1
SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
Case Number: 2024-146837
In the matter between:
In the matter between:
CEB INVESTMENTS (PTY) LTD Applicant
and
A-M CONSULTING ENGINEERS (PTY) First Respondent
AUSWELL MASHABA Second Respondent
Delivered: This judgment was prepared and authored by the Acting Judge whose
name is reflected and is handed down electronically and by circulation to the parties /
their legal representatives by email and by uploading it to the electronic file of this
matter on Caselines. The date for handing down is deemed to be 1 September 2026.
JUDGMENT
CARELSE AJ
Introduction
[1] This opposed application concerns the enforcement of obligations arising from
a commercial lease and an associated deed of suretyship. The applicant seeks
payment of arrear rental and damages arising from the first respondent's
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: NO
1 September 2026 __________________
DATE SIGNATURE
2
occupation and subsequent vacation of commercial premises. The principal
issues are whether the arrear rental has been established on the papers,
whether the second respondent remains liable as surety, and whether the
damages claim is capable of final determination in motion proceedings.
[2] The respondents oppose the application on five principal grounds. Firstly, they
contend that the applicant has failed to establish the arrear rental claimed
because the rental was incorrectly calculated throughout the lease and that,
properly reconciled, the first respondent is in credit. Secondly, they deny that
one Magaya had authority to acknowledge the arrear indebtedness or to furnish
the repayment undertaking of 31 May 2024 on behalf of the first respondent.
Thirdly, they contend that genuine disputes of fact arise which render the
application unsuitable for determination in motion proceedings. Fourthly, they
dispute the applicant's claim for restoration damages. Finally, the second
respondent contends that the suretyship ceased to operate because the
suretyship only applied in respect of the first lease agreement and not to the
new second lease agreement that commenced in June 2020 because it
constituted a new and independent lease agreement.
Background
[3] The following material facts are either common cause or are not genuinely
disputed on the papers and may be accepted for purposes of this application.
[4] The applicant is the registered owner of the immovable property described as
portion 4, Erf 5[…] R[…] Ext 11, Midrand, known as A[…] House and situated at
2[…] B[…] Avenue, Randjespark Ext 11, Midrand ("the Premises").
[5] On 13 March 2015, the parties concluded a written lease agreement in terms of
which the first respondent leased the Premises from the applicant for an initial
three-year period from 1 June 2015 to 31 May 2018, with an option to renew
(“the Lease”). The agreed commencement rental was R225 830.00 per month
3
excluding VAT, subject to annual escalation at 8.5%, and the first respondent
had to furnish a rental bank guarantee of R677 490.00 as a deposit.1
[6] The Lease imposed the following material obligations on the first respondent:
a. to maintain in good order and repair the interior of the Premises together
with the electrical, water, gas, drainage, sanitary and air -conditioning
installations and all appurtenances (clause 21);
b. to redeliver the Premises on expiry or termination in good order and
repair, fair wear and tear accepted (clause 21);
c. to make good and repair at its own cost on demand any damages,
breakages or, in the alternative, reimburse the applicant for the cost of
replacing, repairing or making good any broken, damaged or missing
articles caused as a result of the first respondent's occupation. In
particular, the first respondent had to pay for the replacement of all
fluorescent tubes, starters, ballasts and incandescent bulbs used in the
Premises (clause 21);
d. to give the applicant written notice within 30 days of the commencement
date, of any defects in the Premises with particulars of any
appurtenances (all installation and appliances in the premises including
any keys, locks, windows, sewerage pans, basins, water taps and
fittings) which were defective or missing, failing which the first
respondent was deemed to have accepted the Premises as complete,
without defect and in good order and repair (clause 20); and
e. to pay interest on any overdue amounts at 1.5% per month or part
thereof (clause 36).
[7] The first respondent did not give written notice of any defects within 30 days of
the commencement of the Lease on 1 June 2015 and is accordingly deemed
1 Although the signatures on the Lease (FA3) bear dates of 11 and 12 March 2015 respectively,
nothing turns on that because the parties are ad idem that the lease agreement was concluded on 13
March 2015.
