Tsontswane v Shahzaib Gondal Trading (Pty) Ltd and Others (6286/2024) [2025] ZANWHC 130 (1 August 2025)

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

NORTHWEST DIVISION, MAHIKENG

CASE NO: 6286/2024

Reportable: YES / NO

Circulate to Judges: YES/ NO

Circulate to Magistrates: YES/ NO

Circulate to Regional Magistrates: YES/ NO

DATE: 01/08/2025

SIGNATURE

In the matter between:

MOGOGI DAVID TSONTSWANE APPLICANT and SHAHZAIB GONDAL TRADING (PTY) LTD FIRST RESPONDENT YALMAZ TRADING CC SECOND RESPONDENT 2020 FASHION DEALER THIRD RESPONDENT MUHAMMAD IQBAL FOURTH RESPONDENT CHEEMA MUHAMMAD NAVEED FIFTH RESPONDENT USMAN TAYYAB SIXTH RESPONDENT

Neutral Citation: Mogogi David Tsontswane v Shahzaib Gondal Trading (Pty) Ltd and 5 Others ZANWHC (12 May 2025).

Heard: 9 May 2025

Delivered: 01 August 2025

Summary: Opposed motion proceedings – application for cancellation of lease agreement and immediate eviction of tenants – CONTRACT LAW: breach of agreement and cancellation thereof – Application premised upon cancellation of contract due to alleged breaches – Contract and breaches are not dealt with in detail by applicant if at all – Failed to make out its case in founding papers which are vague – CIVIL PROCEDURE – Founding affidavit – deficient in disclosing cause of action – Replying affidavit cannot be used to supplement applicant's case not made out in founding affidavit.

This judgment was circulated electronically to the parties’ representatives by email. The date and time of hand-down are deemed

to be 10h00 on Friday, 01 August 2025.

JUDGMENT

MORGAN AJ

[1] The applicant seeks to cancel a lease agreement entered into between himself and first to the third respondents, business enterprises (tenants) and also have them immediately evicted from the business premises. The lease agreement was entered into in respect of the business premises situated on a portion of land belonging to a tribal authority but over which the applicant has occupation rights thereon.

[2] This application initially enrolled on the urgent court roll is opposed by the third and sixth respondents. The first, second, fourth and fifth respondents have not filed any opposing processes in the

proceedings.

[3] Before the urgent court on 6 December 2024, the matter was struck from the roll for lack of urgency. Thus, the first prayer sought in the notice of motion is now moo. However the rest of the prayers sought remain alive for determination.

[4] The remaining declaratory and eviction relief sought in the notice of motion is phrased as follows:

“…

2. The lease agreement between the applicant and the respondents relating to the commercial immoveable property at 1[...] V[...] Road, Montshioa Sta, Mafikeng (“the premises”) is cancelled, and accordingly, the respondents are illegal occupiers of the premises;

3. the respondents and all persons occupying the premises are ordered to vacate [the] premises immediately of the granting of this order. Failing which the Sheriff be duly authorised to evict the respondents from the premises and anyone occupying the premises through the respondents;

4. The Sheriff is authorised to request any person, including members of the South African Police Services, to assist the Sheriff evicting the respondents from the premises and/ or anyone occupying the premises through the respondents;

5. the respondents are to pay the costs of this application on the attorney and client scale.”

[5] The issues before me for determination are crystalised and narrow, specifically whether the applicant has made out a case for the cancellation of the lease agreement between himself and the tenants; and the eviction of the latter from the premises.

[6] In short, the applicant advances three reasons for seeking to cancel the lease agreement, namely being, first, the respondent’s failure to renovate the premises within 12 (twelve) months as purportly required by the lease; second, an irretrievable breakdown of the professional relationship between the parties; and third, alleged death threats made by the sixth respondent to the applicant.

[7] The applicant further submits that the lease created a partnership between the lessee-entities (respondents) and that, given the

breakdown of that partnership, eviction is an appropriate remedy. He relies on Bester v Van Niekerk[1], the classical Uys v Le Roux [2], and clause 17.2 of the lease which provides for joint and several liability between lessees. He argues that the sixth respondent,

having acted on behalf of the third respondent in concluding the lease, remains bound in his representative capacity.

