside
the leased premises. This is amplified in the supplementary answering affidavit
with photographic evidence (Annexures “SN4” and “SN6”) and an article from
2015 describing the food court as having “granite tables”.
[30] The Tenant’s case is that: When the lease was concluded, the food court had
extensive communal seating. Customers could order food from the Tenant and
eat immediately at those tables and chairs. Because the leased premises
themselves are relatively small (137m², whereas the Tenant had sought more
space), the existence of communal seating was critical to the viability of the
business. More than 12 months ago, the Landlord removed all the seating,
leaving an empty open space. As a result, customers now go to other food
outlets that have internal seating. The Tenant’s turnover has dropped by
approximately R200 000 per month, and profits have fallen by R60 000 per
month.
[31] The Landlord’s response in its replying affidavit is dismissive. It says: The lease
contains no clause obligating the Landlord to maintain communal seating. The
“whole agreement” clause (clause 19) precludes reliance on any
representations about the food court. The allegations are vague and
unsupported.
[32] I find the Landlord’s response legally inadequate. The principle that a landlord
may not derogate from its grant is an implied term of every lease. A landlord
may not derogate from its grant is an implied term of every lease. A landlord
cannot, after letting premises for a particular purpose, do anything that
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substantially interferes with the tenant’s reasonable use and enjoyment of the
premises or that destroys the essential character of the leased property.
[33] The removal of communal seating in a shopping centre food court, when the
tenant’s business is a fast-casual restaurant that depends on customers being
able to eat on the premises, is a classic example of derogation from grant. It is
not necessary that the lease expressly promise to maintain seating. The implied
obligation arises from the nature of the lease and the purpose for which the
premises were let. The lease itself, in clause 5, permits the Tenant to use the
premises as a “halal fried chicken restaurant”. That use, by its nature, involves
on-site consumption. If the Landlord removes all public seating in the
immediate vicinity, it effectively nullifies a fundamental aspect of the Tenant’s
business model.
[34] The fact that the “whole agreement” clause excludes prior representations does
not assist the Landlord here. The complaint is not about a broken promise. It is
about post-contractual conduct that has rendered the premises unsuitable for
the purpose for which they were let. A landlord cannot, by including a standard
entire agreement clause, immunise itself against subsequent acts that amount
to a breach of the lease.
[35] The Respondents have provided specific, quantifiable allegations of financial
loss. This is not a bald denial; it is a detailed factual defence supported by
photographs and a plausible causal link. The Landlord has chosen not to rebut
the factual allegations with any evidence of its own – for example, by explaining
why the seating was removed, whether it was temporary, or whether alternative
seating was provided. On the papers, the Tenant’s version stands as the only
version.
[36] This alone creates a material dispute of fact that cannot be resolved on motion.
It also provides a strong basis for the Tenant’s claim that the cancellation (if
It also provides a strong basis for the Tenant’s claim that the cancellation (if
valid) was not justified, or that the Landlord has itself repudiated the lease.
The quantum of the monetary claims: Inadmissible and insufficient evidence
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[37] Even if the Landlord had proved a valid cancellation, the monetary claims are
fatally flawed.
[38] The founding affidavit was deposed to by Ms Kirsten Chetty, a legal advisor
employed by the managing agent. She asserts in paragraph 5 that “[a] all
documentation of the Applicant pertaining to this application is in my study and
under my control, accordingly I possess personal knowledge of the content
thereof.” This assertion is too sweeping and does not comply with the
requirement that a deponent must set out facts within their personal knowledge
or the source of their information.
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[39] It is vital that motion court litigation should be conducted in an efficient manner.
In Venmop 275 (Pty) Ltd v Cleverlad Projects (Pty) Ltd4 the court observed:
“The efficient conduct of litigation has as its object the judicial resolution of
disputes, optimising both expedition and economy. The conduct and finalisation
of litigation in a speedy and cost -efficient manner is a collaborative effort. The
role of witnesses is to testify to relevant facts of which they have personal
knowledge.”
[40] Crucially, Ms Chetty does not state that she personally calculated the arrears,
prepared the reconciliation (Annexure “FA9”), or verified the accuracy of the
charges. She merely attaches the reconciliation. In so doing, she has not
placed the contents of that reconciliation before the court as admissible
evidence. Hearsay evidence not confirmed by a person with personal
knowledge is inadmissible in motion proceedings unless an exception applies.
It is trite that If an affidavit sets out facts based on hearsay information, the
deponent must state that the allegations of fact are true to the best of his
information, knowledge and belief and state the basis of his knowledge or
belief.
