JCB Gearvest (Pty) Ltd v Basticept (Pty) Ltd ta Basti Security Services (A365/2023) [2025] ZAGPPHC 1383 (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 1383 | Noteup | LawCite sino index ## JCB Gearvest (Pty) Ltd v Basticept (Pty) Ltd ta Basti Security Services (A365/2023) [2025] ZAGPPHC 1383 (12 December 2025) JCB Gearvest (Pty) Ltd v Basticept (Pty) Ltd ta Basti Security Services (A365/2023) [2025] ZAGPPHC 1383 (12 December 2025) Download original files PDF format RTF format make_database: source=/home/saflii//raw/ZAGPPHC/Data/2025_1383.html sino date 12 December 2025 REPUBLIC OF SOUTH AFRICA IN THE HIGH COURT OF SOUTH AFRICA GAUTENG DIVISION, PRETORIA Case number: A 365/2023 (1) REPORTABLE: NO (2) OF INTEREST TO OTHERS JUDGES: NO (3) REVISED In the matter between: JCB GEARVEST (PTY) LTD                                                                  Appellant And BASTICEPT (PTY)LTD t/a BASTI SECURITY SERVICES                    Respondent This matter was heard in open court and the judgment is issued by the judges whose names are reflected herein and is handed down electronically by circulation to the parties’ legal representatives by email and uploading it to the electronic file of this matter on Caselines. The date for hand-down is deemed to be the 12 December 2025 JUDGEMENT LEDWABA  AJ ( Baqwa J and  Manamela AJ concurring) Introduction [1]  This appeal is against the whole judgment and order dated 15 November 2022 delivered by Madam Acting Justice PN Manamela (“the court a quo ” ) in favour of the respondent. The appeal follows the appellant’s successful petition to the Supreme Court of Appeal which, on 8 November 2023, granted leave to appeal to the Full Court of this division. The Supreme Court of Appeal ordered that all the costs be costs in the appeal. [2]  The appellant is a private company with limited liability and registered in terms of the laws of the Republic of South Africa. [3]  The respondent is a security private company with limited liability and registered in terms of the laws of the Republic of South Africa. [4]  On or about 24 March 2021 and at Pretoria and Mokopane, the parties entered into a security service agreement with the following tacit, express and implied terms among others: (a)        In conjunction with one of its shareholder named Leyton Invest (Pty) Ltd, the appellant agreed to render security services to Anglo American Mogalakwena Mine on earthmoving and plant equipment. The appellant also utilized certain intellectual property management experience in the heavy duty engineering security, certain processes, procedures, qualifications, branding, know-how purchasing benefits, financial management systems, drawings, capacities marketing abilities, branding and marks, technical experience and manuals training abilities and other resources that the business needs to perform their duties as well as the development and creation for the successful implementation of services to the clients of the appellant in the mining and/or construction industry, which intellectual property belongs to Leyton Invest (clause 1.1.1). ( b)       The respondent acknowledged that Leyton Invest (Pty) Ltd has crucial intellectual property used by the appellant relating to management experience in the heavy duty engineering security, certain processes, procedures , qualifications , branding , know-how, purchasing benefits, financial management systems, drawings, capacities, marketing abilities, branding and marks, technical experience and manuals, training and other resources( clause 9.1). (c)        For the purpose of the agreement, the term “intellectual property rights” includes crucial intellectual property management experience in the heavy duty engineering security, certain processes, procedures , qualifications, branding, know-how, purchasing benefits, financial management systems, drawings, capacities, marketing abilities, branding and marks, technical experience and manuals, training and other resources that the business needs to acquire, develop and create for the successful implementation of services to its client in the mining and/or construction industry, and shall not be limited to, copyright and patent and design and trademark rights only( clause 9.5). (d)        At the agreed monthly fee and for the period of thirty-six months, the respondent and the appellant entered into security services to be rendered, which entailed securing and safeguarding the appellant’s personnel, assets and buildings for twenty four hours seven days a week (clauses 1.1.2 , 2.1 and 5.1). (e)       The parties agreed that the agreement would have suspensive conditions based on section 8 of the agreement (clause 5.1). (f)         The respondent would deploy two day shift guards and three night shift guards whereof two guards would be qualified dog handlers (clause 4.2.2). (g)        The respondent’s