[8] In his written submissions, the applicant frames the lease as concluded with three corporate entities (1st to 3rd respondents), represented respectively by the 4th to 6th respondents. The applicant alleges that the third and sixth respondents (together "Buildquick Hardware") remain in unlawful occupation after the termination of the lease, while the other respondents have vacated.

[9] The third and sixth respondents oppose the application on several grounds. First, they contended that the lease agreement could not lawfully be cancelled on the basis advanced by the applicant, particularly where the purported reason for termination was the alleged breakdown of a personal relationship between the applicant and the sixth respondent. They argued that commercial lease agreements, especially of the 20-year duration as in this case, require certainty and may only be terminated in accordance with their express terms, applicable common law, or if applicable, the Consumer Protection Act.

[10] Second, the respondents dispute the applicant’s reliance on a “no reason” termination clause and contend that the lease, properly construed, requires lawful cause for cancellation.

[11] Third, they submitted that genuine disputes of fact permeated the matter and invoked Rule 6(5)(g) of the Uniform Rules of Court, seeking certain parts of the disputed facts be a referred to trial for oral evidence. Finally, the respondents argued that, on the evidence, no case had been made out for eviction, and that the applicant’s inconsistent conduct, alternating between reconciliation and litigation belied the claim of irreparable breakdown or breach.

[12] It is trite that cancellation of an agreement by a court is an extra ordinary remedy, a remedy of last resort, when specific performance is not possible. Courts can only grant the remedy sought by the applicant in instances where a proper case has been made out for such drastic relief, and a clear case is made out for the relief sought. Put differently, when the necessary facts for the alleged breach are pleaded and where specific performance is still possible to cure the breach as been demanded by the applicant and the tenants being in mora, have either failed to remedy the breach after they had been called upon to do so, or specific performance is no longer possible or competent in the circumstances and the only remedy available to

the applicant under the circumstances is cancellation of the agreement. Doing the contrary in my view, would offend the doctrine

of sanctity of contracts (pacta sunt servanda).

[13] The applicant does not plead which clause of the lease the respondents are said to have breached, nor does he set out the specific facts substantiating these claims. His argument rests on the proposition that the three reasons for him seeking to cancel the lease agreement, taken cumulatively, entitle him to cancellation and the eviction of the third and sixth respondents, who are the only ones opposing the application.

[14] Instead, he relies on a written lease agreement concluded on 11 March 2020 with the first to third respondents, in terms of which they were permitted to occupy the premises to operate a hardware business. The agreement is said to have a 20-year fixed term, but the applicant contends that persistent breaches entitled him to cancel it.

[15] Furthermore, in the context of lease cancellations, our courts have consistently held that the right to cancel is a serious step which must be exercised in accordance with the terms of the lease and with due regard to procedural fairness. In Putco Ltd v TV & Radio Guarantee Co (Pty) Ltd and Other Related Cases 1985 (4) SA 809 (A), the Appellate Division emphasised that a party seeking cancellation must show not only that a breach occurred but that such breach went to the root of the contract or was irreparable. The founding papers in this matter, however, fail to discharge that

threshold. No facts are presented to suggest that any of the alleged breaches were incapable of remedy or that notice of cancellation

complied with any contractual procedure envisaged.

[16] The founding affidavit does not sufficiently or at all disclose the facts that gave rise to the alleged breach, instead the averment made is one that is conclusive rather than aver or plead the cause of action, differently put, the necessary facts which the applicant avers constitutes breach.

[17] Moreover, and importantly, it does not disclose which clause of the lease agreement is said to have been breached by the tenants

and the facts pertaining to how the breach has occurred. Further, it does not state the clause it relies on to claim the relief sought in this application. In fact, the founding affidavit is deficient in many respects in making out a case or even justifying the relief sought in the notice of motion.

