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[2026] ZAGPPHC 838
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Jeppe Education Centre MPC t/a Jeppe Education Centre and Others v Presmooi (Pty) Ltd (Leave to Appeal) (2024/064941) [2026] ZAGPPHC 838 (28 July 2026)
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REPUBLIC OF SOUTH
AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
Case Number:
2024-064941
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER
JUDGES: NO
(3) REVISED: YES
DATE
28 July 2026
SIGNATURE
OF JUDGE:
In
the matter between:
JEPPE
EDUCATION CENTRE MPC t/a
JEPPE
EDUCATION CENTRE
REG
NO: 2007/013226/08
1
st
Applicant
HLATWAYO,
HARRY
ID
NO: 6[...]
2
nd
Applicant
TUNYWA,
ABDUL
ID
NO: 6[...]
3
rd
Applicant
TSELE,
MOTSHENG JOSEPHINE
ID
NO: 6[...]
4
th
Applicant
and
PRESMOOI
(PTY) LTD
REG
NO: 1983/010594/07
Respondent
In
re:
PRESMOOI
(PTY) LTD
REG
NO: 1983/010594/07
Plaintiff
and
JEPPE
EDUCATION CENTRE MPC t/a
JEPPE
EDUCATION CENTRE
REG
NO: 2007/013226/08
1
st
Defendant
HLATWAYO,
HARRY
ID
NO: 6[...]
2
nd
Defendant
TUNYWA,
ABDUL
ID
NO: 6[...]
3
rd
Defendant
TSELE,
MOTSHENG JOSEPHINE
ID
NO: 6[...]
4
th
Defendant
JUDGMENT
Klopper, AJ
INTRODUCTION:
[1]
The Applicants apply for leave to appeal
against the whole of my judgment, save for the order on condonation,
delivered on 19 May
2026 (“the judgment”), in which
summary judgment was granted in favour of the Plaintiff (“the
Respondent herein”)
against the First to Fourth Defendants
(“Applicants herein”), for payment of R2,464,905.40,
together with interest
thereon and cost on an attorney and client
scale.
[2]
The application is opposed by the
Respondent. Both parties filed written heads of argument. I have
considered the written heads
as well as the oral argument presented.
For the reasons that follow, the application for leave to appeal
falls to be refused.
[3]
The Respondent raises as a threshold
objection that the notice of application for leave to appeal is
fatally defective in that it
fails to comply with rule 49(1)(b) of
the Uniform Rules of Court. The Applicants advance ten grounds of
appeal, which I address
individually below. I shall deal first with
the applicable legal framework, then with the threshold objection,
and thereafter with
each ground
seriatim.
APPLICABLE LEGAL
FRAMEWORK:
[4]
Applications for leave to appeal are
governed by section 17 of the Superior Courts Act 10 of 2013 (“the
Act”) and rule
49 of the Uniform Rules of Court. Section 17(1)
of the Act provides that leave to appeal may only be given where the
judge is of
the opinion that:
“
(a)(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;
(b)
the decision sought on appeal does not fall within the ambit of
section 16(2)(a);
and
(c)
where the decision sought to be appealed, does not dispose of all the
issues in the
case, the appeal would lead to a just and prompt
resolution of the real issues between the parties.”
[5]
The
phrase “
would
have a reasonable prospect of success”
marks a deliberate legislative elevation from the former test of
“
could
reasonably succeed”
.
in
The
Mont Chavaux Trust v Tina Goosen and 18 Others
[1]
Bertelsmann J explained:
“
It
is clear that the threshold for granting leave to appeal against a
judgment of a High Court has been raised in the new Act. The
former
test whether leave to appeal should be granted was a reasonable
prospect that another court might come to a different conclusion,
…..
The use of the word “would” in the new statute indicates
a measure of certainty that another will differ
from the court whose
judgement is sought to be appealed against”.
[6]
This
elevated threshold was affirmed by the Supreme Court of Appeal in
Ramakatsa
and Others v African National Congress and Another
[2]
.
The word “
would
”
requires a reasonable measure of certainty, not a mere possibility.
