SA Retail Properties (Pty) Limited v Golden Tee Investments (Pty) Limited (2025/189819) [2025] ZAGPJHC 1338 (17 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: South Gauteng High Court, Johannesburg South Africa: South Gauteng High Court, Johannesburg You are here: SAFLII >> Databases >> South Africa: South Gauteng High Court, Johannesburg >> 2025 >> [2025] ZAGPJHC 1338 | Noteup | LawCite sino index ## SA Retail Properties (Pty) Limited v Golden Tee Investments (Pty) Limited (2025/189819) [2025] ZAGPJHC 1338 (17 December 2025) SA Retail Properties (Pty) Limited v Golden Tee Investments (Pty) Limited (2025/189819) [2025] ZAGPJHC 1338 (17 December 2025) Download original files PDF format RTF format make_database: source=/home/saflii//raw/ZAGPJHC/Data/2025_1338.html sino date 17 December 2025 # IN THE HIGH COURT OF SOUTH AFRICA IN THE HIGH COURT OF SOUTH AFRICA # GAUTENG DIVISION, JOHANNESBURG GAUTENG DIVISION, JOHANNESBURG CASE NO : 2025/189819 (1) REPORTABLE: NO (2) OF INTEREST TO OTHER JUDGES: NO (3) REVISED: Date 17 November 2025 In the matter between: SA RETAIL PROPERTIES (PTY) LIMITED Applicant And GOLDEN TEE INVESTMENTS (PTY) LIMITED (IN BUSINESS RESCUE) (REGISTRATION NO. 2021/477912/07) First Respondent THOMAS HENDRICK SAMONS N.O. Second Respondent Coram: M Van Nieuwenhuizen, AJ Heard on : 11 November 2025 ## Delivered:17 November 2025 Delivered: 17 November 2025 JUDGMENT # M VAN NIEUWENHUIZEN, AJ: M VAN NIEUWENHUIZEN, AJ: [1] This is an urgent application launched by the applicant in which it seeks leave to immediately execute against the Order of Nthambeleni AJ dated the 28th of October 2025 (“ the Order” ) in terms of section 18(3). [1] [2] In terms of the Order, Nthambeleni AJ ordered the ejectment of the first respondent from the commercial premises situated at Shop No. 75A and outside area, Morning Glen Shopping Centre, corner Kelvin Drive and Bowling Avenue, Sandton (“ the leased premises” ) by no later than 31 October 2025, failing which the Sheriff was authorised to evict the first respondent. [3] The ejectment was sought by the applicant and obtained because the applicant had secured a replacement tenant for the leased premises who required beneficial occupation of the leased premises from the 1st of November 2025. The first respondent had previously occupied the leased premises pursuant to a lease agreement concluded between the applicant and the first respondent. [4] In the afternoon of the 31st of October 2025, the respondents delivered an application for leave to appeal. # THE APPLICANT’S CONTENTIONS THE APPLICANT’S CONTENTIONS [5] The applicant contends that the application is urgent. The applicant further contends that the respondents’ leave to appeal is manifestly mala fide . In this regard it is common cause between the parties that the first respondent has no right to continue occupying the leased premises: [5.1]  The applicant pleads that the agreement was cancelled on the 25th of August 2025 by the applicant as a result of the first respondent repeatedly failing to pay its rental timeously. [5.2]  The first respondent pleads that the lease agreement is illegal, unenforceable and void ab initio . [5.3]  The second respondent aligns himself with the first respondent contending that “As the BRP in the matter and in light of the obligations bestowed upon me in law, I cannot participate in, or attempt to enforce, an illegal contract, which is unenforceable and void”. [6] The respondents unequivocally alleged that they could not trade from the leased premises (contending that to do so was unlawful and illegal) and that they would vacate the immovable property. However, notwithstanding the above, the first respondent in fact “ continued and continues” to trade from the leased premises. The applicant adduced evidence (photographic evidence and Instagram posts) revealing the first respondent’s continued trade. In confirmation thereof the applicant attaches as Annexure “ SO4” Instagram posts from the first respondent’s Instagram account advertising events for the weekend of 1st and 2nd November 2025 for example the rugby match between the Springboks and Japan. The applicant avers that these advertisements were all posted after the issuing of the Order, but prior to delivery of the application for leave to appeal – revealing that the first respondent had no intention of honouring the Court Order, but simply wanted to wait until the proverbial last second before delivering its application for leave to appeal. [7] The applicant’s contention is that the first respondent’s basis for the leave to appeal was not to pursue the matter in a bona fide manner, but rather to continue trading from the premises without paying rental and to frustrate the applicant from evicting them from the leased premises. [8] The applicant contends that if the applicant cannot obtain an eviction of the first respondent from the leased premises as a matter of urgency, the new tenant has