security teams would report to and fall under the appellant’s Operational Manager’s control (clause 4.4)  and (h)       The innocent party had the right to cancel the agreement within twenty four hours in the event of breach which remained despite seven days’ notice to remedy the breach or if the other party had repudiated the agreement (clause 11). [5]  For the purpose of this judgment, intellectual as well all other materials referred to in clauses 1.1.1, 9.1 and 9.2 will be referred to as trade secrets. [6]  By way of email sent on 9 March 2022 by Mr Cobus van Heerden, as the applicant’s General Manager, the appellant conveyed that the respondent failed to uphold the agreement and that the respondent’s services would be terminated with effect from 31 March 2022. This will be referred to as cancellation or termination email or notice. The cancellation email further invited the respondent to contact Mr Cobus van Heerden or Mr Len Enslin regarding this notice. [1] [7]  The appellant states that the cancellation email conveyed not only the termination of the agreement between the parties, but also extended an invitation for the respondent to query the communication or rectify the breaches. It says instead, the respondent’s response was to demand the withdrawal of the cancellation email, which the appellant rejected in the letter dated 28 March 2022. [8]  The parties are at variance whether the respondent had breached the terms of the agreement and whether the agreement authorised the appellant to terminate it the way claimed by the appellant. Appellant’s Case [9]  The appellant contends that the cancellation email was the culmination of an almost year long series of notices to the respondent to rectify breaches of contract. It says the cancellation email lawfully and summarily terminated the agreement, alternatively lawfully terminated the agreement on notice and for valid reasons after affording the respondent the opportunity to remedy the breaches of the agreement. The appellant lists some of the breaches as including: (a)        Poor and under performance of service amounting to breach of contract on the respondent’s part. The appellant avers that the respondent’s employees often failed to inspect vehicles accessing the site and allowed unauthorised persons access without checking with management and failed to fill in the record books. It avers that there are holes and gaps in the perimeter fencing which allows unauthorised persons access to the site. (b)        The respondent’s employees failed to do Covid-19 tests and walked around without masks or masks not properly put on. (c)        The respondent exposed the appellant’s trade secrets, intellectual property and other confidential information to competition suppliers who are allowed to walk around without monitoring on the site. (d)        Since the conclusion of the agreement, the respondent failed to provide vital documentations such as qualifications, personal details and identity documents of the deployed security guards. [2] (e )       Failure of the respondent to provide Active Track GPS monitoring system, perimeter beams, batons and cellphones (f)         The submission of inflated invoices by the respondent. (g)        No night shift patrol-dog was deployed on the site. There is dispute whether this was offered by the respondent and refused by the appellant. (h)        There is also dispute whether two- or three-night guards were supposed to be deployed on the site. The respondent denies that the appellant complained about the above listed matters. [10]  The appellant avers that repeated defective performances rendered by the respondent presented threats to the appellant’s business and this was communicated to Messrs Mkhanda and David Papo in the absence of the respondent’s sole shareholder Mr Madimetja Solly Papo.  The appellant submits that the respondent was given opportunities to rectify the breaches, with the cancellation email inviting the respondent to engage in the rectification of the breaches to avoid the appellant’s trade secrets being compromised. [11]  In paragraph 8 of the answering affidavit to the urgent application before the court a quo , the appellant avers that the respondent sought to compel the appellant to maintain a contractual relationship which was entirely vexed and unworkable and which was terminated for that reason. Paragraph 9.2 of the answering affidavit says an order for specific performance sought by the respondent was impossible, alternatively unduly harsh. It also said it was onerous and inappropriate in the circumstances. [12] The appellant contends that clause 5.1 [3] gives it the right to cancel the agreement in the event of the respondent failing to perform to the expected performance levels. It points out that the lax and poor access control by the respondent led to infiltration by competitors and exposed the