IN THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL DIVISION, PIETERMARITZBURG
Case No: 2025-217978
In the matter between:
JT ROSS PROPERTIES (PTY) LTD PLAINTIFF
(Registration number 2000/005528/07)
and
TRANS MODAL GROUP (PTY) FIRST DEFENDANT
(Registration number 2021/471400/07)
BLAINE NEVILLE–LUND EVANS SECOND DEFENDANT
(ID NO. 890509 xxxx xx1)
This judgment was handed down electronically by circulation to the parties’ legal
representatives by email. The date for the handing down of the judgment is deemed
to be 16 September 2026 at 09h30.
ORDER
The following order is granted:
1. Provisional sentence in the sum of R2 414 473 (two million, four hundred and
fourteen thousand, four hundred and seventy -three rand) is entered in favour of the
plaintiff against the first and second defendants.
2. The defendants are directed to pay interest thereon at the prime overdraft rate,
compounded monthly, from 28 November 2025 to date of payment.
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3. The defendants are directed to pay the costs of the action to date on the
attorney and own client scale jointly and severally with the one paying the other to be
absolved.
JUDGMENT
Nako AJ:
Introduction
[1] The first defendant leased commercial property from the plaintiff for the
purposes of its warehousing and logistics business. The second defendant bound
himself as a guarantor and co-principal debtor with the first defendant for all amounts
due to the plaintiff in terms of the lease agreement. The lease agreement was for a
period of two years from 1 March 2024 to 28 February 2026, but the lease agreement
was cancelled before the expiry of its full term and the defendants agreed to vacate
the premises on 31 May 2025. The plaintiff and the defendants subsequently entered
into a settlement agreement (the settlement agreement) for payment of rental which
remained due and payable when the lease agreement was cancelled , as well as
reinstatement costs. It is the settlement agreement which is the subject matter of this
provisional sentence.
[2] The plaint iff issued a provisional sentence summons against the first and
second defendants for payment of the amount of R2 414 573 in terms of the settlement
agreement that the parties concluded on 22 September 2025 and which document
they agreed constituted a liquid document. In terms of the settlement agreement, the
defendants acknowledged being indebted to the plaintiff in the amount of
R1 903 203.79 and undertook to make payment of the said amount on or before 2
June 2025.
[3] The defendants failed to make payment on the agreed date. The parties then
concluded an addendum to the settlement agreement in terms of which the defendants
acknowledged that they were indebted to the plaintiff in the increased amount of
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R2 514 573 and undertook to discharge their indebtedness by way of payment of 12
equal instalments of R209 547.75, with the first instalment being payable on 19
September 2025 and the last instalment being payable on 1 August 2026.
[4] The parties further agreed that , in the event that the defendants fail ed to
observe, or committed any breach whatsoever of, any of the terms or conditions of the
agreement, the full balance of the capital amount, or remaining balance thereof, would
immediately and without notice become due and payable, notwithstanding that any
portion thereof that may not yet be due and payable. The parties also agreed that a
certificate of balance signed by or on behalf of the creditor confirming the amount of
the debtor’s liability would, together with th e agreement, be prima facie proof of the
amount owed and would be valid as a liquid document in any court with jurisdiction for
purposes of obtaining provisional or summary judgment.
[5] The defendant failed to pay the plaintiff the amounts due and owin g in breach
of the agreement and the addendum.
[6] The defendants opposed the provisional sentence summons and raised two
defences. Firstly, they argued that they had a counterclaim against the plaintiff, which,
if successful , would extinguish their indebtedness to it . Secondly , the defendants
raised a constitutional defence that they are unable to satisfy the provisional sentence
and, as such, the granting of provisional sentence would deny them their constitutional
right of access to courts. It is to be noted that none of these defences deny liability for
the debt or the liquidity of the documents relied on by the plaintiff in seeking provisional
sentence.
The counterclaim defence
[7] The first defendant assert ed that it cancelled the lease agreement as a
consequence of the premises becoming flooded due to the plaintiff failing to honour
its obligations in terms of the agreement. The first defendant alleged that the plaintiff
its obligations in terms of the agreement. The first defendant alleged that the plaintiff
failed to maintain the roof, gutters an d downpipes of the building rented by it . The
ingress of the water into the premises was caused by the roof, the gutters and
downpipes being in such a state of disrepair that they failed to prevent water from
flooding into the premises.
