WD Motors (Pty) Ltd v Shell South Africa Refining (Pty) Limited and Others (5341/2024) [2025] ZAFSHC 179 (17 June 2025)

FLYNOTES: EVICTION – Commercial premises – Lease agreement – Cancellation – Breach of multiple clauses under agreement – Unauthorized subletting of electronics store – No evidence of alleged tacit consent – Non-ancillary to a filling station – Non-compliance with maintenance of premises requirements – Breaches of clauses were valid grounds for cancellation – Lease’s terms permitted termination for non-remedied breaches irrespective of materiality – Eviction order granted.

IN THE HIGH COURT OF SOUTH AFRICA

FREE STATE DIVISION, BLOEMFONTEIN

Not Reportable

Case no: 5341/2024

In the matter between: WD MOTORS (PTY) LTD APPLICANT And SHELL SOUTH AFRICA REFINING (PTY) LIMITED FIRST RESPONDENT SHELL DOWNSTREAM SOUTH AFRICA (PTY) LIMITED SECOND RESPONDENT ALL OTHER OCCUPIERS OF ERF 17098 CLAIMING TITLE UNDER THE FIRST RESPONDENT THIRD RESPONDENT

Neutral citation: WD Motors (Pty) Ltd v Shell South Africa Refining (Pty) Limited and Others (5341/2024) [2025] ZAFSHC 179 (17 June 2025)

Coram: Daniso J

Heard: 6 February 2025

Delivered: This judgment was handed down electronically by circulation to the parties' representatives by email and by release to SAFLII. The

date and time for hand-down is deemed to be 17 June 2025 at 14h00.

Summary: Eviction application founded on breach of lease agreement – no real, genuine and bona fide defences of facts raised in rebuttal of alleged breach – claim for eviction made out by applicant.

ORDER

1 The respondents and any other business occupying the premises under the auspices of Wentzel Motors are ordered to, within 60 days from the date of this order to vacate the commercial premises situated at erf 17098 Bloemfontein.

2 The first and second respondents shall pay the costs of this application jointly and severally the one paying the other to be absolved including the costs of counsel on scale C.

JUDGMENT

Daniso J

[1] The applicant seeks eviction of the respondents (Shell) from the business premises situated at erf 17098 in Bloemfontein (the premises). Shell occupies the premises by virtue of a lease agreement it concluded with the previous owners of the premises on 28 October 2009 and notarised on 15 September 2014 for use as a filling station under the name and style Wentzel Motors for a period of 15 years with two renewable periods of five years.

[2] On 24 January 2024, the applicant, relying on clause 20 of the lease agreement, cancelled the lease on the grounds of Shell’s breach of the terms of the lease agreement pertaining to the use, subletting and maintenance of the premises including defaulting on payment of the municipal charges relating to the premises. Clause 20 deals with circumstances under which the lease agreement can be cancelled it provides thus:

‘20 BREACH

20.1 In the event of:

20.1.1. Shell failing to pay the rent or any portion hereof on the due date and remaining in default for a period of 21 days after receipt of written demand therefore; or

20.1.2. Shell committing a breach of any of the other material terms and conditions of this Lease and failing to remedy such breach within 30 (thirty) days after receipt of written notice from the Lessor (or should the period of 30 days (thirty) days not be reasonably sufficient for remedying the breach in question, then within such time as is reasonably required therefor)

The Lessor shall without prejudice to any other remedies available to it have the right in law to claim payment of such monthly rental or specific performance as the case may be (in the latter case with an alternative claim for damages) or to cancel this agreement on written notice to Shell and claim damages.’

[3] The terms of the lease agreement pertinent to Shell’s right to use and sublet the premises and its obligation to maintain and pay for the municipal charges provide thus:

‘9 USAGE

9.1. Shell or its sub-tenant shall have the right to use the premises or nay (sic) portion thereof as a filling station, convenient store, car wash, Automated Teller Machine and any other business reasonable or ordinary ancillary thereto and which for the purposes hereof shall include the right to sell from the premises such items as are customarily sold at Shell filing stations and convenience stores in accordance with Shell’s standard policy with the right to Shell and/or its sub-tenant to carry on such businesses up to 24 hours per day at its discretion.

9.2. Shell shall not use or permit the premises to be used for any illegal or improper purpose, nor shall Shell do or permit any act or thing, which may reasonably be considered to be an annoyance or nuisance or cause damage or disturbance to the occupiers of adjoining properties.

. . .

11 ASSIGNMENT AND SUBLETTING

11.1 Shell shall be entitled to sublet the whole or any portion of the premises to any retailer of its choice on the standard terms and conditions of its retail Business Agreement, without obtaining the Lessor’s consent, provided that Shell shall at all times remain primarily liable to the Lessor for the due fulfilment of all the terms and conditions of this Lease. For the avoidance of any doubt it is agreed that Shell shall provide the Lessor with notification of any sub-letting that has been occasioned whether wholly or in part and further undertakes in favour of the Lessor that the premises will largely be utlilized for the sale of petroleum fuels.

12 MAINTENANCE

Shell shall at its own expense maintain the structure and the interior and exterior of the improvements, including (but without limitation) the roof, electrical wiring and sanitary and water works in good order and in a proper state of repair and shall at its own expense carry out all repairs, replacements and renovations thereto that may be reasonably be required from time to time.

16 PROPERTY EXPENSES

16.1. Shell shall pay during the subsistence of this Lease all rates, taxes and other charges whatsoever levied in respect of property or the buildings and improvements erected thereon (collectively “the imposts”) with effect from the rental commencement date. If the rates and taxes relating to the property are not at any time increased for any reason, Shell shall pay such increases or imposition; provided that the Lessor gives Shell at least 30 days prior written notice of such increases or imposition.’

[4] In the founding affidavit deposed to by the present owner Ms Denese Lups, it is alleged that, contrary to the provisions of clause 9.1. and 9.2 read with clause 11.1 of the lease agreement, Shell sublet a portion of the premises to Mr Koudia Diata (Mr Diata) without giving the applicant the required notice. Shell also permitted Mr Diata to operate an electronic store selling appliances and television sets, a business which is not an ancillary to a filling station. The premises were also used for illegal purposes in that, Mr Diata sold television sets in contravention of s 27 (4) of the Broadcasting Act 4 of 1999

(the Broadcasting Act).

[1] Wightman t/a JW Construction v Headfour (Pty) Ltd and Another [2008] ZASCA 6; 2008 (3) SA 371 (SCA) para 12; see also National Director of Public Prosecutions v Zuma [2009] ZASCA 1; 2009 (2) SA 277 (SCA) ; 2009 (1) SACR 361 (SCA) ; 2009 (4) BCLR 393 (SCA) ; [2009] 2 All SA 243 (SCA) para 26.

[2] Oatorian Properties (Pty) Ltd v Maroun 1973 (3) SA 779 (A) at 785B-C, citing with approval North Vaal Mineral Co. Ltd. v Lovasz, 1961 (3) SA 604 (T) at 606; see also Human v Rieseberg, 1922 T.P.D. 157 at 163.