appellant’s trade secrets and other confidential information, justifying summary termination without notice. It contends that in the event of the finding that it was required to give prior cancellation notice and the opportunity to rectify the breach, the cancellation email which invited the respondent to react to the same complied with the notice requirement provisions of the agreement between the parties. Respondent’s Case [13]  The appellant further contends that the termination clause 11 should be read to include resolutive condition which entitled it to terminate the agreement. [14]  Referring to clause 11 of the agreement, the respondent’s case is that if any party breached any provision of the agreement and remained in breach for seven days after the receipt of written notice to remedy the breach, the innocent party may cancel the agreement within twenty-four hours. It contends that the appellant did not give the cancellation notice and that the agreement did not give the appellant the right to summarily cancel the agreement without giving the respondent seven days’ notice and the opportunity to remedy the alleged breach. It gave the appellant until 28 March 2022 at 15h00 to withdraw the (purported) cancellation email. On 28 March 2022 the appellant advised the respondent that it would not withdraw the termination email. [15]  The respondent regarded the appellant’s conduct as repudiation of the agreement and elected not to accept the repudiation but to enforce the agreement and to claim specific performance by instituting the application in which it sought that relief. [16]  The respondent approached the court a quo on urgent basis for declaratory relief that the purported termination of the agreement was unlawful and in breach of its terms. The respondent prayed that the appellant be ordered to do all that is necessary to honour the appellant’s contractual obligations, including specific performance of allowing the respondent’s employees to return to the site with the appellant being obliged to pay for the rendered security services. [17]  The respondent did not pray for damages as an alternative to specific performance. [18] On 20 April 2022, the urgent application was struck from the roll for lack of urgency, with the costs reserved. [19] In the meantime, the appellant engaged another security service provider to provide security in the place of the respondent. [20]  In respect of the main matter, the court a quo agreed with the respondent and ordered the appellant to allow the respondent to resume the position of securing the appellant’s personnel, assets and buildings and to pay for the services rendered by the respondent. [21]  Aggrieved by the judgment, the appellant lodged leave to appeal. It was dismissed on 18 August 2023. On petition, the Supreme Court of Appeal granted leave to appeal to the Full Court of this division. Discussion [22]  The security service agreement between the parties ought to have run for thirty-six months between the period 24 March 2021 to 24 March 2024. [23]  When the court a quo delivered the judgment on 15 November 2022, the agreement was just more than a year in existence. [24] At the time of the hearing of this appeal on 10 September 2025 , the agreement had already lapsed by effluxion of time on 24 March 2024. [25]  It is more than a year since the lapsing of the agreement. This makes it moot for this court to direct the appellant to accept the security services from the respondent. [26]  With the lapsing of the security contract, there is no longer any basis for the appellant to be directed to receive the respondent’s security services and pay for their service. Such order will have no practical effect or result. [4] This is apart from the fact there is another security company currently rendering the same security services. [27]  The submission by the respondent that the running of the agreement was suspended during litigation does not assist its case. No order was made to this effect and same is also not borne by the agreement between the parties. [28]  Mootness is not an absolute bar to the justiciability of an issue. The court has the discretion to decide a case despite the argument of mootness if to do so would be in the public interest. [5] This includes the hearing of an appeal, the question being whether the interests of justice require that it be decided. [6] [29]  Despite the lapsing of the agreement between the parties, it is in the interest of justice that the dispute be dealt with. The respondent may still wish to pursue damages claim, if so minded or advised, and the dismissal of this matter based on mootness may affect the respondent’s possible claim. [30] At the hearing before the court a quo , the respondent sought a declaratory order that the cancellation email be declared unlawful and in breach of the agreement between the parties. It prayed