Limosa Investments 239 (Pty) Ltd and Another v Chrisal Investments (Pty) Ltd and Another (2025/024858 ; 2025/192741) [2025] ZAGPPHC 1368 (12 December 2025)

begin wrapper begin container begin header begin slogan-floater end slogan-floater - About SAFLII About SAFLII - Databases Databases - Search Search - Terms of Use Terms of Use - RSS Feeds RSS Feeds end header begin main begin center # South Africa: North Gauteng High Court, Pretoria South Africa: North Gauteng High Court, Pretoria You are here: SAFLII >> Databases >> South Africa: North Gauteng High Court, Pretoria >> 2025 >> [2025] ZAGPPHC 1368 | Noteup | LawCite sino index ## Limosa Investments 239 (Pty) Ltd and Another v Chrisal Investments (Pty) Ltd and Another (2025/024858 ; 2025/192741) [2025] ZAGPPHC 1368 (12 December 2025) Limosa Investments 239 (Pty) Ltd and Another v Chrisal Investments (Pty) Ltd and Another (2025/024858 ; 2025/192741) [2025] ZAGPPHC 1368 (12 December 2025) Download original files PDF format RTF format make_database: source=/home/saflii//raw/ZAGPPHC/Data/2025_1368.html sino date 12 December 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 GAUTENG DIVISION, PRETORIA CASE NO: 2025-024858 (1) REPORTABLE: NO (2) OF INTEREST TO OTHER JUDGES: NO (3) REVISED. DATE: 12/12/2025 SIGNATURE In the matter between: LIMOSA INVESTMENTS 239 (PTY) LTD First Applicant ALAN DOW Second Applicant And CHRISAL INVESTMENTS (PTY) LTD First Respondent METROPROP (PTY) LTD Second Respondent AND CASE NO: 2025-192741 MUNICIPAL EMPLOYEE PENSION FUND First Applicant CHRISAL INVESTMENTS (PTY) LTD Second Applicant METROPROP (PTY) LTD Third Applicant And LIMOSA INVESTMENTS 239 (PTY) LTD t/a SPEED WORX First Respondent ALAN DOW Second Respondent JUDGMENT IN THE SECTION 18 APPLICATION AND THE APPLICATION FOR LEAVE TO APPEAL TD SENEKE, AJ INTRODUCTION 1. The Applicants brought an application for leave to appeal my whole judgment and court order dated 4 September 2025. 2. The Respondents brought a section 18(3) application on 17 October 2025 seeking the following orders: “ 1.    That non-compliance with the Rules of the above Honourable Court with reference to timeframes and service be condoned and that this application be heard as urgent in terms of Rule 6(12)(a). 2.      The operation and execution of the Judgment and the Order granted by the Honourable Mr Justice Seneke AJ against the Respondents on 4 September 2025 under case number 2025-024858 is not suspended and shall be of full force and effect and enforceable, pending: 2.1    the finalisation of the Application for Leave to Appeal launched by the Respondents on 30 September 2025 against the Order of Mr Justice Seneke AJ dated 4 September 2025; 2.2    the finalisation of any subsequent appeal(s), or the expiry of the time period for the launching of any subsequent appeal(s). 3.      The Sheriff of the High Court is directed and authorised to execute the Order granted by Mr Justice Seneke on 4 September 2025. 4.      That the Respondents be ordered to pay the costs of this application on the scale as between attorney and client, alternatively that the Respondents be ordered to pay the costs of this application including the cost upon employment of senior counsel to be calculated on Scale C as contemplated in Rule 67A, read with Rule 69 of the Uniform Rules of Court. ” THE GROUNDS FOR LEAVE TO APPEAL 3. The grounds for leave to appeal are contained in the notice of application for leave to appeal. The grounds are stated as follows: “ 3.    Failure to Consider Material Facts and the Merits: 3.1    The Applicants respectfully submit that the Honourable Court erred in failing to properly consider the totality of the material facts and merits placed before it. The Court declined to permit Counsel for the Applicants an opportunity to advance oral submissions, thereby effectively denying the Applicants their fundamental constitutional right to be heard. 3.2    This constitutes a breach of the audi alteram partem principle, which lies at the heart of South African administrative and judicial proceedings. Section 34 of the Constitution of the Republic of South Africa, 1996 enshrines the right of every person to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court. By limiting the Applicants to the papers, without affording oral submissions, the Court curtailed this constitutional guarantee. 3.3    The Court further erred by confining its determination exclusively to the expiry of the written lease agreement in July 2024, thereby failing to engage with the pleaded case advanced by the Applicants. 3.4    The Applicants’ case was not solely premised on the written lease, but rather on a broader factual and legal matrix, including the existence of a longstanding verbal agreement concluded in 2002 between the late father of the Second Applicant and Mr Christodoulou, acting on behalf of the Respondents. 