advised it will look elsewhere for premises to lease. The applicant contends that this will cause significant damage to the applicant insofar as the new lease will generate over R5 million in rental income for the applicant and also mitigate the more than R4 million in unpaid rental that the first respondent is indebted to the applicant. [9] The applicant contends that it will not be able to obtain substantial redress at a hearing in due course as the respondent is undoubtedly financially distressed (it is in business rescue) and it will be unable to satisfy any damages claim brought against it. [10] The applicant avers that it will suffer irreparable harm if leave to execute is not granted. On the other hand, the applicant argues that the first respondent will suffer no harm. In this regard: [10.1] the respondents concede that they have no right to continue occupying and trading from the leased premises; [10.2]  the purported reason that the respondents seek leave to appeal is that they want to bring an application to set aside the attachment of certain assets by the applicant, on the basis that such attachment was void; [10.3]  the applicant has tendered (and continues to tender) to keep the assets in storage pending the rescission application and thus there can be no harm to the respondents if leave to execute is granted. [11] The applicant avers that there are exceptional circumstances warranting the immediate execution as contemplated by section 18(1) and 18(3). [2] # URGENCY URGENCY [12] The applicant submits the matter is urgent for inter alia the following reasons: [12.1] The applicant concluded a new lease agreement with a new tenant [3] in order to mitigate the damages caused by the first respondent’s failure to pay rental; [12.2] The new tenant required vacant occupation of the leased premises which it was required to do by 30 October 2025; [12.3]  If vacant occupation is not granted the new tenant will terminate the lease agreement and seek damages as against the applicant; [12.4] Not only will this frustrate the applicant’s ability to mitigate its damages caused by the first respondent’s non-payment of rental, it will exacerbate the damage suffered by the applicant; [12.5]  The new lease agreement is worth approximately R5 million over the next five years, and if the application is not heard on an urgent basis the applicant will lose this income; [12.6]  If the application is not heard urgently, the first respondent will continue to unlawfully occupy the leased premises indefinitely and without paying any rental to the applicant; [12.7] The respondents’ mala fides have been revealed. # THE RESPONDENTS’ CONTENTIONS THE RESPONDENTS’ CONTENTIONS [13] The first respondent denies that the matter is urgent. The first respondent argues that the applicant’s assertions as to the alleged urgency of the matter come down to an assertion that this application is urgent because the main application was deemed urgent by Nthambeleni AJ. The first respondent avers that the applicant cannot however simply rely on the fact that Nthambeleni AJ found the matter before him urgent and because this matter is related to that matter, then this matter is urgent as well. The first respondent argues that apart from the period of time that has lapsed from the granting of the order of 28 October 2025 and the hearing of this application, there are other factors which ought to be considered in respect of whether this matter is urgent, factors specific to this matter, such as the possible consequences of this application not being heard on an urgent basis. [14] The first respondent argues that what the applicant says regarding a new tenant possibly seeking damages against the applicant for the non-fulfilment/non-compliance by the applicant with the new tenant’s lease agreement, purportedly a result of the first respondent’s conduct in remaining in the leased premises, is disproven by the relevant terms of the new tenant’s lease agreement. [4] In this regard the respondents refer to clause 3 of Annexure “ A” to the new tenant’s lease agreement, [5] which stipulates that: “ 3.1 Unless postponed by the Landlord as provided for herein, in writing, the commencement date of the lease shall be the date stipulated in the schedule. 3.2   In the event of a postponement of the beneficial occupation date as contemplated in clause 2.3, the commencement date shall likewise be postponed to the first day of the month following the expiry of the beneficial occupation period. In the event of the postponement of the commencement date, the period of the lease shall be extended by the number of days by which the commencement date was postponed (“the additional days”) and the lease shall endure for the full period of the lease and the additional days. The Tenant shall have no claim against the Landlord to cancel this Agreement or for any loss or damage whatsoever, either actual or consequential, which it may incur due to the postponement of the beneficial occupation date. Please refer to Annexure “G” – Additional Terms.” [15] Annexure “ G” to the new tenant’s lease agreement [6] provides the following special conditions/additional terms, inter alia : “ 3. If the premises is not ready for occupation between 1 November 2025 and 31 st January 2026 the Landlord will assist the Tenant in installing any fixtures, fittings or dry stock in one of the onsite vacant premises at no additional cost. If the BO is delayed within this period the trading date will be adjusted accordingly. 