that the appellant be ordered to do specific performance of allowing the respondent’s employees to return to the site and pay for the security services rendered. [31]  At issue is the interpretation of the agreement between the parties. The appellant’s case is that having conveyed its intention to terminate the agreement from 31 March 2022, there was no longer any agreement beyond that date. The respondent’s case is that clause 5.1 of the agreement did not give the appellant the right to cancel the agreement and that the cancellation email was a repudiation of the agreement by the appellant, which repudiation the respondent rejected. The respondent contends that only clause 11 authorises the parties to cancel the agreement on stated conditions. The question is whether the respondent is entitled to specific performance of the agreement. [32]  The court a quo stated that the appellant did not serve any breach notice as contemplated in clause 11 of the agreement. [7] In paragraph 12, the judgment states that the appellant’s counsel argued that the termination was effected pursuant to clause 5.1 and not clause 11 of the agreement and that clause 5.1 gave the appellant the right to cancel the agreement based on the suspensive conditions of the agreement according to section 8 (clause 8) of the agreement. The court a quo held that there was no clear basis for the appellant to rely on clause 5.1 of the agreement. [33]  The interpretation is the process of attributing meaning to the words used in the document, having regard to the context provided by reading the particular provision in the light of the document as a whole and the circumstances attended upon its coming into existence. Consideration must be given to the language used in the light of the ordinary rules of grammar and syntax; the context in which the provision appears; the apparent purpose to which it is directed and the material known to those responsible for its production. A sensible meaning is to be preferred to one that leads to insensible or unbusinesslike results or that which undermines the apparent purpose of the document. There must be avoidance to make a contract for the parties. [8] [34] It is trite that a provision in a contract must be interpreted not only in the context of a contract as a whole, but also to give it a commercially sensible meaning. The principle requires a court to construe a contract in context-within the factual matrix in which the parties operated.  A court interpreting a contract has, from the onset, to consider a contract’s factual matrix, its purpose, the circumstances leading up to its conclusion and the knowledge at the time of those who negotiated a contract. [9] [35]  Relying on quoted authorities such as Basson [10] case, Shultze [11] and Bradfield in Christies, [12] the court a quo stated that specific performance is the primary remedy for breach of contract, available at the discretion of the court. [36]  In terms of the judgment of court a quo , the interpretation of clauses 3.2, 5.1 and 8 does not give the appellant the right to cancel the agreement between the parties. [37]  The relevant part of clause 5.1 provided that “ in neglecting or non-fulfilment of the expected performance levels the client (the appellant) has the right to cancel the agreement based on the suspensive conditions of this agreement according to section(clause) 8 of this agreement ” . [38]  Clause 3.2 states that the parties agree that this agreement has a suspensive condition based on section (clause 8) of this agreement. [39]  Clause 8 contains stated restraint conditions against the respondent and its employees. It has nothing to do with the cancellation of the agreement between the parties. [40]  Clause 1.2.7 states that “ Suspension Conditions is conditions that will once SLP( the respondent) did not comply with or/and were the circumstances needed for has not been met externally and these unmet conditions and/or circumstances lead to the termination of the agreement between the client (the appellant) and the SLP automatically without any notices to the other party ” . [41]  The dictionary meaning of suspensive condition is a contractual clause that delays a contract’s full legal effect until a specific, uncertain future event occurs. If the condition is met, the contract becomes fully binding; if it is not met within the agreed time, the agreement often lapses and becomes void. [42]  This is different from resolutive condition clause that makes a contract immediately binding but automatically terminates if a specific future event occurs or fails to occur. [43]  The agreement between the appellant and the respondent took immediate effect, with no suspensive condition. [44]  There is no basis for the appellant to read resolutive condition in clause 11 of the agreement. There is no basis to interpret the agreement in such a manner that the parties intended to terminate it on the basis of the resolutive condition. [45]  Reliance by the appellant on the redacted clause 5.1 does not assist the appellant’s case.  