3.5    The existence of this agreement has, at various points, been acknowledged by the Respondents themselves and has been partially performed, thereby rendering it legally enforceable under the common law principles of contract as recognised in South African jurisprudence. 3.6    The Court also failed to appreciate that the Applicants’ refusal to sign the renewal addendum was not an arbitrary act of non-compliance but stemmed from a substantive and reasonable objection to a clause requiring closure of their car wash business. 3.7    This car wash operation has been conducted continuously on the premises for more since 2003, forming an integral part of the Applicants’ business and livelihood. To require its closure as a precondition to renewal amounted to an unreasonable contractual imposition, contrary to the doctrine of fairness and good faith recognised in our contract law. 3.8    By disregarding these critical factual and legal considerations, the Court effectively reduced the Applicants’ case to a narrow technical enquiry regarding the expiry of the written lease, thereby overlooking the broader equitable and legal principles which underpinned their right to remain in occupation. This failure to consider the merits in their totality not only undermines the Applicants’ substantive rights but also offends against the constitutional imperative of just and equitable resolution of disputes under Section 34 of the Constitution. 3.9    The Supreme Court of Appeal held and unequivocally reaffirmed the enforceability of oral agreements in African National Congress v Ezulweni Investments (Pty) Ltd [2023] ZASCA 159. In that matter, the ANC denied the existence of a binding contract on the basis that its internal supply chain procedures had not been followed and that its officials lacked authority to bind the organisation. The SCA dismissed these arguments, finding that the conduct and communications of the ANC’s representatives established actual authority, that consensus was proven, and that the extensive performance rendered under the oral agreement demonstrated the parties’ intention to contract. 3.10  Applying the reasoning in Ezulweni to the present matter, the oral agreement between Mr. Christodoulou and the Applicant’s father bears all the hallmarks of a binding and enforceable contract in South African law: 3.10.1 Consensus: The parties agreed to the terms of occupation and usage of the premises. 3.10.2 Performance: Both parties honoured their obligations under the agreement consistently for years, thereby confirming its binding nature. 3.10.3 Authority by conduct: Just as the ANC’s officials in Ezulweni were held to have authority by virtue of their actions and communications, so too did the Applicant's father and Mr. Christodoulou, through their longstanding dealings, demonstrate authority to bind themselves and their estates. 3.11  The Court a quo’s failure to give proper weight to this oral agreement is thus at odds with the clear legal principles articulated in Ezulweni, which affirm that oral agreements, once proven by consensus and performance, are legally binding and enforceable even in the absence of written formalities. 3.12  It is respectfully submitted that there are therefore reasonable prospects of success on appeal, as the Court a quo misapplied binding precedent of the SCA and failed to apply the principles that oral contracts, once honoured and performed, are valid and enforceable under South African law. 4.      (b) Ignoring Constitutional and Socio-Economic Rights 4.1    Section 22 - The Right to Trade, Occupation, and Livelihood 4.1.1   Section 22 of the Constitution of the Republic of South Africa, 1996, provides that “Every citizen has the right to choose their trade, occupation or profession freely the practice of a trade, occupation or profession may be regulated by law.” 4.1.2   The Constitutional Court has consistently emphasised that the protection of section 22 is not confined to the initial act of choosing a trade or occupation, but also extends to the preservation of one’s ability to continue such trade or enterprise in a lawful manner. 4.2    The Applicants have, for over two decades, conducted lawful commercial activities from the premises in question, thereby securing both their own livelihood and the sustenance of their dependants and employees. The eviction order erroneously granted by the Court below directly impairs their constitutionally protected right to trade and pursue a livelihood, in circumstances where no lawful regulatory basis, nor proportionate justification, was advanced. 4.3    Section 25(1) of the Constitution provides that “No one may be deprived of property except in terms of law of general application, and no law may permit arbitrary deprivation of property.” 4.4    The Applicants’ long-standing possession of the premises, their substantial improvements effected in good faith, and their ongoing business operations create legally cognisable property interests. These are not merely contractual in nature but are protected under the broader conception of property in section 25, which extends to occupation and improvements that carry patrimonial value. 