[7]
In
Swart
v Heine and Others
[3]
,
the Supreme Court of Appeal stated:
“
[13]
There is a further disconcerting
aspect to this appeal. The issues in this appeal are simple
and
straightforward and do not involve complicated or complex issues of
law. This is a case where leave to appeal should not have
been
granted at all. … Leave to appeal should not be granted where
there is no reasonable prospect of success on appeal,
or no
compelling reason why an appeal should be heard
(s 17(1)(a)
of the
Superior Courts Act 10 of 2013
).”
[8]
It is axiomatic that an application for
leave to appeal is not an opportunity to re-argue the case. The
question is not whether
the court was wrong, but whether there is
reasonable prospect that another court would reach a different
conclusion.
[9]
Furthermore,
it is settled law that an appeal lies against the substantive order
of a court, not against the reasons for judgment.
[4]
[10]
An
applicant must therefore demonstrate not merely that the court erred
in its reasoning, but that the substantive order would have
been
different, had the correct law or facts been applied. An appeal on a
question of law means an appeal in which the question
for argument
and determination is what the correct legal principle, or correct
interpretation of a legal principle is.
[5]
[11]
Where
the court exercises a true judicial discretion, the standard of
appellate interference is more demanding still. As the Constitutional
Court held in
Trencon
Construction (Pty) Ltd v Industrial Development Corporation of South
Africa Ltd and Another,
[6]
an appellate court will not interfere with the exercise of a
discretion unless it is satisfied that the discretion was not
exercised
judicially, or that it was influenced by wrong principles
of a misdirection on the facts, or that it reached a decision which
could
not reasonably have been made by a court properly directing
itself. An appellate court ought to be slow to substitute its own
decision
solely because it does not agree with the permissible option
chosen by the lower court.
ADEQUACY OF THE
NOTICE OF APPLICATION FOR LEAVE TO APPEAL:
[12]
Rule
49(1)(b) of the Uniform Rules of Court, requires that the notice of
application for leave to appeal “
concisely
and succinctly”
set out the grounds upon which leave to appeal is sought. The grounds
must identify with clarity whether the complaint concerns
an
incorrect finding of fact, an incorrect finding of law, or a failure
to act judicially.
[7]
[13]
An
applicant who relies on an incorrect finding of law must clearly and
succinctly identify the incorrect legal principle applied
by court,
and the correct legal principle that should have been applied. An
applicant who relies on an incorrect finding of fact
must show, from
the text of the decision itself (
ipsissima
verba
),
that an accepted fact differs from a common cause or undisputed fact
in the record, or that the judicial officer overlooked certain
facts
and/or probabilities.
[8]
An appeal court will not, save for in exceptional circumstances,
permit disputes of fact or expert opinion to be raised for
the first
time on appeal.
[9]
[14]
Since
an appeal lies only against the substantive order, the notice must
also specify what order should be granted on appeal.
[10]
It is not sufficient to list purported errors in the court’s
reasoning if no attempt is made to demonstrate how the substantive
order would differ as a result.
[15]
In
Songono
v Minister of Law and Order
[11]
,
Leach J stated:
“…
Accordingly,
insofar as rule 49(3) is concerned, it has been held that grounds of
appeal are bad if they are so widely expressed
that it leaves the
appellant free to canvass every finding of fact and every ruling of
the law made by the court a quo, or if they
specify the findings of
fact or rulings of law appealed against so vaguely as to be of no
value either to the court or to the respondent,
or if they, in
general, fail to specify clearly and in unambiguous terms exactly
what the case the respondent must be prepared
to meet….the
grounds of appeal required under rule 49(1)(b) must similarly be
clearly and succinctly set out in clear and
unambiguous terms so as
to enable the court and the respondent to be fully and properly
informed of the case which the applicant
seeks to make out…
Just as rule 49(3) is pre-emptory in that regard, rule 49(1)(b) must
also be regarded as pre-emptory.
In my view, the lengthy and rambling
notice of appeal filed in casu falls woefully short of what was
required.”
[16]
The notice of application in the present
matter consists of ten grounds. The majority are directed at the
court’s reasoning
as opposed to the substantive order. The
notice does not specify what alternative order should be sought on
appeal, nor does it
demonstrate how the substantive order would
differ if any of the contentions were upheld. Several grounds fail to
distinguish whether
they are directed at findings of law, findings of
fact, or the exercise of a discretion. These are material
deficiencies.
[17]
Notwithstanding these deficiencies, which
in my view render the notice non-compliant with rule 49(1)(b), I am
prepared to consider
each ground on the merits in the interest of
finality and justice. I do so mindful that even if an applicant were
to satisfy the
court, that it erred in fact or in law, it must also
show that the substantive order would have been different.
