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[2026] ZAGPJHC 953
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Salt Freight (Pty) Ltd v Transnet Soc Ltd t/a Transnet National Ports Authority (2025/219215) [2026] ZAGPJHC 953 (25 August 2026)
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, JOHANNESBURG
CASE NO:
2025-219215
(1)
REPORTABLE:
YES
/ NO
(2)
OF INTEREST TO OTHER JUDGES:
YES
/NO
(3)
REVISED.
25
August 2026
In
the matter between:
SATL
FREIGHT (PTY) LTD
Applicant
And
TRANSNET
SOC LTD t/a TRANSNET
NATIONAL
PORTS AUTHORITY
Respondent
This
Order is made an Order of Court by the Judge whose name is reflected
herein, duly stamped by the Registrar of the Court and
is submitted
electronically to the Parties / their legal representatives by email.
This Order is further uploaded to the electronic
file of this matter
on Caselines/CourtOnline by the Judge’s secretary. The date of
this order is deemed to be 25 August 2026.
JUDGMENT
CORAM: LIEBENBERG AJ:
[1]
The plaintiff claims summary judgment for an agreed amount of
compensation as a result of the early termination of two
long-term
leases. The defendant raises a special plea and three defences
to the merits of the matter.
[2]
As a dilatory plea, the defendant contends that the claim must be
stayed pending arbitration of the dispute between the
parties. Both
leases contain an arbitration clause in terms of which “
either
Party shall have the right to submit the dispute to arbitration
”.
The plaintiff argued that objectively seen, no
bona fide
dispute
existed at the time of institution of the action and accordingly the
plaintiff was entitled to institute the action against
the
defendant. Furthermore it was contended that the arbitration
clauses provide a right to refer to arbitration but does
not compel
either party to institute arbitration proceedings.
[3]
I am satisfied that at the time of institution of the action there
was a dispute between the parties regarding the defendant’s
liability to make payment to the plaintiff which dispute either party
had the right to submit to arbitration. In terms of
both lease
agreements, it states that if the dispute has not been resolved
within a certain time period, then either party shall
have the right
(not must) to submit the dispute to arbitration. The arbitration
clauses provide the right to elect to refer to
arbitration. The
arbitration clauses stand in contrast to other clauses of the same
agreements of lease which mandates the
referral of a dispute to
arbitration, such as in the event of the parties and their auditors
failing to reach agreement on the
amount of the compensation payable
on early termination of the lease agreement concerned.
[4]
In the result, the special plea does not carry the day.
[5]
The plaintiff’s claim for a fixed sum of R 29 721 731.24
is founded squarely on the email of 17 July
2025 (Annexure “VR6”),
which the plaintiff terms the “Written Confirmation”.
That email, authored by the
defendant’s deponent, states in
clear and unambiguous terms: “
This email serves to confirm
that both parties … have agreed to the following terms
subject
to governance approval
… TNPA team will proceed to
obtain the necessary approvals as discussed
.” (own
emphasis).
[6]
The defendant argued that the parties did not intend to create a
binding obligation to pay until that approval was obtained.
Until
then, any “agreement” was inchoate.
[7]
The legal
consequences of a suspensive condition are settled. In
ABSA
Bank Ltd v Sweet and Others
[1]
Tebbutt J held that where a contract is subject to a suspensive
condition, “
the
rights of the parties created by the contract remain in abeyance
pending the fulfilment of the condition
”
and that “
there
is a binding agreement between the parties, which neither can
renounce pending fulfilment of the condition
”
– but critically, the obligation to perform (here, to pay the
compensation) does not arise until the condition is
fulfilled.
[8]
In the present matter, it is common cause that the required
governance approval was never obtained. The defendant’s
Special
Plea states that the Chief Executive: Transnet National Ports
Authority has not approved the termination of the leases
nor the
compensation amounts. The plaintiff does not dispute this fact, it
merely argues that such approval was unnecessary.
[9]
Because the suspensive condition was not fulfilled, no binding
obligation to pay the compensation amounts ever came into
existence.
The email of 17 July 2025 remained a provisional, in-principle
agreement – not an enforceable debt.