4. If the Landlord fails to provide BO by 1 February 2026 both parties will have the right to cancel the Lease Agreement without any claims or damages. The deposit will be paid only after the Landlord confirms that the premises can be delivered on agreed beneficial occupation date.” [16] The first respondent argues that the applicant’s fears of the new tenant cancelling the new tenant’s lease agreement and/or claiming damages from the applicant on the basis of the applicant not being able to give the new tenant beneficial occupation on the exact date specified in the schedule, or the new tenant’s lease agreement not commencing on the exact date specified in the schedule, are unfounded. The first respondent argues that they are proven to be a non-issue by virtue of the aforementioned clauses of the new tenant’s lease agreement, a binding agreement/contract entered into by the applicant and the new tenant. [17] The first respondent contends that the applicant can also pursue what it needs to against the first respondent and that there is no time bar on or exigency in relation to such action or application. [18] Another contention raised by the first respondent in respect of urgency is that the applicant does not have a certificate of occupancy in respect of the Remaining Extent of Erf 488 Morningside Extension 3 whereupon it alleges the property is situated. This is in contravention of section 14 of the National Building Regulations and Building Standards Act [7] (“ the National Buildings Act” ). [19] The first respondent argues that the new tenant’s lease agreement therefore cannot be complied with by the applicant in any event since the new tenant cannot lawfully take occupation. The first respondent states that the issue is not the first respondent’s continued occupancy of the property without the applicant having an occupancy certificate in respect of the property, but that the applicant is pushing to have the new tenant occupy the property on an urgent basis whilst there is no occupancy certificate. [20] The first respondent avers that the applicant thus will be able to obtain substantial redress in the ordinary course and furthermore the first respondent argues that there is no concern of the irreparable harm the applicant claims it will suffer in relation to the new tenant. [21] The first respondent furthermore argues that the applicant cannot contest the respondents’ point concerning the legality of the lease agreement whilst relying on that same point to state that it is common cause that the lease agreement between the parties no longer exists/is non-existent, in order to further its cause in this application. [22] The first respondent furthermore argues that the applicant claims that the matter is an “ open and shut case” because the first respondent has accepted and stated on more than occasion that it consents to vacating the property and recognises that it should not occupy the property or trade from the property. In this regard the first respondent states with reference to paragraph 56 of the founding affidavit that the deponent to the founding affidavit asserts that there are no prospects of success on appeal as, purportedly even on the first respondent’s version, it must vacate the leased premises. [23] In this regard the first respondent refers to the well-known authority of UFS v Afriforum and Another [8] where the Supreme Court of Appeal inter alia held as follows: [9] “ I am in agreement with the approach of Binns-Ward J. In fact, Justice Alliance serves as a prime example why the prospects of success in the appeal are relevant in deciding whether or not to grant the exceptional relief. Binns-Ward J concluded that the prospects of success on appeal were so poor that they ought to have precluded a finding of a sufficient degree of exceptionality to justify an order in terms of s 18 of the Act. This conclusion was subsequently proven to be justified when this court upheld the main appeal in Justice Alliance. However, in the present appeal, the appeal record in the review application was not before us. The prospects of success shall therefore not feature in our consideration of whether or not the order of the Full Court should be upheld.” [24] Similarly, in this matter, this Court does not have the benefit of the record of the main application. [25] The first respondent argues that the applicant in casu is