THE GROUNDS OF
APPEAL CONSIDERED:
First ground:
personal knowledge of the deponent:
[18]
The first ground is that the court
erred in finding that the deponent to the summary judgment affidavit
had the requisite personal
knowledge and could swear positively to
the facts and that the mere assertion of personal knowledge is
insufficient.
[19]
The
governing legal principles are well-settled. In
Forhkat
Stud Farms (Edms) Bpk v Barclays Nasionale Bank Bpk
,
[12]
it was held that any person who can swear positively to the facts may
make an affidavit in support of a summary judgment application,
and
the essential requirement is that the person states, at least, that
the facts are within his or her personal knowledge, unless
such
knowledge appears from the facts stated. In
Nedcor
Bank Ltd v Behardien
[13]
,
the court confirmed that an affidavit by a legal advisor of a
plaintiff, in which it is stated that the facts deposed to fall
within the knowledge of the deponent and that the deponent can swear
positively to those facts, is sufficient.
[20]
The deponent, Ms Angelique Smit, identified
herself as a legal advisor employed by City Property (Pty) Ltd, the
managing agent in
relation to the immovable properties and lease
agreements forming the subject matter of the claim. She confirmed
that by reason
of her position, she possessed firsthand knowledge and
had under her direct supervision and control all the relevant
documents
constituting the subject matter of the Plaintiff’s
claim. Her possession and control over those documents were
corroborated
by the documents attached to the affidavit.
[21]
The Applicant’s contention that the
deponent’s knowledge was “
purely
derivative
” misrepresents the
applicable legal principle. The law does not require that the
deponent have been personally present, at
the lease negotiations or
party to alleged oral discussions. It requires no more than that the
deponent state that the facts are
within her personal knowledge. That
requirement was met in this case.
[22]
Critically, the Applicant’s offer
contains no alternative legal principle and do not challenge the
foundational authorities
of
Forhkat
Stud Farms
and
Nedcor
Bank v Behardien
. The court
correctly applied unchallenged legal principles to the facts. This
ground has no reasonable prospect of success on appeal.
The second and
third grounds: the
pactum de non petendo
and the
Shifren
principle:
[23]
The second ground is that the court
erred by deciding on the plausibility of the
pactum
de non petendo
defence rather than its
triability, thereby conducting a “
mini
trial”
. The third ground is that
the court erred in relying on the
Shifren
principle, as a
pactum de non petendo
is not a “
variation”
of a contract. These grounds are related and are considered together.
[24]
The
test in summary judgment proceedings is not whether the defence is
plausible but whether it is
bona
fide
and good in law. In
Maharaj
v Barclays National Bank Ltd
[14]
,
Corbett JA summarised the enquiry and stated that the court must
determine:
(a)
Whether the defendant has ‘fully’
disclosed the nature and grounds of his defence and the material
facts upon which
it is founded; and
(b)
whether on the facts so disclosed, the defendant appears to have a
defence which is both
bona fide
and good in law.
[25]
In
Tumileng
Trading v National Security and Fire
[15]
,
Binns-Ward J further explained:
“
The
enquiry is not whether the plea discloses an ‘issue for trial’
in the literal sense of those words, it is
whether the ostensible defence has been pleaded is bona fide or not.”
[26]
The
Applicants contend that the judgment conducted a “
mini
trial”
on the papers and rely, for this proposition on
Absa
Bank Ltd v Mashini N.O and Another
[16]
quoting the dictum that:
“
The
Rule as amended clearly did not envisaged a mini trial.”
[27]
This reliance is fundamentally misconceived
and reveals a selective and inaccurate reading of the authority
cited. The judgment
itself relied on the very same case and the very
same dictum and expressly agreed with it at par [49] of the judgment.
The Applicants
have extracted a single phrase from the dictum while
ignoring the critical sentence that follows it. The full dictum in
Absa Bank v Mashini
reads:
“
[T]he
Rule as amended clearly did not envisaged a mini-trial by the
production of extensive facta probantia, but were, as in the
present
instance that which would have been a bare or bold denial can be
refuted or, in the imprecise words of the amended rule,
‘briefly’
be explained by way of annexed document or documents that should in
my view be allowed. Do not do so would
be to revert to the
unsatisfactory position which was in existence prior to the amendment
of the rule.”