4
under clause 20 of the General Conditions to have accepted the Premises as
being in good order and without defect at commencement.2
[8] On or about 11 March 2015, the second respondent, in his capacity as
executive chairman and director of the first respondent, signed a deed of
suretyship as surety and co -principal debtor for the first respondent's
obligations under the Lease, which was incorporated as Annexure B to the
Lease (the Suretyship).
[9] In terms of the Suretyship the second respondent bound himself jointly and
severally as surety and co- principal debtor for any sum the first respondent "
may now and from time to time hereafter owe or be indebted to the [applicant]
under or arising out of an agreement of lease ("AGREEMENT") between the
Landlord and the Tenant in respect of and/or in respect of any other cause of
indebtedness or obligation of whatsoever nature and howsoever arising, due by
the [first respondent] to the [applicant], including legal costs and charges on an
attorney and client scale. ” Clause 2.5 extended the Suretyship to claims that
the applicant may have acquired or may in the future acquire against the first
respondent. Clause 2.8 of the Suretyship further provided that the first
respondent’s indebtedness shall be proved by a certificate of balance signed by
the applicant’s auditors, which certificate shall be binding on the second
respondent, constitute conclusive proof of indebtedness, and be a valid liquid
document in any competent court for judgment purposes. While clause 2.2
provides that all acknowledgements of indebtedness and admissions by the
first respondent shall be binding on the second respondent.
[10] The parties thereafter recorded the continuation of their contractual relationship
in the following four successive written agreements exec uted between 2018
and 2023:
a. On 14 May 2018, the parties concluded a written addendum (RA3) titled
"Addendum to Agreement of Lease dated 13 March 2015" , which
"Addendum to Agreement of Lease dated 13 March 2015" , which
2 While the absence of a defect notice could have been stated more explicitly, it is sufficiently
established by the admitted lease term read with the absence of any allegation in the answering
affidavit that such notice was given.
5
extended the existing Lease 3 on the same terms and conditions for a
further two years to 31 May 2020. RA3 was signed by the second
respondent personally on behalf of the first respondent and was
accompanied by a directors' resolution also signed by the first
respondent. It was recorded that the rental, which was current at the
time, escalated at 8.5% per annum and required the first respondent to
increase the bank guarantee to R865 350.93 and extend it to 31 August
2020.
b. On 29 April 2020, the parties concluded a "Lease Renewal Agreement"
(FA4), the schedule to which describes the commencement date as the
"2nd Renewal Commencement Date" and the duration as the "Duration
of 2nd Lease Renewal", for an initial three-year period from 1 June 2020
at R200 630.00 per month, with a two- year renewal option. FA4 required
the first respondent to furnish a replacement bank guarantee of R635
701.50, which it failed to do. Linda Zwelenhlanhla Cele, the first
respondent’s then CEO, signed FA4 on its behalf.
c. On 29 March 2022, due to the first respondent ’s failure to provide the
required bank guarantee, a further addendum (RA6) was entered into,
which converted the guarantee obligation into a cash deposit of R635
701.50 payable in 13 monthly installments of R50 000.00. Nine
installments, totalling R450 000.00, were received by the applicant ,
although the respondents characterise these payments as an
overpayment.
d. On 25 May 2023, the parties concluded a further addendum (FA5),
which expressly described itself as amending "the Lease Agreement that
they entered into on 13 March 2015 and renewed on 30 April 2020", and
extended the lease for one further year from 1 June 2023 to 31 May
2024 at R228 852.54 per month excluding VAT . Linda Zwelenhlanhla
Cele, the first respondent’s then CEO, signed FA4 on its behalf.
3 Although para 4 of “RA3” refers the existing lease of “1 June 2025” it is not in dispute that “RA3” in
fact extended the Lease concluded on 13 March 2015 (FA3).
6
[11] The Lease expired by effluxion of time on 31 May 2024 and the first respondent
vacated the Premises during June 2024. On 30 May 2024, before vacation of
the Premises, Karen Evans (“Evans”), the applicant's managing agent, emailed
Nkululo Magaya (“Magaya”), the first respondent's financial manager, and
Linda Cele, a director and CEO of the first respondent, recording the handover
conditions and requesting a written repayment undertaking in respect of the
outstanding arrear rental at the time.