[18] In Transnet Ltd v Rubenstein,[3] the Supreme Court of Appeal held that due to the nature of applications, the affidavit plays a dual role in the application in that they form both pleadings and the evidence upon which the applicant relies.[4] An applicant's pleadings contain the legal basis of the claim under which an applicant has chosen to invoke the court's competence. In other words, not only the formal terminology of the notice of motion, but also the contents of the supporting affidavits must be interpreted to establish what the legal basis of the applicant's claim is.[5]

[19] In Airports Company of South Africa (SOC) Ltd v Tswelokgotso Trading Enterprise CC,[6] the court held that:-

“Consequently, the applicant must set out sufficient facts in the founding affidavit to disclose a cause of action, that is, the founding affidavit must be self-contained. The replying affidavit (and in this instance the supplementary affidavit) cannot be used to augment the applicant's case.”

[20] The Court in Business Partners Ltd v World Focus 754 CC,[7] held that in application proceedings the affidavits constitute not only the pleadings but also the evidence and that an applicant must therefore make out his case in his founding affidavit and that he must stand or fall by the allegations contained therein.[8] This is because permitting such will mean that the respondent(s) would not have had the opportunity to address those issues sufficiently and would led to the respondent(s) suffering great prejudice who would have already filed an answer. Such prejudice would ultimately impact the respondent(s) constitutional right to a fair hearing.

[21] The general rule against allowing new matter or new grounds in reply was laid down in Bayat and Others v Hansa and Another,[9] only to be departed from in exceptional circumstances. The general principle nonetheless remains applicable in casu, that a case must be made out in the founding papers. Its rationale promotes legal certainty as affirmed by the Constitutional Court in South African Transport and Allied Workers Union and another v Garvas and others,[10] where it held as follows:

“Holding parties to pleadings is not pedantry. It is an integral part of the principle of legal certainty, which is an element of the rule of law, one of the values on which our Constitution is founded. Every party contemplating a constitutional challenge should know the requirements it needs to satisfy and every other party likely to be affected by the relief sought must know precisely the case it is expected to meet.”

[22] Further, the applicant fails in identifying which provision of the lease agreement which he relies on is said to have been breached. Save to state that the reasons for him seeking termination of the lease agreement. The facts informing the applicant’s conclusions have not been pleaded, save to state that bald allegations are made without any facts that informed the applicant’s averments.

[23] This omission is not a mere technical defect. The Supreme Court of Appeal has confirmed that, where a party seeks to found its claim on a written agreement, the essential terms thereof especially those allegedly breached must be specifically pleaded and proven. See Jowell v Bramwell-Jones and Others 1998 (1) SA 836 (W) at 898J-899A. The applicant’s failure to do so leaves the court without the evidential or legal basis to evaluate the propriety of the cancellation or the legality of continued occupation.

[24] The facts that gave rise to the reasons averred in the applicant’s founding affidavit for seeking cancellation of the agreement are not traversed at all. The applicant in his founding papers fails to inform the court what the facts that predicate the applicant’s apprehension that the professional relations between him and the tenants has deteriorated to the extent that a normal business and professional relationship can no longer be restored are. He further fails to plead the provisions of the agreement that he relies on and the facts he alleges constitute the breach and identify the provisions and place the necessary facts that justify the remedy sought.

[25] The Applicant’s founding papers need to demonstrate and address the agreement, identifying and specifying the clause or term alleged to be in breach of and the clause and procedure followed in seeking to cancel the agreement. These need to be pleaded with sufficient particularity in the founding affidavit not elsewhere. In casu, the contract and the breaches are not dealt with in detail by the applicant at all.

[26] Further the fact that he was willing to grant them time to look for alternative business premises contradicts his averment or alleged apprehension that his life was placed under threat by the tenants.

[27] At the hearing, Adv Khoza SC advanced a novel submission not foreshadowed in the founding affidavit: that the lease agreement, properly construed, gave rise to a partnership between the applicant and the first to third respondents, and that the sixth respondent’s occupation was pursuant to that partnership. The supposed foundation for this partnership was said to be clause 13 of the lease agreement. However, a plain reading of clause 13 reveals no indication of a contractual partnership between the parties. It is well established that the existence of a partnership cannot be inferred from vague assertions or strained interpretations of contractual terms: the essentialia must be clearly pleaded and proved. No case premised on a partnership agreement was made out in the founding papers. No relief for dissolution of a partnership was sought. The submission appears to have been raised as an afterthought and must be rejected for want of proper pleading and supporting evidence.