[28]
Read in full,
Absa
Bank v Mashini
does not prohibit
the refutation of a bald denial by way of documentary annexures, it
expressly permits it. That is the precise
course adopted by the
Respondent in the summary judgment proceedings below. A litigant who
cites an authority for a proposition
that the authority itself
refutes, cannot be said to have identified an error of law. The “
mini
trial
” ground accordingly has no
foundation either in the judgment or in the case law invoked. The
court did no more than what
Absa Bank
v Mashini
sanctions. It allows the
Plaintiff’s documentary annexures to refute what was otherwise
a bare and self-contradictory denial.
[29]
Applying the correct test, whether the
defence was
bona fide
and good in law, the court found correctly that the Defendants had
failed to discharge the onus of establishing such a defence.
The
pactum
pleaded
was self-contradictory in the following material respects:
(a)
The three payments relied upon the plea
(February, March and June 2023) all preceded the alleged conclusion
of
pactum
,
which the Defendants placed in June or July 2023;
(b)
The version in the plea was materially
contradicted by the version in the opposing affidavit, which placed
the agreement in July
2023 and relied on different payment dates and
amounts;
(c)
The Defendants failed, on their own
version, to pay the four equal monthly instalments of R62,595.75 as
alleged;
(d)
No steps were taken in the approximately
eight months between the filing of the opposing affidavit and the
hearing of the application
to amend the plea to reflect the alleged
pactum
.
These contradictions were not peripheral but went to the heart of the
alleged defence, and it was permissible and correct for
the court to
identify them on the papers before it.
[30]
Regarding
the
Shifren
principle: In
SA
Sentrale Ko-op Graanmaatskappy Bpk v Shifren en Andere
[17]
and
Brisley
v Droskey
[18]
the courts established and affirmed that a non-variation clause
requiring amendments to be in writing and signed will be enforced.
The Applicants contend, relying on
Impala
Distributors v Taunus Chemical Manufacturing Co (Pty) Ltd
[19]
and
Muller
and Another NNO v Dennecker
,
[20]
that a
pactum
de non patendo
(an agreement suspending the enforceability of a debt) is not a
“
variation”
of a contract and is accordingly not caught by a non-variation
clause.
[31]
Whatever the theoretical distinction
between a
pactum de no patendo
and a variation, the distinction is of no assistance to the
Applicants on the facts of this case. The Defendants’ own
pleaded
version disclosed that the alleged oral agreement purported
to reduce the debt from R2,112,881.77 to R250,383.51, to restructure
payment obligations, and to extend occupation of the premises. This
constitutes a fundamental variation of the written lease agreement’s
substantive terms and not merely a temporary suspension of a remedy.
The lease agreement contains a non-variation clause acquiring
amendments to be in writing. The oral agreement could not be relied
upon on any characterisation.
[32]
Furthermore,
the Respondent correctly points out that the defence as pleaded did
not constitute a
bona
fide
defence good in law, nor did the “
amended”
or “
new”
version as impermissibly raised in the opposing affidavit.
[21]
A defendant cannot at the summary judgment stage advance defences not
raised in the plea. The court correctly applied this principle.
[33]
An appeal court applying
Thumaleng
Trading
would not reach a different
conclusion on these grounds.
Fourth ground: the
dispute resolution clause:
[34]
The fourth ground is that the court erred
in finding that there was no declared dispute between the parties and
in relying on clause
13.2 rather than clause 13.3.1 of the lease
agreement. The Applicants contend that once a dispute has been
declared, clause 13.3.1
becomes mandatory and the election in clause
13.2 falls away.
[35]
Clause 13.2 of the lease agreement
expressly provides that:
“
Either
party may elect whether a dispute in terms of this agreement is to be
brought in a court with competent jurisdiction or by
way of dispute
resolution as set out in clause 13.3 below.”
[36]
Clause 13.3.1 provides that where a
dispute arises regarding indebtedness, “
such
dispute shall first be referred to a senior manager of the
intermediary and failing resolution within 15 days shall thereafter
be referred to an independent practicing-chartered accountant…
whose decision shall be final and binding.”
.