[12] The following day, 31 May 2024, Magaya replied, stating that the outstanding
amount would be repaid in 12 equal monthly installments commencing at the
end of June 2024.
[13] The applicant arranged two post -vacation inspections. Clifford du Preez (“Du
Preez”), a director of Fairleads Electrical (Pty) Ltd and a wireman’s licence
holder with more than 40 years’ experience, inspected the electrical installation
in June 2024 and identified 18 categories of missing, damaged, or non-
compliant electrical items. He prepared a detailed quotation of R70 972.42
inclusive of VAT for the work required to remedy the deficiencies and to issue a
certificate of electrical compliance. The work was subsequently carried out and
the invoice settled by using a portion of the cash deposit then held by the
applicant.
[14] On 21 June 2024, Bradley Connor (“Connor”), a director of BMSA Affiliated
Services (Pty) Ltd, inspected the Premises and quantified the reasonable cost
of the general restoration of the Premises at R475 630.60 inclusive of VAT.
[15] On 2 October 2024, separate letters of demand were addressed to the first and
second respondents calling upon them to pay the outstanding indebtedness.
The respondents failed to make payment, and these proceedings were
thereafter launched. On 10 December 2024, the applicant's auditors issued a
certificate of balance certifying a net indebtedness of R1 704 835.17.
[16] Against that common cause background, the respondents raise the following
[16] Against that common cause background, the respondents raise the following
issues as requiring the dismissal or, in the alternative, the referral to oral
evidence of the application:
7
a. the applicant has failed to establish the arrear rental because the
applicant incorrectly accounted for the rental throughout the lease, with
the result that the first respondent contends that it is in credit;
b. Magaya lacked authority to acknowledge the arrear indebtedness or to
give the repayment undertaking dated 31 May 2024 on behalf of the first
respondent;
c. those disputes render the application unsuitable for determination in
motion proceedings;
d. the applicant has failed to establish its restoration claims, and in
particular the claim for general restoration damages, because Connor's
assessment does not establish the commencement condition of the
Premises and because his evidence cannot properly be accepted on the
papers; and
e. the Suretyship ceased to bind the second respondent when FA4 was
concluded because FA4 constituted a new and independent lease rather
than a continuation of the 2015 Lease.
Motion proceedings: dispute of fact
[17] Motion proceedings, unless concerned with interim relief, are the vehicle for
resolving legal issues on the basis of common cause or undisputed facts; they
are not designed to determine probabilities or to resolve genuine disputes of
fact.
4 The Court's task is not to resolve every factual disagreement appearing
from the affidavits but to determine whether the disputes are genuine, bona fide
and material to the relief sought.
[18] Where genuine disputes of fact arise, the Court ordinarily decides the matter on
the facts stated by the respondent together with those facts admitted by the
applicant. That principle, however, presupposes a real, genuine and bona fide
dispute of fact .
5 A respondent does not create such a dispute by resorting to
bald, ambiguous or unsubstantiated denials, particularly where the relevant
4 National Director of Public Prosecutions v Zuma 2009 (2) SA 277 (SCA) at para 26.
5 Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A) at 634H–635C.
8
facts lie peculiarly within its own knowledge. Nor is the Court required to accept
a version that is so far -fetched or clearly untenable that it can confidently be
rejected on the papers. The Court must adopt a robust, common- sense
approach when considering whether a genuine dispute of fact exists.6
Arrear rental
[19] The arrear rental of R1 158 232.15 is calculated from the statement of account
balance of R1 559 355.73 as at 1 May 2024, adjusted by recording a payment
of R60 122.05, substituting actual May 2024 utility costs of R48 876.42 for the
estimate of R50 000.00 used in the 30 May 2024 email, and reserving the R450
000.00 deposit for application against restoration costs.
[20] The respondents' challenge to the arrear rental cannot be sustained. The
applicant has produced the Lease, every written extension and addendum,
annual ledger statements covering the period from July 2016 until June 2024,
and the auditors' certificate of balance. Against that documentary record, the
respondents merely assert that they were overcharged throughout the lease
and that a credit balance of approximately R133 450.00 exists in their favour.