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[8] During the per iod of 22 and 25 April 2025, the defendants alleged that the
floodwater damaged the interior of the leased premises, as well as the items of cargo1
stored therein. The defendants argued that it was not the first time that they
experienced such flood damage, with the damage previously having been caused on
17 December 2024, 23 January 2025, 20 February 2025, 26 February 2025, 13 March
2025 and 16 April 2025. After the April 2025 floods , the defendants indicated that
damage to stock kept at the premises was in excess of R9 000 000 as a result of the
floods.
[9] The defendants also alleged that there were further floods on 25 May 2025 and
4 June 2025 and alleged that they had suffered a direct loss of R1 999 000 arising
from the transport and relocation costs incurred in moving their client s’ goods away
from the flooded premises.
[10] The defendants also argued that they were placed on notice of a claim being
instituted against the first defendant by one of its clients in the amount of R2 900 000
arising from flood damage to certain items stored in the leased premises. Should such
claim eventuate, the first defendant indicated that it would seek an indemnity from the
plaintiff. The defendants argued further that had the plaintiff not served the provisional
sentence summons but proceeded with an ordinary action, they would have been able
to file a counterclaim against the plaintiff for the alleged damages claims and would
be able to seek the stay of the plaintiff’s proceedings pending the determination of
their counterclaim.
[11] The plaintiff denie d the existence of a proper counterclaim. Firstly , the
settlement agreement was concluded after the alleged floods , with clause 12 thereof
specifically stating that the terms of the agreement were in full and final settlement of
all and/or any claims of whatsoever nature in connection with the lease agreement.
The plaintiff also relied on other clauses in the lease agreement, in particular clauses
The plaintiff also relied on other clauses in the lease agreement, in particular clauses
8 and 9, which provide for the maintenance obligations of the parties , as well as the
1 While the word ‘cargo’ ordinarily refers to goods carried in a ship the defendants referred to the items
held in the warehouse on behalf of their clients as cargo in the answering papers. I shall employ the
same term.
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exclusion of liability in identified circumstances , including the failure to maintain the
building, vis major or casus fortuitous.
[12] Furthermore, the plaintiff denied that the flooding was caused by the state of
disrepair of the roof, gutters and downpipes. The plaintiff also relied on the exclusion
of liability contained in certain clauses of the lease agreement.
[13] In relation to the indemnity claim , the plaintiff denied that such an indemnity
claim would be a bar to the granting of provisional sentence , as the plaintiff would
potentially be liable to that third party claimant and not to the defendants, if there was
such a claim.
The access to court defence
[14] In relation to this defence, the defendants argued that the requirements of the
provisional sentence procedure obliges the defendants to pay the plaintiff’s claim in
full and only then would they be entitled to enter the principal case. In this regard, the
defendants submitted that neither of them can afford to have the sum of R2 414 573
‘tied up in limbo’, pending them establishing their defence to the plaintiff’s claim in the
trial proceedings. The defendants surmise that if provisional sentence were to be
granted against them , they w ould effectively be barred fro m entering the principal
case.
[15] The defendants argued further that the manner in which the plaintiff instituted
its claim in the current circumstances and proceeded by way of provisional sentence,
effectively deprived them of their rights in terms of section 34 of the Constitution.
[16] The plaintiff denied that the defendant’s claim that they cannot afford to have
the sum claimed tied up in limbo is a valid defence for the purposes of section 34 of
the Constitution.