[37]
The
Applicants’ interpretation, that clause 13.3.1 becomes
pre-emptory upon the declaration of a dispute, is irreconcilable
with
the structure and plain wording of the agreement. Clause 13.2
precedes clause 13.3 in the agreement and confers an election
on
either party as to the dispute resolution mechanism. The lease
agreement contains no clause which stipulates that once a dispute
is
“
declared”
,
the election in clause 13.2 falls away and clause 13.3 becomes
pre-emptory. Quite the contrary: the lease agreement presupposes
an
election to follow either the process under clause 13.2 or clause
13.3. This is consistent with the well-established principle
of
interpretation that a court must read the contract as a whole and
give effect to all its provisions.
[22]
[38]
The Respondent correctly submits that
clause 13.3 can never be pre-emptory having regard to the provisions
of clause 13.2.
Equally, it is irrelevant whether there was a
formerly declared dispute prior to institution of action. The
election in clause
13.2 remains applicable, irrespective of whether a
dispute has been declared or not. Even if the court’s finding
that no
formal dispute was declared prior to the institution of
action were correct, the substantive order would remain unaffected on
appeal
because clause 13.2 independently entitles the Respondent to
elect litigation.
[39]
This ground has no reasonable prospects of
success on appeal.
Fifth
ground: adequacy of the opposing affidavit under rule 32(3)(b):
[40]
The fifth ground is that the court erred in
finding that the Applicants’ opposing affidavit fell short of
what is required
by rule 32(3)(b) of the Uniform Rules of Court, and
in its application of
Thumuleng
Trading v National Security and Fire
.
[41]
Rule 32(3)(b) requires that the Defendant’s
affidavit resisting summary judgment sets out “
The
facts upon which the Defendant relies as constituting a defence,
which facts, if proved at trial, shall fully disclose the nature
and
grounds of the defence.”
[42]
In
Breytenbach
v Fiat SA (Edms) Bpk,
[23]
the court held that the word “
fully”
should not be taken literally and that the statement of material
facts need only be sufficiently full to persuade the court that
the
defence, if proved, would constitute a valid defence. However, a
“
needlessly
bald, vague and sketchy
”
affirmation of a defence is relevant to
bona
fides
.
In
NPGS
Protection and Security Services CC and Another v First Rand Bank
Ltd,
[24]
Makgoka JA held:
“
Rule
32(3) of the Uniform Rules requires an opposing affidavit to disclose
fully the nature and grounds of the defence and the material
facts
relied upon therefore. To stave off summary judgment, a defendant
cannot content him or herself with bald denials…..If
a
defendant disputes the amount claimed, he or she should say so and
set out a factual basis for such denial.”
[43]
The
Applicants’ opposing affidavit was materially inconsistent with
the plea. The affidavit introduced a different version
of the alleged
pactum
,
placing it in July 2023 with the different payment dates and the
amounts that was irreconcilable with what had been pleaded. As
confirmed in
Nedbank
v Uphuhliso
[25]
,
a defendant cannot at summary judgment stage advance defences not
raised in the plea.
[44]
Furthermore, the Respondent correctly
submits that even if the court had not found the opposing affidavit
to fall short of the requirements
of rule 32(3)(b), the fact that the
Applicants lacked a
bona fide
defence good in law would cause the substantive order to remain the
same regardless. This ground therefore cannot, on appeal, result
in a
different substantive order.
Sixth
ground: failure to account for the intention to amend:
[45]
The sixth ground is that the court erred by
failing to account for the Applicants stated intention to amend their
plea, and that
summary judgment ought to have been refused because
the defect in the plea was remediable.
[46]
The
proposition that summary judgment must be refused where a defendant
states an intention to amend a defective plea finds no support
in our
law. The opposite is true. As noted above, a defendant cannot at
summary judgment stage, advance defences that were not
raised in the
plea, and an intention to amend, without a formal application for
amendment, cannot convert an otherwise ineffective
defence in a
triable issue.
[26]
[47]
An issue raised in an affidavit resisting
summary judgment can never constitute a “
triable
issue”
warranting leave to defend
if that issue was not pleaded, because evidence on such an issue
could never be led at trial. It would
be irrelevant to the pleadings
and therefore inadmissible. The Respondent is correct in this regard.
[48]
It must be noted that the court did take
the Applicants stated intention to amend into account and,
notwithstanding the intention
to amend, correctly found that no
bona
fide
defence good in law had been
disclosed.