The respondents do not identify any specific incorrect debit, omitted credit,
duplicated charge or erroneous escalation. Nor have they produced any
counter-reconciliation, accounting analysis or contemporaneous financial
records demonstrating that the applicant's calculations are incorrect. In those
circumstances, the respondents have not engaged meaningfully with the
applicant's accounting evidence and have not raised a genuine dispute of fact
regarding the arrear rental.
[21] One issue nevertheless remains. The second respondent denies that Magaya
had authority to acknowledge the arrear indebtedness or to furnish the
repayment undertaking of 31 May 2024. He states that he gave Magaya no
authority to make any such undertaking and professes no knowledge of the
authority to make any such undertaking and professes no knowledge of the
6 Wightman t/a JW Construction v Headfour (Pty) Ltd 2008 (3) SA 371 (SCA) at para 13; Buffalo
Freight Systems (Pty) Ltd v Crestleigh Trading (Pty) Ltd 2011 (1) SA 8 (SCA) at paras 20 –21; and
Soffiantini v Mould 1956 (4) SA 150 (E) at 154G–H.
9
email exchange. Before considering that denial, it is necessary to examine the
context in which the issue arose.
[22] The founding affidavit did not specifically allege that Magaya possessed
authority to bind the first respondent. The founding affidavit relied upon
communications sent by the first respondent's financial manager in the ordinary
course of the parties' dealings and was not required to anticipate a defence that
authority would later be placed in issue. Only in the answering affidavit did the
second respondent specifically deny Magaya's authority. The replying affidavit
accordingly dealt with that defence by explaining the events of 21 May 2024
and annexing Evans' confirmatory affidavit. That evidence is properly
responsive and does not amount to a new case in reply .
7 The second
respondent also did not under Rule 6(5)(e) apply for leave to file a further
affidavit to contest the meeting allegations, as was open to him.
8 Quite apart
from the evidence concerning the meeting of 21 May 2024, the authority finding
stands on the founding affidavit materials alone. Those materials establish the
following:
a. Magaya was the Financial Manager of the first respondent;
b. he had previously , on 12 February 2024, communicated with Evans on
the first respondent's behalf about its financial difficulties . The following
were copied in the email: Linda Cele <l […]> (a director and the CEO of
the first respondent) and Nirashni Jainath <n[…] >;
c. Evans' email seeking the undertaking was addressed not only to Magaya
but also to Cele, a director and CEO of the first respondent, and to a
Lerato Sibisi;
d. Magaya replied confirming the undertaking; and
e. no evidence of any instruction limiting his authority has been placed
before this court.
7 Mostert and Others v FirstRand Bank t/a RMB Private Bank and Another 2018 (4) SA 443 (SCA) at
para [13]; J.M.G. v M.J.W and Another [2023] ZAWCHC 201 (11 August 2023) at para 44.
para [13]; J.M.G. v M.J.W and Another [2023] ZAWCHC 201 (11 August 2023) at para 44.
8 J.M.G.W v M.J.W and Another footnote 7 above at para 45.
10
[23] No affidavit has been obtained from Magaya disputing either the email or his
authority to send it. Nor is there any evidence that the undertaking was
repudiated or withdrawn after it was sent, even though the evidence suggests
it, at the very least, came to the attention of the first respondent’s CEO and
director. In those circumstances, the second respondent's bare denial of
authority does not raise a genuine dispute of fact.
9
[24] I am accordingly satisfied that Magaya possessed at least implied authority to
acknowledge the arrear indebtedness and to furnish the repayment undertaking
of 31 May 2024 on behalf of the first respondent.
[25] Consequently, I am satisfied that the arrear rental claim is established.
Electrical repairs
[26] The claim for R70 972.42 in respect of the electrical installation stands on a
materially different footing from the claim for general restoration. It is supported
by the sworn affidavit of Du Preez, a qualified wireman's licence holder with
more than 40 years' experience, who identified 18 categories of missing,
damaged or non- compliant electrical items requiring remediation before a
certificate of compliance could be issued. The obligations identified by Du
Preez are, on the applicant's case, obligations falling within the first
respondent’s contractual obligations under the Lease. The work identified by
him has since been carried out, and the invoice paid.