5 Moreover, the reconciliation contains charges that are not mentioned in
the founding affidavit or the lease agreement, such as:
a. “GENERATOR USAGE RECOVERY”
3 See FirstRand Bank Ltd v Kruger 2017 (1) SA 533 (GJ)
a. “GENERATOR USAGE RECOVERY”
3 See FirstRand Bank Ltd v Kruger 2017 (1) SA 533 (GJ)
4 2016 (1) SA 78 (GJ) at 85D–F
5 See The Master v Slomowitz 1961 (1) SA 669 (T) at 672B; Passenger Rail Agency of South
Africa v Swifambo Rail Agency (Pty) Ltd 2017 (6) SA 223 (GJ) at 230F–G.
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b. “GENERATOR COMM AREA RECOV”
c. “OTHER RECOVERIES”
d. “PENALTIES – TURNOVER”
e. “TENANTS CONTRIBUTION”
[41] No case is made out for these charges. The Landlord cannot simply annex a
spreadsheet and expect the court to sift through it to find a basis for each item.
The founding affidavit must set out a clear cause of action and a calculation
that can be verified. It does not.
[42] Consequently, the claim for arrear rental (Claim B) is not properly before the
court and cannot be granted.
[43] As for the holding- over damages (Claim C), that claim is predicated on a valid
cancellation and unlawful occupation. Since I have found the cancellation to be
invalid, this claim falls away. In any event, the same evidentiary deficiencies
apply to the calculation of the holding-over damages.
[44] There is an additional legal flaw: The Landlord claims “holding over rental”
calculated by reference to the contractual rental and charges under the lease.
However, if the lease is cancelled, the measure of damages is the market rental
value of the premises, not the contractual rate. The Landlord has not tendered
any evidence of market rental. This is a further reason why Claim C cannot
succeed.
Authority to depose to the answering affidavit
[45] The Landlord raised a preliminary point that the answering affidavit was
deposed to by Stylianos Costa Nathanael without proper authority from the First
Respondent (a company) or the Second Respondent (a natural person). This
point was initially well- taken, as the answering affidavit contained no resolution
or power of attorney.
[46] However, the Respondents filed a supplementary answering affidavit, together
with a company resolution dated 3 September 2025 authorising Stylianos to
oppose the application and to depose to affidavits, and a special power of
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attorney executed by Persefoni Nathanael in his favour. These documents were
filed with a request for condonation, which was not opposed.
[47] In these circumstances, the authority point is no longer a viable ground to strike
out the answering affidavit. The Respondents have cured the defect. The
Landlord cannot claim prejudice because it had the opportunity to file a
supplementary replying affidavit (which it did not).
[48] I therefore dismiss this preliminary point. The opposition is properly before the
court.
Evaluation and conclusion
[49] The Landlord has failed to discharge the onus of proof on several critical
elements: It has not proved valid cancellation in accordance with clause 18 of
the lease. It has not adduced admissible evidence to support the quantum of its
monetary claims. The papers reveal genuine, material disputes of fact
regarding delayed occupation and the removal of communal seating – disputes
that cannot be resolved without oral evidence.
[50] These deficiencies are independently fatal to the application. Consequently, the
application must be dismissed.
[51] I have considered whether the matter should be referred for oral evidence in
terms of Uniform Rule 6(5)(g). However, given the fundamental failure to prove
a valid cancellation and the inadmissibility of the quantum evidence, a referral
would not be appropriate. The proper forum for the Landlord’s claims, if it
wishes to pursue them, is action proceedings where pleadings, discovery, and
oral evidence can take place.
Costs
[52] The general rule is that costs follow the result. The Respondents have been
successful and are entitled to their costs. The Landlord has pursued this application
despite obvious deficiencies, and there is no reason to deprive the Respondents of
their costs. I see no basis for a punitive scale (attorney -and-client); costs will be on
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the ordinary party -and-party scale. I also note that the Respondents employed
counsel.
Order
[53] In the premises, I make the following order:
1. The application is dismissed.
2. The Applicant shall pay the costs of the First and Second Respondents,
such costs to include the costs of counsel, on scale B, as between party and
party.
_____________________________
MUDAU J
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, JOHANNESBURG
APPEARANCES
For the Applicants: Adv TB Mirtle
Instructed by: NLHS Attorneys
For the Respondents: Adv A Du Plooy
Instructed by: Kyprianou Attorneys
Date of Hearing: 25 May 2026
Date of Judgment: 15 June 2026
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