[49]
Accordingly, this ground cannot succeed on
appeal.
Seventh
ground: compliance with the Justices of Peace and Commissioners of
Oaths Act:
[50]
The seventh ground is that the court erred
in finding that the affidavit was compliant with the Justices of
Peace and Commissioners
of Oaths Act 16 of 1963 (“the Oaths
Act”) in that the incorrect gender was referred to by the
Commissioner of Oaths.
[51]
The Respondent correctly points out that
the court did not make a finding that the affidavit was “
compliant
”
with the Oaths Act in the sense of being without affect. The court
found that there was substantial compliance with the
Act and
regulations, having regard to the fact that the Commissioner referred
to the correct gender three times and only once referred
to the
incorrect gender. The court accordingly applied the maxim
omnia
praesumuntur rite esse acta donec contrarium probitur (presumption of
regularity)
, for the purposes of
presuming that the document had in fact been sworn to and signed in
the presence of a commissioner. The court
then exercised its
discretion to accept the affidavit.
[52]
In
Absa
Bank Ltd v Botha N.O. and Others
[27]
it was held that, subject to whether there has been substantial
compliance with the regulations, the court has a discretion to
refuse
an affidavit which does not comply with the regulations.
[53]
The court exercised this discretion
judicially. The Applicants do not contend that the court failed to
act judicially in exercising
the discretion, but contend that the
court erred in finding substantial compliance. However, the finding
of substantial compliance
is well-founded on the facts. Three
references to the correct gender against one reference to the
incorrect gender is, on any fair
reading, substantial compliance.
[54]
As this court held in
Trencon
Construction
at para 88 – 89,
an Appellate Court ought to be slow to interfere with a discretion
that was exercised judicially and within
a range of permissible
decisions. It is not sufficient that another court might have
favoured a different option. That is not the
test. The notice of
application for leave to appeal does not specify any particular fact
or legal provision that ousted this court’s
discretion to
accept the affidavit.
[55]
This ground has no reasonable prospect of
appeal.
Eighth
ground: alleged duplication of interest in the amount claimed:
[56]
The eighth ground is that the court erred
in failing to take into account that the amount verified by the
Respondent in the affidavit
for summary judgment was incorrect and
that the amount claimed already included interest, thereby creating a
duplication of interest
in the claim and rendering the amount
incapable of verification by the deponent.
[57]
This ground is raised for the first time in
the application for leave to appeal. The Applicants sought to
challenge the amount claimed
by the Respondent in summary judgment
without having raised this defence and/or objection in their plea. As
confirmed in
Nedbank v Uphuhliso
,
a Defendant cannot at summary judgment states advanced defences that
were not raised in their plea.
[58]
It
was accordingly incumbent on the Applicants, if they were adamant to
place the amount in dispute, to provide a factual basis
for such
denial in their plea.
[28]
Raising such a contention for the first time by way of a point
in
limine
in the opposing affidavit was impermissible.
[59]
The
court correctly held that the challenge to the amount was
impermissible in the absence of a corresponding plea. There is no
reasonable prospect that an Appeal Court will approach this issue
differently.
[29]
[60]
Accordingly, this ground fails.
Ninth
ground: verification of the cause of action in terms of rule
32(2)(b):
[61]
The ninth ground is that the court erred in
finding that the Respondent had complied with rule 32(2)(b) of the
Uniform Rules of
Court by verifying the cause of action, where there
was a multiplicity of causes of action, each of which needed to be
independently
verified.
[62]
Rule 32(2)(b) requires that the affidavit
in support of a summary judgment application verify the cause of
action and the amount,
if any, claimed. The Applicants contend that
each breach of the lease agreement constitutes a separate cause of
action and that
each required separate verification.
[63]
The
court’s finding on this point was correctly founded on
Van
den Berg v Weiner
,
[30]
where it was held that verification of the cause of action as
required by rule 32 is done by referring to the facts alleged in
the
summons, and it is unnecessary to repeat the particulars. The court
also correctly applied
Airports
Company South Africa (SOC) Ltd v Tswelokgotso Trading Enterprise
CC.
[31]
[64]
The Plaintiff’s claim is
based on the First Applicant’s breach of the lease agreement
and the Respondent verified this
in detail with reference to the
particulars of claim, with specific reference to arrear rent and
ancillary charges. There is nothing
lacking in particularity in the
statements made by the deponent in relation to the Respondent’s
cause of action. To the contrary,
the affidavit sets out more than
what is required under rule 32(2)(b).
