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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
Case No: 119527/2023
In the matter between:
HERIOT PROPERTIES (PTY) LTD Plaintiff
(Reg No: 1998/003195/07)
and
DEVLAND CASH & CARRY (PTY) LTD First Defendant
(Reg No: 1997/003371/07)
CHOPPIES SUPERMARKETS SOUTH AFRICA (PTY) LTD Second Defendant
(Reg No: 2008/001621/07)
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 his
matter on Caselines. The date for handing down is deemed to be… August 2026.
JUDGMENT
SHANGISA AJ,
Introduction
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: NO
2026/09/09
DATE SIGNATURE
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[1] The plaintiff seeks summary judgment against the defendants based on three
distinct claims:
a. First, the plaintiff seeks payment of arrear rental and related charges in the
sum of R2 755 567,31, together with interest;
b. Second, the plaintiff seeks payment of holding-over damages in the sum of
R1 408 024,24 for the period from 1 November 2023 to 30 November 2023,
together with interest and costs; and
c. Third, the plaintiff seeks payment of rental damages in the amount of
R49 068,68 per day for the period from 1 December 2023 until the premises
are relet, alternatively until 30 November 2024 , whichever occurs first,
together with interest and costs.
[2] The defendants oppose summary judgment and raise three legal points:
a. First, the defendants contend that, although the deponent to the plaintiff’s
affidavit purports to verify the facts, cause of action, and amounts due, there
are three causes of action, and the plaintiff’s deponent failed to identify
which of those causes o f action he was confirming. The defendants
therefore argue that the plaintiff’s affidavit in support of summary judgment
is defective.
b. Second, the defendants contend that the second and third claims are illiquid
and constitute claims for damages that do not comply with the requirements
of Rule 32(1)(b). The defendants thus submit that, because damages
cannot be claimed in summary judgment proceedings, the plaintiff’s claims
should fail.
c. Third, the defendants submit that the plaintiff is in breach of a previous
judgment and order of the High Court and should therefore be precluded
from obtaining relief from this Court until it has purged its contempt. The
defendants assert that the previou s court order on which they rely
determined that the plaintiff was unlawfully withholding the defendants’
goods, which the defendants had purchased for R3 882 488,41.
[3] The defendants also bring a counterclaim based on unjustified enrichment. The
[3] The defendants also bring a counterclaim based on unjustified enrichment. The
counterclaim is two-pronged. First, the defendants contend that the plaintiff was
not entitled to charge rental and that, as a result, they suffered a loss in the
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amount of R14 400 000,00. The other leg of the counter-claim entails a counter-
claim for the defendants’ racking that the y claim the plaintiff has stolen and
comes to the amount of R7 918 839, 19.
[4] The defendants argue that their defences and counterclaim are good in law and
raise triable issues. They contend that their defences are bona fide and have not
been raised merely for the purpose of delaying the plaintiff from obtaining relief
against them.
The law
[5] It is trite that in order for the plaintiff to succeed in its summary judgment
application, its claim in the summons must be based on a liquid document or be
for a liquidated amount of money.
[6] The application must be brought within 15 days after the delivery of a plea,
together with an affidavit made by the plaintiff personally or by any other person
who can swear positively to the facts verifying the cause of action and the
amounts claimed. The affidavit must demonstrate that the defendants do not
have a bona fide defence and are defending the application merely to delay an
inevitable losing case.
Parties’ submissions
[7] In the present matter, the plaintiff bases its claims on the provisions of an
admitted and written lease agreement between the parties , and for liquidated
amounts sounding in money.
[8] It is important to look closely at the defendants’ plea so as to ascertain their
defence. First, the defendants raise a special plea. They submit that the validity
of the cancellation of the lease agreement ought to be referred to arbitration.
They therefore contend that the court does not have jurisdiction to determine
issues arising from the cancellation of the lease agreement.
[9] The plaintiff contends that the validity of the cancellation of the lease agreement
is res judicata. It argues that on 31 October 2023 this court granted an eviction
order on the strength of the cancellation of the lease agreement. It is common
cause that the defendants consented to that order.
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[10] As a result, the defendants were evicted from the leased premises on 18 January
2024, and the plaintiff argues that they have thus acquiesced to the cancellation
of the lease agreement. On this basis, the plaintiff contends that the arbitration
clause did not survive cancellation of the lease agreement.
[11] The plaintiff also rejects the defendants’ defence of breach of agreement. That is
the case, so the argument goes, because the lease agreement prevents the
defendants from relying on this defence.
[12] The plaintiff resists the defendants’ counter -claim on two grounds. First, it
contends that both counter-claims are excipiable in that they lack the necessary
averments which are necessary to sustain a cause of action or defence .
Secondly, the plaintiff argues that the defendants have failed to comply with the
provisions of Rule 18(10) of the Uniform Rules of Court in that they failed to
provide any basis the quantification of the counter-claims.
[13] As regard the undue enrichment claim, the plaintiff contends that this too should
fail because it does not meet the elements of a conditio indebiti. It is trite that the
elements of a condictio indebiti are the following;
a. The defendant must have been enriched;
b. The plaintiff must have been impoverished.
c. The enrichment must have been without legal obligation.
d. The defendant’s enrichment must have been at the expense of the plaintiff.
e. The enrichment must have been because of a bona fide, but mistaken belief
that the enrichment is due.
