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in compliance with the law and SAFLII Policy
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG LOCAL DIVISION, JOHANNESBURG)
Case No: 2025/107813
Reportable: NO
Of interest to other Judges: NO
Revised: NO
Date: 03 July 2026 Shadrack Tebeile AJ
Signature: _____________
In the matter between:
NEW MARKET DEVELOPMENTS (PTY) LTD Applicant
(Registration Number: 1996/000566/07)
and
SPLIFF CAFE (PTY) LTD Respondent
(Registration Number: 2024/020397/07)
Heard on : 21 April 2026
Decided on : 03 July 2026
Coram : Tebeile AJ
JUDGMENT
TEBEILE AJ:
Introduction
[1] This is an opposed application in which the applicant seeks an order for the
return of possession of certain commercial premises by way of the rei vindicatio.
[2] The applicant is the registered owner of the premises. The respondent occupies
the premises and conducts business therefrom. The respondent opposes the application
on the basis that it occupies the premises lawfully in terms of a written lease
agreement concluded with the applicant on 21 January 2025, and which lease
agreement the respondent says has not been validly terminated.
The parties
[3] The applicant is New Market Developments (Pty) Ltd , with registration
number: 1996/000566/07).
[4] The respondent is Spliff Cafe (Pty) Lt d, with registration number:
2024/020397/07.
Background
[5] The applicant is the registered owner of Shop […] , situated on Erf […]
Hoogland Extension […], Gauteng (“the premises”). The respondent is a company
that conducts business from the premises.
[6] On 21 January 2025, the parties concluded a written lease agreement in terms
whereof the respondent was granted the right to occupy the premises for a period of
two years, commencing on 1 April 2025 and terminating on 31 March 2027. The lease
agreement was duly signed by Mr Darin D’Oliveira (the director of the applicant) on
behalf of the applicant and by Mr Shanoor Singh (the director of the respondent) on
behalf of the respondent.
[7] On 20 March 2025, before the commencement date of the lease, the applicant’s
attorney addressed a letter to the respondent purporting to cancel the lease agreement
with immediate effect. The letter alleged that on 18 March 2025 a violent incident had
occurred between the respondent’s owner and a neighbouring tenant, which
constituted a breach of clauses 11(b) and 23(ii)(a) of the lease agreement. The
respondent was afforded until 30 April 2025 to vacate the premises and without a
notice to remedy the alleged breach.
[8] The respondent, through its attorney s, responded on 16 May 2025 denying any
breach, disputing the validity of the purported cancellation, and stating that it
remained in occupation under the lease. The respondent continued to pay rental, which
the applicant continued to accept.
[9] On 8 July 2025, the applicant launched the present application. In its founding
affidavit, the applicant relied solely on its ownership of the premises and the rei
vindicatio, making no mention of the lease agreement or the purported cancellation
thereof. Only in reply did the applicant seek to address the lease and the alleged
breaches.
[10] The matter was subsequently set down for hearing on the opposed motion roll.
The applicant’s submissions
[11] The applicant’s case is founded on the rei vindicatio . It contends that it is the
owner of the premises, that the premises exist and are identifiable, and that the
respondent is in possession thereof. The applicant argues that this is all that is required
to succeed. T he applicant relies on Chetty v Naidoo 1 for the proposition that the
owner need only to prove ownership and possession by the respondent, whereafter the
onus shifts to the respondent to establish a right to retain possession.
[12] The applicant further contends that the lease agreement was lawfully terminated
by the letter dated 20 March 2025, that the respondent’s continued occupation is
therefore unlawful, and that the respondent’s reliance on repudiation is misplaced
because repudiation does not create a right of occupation.
The respondent’s submissions
[13] The respondent does not dispute the applicant’s ownership of the premises. It
admits that it occupies the premises. However, it contends that its possession is lawful
by virtue of the written lease agreement concluded on 21 January 2025, which it says
remains extant and enforceable.
[14] The respondent raises three principal defences. First, it contends that the
applicant’s purported cancellation of the lease is invalid because the applicant failed to
comply with clause 23(ii)(a) of the lease agreement, which requires the lessor to give
the lessee five business days’ written notice to remedy any alleged breach before
cancellation. It is submitted that no such notice was given to the respondent.
[15] Second, the respondent argues that the applicant’s letter of 20 March 2025,
which terminated the lease with immediate effect without affording the respondent an
opportunity to remedy the alleged breach, constitutes a repudiation of the lease
1 1974 (3) SA 13 (A).
agreement. The respondent has rejected that repudiation and insists on performance,
and therefore the lease remains in force.
[16] Third, the respondent submits that there are material disputes of fact on the
papers, particularly regarding whether the respondent breached the lease and whether
the termination was valid , and which cannot be resolved in motion proceedings. The
respondent points to the fact that the applicant deliberately omitted any reference to
the lease in its founding papers and sought to introduce new evidence only in reply.