[65]
Neither the court’s reliance on
Van
den Berg v Weiner
nor on
Airports
Company South Africa (SOC) Ltd v Tswelokgotso Trading Enterprise CC
is specifically challenged by the Applicants.
[66]
Accordingly, this ground of appeal will not
succeed on appeal.
Tenth ground: the
cost order on the attorney and client scale:
[67]
The tenth ground is that the court
erred in ordering cost on the attorney and client scale against the
Applicants, on the basis
that the application for summary judgment
should have been refused and cost should have been awarded to the
Applicants.
[68]
This ground is, in effect, entirely
consequential upon the other grounds. Since summary judgment was
correctly granted, the cost
order flows from that. The premise of
this ground therefore falls away.
[69]
In
any event, the award of cost on the attorney and client scale falls
within the discretion of the court. As a general rule, a
court will
award costs on the attorney and client scale only where there are
special grounds present, such as that the litigant
has been guilty of
dishonesty or fraud, that its motives have been vexatious, reckless
and malicious or frivolous, that it has
acted unreasonably in its
conduct of the litigation, or that its conduct is in some way
reprehensible.
[32]
[70]
The present matter, the award of cost on
the attorney and client scale was additionally supported by clause
13.7 of the lease agreement,
annexure “D”, which makes
express provision for attorney and client scale cost. The court
therefore not only exercised
its discretion judicially, but did so in
accordance with the express contractual terms to which the Applicants
had agreed.
[71]
Having regard to the standards set in
Trencon Construction
at para 88 and 89, there is no reasonable prospect that an Appellate
Court would interfere with the court’s exercise of its
discretion in awarding cost on the attorney and client scale.
[72]
Accordingly, this ground must also fail.
ABSENCE
OF COMPELLING REASONS:
[73]
In terms of section 17(1)(a)(ii), leave to
appeal may also be granted where there is some other compelling
reason why the appeal
should be heard, including conflicting
judgments on the matter and consideration.
[74]
The Applicants have identified no
conflicting judgments on any of the ten grounds raised. The legal
principles applicable to summary
judgment proceedings, the personal
knowledge requirement, the
Shifren
principle the scope of a
pactum de non
patendo
, the requirements for an
opposing affidavit, the verification of a cause of action, the
exercise of the discretion regarding compliance
with the Oaths Act,
and the award of cost on the attorney and client scale, are all
well-settled and consistent across the authorities.
[75]
This is not a case raising novel questions
of law. It is, as the Supreme Court of Appeal described in
Swart
v Heine
, “
simple
and straightforward”
in its
application of well-established principles to undisputed facts. No
compelling reasons exist why a Court of Appeal should
hear this
matter.
CONCLUSION:
[76]
I have considered each of the ten grounds
of appeal individually and collectively. In respect of each ground, I
am satisfied that
there is no reasonable prosect that another court
would arrive at a different substantive order. The court correctly
applied established
legal principles to the facts before it.
[77]
Several of the grounds, notably the eight
and a number of the points
in limine
,
were raised for the first time in the opposing affidavit or in the
application for leave to appeal, without having been pleaded.
These
grounds are, on the authority of
Nedbank
v Uphuhliso
, impermissible.
[78]
The grounds dealing with the adequacy of
the notice of application are well-founded. The notice fails to
comply with rule 49(1)(b)
in that it directs criticism at the court’s
reasoning rather than at the substantive order, fails to specify what
alternative
order should be granted on appeal, and fails to
demonstrate that the substantive order would have been different had
any alleged
error been corrected. These deficiencies are material.
[79]
Regarding cost, the initiation of this
application for leave to appeal, raising ten grounds, most of which
lack any foundation in
law, constitutes the deployment of proceedings
to further delay the enforcement of an order that correctly and
properly granted
summary judgment. The lease agreement provides
expressly for cost on the attorney and client scale. The conduct of
the Applicants
in these proceedings has been unreasonable. Cost on
the attorney and client scale are appropriate.
[80]
In
Joob
Joob Investments (Pty) Ltd v Stocks Mavundla Zek Joint Venture
[33]
Navsa JA emphasised that summary judgment proceedings were designed
to prevent sham defences not defeating the rights of parties
entitled
to judgment. The application for leave to appeal is the continuation
of that strategy of delay and must be brought to
an end.