[14] South African law does not recognise a general enrichment action. Although they
raised the defence of unjustified enrichment, the defendants have failed to
specify which of the elements of condictio indebiti they relied on.
Triable Defences
[15] In my view, the third leg of the defendants’ ground of objection disposes of this
application. That is so because the plaintiff has been unable to answer the
application. That is so because the plaintiff has been unable to answer the
defendants’ contention that it remains in contempt of the order of the high court.
That order compelled the plaintiff to return the defendants’ rack that was held in
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plaintiff’s premises. The court also made an order of costs against the plaintiff.
[16] The defendants rely on the following court order:
“[1] The [plaintiff] is ordered to;
1.2.1 allow the [second defendant] access to ... in order to remove the racking
and shelving stored within the premises and to remove same within a period of 30
days from the date of this Order;
1.2.2 Directing the [plaintiff] to pay the costs of the application.”
[17] It is common cause that as at the time of the application for summary judgment,
the plaintiff has not complied with the provisions of the Order and is currently in
contempt of such Order.
[18] The Constitutional Court in Secretary of the Judicial Commission of Enquiry into
Allegations of State Capture, Corruption and Fraud in the Public Sector Including
Organs of State v Zuma and Others1 held as follows:
“Contempt of Court proceedings exist to protect the rule of law and the authority
of the judiciary. As the applicant correctly avers ‘the authority of courts and
disobedience of their orders – the very foundation of a constitutional order founded
on the rule of law – depends on public trust and respect for the courts’. ... Any
disregard for this court’s order and the judicial process require s this Court to
intervene. As enunciated in Victoria Park Ratepayers ’ Association, ‘contempt
jurisdiction, whatever the situation may have been before 27 April 1994, now also
involves the vindication of the Constitution’.
... .
A similar point was made in Victoria Park Ratepayers’ Association in which it was
said that –
‘[c]ontempt of court has obvious implications for the effectiveness and legitimacy of the
legal system and the judicial arm of government. There is thus a public interest element
in each and every case in which it is alleged that a party has wilfully and i n bad faith
ignored or otherwise failed to comply with court order. This added element provides
every case an element of urgency.’” (Footnotes Omitted)
every case an element of urgency.’” (Footnotes Omitted)
1 2021 (9) BCLR 992 (CC) at paras 27 and 32
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[19] It has been held in Di Bona v Di Bona and Another2 (Di Bona) that:
“The consequences of the rule are that anyone who disobeys an order of Court is
in contempt of Court and may be punished by arrest of his person and by committal
to prison and, secondly, that no application to the Court by a person in contempt
will be entertained until he or she has purged the contempt.”
[20] It is so, and having regard to the judgment in Di Bona that the plaintiff, pending
its compliance with the order of contempt issued by the high court , should not
have an audience before this Court and as against the defendants. This is
particularly so when one has regard to the fact that the application in question is
a summary judgment application, meaning that this court does not close the
doors to the plaintiff, it simply stays over its determination for the trial.
[21] The same goes for the unpaid costs. Erasmus, Superior Court Practice, in the
appendix D5 – Costs in general – and under the heading “Previous Costs
Unpaid”, sets out that this Court should stay proceedings instituted by a plaintiff
who has not paid previous costs.
[22] The plaintiff currently withholds the defendants’ goods, which withholding has
been determined to be unlawful by the previous order of this court. It is obvious
that the defendants will suffer damages and have a counterclaim for such
damages. The invoice issued to the defendants for such goods is in the amount
of R3 882 488,41. It is so, that such claim is as expressed in Herb Dyers (Pty)
Ltd v Mahomed and Another3, that:
“I should add that where a defendant admits the plaintiff’s claim he will
nevertheless be considered to have a bona fide defence if the Court is satisfied
that he has a good and honest counter -claim in excess of the claim which is not
capable of set-off because it is in respect of an unliquidated amount ...”
[23] In my view, the defendants have established that they have a genuine defence
[23] In my view, the defendants have established that they have a genuine defence
which constitutes a triable issue. That is so because the order of contempt
granted against the plaintiff compelled the plaintiff to return the defendants’ and
to pay the costs order of the application. The damages claim and the counter -
2 1993 (2) SA 682 (C) at 688F.
3 1965 (1) SA 31 (T) at 32D-E.
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claims that the defendants allege they have suffered as a result of the plaintiff’s
withholding of their goods are a matter that merits the attention of the trial court.
[24] What is more, the plaintiff cannot obtain summary judgment before it has purged
its contempt of the court order granted against it . That includes the plaintiff’s
compliance with the order requiring it to pay the defendants’ costs of the
application for contempt.
[25] The defendants’ counter-claims cannot be wished away as merely an attempt to
delay the inevitable. As a result, I am satisfied that the defendants have
established a bona fide defence and have shown that they have a good and
honest counter-claim which may offset the plaintiff’s claim.
[26] The above being the case, the application for summary judgment must be
refused.
Order
[27] In the result, I make the following order:
1. The application for summary judgment is refused.
2. The defendants are given leave to defend the action.
3. The costs are reserved for the trial court.
___________________
S.L SHANGISA
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION, JOHANNESBURG
HEARD ON: 05 May 2025
DATE OF JUDGMENT: 9 September 2026
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APPEARANCES:
For Plaintiff: Adv. S Mathiba
Instructed by: GVS Law
For Respondent: Adv. M Desai
Instructed by: Somaar and Malik Attorneys