The legal principles and analysis of the case
[17] The rei vindicatio is a remedy available to an owner to recover possession of
his or her property from any person who possesses it unlawfully. In Chetty v Naidoo,
the Appellate Division held:
“It is inherent in the nature of ownership that possession of the res should normally be
with the owner, and it follows that no other person may withhold it from the owner
unless he is vested with some right enforceable against the owner (e.g., a right of
retention or a contractual right). The owner, in instituting a rei vindicatio , need,
therefore, do no more than allege and prove that he is the owner and that the
defendant is holding the res – the onus being on the defendant to allege and establish
any right to continue to hold against the owner.”2
[18] However, as the same C ourt made clear in Chetty v Naidoo that, where the
plaintiff concedes that the defendant would have had a right to occupy but for an
alleged termination, the position is different. Jansen JA stated:
2 Id at 20C-E.
“If, however, the defendant relies on the right conceded by the plaintiff, the statement
of claim, but at any stage. … In either case the burden rests upon the plaintiff to prove
the termination of the lease.”
[19] In this matter, the applicant concedes that the respondent occupied the premises
pursuant to a written lease agreement. The applicant’s founding affidavit is silent on
the lease, but in reply it admits the existence of the lease and asserts that it has been
terminated. The respondent relies on that conceded right. Consequently, the onus rests
on the applicant to prove that it validly terminated the respondent’s right of
occupation.
[20] Furthermore, the respondent argues that there are material disputes of fact that
cannot be resolved on the papers. The parties dispute whether the respondent breached
the lease agreement, whether the incident of 18 March 2025 occurred as alleged by the
applicant, whether the respondent’s conduct constituted a breach, and whether the
respondent was given an opportunity to remedy any alleged breach. The respondent
further argues that the applicant sought to introduce new evidence in reply —including
an incident report and a confirmatory affidavit —without providing proper
foundational affidavits from the witnesses concerned.
[21] It is trite that motion proceedings are designed for the resolution of legal issues
based on common cause facts. Where material disputes of fact arise, a final order can
only be granted if the facts alleged by the respondent, together with the facts alleged
by the applicant that are admitted, justify such an order.
3 The Supreme Court of
Appeal in Zuma4 stated:
3 See Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A) at 634E-635C.
4 National Director of Public Prosecutions v Zuma 2009 (2) SA 277 (SCA).
“Motion proceedings, unless concerned with interim relief, are all about the
resolution of legal issues based on common cause facts. Unless the circumstances are
special they cannot be used to resolve factual issues because they are not designed to
determine probabilities. It is well established under the Plascon-Evans rule that where
in motion proceedings disputes of fact arise on the affidavits, a final order can be
granted only if the facts averred in the applicant's (Mr Zuma’s) affidavits, which have
been admitted by the respondent (the NDPP), together with the facts alleged by the
latter, justify such order. It may be different if the respondent’s version consists of
bald or uncreditworthy denials, raises fictitious disputes of fact, is palpably
implausible, far-fetched or so clearly untenable that the court is justified in rejecting
them merely on the papers. The court below did not have regard to these propositions
and instead decided the case on probabilities without rejecting the NDPP’s version. ”5
(Footnotes omitted)
[22] A respondent’s version cannot be rejected merely because it is disputed. It can
only be rejected if it is so far-fetched or untenable that the court is justified in doing so
on the papers alone. That is not the case here. That will appear below.
[23] In the present case, t he material facts which are relevant for determination of
the main dispute between the parties (whether there wa s lawful termination) are
largely common cause. The applicant is the owner of the premises. The respondent
occupies the premises. The parties concluded a written lease agreement on 21 January
2025 in respect of the premises . The lease agreement contains a clause (clause
23(ii)(a)) that requires the lessor to give the lessee five business days’ written notice to
remedy any alleged breach before cancellation. A letter from the applicant’s attorneys
dated 20 March 2025 purports to cancel the lease with “immediate effect” without any
dated 20 March 2025 purports to cancel the lease with “immediate effect” without any
prior notice calling upon the respondent to remedy any alleged breach. The applicant
asserted that the letter dated 2 0 March 2025 terminated the lease agreement with
5 Id at para 26.
“immediate effect” without prior notice calling the respondent to remedy any breach
because the respondent’s conduct was of such a nature that it justified immediate
termination. The letter dated 20 March 2025 stated:
“RE: TERMINATION OF LEASE AGREEMENT - NEW MARKET
DEVELOPMENTS (PTY) LTD // SPLIFF CAFÉ (PTY) LTD
The above -mentioned matter as well as the incident reported on 18 March 2025
refers.
Kindly take note that we are acting on behalf of New Market Developments (Pty) Ltd
in this matter hereinafter referred to as "our client".
We hereby formally notify you of our intention to cancel the lease agreement between
yourself and our client dated 21 January 2025 for the premises located at Shop […],
R[…] Floor, N[…] Corner Shopping Centre, Hoogland Extension 25 in accordance
with the provisions stipulated Clause 11 (b) and Clause 23 (ii) (a) of the signed lease
agreement.
It was brought to our attention that on 18 March 2025 a violent incident occurred on
or near the premises between yourself and the tenant at Shop 6A, Northlands Corner,
that has created an unsafe and intolerable situation amongst the neighbouring tenants.