4.5    Beyond sections 22 and 25, the Honourable Court was constitutionally obliged to take into account the socio-economic implications of its order on the Applicants’ employees and their dependants. Section 9 guarantees the right to equality, section 10 guarantees the right to dignity, while sections 26 and 27 enshrine the rights of access to adequate housing, health care, food, water, and social security. 4.6    The Applicants’ employees, who stand to lose their employment as a direct result of the eviction, are breadwinners and primary caregivers within their households. Their loss of income necessarily undermines the realisation of socio-economic rights for themselves and their families. 4.7    It is accordingly submitted that the Court a quo, by disregarding the Applicants’ rights under sections 22 and 25 of the Constitution, and by failing to weigh the socio-economic implications of eviction within the broader constitutional framework (sections 9, 10, 26, and 27), erred materially in both fact and law. The order granted is not only constitutionally deficient but also inconsistent with the foundational values of dignity, equality, and freedom enshrined in section 1 of the Constitution. 4.8.   The Honourable Court erred by failing to consider that the Applicants possessed an existing right to occupation following the exercise of their right of renewal which was subsequently accepted by Respondents and thus gave rise to a binding legal right to continue occupation whilst the parties negotiated the lease agreement in good faith. 5.      Selective Consideration of Arguments: 5.1    It is respectfully submitted that the Honourable Court materially erred in law and fact by affording disproportionate weight to the submissions advanced by the Respondents, whilst manifestly failing to engage with the Applicants’ detailed arguments, authoritative authorities, and the factual context presented. This selective consideration constitutes a misdirection, rendering the reasoning and outcome of the Court constitutionally and legally unsound. 5.2    The exercise of judicial discretion in South African law is anchored in the twin pillars of fairness and equity. By failing to analyse or address the Applicants’ submissions, the Court a quo abdicated its duty to conduct a balanced and comprehensive evaluation, thereby transgressing the principles of rationality and procedural fairness entrenched in our law. 5.3    The Constitution reinforces the imperative of fair adjudication in section 34, which guarantees “the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court.” The Court’s omission to properly consider the Applicants’ authorities and factual contentions undermines this fundamental right, as it effectively deprived the Applicants of an equitable opportunity to have their case adjudicated on its merits. 5.4    The principle of judicial impartiality requires courts to objectively evaluate all material before them, giving neither undue preference nor unjustified disregard to any party’s submissions. The Honourable Court’s selective engagement with the parties’ arguments reflects a departure from this foundational principle, resulting in an order that cannot be said to have emanated from the application of sound judicial discretion. 5.5    The Court’s selective focus on the Respondents’ narrative, to the exclusion of the Applicants’ submissions, constitutes a failure to apply these established legal norms, rendering the resultant order substantively and procedurally unfair. 6.      Competing Car Wash and Unfairness: 6.1    It is respectfully contended that the Honourable Court further erred in failing to consider a material fact of significant probative value, namely that the Respondents, in bad faith, erected and commenced operations of a directly competing car wash business immediately adjacent to that of the Applicants. This factual context is not peripheral, but rather central to assessing the equity and constitutionality of the eviction order granted. 6.2    The conduct of the Respondents falls to be characterised as opportunistic, mala fide, and anti-competitive. By permitting themselves to remain in proximity whilst operating an identical business, the Respondents have engaged in conduct that is inimical to the principles of fairness, good faith, and commercial morality which underpin both contractual and edictal dealings in South African law. 6.3    The constitutional dimension of this omission is equally stark. Section 22 of the Constitution, which guarantees the right to freely choose and carry on a trade or occupation, necessarily includes protection against arbitrary or mala fide interference by private actors whose conduct undermines fair competition and sustainable livelihood. By failing to interrogate the effect of the Respondents' competing business, the Court a quo sanctioned conduct that is both anti-competitive and destructive of the Applicants' constitutional rights. 