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The law and analysis
Counterclaim
[17] In MHB Construction CC v Alvopoint CC ,2 the court refused to consider a
counterclaim, as a defence to provisional sentence, which was already serving before
the court under a different case, on the premise that the other matter did not serve
before the court considering the provisional sentence. The court went on to hold that
‘[i]t was incumbent on the defendant to pertinently make out a case for the counter -claim
contended for in the instant matter so as to affo rd its adversary the opportunity to refute the
allegations in reply’.3
[18] The court also held that:4
‘much as it is permissible for a defendant to raise a liquid or illiquid counterclaim as a defence,
it is only in exceptional circumstances, and where a defendant raising a counter -claim has
established, on the affidavits filed in the provisional sentence proceedings, that the
probabilities of success are substantially in its favour, will a court postpone provisional
sentence proceedings pending th e outcome of the defendant’s counter -claim.’ (Footnote
omitted)
[19] In Twee Jonge Gezellen (Pty) Ltd and Another v Land and Agricultural
Development Bank of South Africa t/a the Land Bank, and Another,5 the Constitutional
Court held that:
‘a defendant, who relies on a defence which goes beyond the liquid document, is required to
produce sufficient proof of that defence to satisfy the court that the probability of success, in
the principal case, is against the plaintiff.’
The Constitutional Court concluded that if the probabilities are balanced or they favour
the plaintiff, provisional sentence should be granted.6
[20] Both parties relied heavily on the principles enunciated in Twee Jonge
Gezellen. The defendants argued that ‘properly construed’ , their answering affidavit
2 MHB Construction CC v Alvopoint CC [2016] ZAECMHC 15.
3 Ibid para 14.
4 Ibid para 8.
2 MHB Construction CC v Alvopoint CC [2016] ZAECMHC 15.
3 Ibid para 14.
4 Ibid para 8.
5 Twee Jonge Gezellen (Pty) Ltd and Another v Land and Agricultural Development Bank of South
Africa t/the Land Bank, and Another [2011] ZACC 2; 2011(3) SA 1 (CC) (Twee Jonge Gezellen).
6 Ibid para 21
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disclosed the precise category of cases identified in Twee Jonge Gezellen and urged
this court to refuse provisional sentence and allow the dispute to be ventilated at trial.
[21] The plaintiff argued that the court’s discreti on to refuse provisional judgment
amounts to an indulgence and is accordingly a narrow discretion and that where the
alleged defence (or counterclaim) goes beyond the liquid document ( in this instance,
the settlement agreement), the defendant must prove on the papers filed that the
probabilities of success of the counterclaim are in their favour and that the plaintiff’s
claim is unlikely to succeed.
[22] The plaintiff framed the issues for determination as follows:
‘(a) whether the defendants are capable of satisfying the judgment debt.
(b) whether, on the preponderance of probabilities they will succeed in the counterclaim.
(c) whether the plaintiff is unlikely to succeed in its claim.’
[23] The defendants, on the other hand, framed the issue to be decided as follows
in their heads of argument:
‘the core dispute is not whether the settlement agreement or the addendum were concluded,
but whether, in circumstances where the defendants advance a sub stantial counterclaim
arising from an alleged breach of the plaintiff’s maintenance obligations under the lease and
consequent flood damage, the provisional sentence procedure would operate unfairly and
unconstitutionally by barring the defendants from a trial.’
[24] For the defendants to succeed in establishing the existence of the counterclaim
defence, they had to establish the existence of the counterclaim in the answering
affidavit and they had to demonstrate that the counterclaim enjoyed prospects of
success.
[25] However, the defendants, in asserting that they have a counterclaim , rely on
events which occurred before the conclusion of the settlement agreement and the
addendum thereto. The defendants have not addressed the exclusionary clauses ,
addendum thereto. The defendants have not addressed the exclusionary clauses ,
relied upon by the plaintiff in their answering affidavit.
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[26] In their heads of argument , the defendants argued that the plaintiff’s reliance
on clause 12 of the settlement agreement and on estoppel are themselves triable
issues. This argument is then followed by questions that would have to be answered
in the interpretation of the ‘full and final settlement clause’ of the settlement agreement.
This argument ignores the fundamental requirement that the defendant s must
demonstrate their defence in the answering affidavit.
[27] The defendants could have easily prepared the counterclaim and attached it to
the answering affidavit for purposes of demonstrating that it meets the elements of
whatever claim they are asserting , instead of expecting the court to interpret the
exclusion contained in clause 12 in a vacuum. The defendants need to do more to
avert provisional sentence than just demonstrate a triable issue. The second leg of the
enquiry is to show that they have favourable prospects of success or that the prospects
are evenly balanced and would be improved by the leading of oral evidence. The
defendants failed to pertinently make a case against the plaintiff in this regard and
were content with bald allegations in the answering affidavit.
