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[2026] ZAGPJHC 854
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Mercal Properties CC v Haile (2025/029781) [2026] ZAGPJHC 854 (30 July 2026)
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REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION,
JOHANNESBURG
CASE
NO: 2025-029781
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER JUDGES: NO
(3)
REVISED:
In
the matter between:
MERCAL
PROPERTIES
CC
Applicant
(REGISTRATION
NUMBER: 1999/047219/23)
And
BINYAM
TESFAGABIR
HAILE
Respondent
(IDENTITY
NUMBER: 8[…])
JUDGMENT
– LEAVE TO APPEAL
DREYER
AJ
:
[1]
This is an
application by the Respondent for leave to appeal against the whole
of the judgment and order granted by this Court on
4 May 2026. In
terms of the order the Respondent was evicted from the premises
situated at Shop […] J[…], Court,
3[…] M[…]
Street, Braamfontein (“the premises”).
The
test for leave to appeal
[2]
The test for
leave to appeal is set out in Section 17(1) of the Superior Courts
Act 10 of 2013 (“the Act”). In terms
of Section 17(1)(a)
leave to appeal may only be given where the judge of judges concerned
are of the opinion that:
(i)
the appeal
would have a reasonable prospect of success; or
(ii)
there is some
other compelling reason why the appeal should be heard, including
conflicting judgments on the matter under consideration.
[3]
In the matter
of
MEC for
Health, Eastern Cape v Mkhitha and
Another
[2016] ZASCA 176
the Supreme Court of Appeal stated:
[17]
An applicant for leave to appeal must convince the court on proper
grounds that there is a reasonable prospect or realistic
chance of
success on appeal. A mere possibility of success, an arguable case or
one that is not hopeless, is not enough. There
must be a sound,
rational basis to conclude that there is a reasonable prospect of
success on appeal.”
The
Respondent’s grounds of appeal
[4]
The
Respondent’s grounds for leave to appeal is set out in the
Respondent’s Application for Leave to Appeal dated 25
May 2026.
The grounds can be summarised as follows:
4.1
First ground – rectification;
4.2
Second ground – estoppel;
4.3
Third ground – materiality of the breach; and
4.4
Fourth ground – disputes of fact concerning the issues of
rectification, estoppel and materiality of the breach.
First
ground - rectification
[5]
The Respondent
contends that the Court erred in finding that the Respondent’s
case for rectification fails at the requirement
of common continuing
intention.
[6]
The Respondent
is attempting to re-litigate the defence of rectification relied
upon, and wishes the Court to revisit factual inferences
drawn by
this Court.
[7]
The written
judgment contains the reasons for the finding and this Court need not
elaborate in this regard.
Second
ground - estoppel
[8]
The Respondent
contends that the Corut erred in rejecting the Respondent’s
reliance on estoppel on the basis that there was
no written consent
to the renovations.
[9]
Clause 9 of
the lease agreement expressly requires the Applicant’s prior
written consent before any alterations may be made.
[10]
It is common
cause that the Respondent made alterations to the premises without
the written consent of the Applicant. The Respondent
is seeking to
rely on oral representations to circumvent clause 9 of the lease
agreement.
[11]
The Respondent
is again attempting to re-litigate a defence relied upon, i.e. the
defence of estoppel.
[12]
The written
judgment contains the reasons for the rejection of the Respondent’s
reliance on estoppel and this Court need not
elaborate in this
regard.
Third
ground – materiality of the breach
[13]
In this regard
the Respondent contends:
13.1
the Court erred in finding that the absence of written consent of the
renovations under clause 9.1 was itself a material
failure to comply
with the lease agreement for purposes of clause 19.1.3 of the lease
agreement. This conflates the breach with
its materiality.
13.2
the Court erred by failing to interpret the lease agreement having
regard to its text, context and purpose and, in particular,
with
regards to the provisions of Section 14(2)(b)(ii) of the Consumer
Protection Act 68 of 2008 (“the CPA”).