6.4    The principle of good faith (bona fides), long recognised as a cornerstone of South African contract law, though not an independent cause of action, nevertheless informs the interpretation, development, and enforcement of contractual rights and obligations. The Respondents’ opportunistic conduct, coupled with their pursuit of eviction, demonstrates a lack of good faith and renders the order inequitable and constitutionally unfair. 6.5    The eviction order granted by Court a quo is without consideration of the Respondents’ mala fide and anti-competitive conduct, was not only inequitable but also constitutionally indefensible. It undermines the values of fairness, ubuntu, and good faith which the Constitution and our jurisprudence demand must guide all legal and commercial interactions.” BACKGROUND 4. On 12 July 2018, the Municipal Employee Pension Fund and Chrisal Investments (Pty) Ltd (Respondents) and Limosa Investments 239 (Pty) Ltd and Alan Dow, in his capacity as a Director and duly authorised in terms of a resolution (Applicants) concluded a memorandum of agreement of lease. 5. The lease agreement was over the years extended when the parties concluded addendums to the lease agreement. The lease agreement ended by effluxion of time on 31 July 2024. 6. There was an attempt to extend the lease agreement through an addendum, however, the attempt fell through when the Applicants refused to sign the addendum to extend the lease as it did not include the carwash business. 7. The Applicants claimed that it had a 20 year verbal consent by Mr Christoudoulou to operate the carwash and it was part and parcel of its lease for at least 20 years without any problem or complaints from the Respondents. The Applicants stated that the Respondents have even installed the pressure pump after the completion of the renovations to the building. 8. The Respondents responded to the Applicants’ assertions by pointing out that the current lease agreement was silent as far as the situation of the carwash is concerned, they further stated that in fact it has never been part of the lease agreement. 9. After the expiry of the written lease, on 31 July 2025, and in the absence of a new signed agreement by both parties, the Applicants continued their occupation with the consent and knowledge of the Respondents and continued to pay monthly rental. 10. The Applicants assert that the conduct gave rise to a tacit relocation of the lease on a month to month basis, governed by the same material terms and usage rights as the previous lease. They stated further that the continued acceptance of rental to date by the Respondents affirm this position. 11. On 4 April 2025, the Respondents wrote a letter to the Applicants. The purpose of the letter was to terminate the month to month lease and to inform the Applicants that they were required to vacate the leased premises on 31 May 2025. PROVISIONS OF THE SUPREME COURT ACT AND CASELAW 12. Section 17(1) of the SCA provides as follows: “ 1.     Leave to appeal may only be given where the Judge or Judges concerned are of the opinion that: (a) (i) the appeal would have a reasonable prospect of success; or (ii)     there is some other compelling reason why the appeal should be heard, including conflicting judgment on the matter under consideration; (b)     The decision sought on appeal does not fall within the ambit of section 16(2)(a); and (c)     Where the decision sought to be appealed does not dispose of all the issues in the case, the appeal would lead to a just and prompt resolution of the real issues between the parties.” 13. The test regarding the prospects of success has been covered in the heads of argument by both Applicants and Respondents. 14. Mr Erasmus cited cases like Ramakatsa , [1] Caratco [2] and the Mont Chevaux Trust [3] cases in the Respondents’ heads of argument. 15. Ramakatsa held that the prospect of success must not be remote and “there must be reasonable chance of success”. [4] 16. Caratco held that even if the court is unpersuaded that there are prospects of success, it must enquire into whether there is a compelling reason to entertain the appeal. [5] 17. Both parties cited the Mont Chevaux Trust case which held that the test regarding the prospects of success has also to be applied to the merits of the proposed appeal, before leave should be granted. There must be a measure of certainty that another court will differ from the Court whose judgment is sought. THE CASE FOR THE APPLICANTS IN THE APPLICATION FOR LEAVE TO APPEAL 18. The case is based on the tacit relocation of the lease on a month to month basis, governed by the same material terms and usage rights as the previous lease. Even though this ground of appeal is not apparent from the grounds of appeal stated in the notice of application for leave to appeal, it finds support in paragraphs 3.3, 3.4, 3.5, 3.6, 3.7 and 3.8 of the grounds of leave to appeal. 