[28] The defendants have not addressed the exclusion of liability contained in
clauses 8.22 and 9.3 of the lease agreement , both in the answering affidavit and in
their heads of argument. This failure to address those exclusions tips the balance of
success in the counterclaim towards the plaintiff. The clauses specifically relied upon
by the plaintiff in the replying affidavit provide as follows:
‘The lessee shall not have any right, remedy or claim of any nature whatsoever against the
lessor for any loss or damage (whether general, special or consequential), expenses or injury
which may be suffered by the lessee directly or indirectly by reason of, or arising out of or as
a result of:
8.22.1 the building or the property or any part thereof being in a defective condition or state
of disrepair or any particular repair or maintenance not being effected by the lessor
within a reasonable time of it coming to the lessor’s attention; or
8.22.2 vis major or causus fortuitous or any other cause wholly or partly outside the lessor’s
control; or …
8.22.4 the leased premises or on the property or the building bein g damaged or destroyed.
…
9.3 No Warranty
The lessor
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9.3.1 does not warranty or represent that the leased premises are fi t for the purpose for
which they are let nor that the lessee will be granted licences in respect thereof for the
conduct of its business or that such licences will be renewed…’
[29] Lastly on this topic , the facts contained within the affidavits before the court
point to the cancellation of the lease having been mutually agreed to by the parties
after the defendants had failed to pay their rental and not as a result of the floods.
Furthermore, some of the alleged flooding occurred after the defendants were
supposed to have vacated the premises and paid the agreed amount on 4 June 2025.
It appears to me that the moving and relocatio n of cargo was going to occur for the
purposes of vacating the premises and was not as a result of the floods.
[30] In relation to the prospective claims by its clients, the first defendant has already
intimated that it would seek an indemnity from the plaintiff and as such , the first
defendant’s clients will utilise the third party procedure contemplated by the Uniform
Rules of Court. In this regard , those claims , if they occur , do not form part of the
counterclaim.
[31] The defendants have failed to demonstrate the existence of a counterclaim with
prospects of success in their favour and as such, the court is unable to exercise the
narrow discretion that it has in favour of the defendants. In the event that I am wrong,
the defendants are not without a remedy. Rule 8(10) provides that the defendant may
enter into the principal case when it has satisfied the judgment and taxed costs or if
the plaintiff, on demand, fails to furnish security in terms of rule 8(9).
Inability to pay
[32] The Constitutional Court in Twee Jonge Gezellen concluded that the limitation
of the right to access to court is narrow and ascribed a limited discretion to the court
to refuse provisional sentence where the defendant can demonstrate the following
circumstances:7
circumstances:7
‘(a) an inability to satisfy the judgment debt;
(b) an even balance of prospects of success in the main case on the papers; and
7 Twee Jonge Gezellen para 66.
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(c) a reasonable prospect that oral evidence may tip the balance of prospective success
in his or her favour.’
[33] The Constitutional Court explained the inability to pay as follows:8
‘It goes without saying that “inability to satisfy the judgment debt” in the present context is not
the same as inconvenience or even hardship to the defendant. A defendant who is unable to
pay because he or she does not want to sell or encumber a particular asset or who would
rather not disturb the cash flow of his or her business, is not entitled to seek what amounts to
an indulgence from the court. As I see it, inability to pa y in this context must require the
defendant to show that the judgment debt is unlikely to be satisfied by the attachment and sale
in execution of his or her property. For a defendant simply to state, as the applicants did in
this case, that he or she is u nable to pay the judgment debt will therefore be insufficient to
trigger the court's discretion to refuse.’
[34] The defendants in this case stated on oath that they cannot afford to have the
amount claimed ‘tied up in limbo’. The predetermined conditions listed by the
Constitutional Court in Twee Jonge Gezellen require more from the defendants than
this stated reason and must be coupled with a solid defence to the claim, with an even
balance of prospects of s uccess, which would be tipped in favour of the defendant s
by oral evidence.