The interpretation of this clause does not allow the redacting of part of the clause. The agreement is to be read as a whole, including all the parts of clause 5.1. This clause cannot be read to give the appellant the right to cancel the agreement without notice and an opportunity to remedy any alleged breach. [46]  The appellant’s alternative submission is that in the event of the finding that clause 5.1 does not apply, it has given appropriate notice as required by clause 11.1 of the agreement before terminating the agreement. It relies on the alleged persistent breaches and refusal to remedy the breaches, which allegedly culminated in the cancellation email which also provided the respondent with the opportunity to remedy the breaches. [47]  The parties are in dispute whether the appellant has given the prescribed notice and the opportunity to remedy the breaches. The appellant provided no basis why an invitation to remedy the alleged breached was not expressly conveyed to the respondent in the termination email. The respondent disputes that Mr Mkhanda and Mr David Papo, to whom this invitation was allegedly conveyed, had authority to receive such invitation on behalf of the respondent. [48]  Whether the appellant has given the prescribed termination notice and the opportunity to rectify do not change the fact the agreement between the parties has terminated on the basis of the effluxion of time. [49]  The question is whether the respondent is entitled to the declaratory order and the specific performance of directing the appellant to allow the respondent’s employees to return to their post and secure the appellant’s premises. [50]  An innocent party has the right of election whether to hold a defaulting party to its contract and claim performance of what a defaulting party has bound itself to do, or to claim damages for the breach.  Although the court will, as far as possible, give effect to the innocent party’s choice to claim specific performance , it has a discretion in a fitting case to refuse to decree a specific performance and leave such party to claim and prove his id quad interest. Although it must be exercised judicially, the discretion which a Court enjoys is not confined to specific type of cases, nor is it circumscribed by rigid rules. Each case must be judged in the light of its circumstances. In other words, a Court is required to exercise its discretion as to whether a specific performance should be granted or not upon consideration of all the relevant facts. [13] [51] It is not proper to foist upon the appellant to accept the services from the respondent the appellant does not trust to secure the site and important trade secrets and information. This position was confirmed in the Masetlha case [14] The facts in Mr Masetlha case were that the President of the Republic of South Africa had suspended and subsequently terminated Mr Masetlha’s employment as head and Director- General of the National Intelligence Agency (the Agency). Mr Masetlha claimed specific performance of being re-instated to the Director- General and head of Agency post. The President asserted that his relationship as head of state and Mr Masetlha as head of Agency had disintegrated irreparably. The court of first instance found that in order for the President to fulfil his role of head of the national executive, he must subjectively trust the head of the Agency. It found that irreparable break-down of the relationship of trust between the President and the head of Agency constituted a lawful and rational basis for the dismissal. [52]  The Constitutional Court found that in order to fulfil his duty in relation to national security, the President must subjectively trust the head of intelligence services.  The President concluded that he had lost trust in Mr Masetlha and that it was in the national interest to terminate his appointment as head of the Agency. The Constitutional Court found that the break-down of the relationship of trust constituted a rational basis for dismissing Mr Masetlha from his post as Director – General of the Agency. [15] [53]  In the Moyo case, the Board of Directors concluded that it no longer had sufficient trust and confidence in the leadership of its Chief Executive Officer and decided to pursue an amicable separation. When attempts for amicable negotiations failed, the Board served Mr Moyo with suspension letter, followed by termination notice letter, citing material breakdown in the trust relationship [16] [54]  The full court of this Division said that because the Board implements its decisions through the management team led by the Chief Executive Officer, the Board is only able to lead efficiently in the circumstances