[27] The significance of payment is not that it creates liability. Liability arises from
the contractual obligations assumed by the first respondent under the Lease.
Payment establishes only that the amount claimed represents expenditure
actually incurred by the applicant in performing work that the first respondent
was contractually obliged to perform or reimburse. The amount claimed,
therefore, no longer represents a mere quotation but an expense actually
incurred by the applicant and is thus fixed or determined.
10 The respondents
incurred by the applicant and is thus fixed or determined.
10 The respondents
have produced no expert evidence disputing Du Preez's findings, identifying
unnecessary work or suggesting that any item falls outside the first
9 Wightman footnote 6 above at para 13.
10 Kleynhans v Van der Westhuizen NO 1970 (2) SA 742 (A) at 749F.
11
respondent's contractual obligations. Nor have they sought an order directing
that Du Preez be called for cross -examination. On the papers before me, the
electrical claim is therefore established.
General restoration damages
[28] The claim for R475 630.60 in respect of the general restoration of the Premises
stands on a different footing. Unlike the electrical repairs, this claim has not
crystallised into an actual expenditure. It remains an estimate of the cost of
future remedial work and therefore constitutes a claim for unliquidated
contractual damages.
11
[29] Motion proceedings are particularly unsuited to the prosecution of claims for
unliquidated damages .
12 That distinction is important because the amount
ultimately recoverable depends not only upon liability but upon proof of the
measure of the applicant's loss. Connor's inspection was confined to the
condition of the Premises during June 2024. He was not requested to
determine their condition at the commencement of the Lease in June 2015, and
his report does not attempt to do so.
[30] The first respondent challenges assessment on three grounds: (a) that Connor
cannot quantify the restoration obligation without knowledge of the
commencement condition; (b) that Connor has a financial interest in performing
the work; and (c) that the Premises were left clean.
[31] The last of these, which is a positive factual allegation, is unsupported by any
details of the cleaning of the premises, inspection report, photograph or
handover checklist, and raises no genuine dispute of fact. The first two,
however, raise legitimate methodological questions. The deeming provision in
clause 20 of the Lease operates in the applicant’s favour on the burden of
proof: the first respondent gave no defect notice within 30 days of
commencement and is deemed to have accepted the Premises in good order .
But the deeming provision does not supply the baseline that Connor's
assessment lacks. In a nine- year commercial tenancy , the boundary between
assessment lacks. In a nine- year commercial tenancy , the boundary between
11 Id at 749G-751A.
12 Economic Freedom Fighters v Manuel 2021 (3) SA 425 (SCA) at para 105.
12
compensable damage and fair wear and tear calls for expert assessment that
takes account of the commencement condition. To award a final monetary sum
on the strength of a report that makes no such assessment, prepared by a
contractor with a financial interest in performing the work, without the ability to
test that evidence, would be to grant a sum that this court cannot be satisfied
represents an accurate measure of the compensable loss. Complicating
matters further is the fact that the applicant sold the Premises in January 2025,
after the institution of these proceedings, and a portion of the restoration works
has not been completed, the applicant attributing the shortfall to a diminution in
the sale price. This component of the case is therefore not suitable for final
determination on the papers.
[32] The applicant could not reasonably have anticipated that the commencement
condition of the Premises would become a central issue in dispute. The dispute
is confined to a narrow compass and is capable of convenient determination by
oral evidence. In those circumstances, a referral under Rule 6(5)(g), rather than
dismissal of the claim or referral to trial, is the appropriate course. At the
hearing the parties should address whether, in light of the sale of the Premises
during January 2025, the applicant's damages fall to be assessed by reference
to the reasonable cost of reinstatement or by reference to any diminution in the
realised sale price.
13
The suretyship
[33] The second r espondent's defence to personal liability rests entirely on the
contention that FA4 was not a renewal of the continuing Lease but a new and
independent agreement and that the Suretyship consequently lapsed. The
question is one of legal interpretation of the documents.