[28] Moreover, the relief sought against fourth to sixth respondents is not competent, as they are not party to the lease agreement, by virtue of their directorship in the first to third respondents, respectively. Furthermore, their directorship is not pleaded nor proven by the applicant in its founding affidavit. The applicant does not plead in what capacity the fourth to sixth respondents are alleged to be representatives of the tenants – are they directors or care takers, if so, what source such reliance is based no. There are no registration documentation (Certificate of Registration 14.3) from the CIPC for the respondent entities annexed to the founding papers proving their status and directorship of the fourth to sixth respondents. Therefore, even if a proper case had been made out for the relief sought in the notice of motion, such relief could not have been granted against the fourth to six respondents personally as they are not party to the lease agreement and the status for them being cited individually is not pleaded nor clear from the founding affidavit in what “representative” capacity they are cited individually and alleged to have a direct and substantial interest. In my view, in the event a proper case had been made out, citing the tenants (first to third respondents) sufficed to obtain the relief sought.

[29] The applicant claims to have satisfied the onus to establish ownership and occupation by the respondents. It argues that once ownership and occupation are proven, the onus shifts to the respondents to justify their continued occupation.

[30] I pause to note that while this submission seeks to elevate the contractual arrangement into something akin to a partnership, no case for the dissolution of a partnership is made out in the founding papers, nor is such relief sought. Indeed, the so-called partnership was only raised fully in the applicant’s submissions in reply and heads of argument, which is impermissible.

[31] It is trite that the Court cannot make out a case for the applicant or read into the application facts that do not exist and justify the order sought in the notice of motion. Also, that in the absence of the applicant pleading the provisions or clauses of the lease agreement relied on for the alleged breach and remedy sought in this case cancellation, a court cannot find it for or make a case out for the applicant by simply referring to the lease agreement annexed to the papers without the applicant averring which parts or clauses of the agreement are said to have been breached.

[32] It is not open to the parties to merely annexes to their affidavit documentation and to request the court to have regard to it without

laying a proper basis for it in the pleadings. What is required is the identification of the portions relevant which reliance is placed and an indication of the case which is sought to be made out must appear in the contents of the affidavit. It cannot be expected of a party or court to trawl through lengthy annexures to the opponent’s affidavit to speculate on the relevance of the facts contained in such annexures. Alternatively, it is not for the court or the respondents to establish through such annexure(s) if there is material that adds substance to lose averments in an affidavit.[11]

[33] In Minister of Land Affairs and Agriculture v D & F Wevell Trust[12] , the SCA cautioned that it is not open to a litigant to rely on a document annexed to its affidavits, without explaining its relevance and contextualising its purpose within the body of the affidavit. This principle guards against trial by annexure, a practice that undermines both the opponent’s ability to respond and the court’s obligation to adjudicate the dispute within the pleaded confines.

[34] Worrisome, is the averment made by the applicant in the founding affidavit that:

“20. it is crucial to mention that I have entered into a new lease agreement with a tenant known as Day City Complex (Pty) Ltd who will be paying rental in the amount of R46 500 a month. The new tenant is to occupy my premises as of 30 November 2024, but the respondents are refusing to vacate the premises. I attach hereto a copy of the new lease agreement and mark it as MDT6”.

[35] Taking into account the conspectus of the facts averred by the respondents together with the facts admitted by the applicant, one cannot resist drawing an inference that the applicant seems so haste to cancel the lease agreement and not even claim specific performance for the amount of R32 000, he alleges has accumulated over the months as a result of the tenants having failed to pay the difference or having short paid their monthly rental by the difference required

in terms of the yearly escalation, because he was presented with a better offer or opportunity which is a rental profit of more than 100% increase of the rental amount currently paid by the current tenants (first to third respondents). The difference in rental paid between the current tenants and the new tenant would be in excess of double of the amount that is paid by the current tenants in rent. Fortunately, there are other avenues that are available to the landlord in terms of the agreement which require negotiations between the parties, should he desire to review or properly cancel the current agreement for whatever reason, subject to the reasons being valid and procedures followed being those stipulated in the agreement.