19. Mr Riley submitted that the tacit relocation required the Respondents to enter into fair and good faith negotiations with the Applicants in considering an extension or renewal of the lease agreement. 20. Mr Riley submitted that the Respondents were required to enter into these fair and good faith negotiations as they continued to charge legal costs as part of the rental obligations. Mr Riley submitted that effectively the lease agreement continued despite the cancellation on 4 April 2025. 21. The other ground was competing carwash and unfairness. Under this ground, the Applicants assert that the Respondents, in bad faith, erected and commenced operations of a directly competing carwash business immediately adjacent to that of the Applicants. The Applicants state that the factual context is not peripheral but rather central to assessing the equity and constitutionality of the eviction order. 22. The fourth grounds lack merit and I need not say more about them, save to state that they were not part of the application that was brought by the Applicants under case number 024858/2025. The Applicants are attempting to introduce a case which did not serve before me on 4 September 2025. This is legally impermissible. 23. The fifth ground lacks merit. Both counsel were engaged at the hearing of this application. The matter ultimately turned on whether on the version of the Applicants there was still an existing lease agreement between the Applicants and the Respondents. Counsel for the Applicants conceded that the lease agreement was terminated when the month to month lease agreement when the Applicants were notified of the termination on 4 April 2025 and told to vacate the premises on 31 May 2025. 24. I debated the issue of tacit relocation with Mr Erasmus. Mr Erasmus referred me to the matter of Winkelshoek [6] which dealt with tacit relocation. He submitted that a tacit relocation of an agreement can be cancelled on reasonable notice. In this case, a reasonable notice was a period of one calendar month. [7] 25. Mr Erasmus referred me to clause 12.3, the cancellation clause in the lease agreement. The clause states that should the Landlord cancel the lease agreement and the tenant disputes the landlord’s rights to do so, and remain in occupation of the premises, pending the determination of the dispute then: “ 12.3.1.   The tenant shall continue to pay on due date all amounts due by the tenant in terms of this lease agreement. 12.3.2.     The landlord shall be entitled to recover and accept those payments and the acceptance thereof shall not in any manner whatsoever affect the Landlord’s claim to cancellation of the lease agreement of any other nature whatsoever.” 26. Regarding the inclusion of legal cost, Mr Erasmus referred me to clause 12.2 of the lease agreement which provides that in the event of the Landlord instructing its attorneys to take measures for the enforcement of any of the Landlord’s rights under this lease, the tenant shall pay on written demand within three (3) days to the Landlord such collection charges and other legal costs on an attorney  and own client basis, as shall be lawfully charged by such attorneys to the Landlord on demand made thereto by the Landlord. Any payment made by the tenant after legal action has been instituted, shall be appropriated first towards such legal costs, collection charges, and attorney and client charges at the Landlord’s sole discretion. 27. I agree with Mr Erasmus’ submission regarding the termination of the month to month tacit relocation of the lease agreement. 28. With regard to the submission by Mr Riley that the Respondents were obliged to enter into a fair and bona fide negotiations with the Applicants, Mr Erasmus referred me to paragraph 22 of the Roazar CC v The Falls Supermarket , [8] which states that: “ The Falls does not state how long the negotiations were required to take place and the contract is silent on this issue. It also does not state what criterion would be used to determine whether either of the parties was negotiating in good faith. What it says, however, is that the negotiations to conclude renewal terms of the agreement commenced as early as 2014, but that the negotiations did not bear fruit because it refused to pay the rental due in terms of the two ancillary agreements. This version seems to suggest that the period of approximately two years was not long enough and that the fact that Roazar wished to be paid money due in terms of the two ancillary agreements must be said to show bad faith on its part. It is however not clear how the court should have determined what period of negotiations would have been fair and what criterion should have been used to measure whether Roazar was indeed negotiating in bad faith as alleged.” 