This incident is clearly a breach of the lease terms and has significantly impacted the
enjoyment and use of the property for the neighbouring tenants.
In light of the above our client decided to exercise his right as stipulated in Clause 23
(ii) (a) to terminate the lease agreement with immediate effect as per the
aforementioned clauses. You are hereby afforded until 30 April 2025 to vacate the
premises and arrange for and exit inspection with our client.
We trust that you will find the above to be in order.” (My emphasis and underling)
[24] As state above, most of the facts herein are common cause. In light of the above
facts which are largely common cause and the contents of the letter dated 20 March
2025, I am of the view that, from the reading of the letter, the applicant terminated the
lease agreement with immediate effect and without compliance with the express terms
of clause 23(ii)(a) of the lease agreement. That clause provides for cancellation only if
the breach is “not remedied by the lessee within 5 (five) business days after receipt by
the lessee of written notice calling upon it to do so”. No such notice was ever given.
The purported cancellation is therefore invalid.
[25] The applicant submitted that the respondent’s conduct was of such a nature that
it justified immediate termination. However, the lease agreement itself sets out the
procedure for cancellation. The parties are bound by their contract. The applicant
cannot unilaterally disregard the very clause upon which it purports to rely. The
failure to give the requisite notice renders the purported cancellation a nullity.
[26] I now turn to deal with the respondent’s reliance on repudiation. It is the
respondent’s submission that the applicant’s letter of 20 March 2025, which
terminated the lease with immediate effect without affording the respondent an
opportunity to remedy the alleged breach, constitutes a repudiation of the lease
agreement. It is further submitted that the respondent has rejected that repudiation and
insists on performance, and consequently the lease remains in force. In my view,
indeed the applicant’s letter of 20 March 2025, which terminates the lease with
immediate effect without affording the respondent an opportunity to remedy the
alleged breach, constitutes a repudiation of the lease agreement. In Datacolor
International (Pty) Ltd v Intamarket (Pty) Ltd
6 the Supreme Court of Appeal held:
6 2001 (2) SA 284 (SCA).
“As such a repudiatory breach may be typified as an intimation by or on behalf of the
repudiating party, by word or conduct and without lawful excuse, that all or some of
the obligations arising from the agreement will not be performed according to their
true tenor. Whether the innocent party will be entitled to resile from the agreement
will ultimately depend on the nature and the degree of the impending non- or
malperformance.”7
[27] The test for repudiation is objective: how would a reasonable person in the
position of the innocent party interpret the conduct? In the present case, a reasonable
person in the respondent’s position would undoubtedly interpret the applicant’s letter
as an unequivocal intention not to be bound by the lease agreement. The applicant
purported to cancel the lease before it had even commenced, without following the
prescribed procedure set out in the lease agreement and demanded vacant possession.
That is a clear repudiation.
[28] The respondent has rejected that repudiation. It has consistently maintained that
the lease remains in force, and it has continued to pay rental, which the applicant has
accepted. The consequence is that the lease agreement remains alive. The
respondent’s occupation is therefore lawful.
[29] The applicant’s argument that repudiation cannot create a right of occupation
misses the point. The respondent does not rely on repudiation as a source of a right of
occupation. The respondent relies on the lease agreement itself.
[30] The repudiation argument is advanced to defeat the applicant’s contention that
the lease has been validly terminated. The respondent says: you have not validly
terminated the lease; your purported termination is a repudiation which I reject;
7 Id at para 17.
therefore, the lease continues. In my view, that is a legally coherent and well -founded
position.
Conclusion
[31] The applicant has not discharged the onus of proving that it validly terminated
the respondent’s right to occupy the premises. The purported cancellation of 20 March
2025 was invalid for non -compliance with clause 23(ii)(a) of the lease agreement. I t
also constituted a repudiation which the respondent has rejected, with the result that
the lease remains in force. The respondent’s occupation is therefore lawful.
[32] The applicant’s reliance on the rei vindicatio cannot succeed where it has
conceded the respondent’s contractual right to occupy and has failed to prove the
termination of that right. The application must therefore be dismissed.
Costs
[33] The applicant has failed in its application. There is no reason to depart from the
ordinary principle that costs follow the result. The respondent seeks costs on the scale
as between attorney and client, but I am not persuaded that the applicant’s conduct
warrants such a scale.
[34] The applicant acted within its rights to approach the court following the
incident of 18 March 2025 that took place at the premises , even if its application was
ill-conceived. Costs must be awarded on the party and party scale on scale B.
Order
[35] In the result, the following order is made:
1. The application is dismissed.
2. The applicant is ordered to pay the respondent’s costs on party and party
scale and on scale B.
Shadrack Tebeile
Acting Judge of the High Court of South Africa
Gauteng Local Division, Johannesburg
For the Applicant:
For the Respondent:
Adv. C Erasmus instructed by Alicia
van Wyk Incorporated.
Adv. D.L Williams (Heads of argument
prepared by Adv. A.L Williamson)
instructed by Alan Jacobs and
Associates.