[34] Properly construed, FA4 did not extinguish the 2015 Lease and substitute an
entirely new contractual relationship. Several features of the contractual
documentation point clearly in the opposite direction. FA4 is titled "Lease
documentation point clearly in the opposite direction. FA4 is titled "Lease
Renewal Agreement" ; its schedule uses the terms "2nd Renewal
13 Standard Bank of SA Ltd v Neugarten 1987 (3) SA 695 (W) at 699C –E. Repas v Repas [2023]
ZAWCHC 24 (13 February 2023) at paras 33, 41 - 42.
13
Commencement Date" and "Duration of 2nd Lease Renewal" . This is
terminology that is intelligible only if a first renewal has already occurred. FA5
describes itself as amending "the Lease Agreement that they entered into on
13 March 2015 and renewed on 30 April 2020" , and on the respondents'
characterisation of FA4 as a new agreement, that description would be
inexplicable.
[35] RA3, which the second respondent signed personally, is titled "Addendum to
Agreement of Lease dated 13 March 2015" and extends "the existing lease" for
two years to 31 May 2020. The second respondent, therefore, has personal
knowledge that the first extension in 2018 was a continuation of the 2015
agreement; FA4's " 2nd Renewal" terminology presupposes RA3 as the first
renewal. In their heads of argument, the respondents abandoned the earlier
contention that the lease continued by tacit relocation from June 2019 to April
2020. RA3 extended the Lease to 31 May 2020, leaving no gap for any tacit
continuation. The Lease was a single continuous contractual relationship from 1
June 2015 to 31 May 2024. FA4 was its second renewal, not a new agreement.
The second respondent's sworn contention to the contrary is inconsistent with
the contemporaneous contractual documents and cannot be accepted.
14
[36] A deed of suretyship is accessory to the principal obligation, but it remains a
separate contract that falls to be interpreted according to its own terms. Having
concluded that the Lease continued through successive written renewals and
addenda, the remaining question is whether the indebtedness now claimed falls
within the obligations secured by the Suretyship. On its plain wording, it does.
The Suretyship extends to indebtedness arising "from time to time" under the
Lease and to claims thereafter acquired by the applicant. Nothing in FA4 or any
subsequent agreement records an intention to terminate or exclude the
continued operation of the Suretyship.
continued operation of the Suretyship.
[37] Even if FA4 was a new and independent agreement, the Suretyship would in
any event cover the first respondent’s obligations under it. Its language extends
14 Buffalo Freight Systems (Pty) Ltd v Crestleigh Trading (Pty) Ltd 2011 (1) SA 8 (SCA) at para 20,
citing Da Matta v Otto NO 1972 (3) SA 858 (A) at 869D–E.
14
to indebtedness "of whatsoever nature and howsoever arising" and clause 2.5
expressly covers claims the applicant "may in future acquire" against the first
respondent.
[38] The respondents rely on R v Cumming
15 and Voet 19.2.9 for the proposition
that sureties are discharged on renewal of a lease. Properly understood, R v
Cumming concerned tacit relocation following the expiry of a fixed- term lease,
on facts that are clearly distinguishable from the present matter. The present
matter concerns successive written renewals executed by agreement between
the parties before or upon expiry of the preceding term. The issue is therefore
one of contractual interpretation rather than tacit relocation. Read as a whole,
the contractual documents demonstrate an intention to continue the existing
lease relationship rather than to extinguish it. Nothing in FA4, RA6 or FA5
records any intention to discharge the second respondent from his obligations
as surety.
[39] Finally, Mokone v Tassos Properties CC
16, which is re lied upon by the
respondents, in fact assists the applicant: when parties use the language of
renewal or extension, they are taken to intend extending all terms of the lease
relationship including collateral and security arrangements, unless a particular
term is plainly excluded. Nothing in FA4 excludes the Suretyship.
[40] I am therefore satisfied that the Suretyship is extant and that the second
respondent is bound by its terms.
Conclusion
[41] The applicant has established its claim for arrear rental in the amount of R1 158
232.15. The respondents have failed to raise a genuine, bona fide and material
dispute of fact regarding either the calculation of the arrear rental or Magaya's
authority to acknowledge the indebtedness and furnish the repayment
undertaking on behalf of the first respondent.