not considering the entirety of the grounds of appeal in the application for leave to appeal and/or is not considering them in detail. The first respondent argues that the grounds of appeal do not simply refer to whether the first respondent should occupy the property or not, but whether Nthambeleni AJ dealt correctly with issues of fact and law in relation to the eviction relief and all the issues surrounding and pertaining to it in the papers before him. [26] The first respondent further argues that the applicant has not shown exceptional circumstances for the granting of relief in terms of section 18(3) of the Act, and the applicant will not suffer irreparable harm if this application is not granted. The first respondent avers that the applicant has not set out anything in the way of alleged irreparable harm that it will suffer that justifies the granting of this application. In this respect the applicants speak of, amongst other things, reputational harm that it will suffer as being a landlord that cannot fulfil its promise to tenants, and that the “ entire” appeal process will take some time to resolve, envisaging this matter going right to the Constitutional Court. [27] The first respondent submits that the applicant can advise the new tenant of the legal proceedings that are happening and what they entail, and that the applicant is being speculative as regards the time that it would take to finalise the appeal process. [28] The first respondent argues that the applicant states very little, and even less of substance concerning the fact that the applicant will not suffer irreparable harm, or any harm if the order sought in the application is granted. The applicant simply states, without justification, according to the respondents, that if it keeps the first respondent’s assets in storage pending the application to set aside the attachment of the first respondent’s assets under case number 2025/189430, that any prejudice that the first respondent contends that it will suffer if the eviction is effected will then be ameliorated. [29] The first respondent avers that the irreparable harm that the respondents, and more specifically the first respondent, stands to suffer if an order is granted in the terms sought in this application, far outweighs any harm that the applicant alleges it may suffer if an order in the terms sought in this application is not granted. [30] At paragraph 49 of the answering affidavit [10] the first respondent states that the applicant must release the attachment of the movable assets for the first respondent to vacate the property. [31] The first respondent avers that they are in the process of finalising the application to set aside the attachment of the movable assets in light of the situation at the property regarding there being no occupancy certificate, and will claim a refund of all monies paid by the first respondent to the applicant, and damages. The first respondent states that: “ Granting the eviction of the first respondent pending the leave to appeal will be severely prejudicial for the first respondent. The first respondent runs a business from the premises . The applicant’s application is based on the premise that the new tenant needs to take occupation of the property. The applicant states that the new tenant has to begin with considerable remodelling of the leased premises before it can commence trading from it. The applicant loses sight of the fact that if the respondents are successful on appeal, this would mean that the respondents would be entitled to move back into the leased premises, premises which would be remodelled to suit a different business, and further one that would have a new tenant, making it impossible for the respondent to regain possession and for the status quo to be restored. Essentially the appeal if order (sic) in favour of the respondent would then in essence result in an order which would be impossible to execute on.” [11] (Emphasis added) [32] The respondents argue that on the one hand there is the applicant, a company with an agreement, the new tenant’s lease agreement, which protects its rights, no urgency in respect of this application, and no harm which it may suffer which is serious enough to weigh more than the irreparable harm that the respondents, particularly the first respondent, will suffer, and which harm, if any, the applicant has avenues and ways to address in due course. It is submitted by the respondents that the process in respect of the application for leave to appeal “ should not take long” and “ the parties’ fates should soon be decided” . It is submitted on behalf of the respondents that on the other hand, the first respondent conducts its business and therefore earns monies from the business activities that are done on the property . The respondents’ counsel argued that this conduct of the first respondent may be called unethical or opportunistic but the conduct of the first respondent does