29. In the matter between Mohamed’s Leisure Holdings (Pty) Ltd v Southern Sun Hotel Interests (Pty) Ltd , [9] the Court held the following: “ [24]  Parties enter into contractual agreements in order for a certain result to materialise. The fact that parties enter into an agreement gives effect to their constitutional right of freedom to contract, however, the carrying out of the obligations in terms of that contractual agreement relates to the principle of pacta sunt servanda. In Brisley v Drotsky [2002] ZASCA 35 , 2002 (4) SA 1 (SCA) Cameron JA held that judges must exercise ‘perceptive restraint’ lest contract law becomes unacceptably uncertain. Cameron JA noted that the judicial enforcement of terms, as agreed to, is underpinned by ‘weighty considerations of commercial reliance and social certainty’. In the majority judgment in Barkhuizen, Ngcobo J endorsed Cameron JA’s broader conception of the law of contract as reflected in Brisley and affirmed that the Constitution requires parties to honour contractual obligations that were freely and voluntarily undertaken. The court further went on to say: ‘ While it is necessary to recognise the doctrine of pacta sunt servanda, courts should be able to decline the enforcement of … a clause if it would result in unfairness or would be unreasonable.’ [29]   In this case there is no complaint that the impugned clause is objectively unconscionable. No allegation is made that the lease agreement was not concluded freely. There is also no evidence or contention advanced by either of the parties that there was an unequal bargaining power between them. On the contrary, there is ample evidence that the parties contracted with each other on the same equal footing. In other words it cannot and neither was the respondent's case that there was an injustice which may have been caused by the inequality of bargaining power. Evidently the respondent was at all material times aware or must have been aware of the implications of the cancellation clause. When the respondent committed the first breach in June 2014, its attention was drawn to the fact that in the event of a further breach in the future, the appellant will invoke the provisions of clause 20 and cancel the agreement and evict them from the premises. It is disingenuous on the part of the respondent to now contend that by cancelling the agreement and not affording them an opportunity to remedy the breach, the appellant wanted to snatch at a bargain. The facts demonstrate that the appellant did not cancel the agreement or communicate its intention to do so immediately upon non-payment of the October rental. It waited for a period of 12 days to lapse before it cancelled the agreement. [30]   The fact that a term in a contract is unfair or may operate harshly does not by itself lead to the conclusion that it offends the values of the Constitution or is against public policy. In some instances the constitutional values of equality and dignity may prove to be decisive where the issue of the party’s relative power is an issue. There is no evidence that the respondent’s constitutional rights to dignity and equality were infringed. It was impermissible for the high court to develop the common law of contract by infusing the spirit of ubuntu and good faith so as to invalidate the term or clause in question. [32]   The result may well be unpalatable to the respondent. It must therefore bear the consequences of its agent’s (bank) failure in paying the October rental on due date. Its defence was clearly to restrict the lawful reach of the contract and to limit what can be regulated by way of a contractual agreement between parties, in circumstances where the terms of the contract were clear and unambiguous. In this case the parties freely and with the requisite animus contrahendi agreed to negotiate in good faith and to conclude further substantive agreements which were renewed over a period of time. It would be untenable to relax the maxim pacta sunt servanda in this case because that would be tantamount to the court then making the agreement for the parties.” 30. I agree with the approach of the Supreme Court of Appeal. Both judgments confirm that contractual matters must be approached on the basis of the terms of those contracts. In this case, I come to the conclusion that the termination of the month to month tacit relocation of the lease agreement was valid. 31. Mr Erasmus has submitted that the zoning scheme did not authorise the operation of the carwash on the premises. He has referred me to the Tshwane Town Planning Scheme at paragraph two (2), uses permitted, paragraph three (3), uses with consent, paragraph 18, physical barriers and paragraph 23. 32. Mr Riley has countered this argument by submitting that the Applicants have been allowed to operate the carwash despite the contravention of the zoning scheme. He asserts that the concerns of the Respondents that they might incur municipal penalties if the City of Tshwane becomes aware of the contravention of the zoning scheme should not be treated with the seriousness that it presents. 