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SAFLII Note: Certain personal/private details of parties or witnesses have been
redacted from this document in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
CASE NO : 1581 87/2025
DATE : 2026 -08 -27
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES : NO
(3) REVISED
SIGNATURE
DATE: 27 August 2026
10
In the matter between
SETSO PROPERTY FUND (PTY) LTD Applicant
and
NQOB ILE FABBI ORA H KUBEKA Respondent
J U D G M E N T EX TEMPORE
WILSON , J: The respondent , Ms Kubeka , purchased a unit
in the “2[...] F[...] ” Sectional Title Scheme. It appears from
the papers that she did so as an investment for her and her 20
husband. On inspecting the unit, Ms Kubeka noticed certain
defects which she required be remedi ed. These defects
were in the main associated with attributes of the property
that would make it fit to rent out as a fully furnished and
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serviced short -term rental.
They were , for example , a chip in the wall near the
entrance, a faulty door handle, a damaged showerhead,
scratches on the glass, paint mark s present on a bedroom
window, and so on.
The seller of the property represented by an agent
who is referred to on the papers as “Cameron ” attended to
remedying the defects complained of. Thereafter on 26 May
2025, Ms Kubeka’s husband, Mr Kubeka , inspected the
property . In a WhatsApp sent to Cameron at 8pm 26 May 10
2025 , Mr Kubeka said :
“Looks good Cam, happy letter coming
tomorrow.”
On 27 May 2025, Ms Kubeka signed a letter
addressed to Standard Bank which was financing Ms
Kubeka’s purchase of the property. In that letter Ms Kubeka
confirms that:
“The improvements on the above property have been
completed in terms of the building agreement.
Standard Bank can proceed to make the final 20
payment.”
The refer ence to the building agreement on the letter
can only be a reference in fact to the sale agreement that
Ms Kubeka signed. On the 21 July 2025, Ms Kubeka wrote
to the seller complaining of certain further snags or defects
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in the state of the property. Some of those defects are
expressed in rather vague terms – for example that the
property is not in “the promised new or hotel ready
condition ”. And some are transparently minor . For example
a cracked floor tile was discovered in the property after Ms
Kubeka had signed the letter directing her bank to release
the finance necessary to purchase the property.
There were other snags , but I need not deal with
them in any detail. On the basis of those defects
communicated to the seller later on in July and in August 10
2025, Ms Kubeka purported to cancel the sale agreement.
The applicant , Setso , did not accept the cancellation
and now applies to me to enforce the sale agreement. It is
common ground between the parties that if the defects
listed in 21 July 2025 emai l and the emails that followed it
were material in the sense that they went to the root of the
sale agreement, then Ms Kubeka had the right to cancel
and the application must be dismissed. Conversely, if
those defects were not material, they did not go to the root
of the contract, and the application must be granted . 20
It seems to me that the defects complained of on 2 1
July 2025 and there after were no more than minor snags.
On their face they plainly did not go to the root of the
contract. Counsel for Ms Kubeka asked me in her
submissions to try and see things from Ms Kubeka’s
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perspective . S ubjectively , it was argued , those defects
were important to Ms Kubeka.
That is of course not the test. The test is whether
the defects were objectively so important as to go to the
root of the agreement. But even if that were not the test,
the evidence is in fact that Ms Kubeka herself did not
regard the defects as particularly important.
If she did, she would not have signed what her
husband refers to as a happy let ter on 27 May 2025,
authorising Standard Bank to release the finance 10
necessary to purchase the property. No reasonable person
who genuinely believed that a property they were about to
purchase was seriously defective would authorise a
financing bank to make a payment necessary to complete
the sale agreement. The fact that Ms Kubeka did so clearly
indicates not only that the defects she now relies on are
not material, but that she did not think at the time she
signed the letter that there were any material d efects at
the property.
It was suggested in argument – and there is an echo 20
of this on the papers – that Ms Kubeka was induced to sign
27 May 2025 happy letter by the seller ’s misrepresentation
that the defects had been cured. However, the facts do not
bear this out. It is plain on a conspectus of all the facts
that Ms Kubeka did not rely on the seller ’s representation
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that the defects had been remedied. She in fact relied on
an inspection conducted by Mr Kubeka, the evening before
she signed the happy letter. In those circumstances, even
if there was a misrepresentation it was neither material to
Ms Kubeka’s decision to sign the happy letter, nor a
representation actually made by the seller.
There is no other defence raised in the answering
affidavit to the claim to enforce the sale agreement. I
should note that the applicant takes issue with the lateness
of the answering affidavit, the fact that it is not properly 10
commissioned, and the fact that it is not accompanied by
an application for condonation .
In view of the conclusions to which I have come, it
was plainly in the interest s of justice that I treat the
answering affidavit as having been properly deposed to
and filed, and that I had full regard to its contents . I have
had such regard, but the application must nevertheless in
my view succeed.
For all of those reasons there will be an order in
terms of the draft handed up by the applicant’s counsel 20
which I have signed, dated and marked X.
WILSON , J
JUDGE OF THE HIGH COURT
27 August 2026