[35] The defendants had an obligation to demonstrate the existence of all three
requirements listed by the Constitutional Court in Twee Jonge Gezellen . They have
not done so and the factual history relied upon was not a precursor to pending litigation
regarding the flooding . If it was , this is not evident from the answering affidavit , nor
does it explain the signing of the agreement and the addendum with clauses excluding
liability and/or confirming the agreements to be in full and final settlement of all
liability and/or confirming the agreements to be in full and final settlement of all
disputes between the parties after the correspondence relied upon was already
dispatched.
[36] The defendants have failed to make out a case for the exercise of the narrow
discretion in their favour, especially in circumstances where the liquid document is not
8 Ibid para 67.
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challenged and reliance is on a counterclaim which has its own stringent requirements,
as canvassed above.
[37] On the facts of this case , the narrow discretion cannot be exercised in favour
of the defendant s in circumstances where they have failed to set out on oath thei r
inability to satisfy the provisional sentence judgment, accompanied by even prospects
of success which would be improved by o ral evidence. The claim made by the
defendants has been rebutted by the plaintiff in the replying affidavit , relying on the
contracts signed by the defendants.
[38] Provisional sentence is an important remedy9 and its effectiveness should not
be curtailed without sufficient evidence of a solid defence and/or inability to pay where
there is a solid defence which requires the hearing of oral evidence.
[39] In this matter , the defendants have done no more than allude to the fact that
the granting of provisional sentence would inconvenience them by tying up funds
needed for the liquidity of the first defendant. This is not the inability referred to by the
Constitutional Court. Furthermore, if the defendants follo w the provisional sentence
procedure set out in rule 8(11), the funds used to satisfy the judgment will not be held
in ‘limbo’ for longer than is necessary.
[40] The defendants have failed to make out a case which meets the jurisdictional
requirements set out in Twee Jone Gezellen or to advance any other sufficient reasons
to justify the refusal of provisional sentence based on the reasons of limiting their right
of access to court. In the circumstances, I agree with the plaintiff that I do not have the
discretion to refuse provisional sentence on the facts of this case.
Costs
[41] The general principle is that costs follow the result. While the court retains a
discretion in relation to costs, that discr etion must be exercised judicially. The
defendants raised defences and failed to substantiate same or to provide justification
defendants raised defences and failed to substantiate same or to provide justification
9 Twee Jonge Gezellen para 4.
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for the refusal of provisional sentence in circumstances where they were not disputing
the agreement or that they owe the money claimed.
[42] The parties agreed in the settlement agreement that costs of litigation would be
payable on the attorney and own client scale. No reasons were advanced during the
hearing for a deviation from this agreement. The defendants could not really have
been in a position to persuade the court to deviate from the agreement in the
circumstances of this case , as it appears from the agreements that they failed to
honour their rental obligations and had to terminate the lease agreement more than a
year before its original term.
[43] To the extent that the plaintiff was represented by two counsel , a senior and a
junior counsel , there is no prayer in the papers for costs consequent upon the
employment of two counsel. The matter is also not so complex nor is it voluminous to
justify the employment of two counsel.
Order
[44] In the circumstances, I make the following order:
1. Provisional sentence in the sum of R2 414 473 (two million, four hundred and
fourteen thousand, four hundred and seventy -three rand) is entered in favour of the
plaintiff against the first and second defendants.
2. The defendants are directed to pay interest thereon at the prime overdraft rate,
compounded monthly, from 28 November 2025 to date of payment.
3. The defendants are directed to pay the costs of the action to date on the
attorney and own client scale jointly and severally with the one paying the other to be
absolved.
________________________
NAKO AJ
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APPEARANCES
Heard: 17 August 2026
Delivered: 16 September 2026
Counsel for the plaintiff: Mr P J Wallis SC
Mr T Carides
Instructed by: Carides Benjamin Inc
1st Floor Cradock Square
169 Oxford Road
Rosebank, Johannesburg
c/o Massingham Seymour Attorneys
c/o Regus Victoria Country Club
170 Peter Brown Drive
Pietermaritzburg
Counsel for the first respondent: Mr I Veerasamy
Instructed by: Fathima D Rajah & Company
Unit 1, Penhurst Office Park
164 Springfield Road
Morningside, Durban