33. I do not agree with Mr Riley that a party can willy-nilly ignore and contravene a zoning town planning scheme. As Mr Erasmus has submitted contravention of the zoning town planning scheme is frowned upon by the Courts. It is indeed a violation of section 26 of Spatial Planning and Land Use Management Act (SPLUMA). 34. This Court cannot countenance the contravention of the law which will have the effect of implicating the Rule of Law. The application for leave to appeal has no prospects of success. I come to the conclusion that the application for leave to appeal must be dismissed with costs. SECTION 18(3) APPLICATION 35. The parties would be referred to as they are cited in this application. 36. Section 18(1) of the Supreme Court Act (SCA) provides that: “ Subject to subsections (2) and (3), and unless the court under exceptional circumstances orders otherwise, the operation and execution of a decision which is the subject of an application for leave to appeal or of an appeal, is suspended pending the decision of the application or appeal.” 37. Section 18(3) of the SCA provides that: “ A court may only order otherwise as contemplated in subsection (1) or (2), if the party who applied to the court to order otherwise, in addition proves on a balance of probabilities that he or she will suffer irreparable harm if the court does not so order and that the other party will not suffer irreparable harm if the court so orders.” 38. It is now settled law that when considering the concept of exceptional circumstances, the Court shall take into account the prospects or rather absence of prospects of success on Appeal. [10] 39. In Justice Alliance , [11] the Court held that the less optimistic the Court is about the prospects of the Judgment at first instance being vindicated on Appeal, the less inclined it will be to grant the exceptional remedy of execution of the Judgment pending the Appeal.  The converse equally true. The more the Court is convinced that the Judgment of the Court of first instance will be vindicated on Appeal, the lower the bar to establish the requirement of “ exceptional circumstances ”. 40. The case of MV Ais Mamas Seatrans Maritime v Owners, MV Ais Mamas provide the following guidelines in respect of “exceptional circumstances”: [12] “ Exceptional circumstances is something out of the ordinary and of an unusual feature, it is therefore uncommon rare or different; the exceptional circumstances must arise out of or be incidental to the particular case. Whether exceptional circumstances exist is not a decision which depends upon an exercise of a judicial discretion, the existence or otherwise is a matter of fact which the Court must decide accordingly. Depending on the context within it is used, the word “exceptional” has two shades of meaning, namely the primary meaning of unusual or different or the secondary meaning of markedly unusual or specifically different; and where in a statute it is directed that a fixed rule shall be departed from only under exceptional circumstances effect will generally speaking be best given to the intention of the legislator by applying a strict rather than a liberal meaning of the phrase.” 41. The concept of exceptional circumstances is dealt with on the case by case basis in terms of Premier for the Province of Gauteng v Democratic Alliance . [13] 42. The prospects of success are remove. The Applicants have pre-empted its right of appeal. The exceptional circumstances as advanced by the Respondents 43. The Applicants are suffering enormous harm on a daily basis under circumstances where there is no longer any contractual or other relationship between the Applicants and the First Respondent and the Respondents have now hugely affected the Applicants by filing an application for leave to appeal thereby halting the eviction process. 44. Should the First Respondent be granted leave to appeal, it will most probably be to a Full Court of the above Honourable Court’s Division and this will be catastrophic to the Applicants, their new tenant, Sparking Auto Car Wash, the existing tenants of the Applicants’ shopping centre, its customers and contractors. 45. Moreover, the Applicants have no control whatsoever over the Respondents. The Applicants, their new tenant, Sparkling Auto Car Wash, and contractors have fallen victim to verbal threats and violent assaults at the behest of the Respondents. 46. The Applicants’ shopping centre is under tremendous risk and the Applicants, in not having any contractual control or meaningful manner to hold the Respondents to any standards, are simply held to ransom by the Respondents. The Respondents are placing other tenants and members of the public at risk and tarnishing the reputation of the Applicants’ shopping centre. 