[81]
Accordingly, I make the following order:
1.
The application for leave to appeal is
refused.
2.
The Applicants are ordered to pay the cost
of this application for leave to appeal jointly and severally, the
one paying, the other
to be absolved, on the attorney and client
scale.
JA
KLOPPER
ACTING JUDGE
HIGH COURT OF SOUTH
AFRICA
GAUTENG DIVISION,
PRETORIA
This Judgment was
handed down electronically by circulation to the Plaintiff’s
legal representatives and the Defendants by
email and by being
uploaded to Case Lines. The date and time for the hand down is deemed
to be on …….
Appearances
Counsel for the
Plaintiff: Adv J Strubel
Instructed
by:
Attorneys Raath Law Inc
Appearance
for Defendants: Adv A Campbell
Defendants’
attorneys: Abdul
Bacus Attorneys
Date
of Hearing:
02 July 2026
Date of
Judgment:
28 July 2026
[1]
2014
JDR 2325 (LCC) par 6
[2]
[2021]
ZASCA 31
[3]
192/2015
[2016] ZASCA (14 March 2016) par 13
[4]
Cape
Empowerment Trust Ltd v Fischer Hoffman Sithole
2013
(5) SA 183
(SCA) at 198 I – J,
Atholl
Developments (Pty) Ltd v Valuation Appeal Board for the City of
Johannesburg
[2015]
JOL 33081
(SCA) at para 10 - 11
[5]
Media
Workers Association of South Africa and Others v Press Corporation
of South Africa Ltd
[
1992]
2 All SA 453
(A) at 457 - 459
[6]
2015
(5) SA 245
(CC) at para 88 - 89
[7]
Media
Workers Association
(supra)
at
457 – 459;
Rex
v Dhlumanyo and Another
[1948]
2 All SA 566
(A) at 594 par 10
[8]
Rex
v Dhlumanyo and Another
(
supra)
at
para
10
[9]
Rail
Commuters Action Group and Others v Transnet Ltd t/a Metrorail and
Others
[2004] ZACC 20
;
2005
(2) SA 359
(CC) at 388 F – 389 A
[10]
Cape
Empowerment Trust
(supra)
at 198 I – J;
Atholl
Developments
(supra)
at para 10 - 11
[11]
1996
(4) SA 384
(E) at 385 G – 386 A
[12]
1978
(3) SA 118
(T) at 120 H to 121 A
[13]
2000
(1) SA 307
(C) at 310 F – 311 C
[14]
1976
(1) SA 418 (A)
[15]
2020
(6) SA 624
at 640, par 40
[16]
(32016/2019;
32014/2019) [2019] ZAGPPHC 976 at par 3.11
[17]
1964
(4) All SA 520
(A)
[18]
2002
(4) SA 1 (SCA)
[19]
1975
(3) SA 273 (T)
[20]
2000
(1) SA 928 (C)
[21]
Nedbank
Ltd v Uphuhliso Investments and Projects (Pty) Ltd and Others
[2022] 4 All SA 827 (GJ)
[22]
Natal
Joint Municipal Pension Fund v Endumeni Municipality
2012 (4) SA 593
(SCA) at par 18
[23]
1976
(2) SA 226
(T) at 228 C and 228 E
[24]
(314/2018)
[2019] ZASCA 94
at par 11
[25]
[2022]
4 All SA 827 (GJ)
[26]
Nedbank
v
Uphuhliso
(supra)
[27]
(39228/12) [2013] ZAGPPHC 163; 2013 (5) SA 563 (GNP)
[28]
JNO
G Teale & Sons (Pty) Ltd v Vrystaatse Plantediens (Pty) Ltd
1968 (4) SA 371 (O)
[29]
NPGS
Protection Security Services CC v First Rand Bank
[2019] ZASCA 94
[30]
1976
(2) SA 297
(T) at 299 G
[31]
(unreported, 13733/2017) [2022] ZAGPJHC 263 (26 April 2022)
[32]
Wraypex
(Pty) Ltd v Barns
2001
(3) SA 205
(GNP) at 205 I – 207 G; Erasmus Superior Court
Practice at RS72019 D5-21 to D5-22
[33]
2009
(5) SA 1
(SCA) at para 31 - 32