[10]
The alleged “Written Confirmation” was conditional, the
condition (governance approval) was not fulfilled,
therefore no
binding obligation to pay the claimed amount arose. This is a triable
issue that cannot be decided on summary judgment.
[11]
The plaintiff argued that in terms of the duly concluded agreements
of lease, the defendant reserved for itself a right
to early
termination. It did not require separate authorisation to
perform its obligations or exercise its rights in terms
of the
agreements of lease. Invoking the Turquand rule, the plaintiff
maintained that it cannot be expected from the plaintiff
to have
known of the internal arrangements of the defendant pertaining to the
early termination of the agreements of lease and
whether the person
who terminated the leases had the authority do so or not.
Additionally, the defendant does not state what
steps it took to
obtain the required authority which militates against the bona fides
of the defence raised.
[12]
The defendant’s Delegation of Authority Framework (“DoA”),
effective 1 July 2024, sets out the levels
of authority required for
different decisions. In terms of the DoA, revenue-generating leases
up to a value of R 500 million
fall within the delegation of the
Chief Executive: Transnet National Ports Authority. Where such leases
are amended, terminated,
or otherwise materially varied, the approval
of the same delegated authority is required. The defendant
argued that the early
termination of the two lease agreements and the
payment of compensation totalling R 29 721 731.24
constitute a material
variation and a significant financial
commitment. The decision to terminate the leases and to agree on a
compensation amount accordingly
required the approval of the Chief
Executive.
[13]
The power to terminate revenue-generating leases and to authorise
compensation of nearly R 30 million is vested
in the Chief
Executive personally. There is no evidence that this power was
lawfully sub-delegated to the officials who corresponded
with the
plaintiff. The email of 17 July 2025 (Annexure “VR6”)
expressly acknowledges this limitation by stating that
the agreement
is “
subject to governance approval
”. That
statement is a clear recognition that the author of the email lacked
final authority.
[14]
The Turquand rule does not protect a third party who knew or ought
reasonably to have known of the irregularity. The
plaintiff was
expressly put on notice by the email itself: the agreement was
“
subject to governance approval
”. This phrase is a
clear warning that the officials did not have final authority. In
such circumstances, a third party cannot
rely on the Turquand rule.
[15]
The
statutory Turquand rule in section 20(7) of the Companies Act
[2]
provides that a person dealing with a company in good faith is
entitled to presume compliance with formal and procedural
requirements
“
unless,
in the circumstances, the person knew or reasonably ought to have
known of any
failure
by the company to comply with any such requirement.”
The express condition “
subject
to governance approval
”
placed the plaintiff on reasonable notice. The plaintiff cannot now
claim that it was entitled to assume approval had been
obtained.
[16]
Finally, the defendant argues that the amount claimed is not a
liquidated amount but one dependant on estimation, expert
input and
discretion. The plaintiff cannot convert an unliquidated amount
into a liquidate one merely by relying on a figure
in an email.
[17]
I am
satisfied that the amounts were calculated by the defendant using
agreed formulae the end result of which calculation the plaintiff
agreed with. The amount is thus an agreed amount, liquidated in
nature,
[3]
albeit that the
amount so agreed is subject to governance approval.
[18]
In the result, the defendant raised a triable issue and summary
judgment is inappropriate in the circumstances.
I grant the
following order:
1. Summary judgment
is refused.
2. The defendant is
granted leave to defend.
3. Costs of the
application shall be costs in the cause of the action.
SARITA
LIEBENBERG
ACTING
JUDGE OF THE HIGH COURT
GAUTENG
DIVISION, JOHANNESBURG
For
the plaintiff: Adv Kairinos SC instructed by Noke Pillay Inc
For
the defendant: Adv Motepe SC instructed by Malatji & Co Attorneys
Date
of hearing: 17 August 2026
Date
of judgment: 25 Augst 2026
[1]
1993
(1) SA 318
at 322-323.
[2]
Act
71 of 2008.
[3]
Oos-Randse
Bantoesake Administrasieraad v Santam Versekeringsmaatskappy Bpk en
Andere
1978
(1) SA 164
(W) at 168 G-H.