15 1956 (4) SA 143 (E).
16 2017 (5) SA 456 (CC) at paras 36 and 41.
15
[42] The applicant has likewise established its claim in the amount of R70 972.42 for
the electrical repairs. That claim is supported by uncontested expert evidence,
falls within the first respondent's contractual obligations under the Lease and
constitutes a liquidated contractual claim capable of final determination on
motion.
[43] A different conclusion follows in relation to the claim for R475 630.60 in respect
of the general restoration of the Premises. That claim raises genuine and
material disputes of fact which cannot fairly be resolved on the papers and
should accordingly be referred to oral evidence in terms of Rule 6(5)(g).
[44] The second respondent's defence under the Suretyship cannot be sustained.
Properly construed, the Lease remained a single continuing contractual
relationship throughout the successive renewals and addenda and, in any
event, the Suretyship is sufficiently wide to encompass the indebtedness now
claimed.
[45] It follows that the applicant is entitled to final relief in respect of the arrear rental
and electrical repair claims, together with an order referring only the general
restoration damages claim to oral evidence. The second respondent is jointly
and severally liable with the first respondent under the Suretyship for the
amounts in respect of which final relief is granted in this judgment . The
remaining issue is the appropriate costs order.
Costs
[46] The Lease and the Suretyship both provide for costs on the attorney and client
scale. There is no reason in law or fairness why effect should not be given to
those contractual provisions. I award costs on that scale. The costs relating to
the general restoration damages claim shall stand over to be determined at the
oral evidence stage.
Order
[47] In the result the following order is made:
16
1. The first and second respondents are ordered to pay to the applicant, jointly
and severally, the one paying the other to be absolved:
a. the amount of R1 229 204.57;
b. interest on the amount of R1 229 204.57 at the rate of 1.5% per
month, calculated from 2 October 2024 to the date of final payment,
both days inclusive; and
c. the costs of this application on the attorney and client scale, including
the costs of counsel, save that the costs relating to the restoration
damages claim are as provided in subparagraph 3(d) below.
2. The applicant's claim for general restoration damages in the amount of R475
630.60 is referred to oral evidence under Rule 6(5)(g) of the Uniform Rules of
Court. Oral evidence shall be heard to determine the following questions:
a. the condition of the immovable property described as portion 4, Erf
5[…] R[…] Ext 11, Midrand, known as A […] House and situated at
2[…] B[…] Avenue, R[…] Ext 11, Midrand ("the Premises") as at the
commencement of the Lease on 1 June 2015;
b. whether the restoration works identified in the affidavit of Bradley
Connor of BMSA Affiliated Services (Pty) Ltd, dated 10 December
2024, constitute damage attributable to the first respondent beyond fair
wear and tear, having regard to the commencement condition and
whether the reasonable cost of such works is R475 630.60; and
c. whether, having regard to the sale of the Premises by the applicant in
January 2025 before the restoration works were carried out, the
appropriate measure of restoration damages is the reasonable cost of
remediation or a proven diminution in the sale price of the Premises.
3. Unless this Court otherwise orders:
a. Bradley Connor must be available for cross -examination on his
affidavit, which shall stand as his evidence in chief;
17
b. the witnesses who may be called are Bradley Connor, and any other
witness or witnesses as the parties deem fit, with personal knowledge
of the condition of the Premises at the commencement of the Lease on
1 June 2015;
c. no witness other than those contemplated in subparagraph 3 (b) above
may be called without the agreement of the opposing party or, failing
agreement, the leave of this Court, which is to be sought only after the
opposing party has been given reasonable notice; and
d. the costs of these proceedings relating to the restoration damages
claim and the costs of the oral evidence hearing shall be determined
by the presiding judge in the oral evidence hearing.
___________________________
CARELSE AJ
ACTING JUDGE OF THE HIGH COURT,
JOHANNESBURG
Date of hearing: 26 May 2026
Judgment delivered: 1 September 2026
Appearances:
For the Applicant: MH Nieuwoudt (Ms) instructed by Moodie &
Robertson Attorneys
For the Respondents: T Mirtle (Ms) instructed by Mendelsons Attorneys