[36] If this irresistible inference is correct, such conduct in my view would constitute unfair and unethical business practices. A practice which offends the trite but foundational principle of contract law relating to the sanctity of contracts. If landlords were permitted to easily invoke such draconian powers - to cancel agreements millennially – then in my view, this form of business trading would not be in line with the spirit, purport and object or our foundational laws’ constitutional aspirations.

[37] Lastly, the applicant does not provide any of the invoices he had issued to the tenants he claims were due and payable. This in my view could be a case where the applicant is looking for every reason to cancel the current tenants, leases in order to make way for another tenant who has undertaken to pay him more in rental than the current tenant. It is a trite principle in in contract law that an existing lease agreement takes precedence even in an instance where the property is sold to a third party. I state this principle to emphasise the pertinent protection tenants have been afforded since time immemorial towards the right of security of tenure on leased property. This right is not one that can just be willy nilly trumped on by even the property owner / landlord.

Costs

[38] As stated above, the urgent and present application was opposed by the third and sixth respondents.

[39] The first, second, fourth and fifth respondents have not filed any court processes in the proceedings. Reasons for this is not clear, and in the absence of a Sheriffs’ return of service or service affidavit deposed by the instructing attorneys on file, one can only speculate on their nonparticipation. Pursuant to the urgent application being struck off from the roll, the applicant ought to have served the application on the respondents in terms of Rule 4 of the Uniform Rules of Court and filed the original return of service on the court file. In the absence of the Sheriffs’ returns of service in the court file evincing the fact that the application was served on the remaining respondents one cannot infer that service on them took place and they elected not to participate in the proceedings. In fact, the inference that can be drawn is that

service or proper service was not effected on the other respondents who are not before court. On this score alone, the relief sought

against them cannot be granted, absent proper service.

[40] The applicant in his founding papers seeks attorney and client costs against the tenants without making out a case for costs on that scale in the founding affidavit. The founding, save for in one sentence requesting the relief, is deficient in dealing with this aspect other than mentioning it in in the paragraph dealing with the purpose of the application.

[41] The averments dealing with urgency made in paragraphs 21 to 28 of the founding affidavit are not relevant in determining the issues before me. The urgent application brought by the applicant on 6 December 2024 was struck off from the roll for lack of urgency. Hence it being placed before me on the ordinary opposed motion roll.

[42] Further, the applicant enrolled this matter on the ordinary opposed motion roll without having fully complied with the Practice Directives of this Court. Namely, the applicant had not filed his Heads of Argument and List of Authorities at all, by the time that this matter was enrolled for hearing on Friday, 30 April 2025 before me. Instead, I granted an indulgence by not removing or striking off the matter from the roll for non-compliance with the Practice Directives, as one is enjoined to in terms of the practice manual. Instead, I afforded the parities an opportunity to comply by close of business on Monday, 5 May 2025 and postponed the matter for hearing / argument virtually on Friday, 9 May 2025.

[43] A further concern arose from the conduct of the applicant’s legal representatives during the hearing on 9 May 2025. The court had granted an indulgence for the filing of heads of argument on 5 May 2025 after identifying the applicant’s failure to comply with Directives 26 and 27 of the Practice Directives of this Division. Despite this, and after being granted an additional indulgence during the hearing to provide a properly paginated electronic bundle, the applicant introduced new documents, including an unsigned and unstamped index and returns of service, without delivering them to the respondents. These late insertions materially altered the pagination and content of the record, constituting an ambush on the respondents and a clear breach of fair process. Such tactics are rightly deprecated by our courts and cannot be countenanced. I treated those documents as pro non scripto.