13.3
the Court erred by failing to address engage with the Respondent’s
threshold submission that the materiality of
the breach was part of
the Applicant’s cause of action, which it was required to
allege and prove in its Founding Affidavit.
[14]
Clause 10 of
the Schedule of the lease agreement provides “
Be
advised that the lease agreement shall be subject to cancellation or
review in the event of non-compliance with its terms and
conditions.”
[15]
Clause 10 is a
lex
commissoria
and
is a departure from the common law. It gives the Applicant the power
to cancel the lease agreement in the event of a breach
by the
Respondent of its terms and conditions.
[16]
Whether a
breach has been committed is a matter of interpretation of the lease
agreement. In In
North
Vaal Mineral Trading Co. Ltd. v Lovasz
1961 (3) SA 604
(T) it was held “…
a
lex commissoria (in the wide sense of a stipulation conferring a
right to cancel upon a breach of the contract to which it is
appended, whether it is a contract of sale or any other contact). It
confers a right (viz to cancel) upon the fulfilment of a condition.
The investigation whether the right to cancel came into existence is
purely an investigation whether the condition, as emerging
from the
language of the contract (a question of interpretation), has in fact
been fulfilled.”
[17]
Once it is
concluded that the breach committed is one that, in terms of the
lease agreement, brings the cancellation clause into
operation its
seriousness, judged objectively, is irrelevant. In
Oatorian
Properties (Pty) Ltd v Maroun
1973 (3) SA 779
(A) it was held that “
Once
there is such a breach, the materiality of the breach is irrelevant
and the Court will not enquire into the conscionableness
or
unconscionableness thereof.”
[18]
Under the CPA,
cancellation clauses will be subject to scrutiny under the provisions
in Section 48 relating to unfair, unreasonable
or unjust contract
terms.
[19]
As already
stated above, it is common cause that the Respondent made alterations
to the premises without the written consent of
the Applicant, in
breach of clause 9 of the lease agreement, whereby bringing the
cancellation clause into operation. The materiality
of the breach is
irrelevant.
Fourth
ground – dispute of fact concerning the issues of
rectification, estoppel and materiality of the breach
[20]
The Respondent
contends the Court erred in granting final relief on motion without
applying Plascon-Evans to the numerous disputes
of fact on the papers
and, in those situations where the Court did reject the Respondent’s
version (expressly or impliedly),
without finding that the
Respondent’s version could be rejected on the papers alone.
[21]
The Respondent
contends that disputes of fact existed regarding alleged the prior
agreement in respect of the renovations, the representations
made by
the Applicant’s representatives and the materiality of the
Respondent’s breaches.
[22]
This Court
evaluated the Respondent’s version against the objective
evidence being,
inter
alia
, the
lease agreement, the Schedule to the lease agreement and the
documents exchanged between the parties.
Conclusion
[23]
This Court has
considered each of the grounds raised by the Respondent. Having done
so, this Court is not persuaded that the Respondent
has satisfied the
test for leave to appeal as set out in Section 17(1) of the Act.
[24]
The Respondent
has failed to demonstrate that there is a reasonable prospect of
success on appeal, or that there are compelling
reasons why the
appeal should be heard.
[25]
This Court
therefore makes the following order:
1.
The
application for leave to appeal is dismissed.
2.
The Respondent
is to pay the party and party costs of the application on scale B.
E
DREYER
ACTING
JUDGE OF THE HIGH COURT
GAUTENG
DIVISION, JOHANNESBURG
This
judgment was handed down electronically by circulation to the
parties’ legal representatives by email and by being uploaded
to CaseLines. The date for hand down is deemed to be 30 July 2026.
Appearances:
Appearance
for Applicant:
Adv. M Pinder
Instructed
by:
Joshua Apfel Attorneys
Appearance
for Respondent:
Adv.
MCJ van Kerckhoven
Instructed
by:
Allan Levin & Associates
Date
of hearing:
14 July 2026
Date
of Judgment:
30 July 2026