47. The Respondents have no legal or factual basis in their grounds of appeal. The Respondents did not advance any cogent reasons on 4 September 2025, neither any reasons contained in its application for leave to appeal, justifying the continued unlawful possession and occupation of the Applicants’ property. It is evident that the application for leave to appeal is part of a dilatory tactic designed to prolong the unlawful occupation and frustrate the Applicants’ rights. 48. The landlords are the owners of the immovable property upon which the leased premises are situated, and in terms of section 25 of the Constitution of the Republic of South Africa, 1996 are entitled to deal with its property as they deem fit. The continued breach of the Applicants’ right as enshrined in section 25 of the Constitution, as well as the common law, infringes upon the right of the Applicants. 49. The further exceptional circumstances are stated as: 49.1. The application for leave to appeal has been pre-empted. 49.2. The zoning of the premises do not authorise a business of a carwash. I have dealt with the zoning scheme in the previous paragraphs under the grounds of application for leave to appeal. 50. In reply, Mr Riley submitted that there was no urgency. He further stated that the Applicants will suffer irreparable harm as their business would close if the order is granted. 51. He submitted that there was no proof that his clients have committed a crime. He referred to the assertion of Mr Erasmus as ipse dixit. 52. When I brought to the attention of Mr Riley that the Respondents have in fact obtained a Court order to interdict the Applicants on 3 July 2025, he was initially unaware of the Court order. He, nonetheless, replied by saying the Court order has not been violated and as such it can be used to enforce the rights of the Respondents. 53. The Court order is annexure SAJ5 of the application in terms section 18(3). The parties who have been cited in the Court order are the Applicants and the Police. The orders that were granted are: “ That the first and second Respondents, and any other persons, entities or bodies, as the case may be acting through, or under, the second Respondent be and are hereby restrained, and interdicted, from attending, proceeding into or being upon the first and second Applicants’ premises, namely ERF 3[…] Faerie Glen, Extension 9, Known as Glen Village Shopping Centre with the aim or other purpose of: a. Frustration and interfering with the first and second Applicants’ businesses thereat; b. Harassing and intimidating tenants, and employees of Sparking Auto; c. Interfering with, harassing or intimidating the first and second Applicants’ managers...” 54. The Court order of 3 July 2025 is currently operational and has not been challenged or set aside. 55. The Court order present enough legal basis for the apprehension of harm that is being experienced by the Respondents. 56. The Court order reflects a fraught atmosphere which is prevailing between the Applicants and the Respondents. Of concern is the fact that the conduct of the Respondents is interfering with the Applicants’ businesses, they are harassing and intimidating tenants, and employees of Sparkling Auto, interfering with, harassing or intimidating the Applicants’ managers. 57. I come to the conclusion that the Applicants have made a case for orders in terms of the notice of motion. In the result, I make the following order: 1. The application for leave to appeal is dismissed with cost on the scale as between attorney and client, on scale C, inclusive of the costs of senior counsel. 2. The application in terms of Rule 18(3) is granted in terms of the Draft Order dated  10 December 2025 which appears on Caseline 072-9. TD SENEKE AJ Acting Judge of the High Court Gauteng Division, Pretoria Appearances For applicants         :           Advocate Nigel Riley Instructed by           :           Van Zyl Johnson Inc For respondents     :           Advocate Chris (MC) Erasmus SC Instructed by           :           Mark Efstratiou Inc [1] Ramakatsa v African National Congress [2021] ZASCA 31 of 31 March 2021 [2] Caratco (Pty) Ltd v Independent Advisory (Pty) Ltd (982/18) [2020] ZASCA 17 ; 2020 (5) SA 35 (SCA) (25 March 2020) [3] The Mont Chevaux Trust v Tina Goosen And 18 Others 2014 JDR 2325 (LCC). [4] Ramakatsa supra at para 10 [5] Caratco supra at para 2 [6] Winkelshoek Wynkelders (Edms) Bpk and Another v Jamadu Restaurant (Edms) Bpk (11871/2011) [2012] ZAWCHC 71 (31 May 2012) [2012] ZAWCHC 71 [7] Fiat SA v Kolbe Motors 1975 (2) SA 129 (O) at 139H – 140B [8] (232/2017) [2017] ZASCA 166 (29 November 2017) [9] (183/17) [2017] ZASCA 176 (1 December 2017) [10] University of the Free State v Afriforum and Another [2016] ZASCA 165 (17 November 2016) paras 14 and 15; Minister of Social Development Western Cape and Others v Justice Alliance of South Africa and Another (20806/2013) [2016] ZAWCHC 34 (1 April 2016), para 22. [11] Minister of Social Development Western Cape and Others v Justice Alliance of South Africa and Another supra Para 27 [12] 2002 (6) SA 150 (C) at 156I-157C. [13] [2021] 1 All SA 60 (SCA) sino noindex make_database footer start