[44] Before concluding, it is necessary to address a procedural irregularity that occurred following the hearing. After the matter had been fully argued and stood down for judgment on 9 May 2025, the applicant’s attorneys filed a document styled “Supplementary Heads of Argument.” This was done without the leave of the Court and in circumstances where the third and sixth respondents had expressly refused to consent to such a filing, furnishing cogent reasons for doing so.

[45] The justification advanced was that counsel for the applicant was allegedly unable to present all submissions necessary for the applicant’s case during oral argument. That claim is unfounded. The applicant filed detailed heads of argument in advance of the hearing, and at the hearing itself, was granted ample time to argue the matter, including time in reply. In total, the applicant’s counsel addressed the Court for more than three hours well beyond the 40-minute period contemplated by Practice Directive 6(1) of this Division. There is thus no factual basis for the claim that further submissions were necessary or that counsel was denied a fair opportunity to be heard.

[46] What is of particular concern is that the supplementary heads are not signed by counsel on record, but rather by the applicant’s attorney of record. It is accordingly apparent that the document did not emanate from counsel but was a unilateral initiative of the attorney. The content and tenor of the document confirm as such: it purports to re-argue substantive aspects of the case and to introduce new submissions after the matter had been argued and closed. This amounts to an impermissible attempt to re-open the case, to the prejudice of the respondents and contrary to the orderly administration of justice.

[47] This conduct is egregious. It is not only procedurally irregular and prejudicial but undermines the integrity of proceedings. It reflects a blatant disregard and disrespect for the authority of this Court and the discipline expected of a legal practitioner. In the circumstances, I am satisfied that this conduct warrants a punitive costs order de bonis propriis.

[48] In light of the foregoing, the application must fail. The applicant has not made out a proper case for the cancellation of the lease agreement or for the eviction of the respondents. The founding affidavit fails to allege the requisite material facts to sustain the cause of action. The defects in the papers are not curable by reference to the replying affidavit or by inviting the court to extrapolate facts not pleaded and by simply attaching annexures. The application is accordingly dismissed with costs.

Order

[49] Consequently, I make the following order:

1. The application is dismissed.

2. The applicant shall bear the third and sixth respondents’ costs (excluding the costs incurred for the filing of the supplementary heads of argument) on an attorney-and-client scale, including the costs of one counsel, where so employed.

3. The applicant’s attorney of record is ordered to forfeit the fees occasioned with the drafting and delivery of the supplementary heads of argument and is to tender the third and sixth respondents’ costs on an attorney and client scale in respect of the supplementary heads of argument delivered on behalf of the applicant, de bonis propriis.

LM MORGAN

Acting Judge of the High Court of South Africa,

North West Division

PARTIES REPRESENTATIVES

FOR THE APPLICANT

Adv. M Khoza SC with Adv VL Makofane and Adv TL Semakane

Instructed by Maimane Attorneys Inc.

Email: info@maimaneattorneys.co.za

FOR THE THIRD AND SIXTH RESPONDENTS

Adv N Khaphuma

Instructed by Ntsamai Attorneys Inc

Email: ntsamai.maf@gmail.com

FOR THE FIRST, SECOND, FOURTH AND FIFTH RESPONDENTS

No notice to oppose delivered and no appearance at the hearing

[1] 1960 (2) SA 779 (A).

[2] [1906] ZATransvLawRpSC 81; (1906) 5 TS 429 (28 June 1906).

[3] [2005] 3 All SA 425 (SCA).

[4] Kham and Others v Electoral Commission and Another 2016 (2) SA 338 (CC) at para [46].

[5] Gcaba v Minister for Safety and Security and Others 2010 (1) SA 238 (CC).

[6] [2022] ZAGPJHC 410 at para 9.

[7] 2015 (5) SA 525 (KZD).

[8] See also, Elegant Line Trading 257 CC v MEC for Transport, Eastern Cape [2022] ZAECBHC 45 at para 2.

[9] 1955 (3) SA 547 (N) at 553D.

[10] 2013 (1) SA 83 (CC) para 114.

[11] Swissborough Diamond Mines (Pty) Ltd & Others v Government of the Republic of South Africa 1999 (2) SA 279 (T) at 324F-G.

[12] 2008 (2) SA 184 (SCA) at para 43.