where it has a relationship of trust and confidence in the Chief Executive Officer. It said once this relationship has broken down, the Board is not only entitled but obliged to terminate the Chief Executive Officer’s appointment. [17] [55] The background context to the preparation of the agreement between the parties is that from the onset and apart from the fact the respondent’s responsibilities included securing the premises, the parties made express provision that the respondent would be responsible to secure the appellant’s trade secrets against the appellant’s competitors. This explains the inclusion of clauses 1.1.1, 9.1 and 9.5 of the agreement. [56]  One of the appellant’s complaints is that the respondent’s conduct allegedly exposed the appellant’s trade secrets to competitors. Specific performance order would mean that the appellant would have to endure what it regarded as the respondent’s lapse regarding measures deployed in protecting its trade secrets against its competitors. The relationship between the parties had broken down and the order for specific performance meant the parties would be forced to work together in a situation where those trade secrets would still be secured by the respondent not only to the appellant’s displeasure, but also with the implied or probable risk of loss of its trade secrets to its competitors. [57] It would not be commercially sensible for the parties to continue their security service provision relationship where there is such serious trust deficit. [58] Given the deteriorated relationship between the parties and the respondent’s contractual responsibilities to protect the appellant’s premises, personnel and trade secrets, it was a misdirection for the court a quo to have ordered specific performance that the respondent was directed to deploy its security officers at the appellant’s premises to continue with security services. [59]  In the result, I propose that the following order be made: 59.1      The appeal succeeds. 59.2      The respondent is ordered to pay the costs of the appeal. 59.3      The order of the court a quo is set aside and substituted as follows: 59.2.1 The application is dismissed. 59.2.2 The applicant is ordered to pay the costs of the application. LGP LEDWABA ACTING JUDGE OF THE HIGH COURT GAUTENG DIVISION: PRETORIA Date of hearing: 10 September 2025 Date of judgment: 09 December 2025 I agree and it is so ordered SELBY BAQWA JUDGE OF THE HIGH COURT GAUTENG DIVISION : PRETORIA I agree K MANAMELA ACTING JUDGE OF THE HIGH COURT GAUTENG DIVISION: PRETORIA APPEARANCES: For appellant: Adv BC Bester Attorneys for the appellant: Kriek Wassenaar & Venter Inc. For respondent: Adv K Mokwena Attorneys for the respondent: Everton Dankuru Attorneys [1] Annexure DA 13 Caselines 03-68 [2] In reply the respondent avers they were physically submitted by Mr David Papo to Mr Van Heerden [3] The relevant part of this clause provides that in neglecting or non-fulfilment of the expected performance levels the client( appellant) has the right to cancel the agreement based on the suspensive conditions of this agreement according to section 8 of this agreement. [4] Agribee Beef Fund (Pty) Ltd  & Another v Eastern Cape Development Agency & Another (CCT 26/22) (2023) ZACC 6 ; 2023 (5) BCLR 489 (CC); 2023 (6) SA 639 (CC) (1 February 2023) - paras 24  and 25 [5] S v Manamela And Another (CCT25/99) [2000] ZACC 5 ; 2000 (3) SA 1 (CC); 2000 (5) BCLR 491(CC) – par 12; SA Legal Practice Council v Mokhele (1138/2022) [2023] ZASCA 177 ( 14 December 2023) - para 8 [6] Independent Electoral Commission v Langeberg Municipality ( 2001) ZACC 23 ; 2001(3) SA 925(CC)- par 11; Agribee Beef Fund v Eastern Cape Development Agency (CCT 26/22) (2023) ZACC 6 ; 2023 (5) BCLR 489 (CC); 2023 (6) SA 639 – paras 26-29 [7] Paragraph 8 of the judgment. [8] Natal Joint Municipal Pension Fund v Endumeni Municipality (2012) ZASCA 13 ; (2012) 2 All SA 262 (SCA); 2012 (4) SA 593 (SCA) – para 18 [9] G Phadziri & Sons (Pty) Ltd v Do Light Transport (Pry) & Another (2023) ZASCA 16 - par 12 [10] Basson & Others v Hanna (2016) ZASCA 198; [2017] 1 All SA 669 (SCA); 2017 (3) SA 22 (SCA) [11] Heinrich Schultze et al , General Principles of Commercial Law, 8 th Edition at 134. [12] G Bradfield, Christies’ Law of Contract in South Africa, (2017, 7 th Edition- at 616 [13] Haynes v King Williamstown Municipality 1951(2) SA 371V(A) at 378F-G [14] Masetlha v President of the Republic of South Africa & Another (2007) ZACC 20 ; 2008(1) SA 566( CC) - par 98 [15] Masetlha v President of the Republic of South Africa & Another (2007) ZACC 20 ; 2008(1) SA 566( CC) par 86 [16] Moyo v Old Mutual Ltd & Others ( 2022) ZAGPJHC 336 ; [2022] 3 All SA 795 (GJ) -paras 35 , 41 and 44 [17] Moyo v Old Mutual Ltd & Others ( 2022) ZAGPJHC 336 ; [2022] 3 All SA 795 (GJ) - paras 243 and 247 sino noindex make_database footer start