not constitute mala fides. The first respondent avers that since the operation of Nthambeleni AJ’s Order the first respondent is not doing “ anything wrong in that respect” . [33] The first respondent argues that it also has a right to be heard, audi alteram partem , and a right to access to Courts in terms of section 34 of the Constitution. The first respondent argues that considering that the first respondent will suffer irreparable harm if this application is granted whilst the applicant will not , this application should not be granted and the applicant should wait for the application for leave to appeal to take place before acting as it requires and sees as appropriate thereafter. [34] To unnecessarily have both the new tenant and the first respondent waste time, monies, and admin on moving out whilst the position in respect of the property may change shortly is not feasible nor fair to either of them. The new tenant in any case is only to start trading and earn an income from February 2026, which commencement date can be moved and the movement of such date, if it does occur, can be dealt with in due course by both the new tenant and the applicant, so the first respondent argues. [35] The first respondent argues that the first respondent however cannot simply leave the premises and so cease trading , whilst its assets that it uses for trading remain under attachment at the property or at another place controlled by the applicant. The financial loss and inconvenience that the first respondent will suffer is what underlies its irreparable harm . The respondents argue that such harm to the first respondent and the consequences thereof can be avoided if the position as it is, continues. The applicant will have the opportunity to have its case heard in full at the hearing of the application for leave to appeal and thus in this regard is not prejudiced either. [36] The first respondent denies that its conduct is mala fides . Rather its conduct may be opportunistic but not mala fide . It is merely utilising the Rules of this Court as it is entitled to do. # DELIBERATION DELIBERATION [37] The first respondent, in opposing the matter, submitted that it had no right to occupy the leased premises. The first respondent does not deny that it is in arrears with rental. It contends that the lease agreement was illegal, unenforceable and void ab initio because the applicant did not have the requisite occupancy certificate in place or in leasing the premises to the first respondent. The second respondent (the BRP) also opposed the matter and aligns in this regard with the first respondent. [12] [38] The first respondent readily states that it cannot trade from, and must vacate, the leased premises. In fact, it was and remains the respondents’ position that the leased premises “ cannot be used for the purpose for which it was let” . [39] The applicant contends that the respondents simply refuse to vacate the leased premises. Instead, in the eviction application the first respondent sought an order staying any eviction pending the outcome of an application to rescind the order attaching the first respondent’s movable assets. [40] The applicant tendered to store the assets in a safe environment to allow the respondents to pursue the rescission application. In this way so it is alleged by the applicant, the respondents would not be prejudiced by vacating the leased premises, as the assets would remain secured pending the outcome of the rescission application. The applicant states that unsurprisingly this tender was rejected by the respondents. [41] The applicant avers that the counter-application was a clear and mala fide attempt by the respondents to remain in unlawful occupation of, and continue trading from, the leased premises indefinitely and without paying rental. The applicant argues that this mala fides are revealed in the section 18(3) application when the applicant adduced evidence of the first respondent’s continued trade from the leased premises after they had alleged that such trade was unlawful, illegal and rendered the lease agreement void ab initio . The respondents readily admit that the “ the first respondent runs a business from the premises” . The applicant argued that the abject dishonesty of the respondents are revealed: [41.1]  On the one hand contending that the lease agreement is illegal, unenforceable and void ab initio (only after the applicant had instituted an application for eviction against the first respondent) and neither it nor the new tenant can trade from the leased premises; [41.2] Yet on the other hand admitting it continues to trade from the premises. [42] When the applicant’s tender (to keep the assets in storage pending the outcome of the rescission application), was repeated, the respondents again rejected the tender on the basis that “ The removal of the goods into storage is absurd as the first respondent needs to trade at a new premises” . [13] [43] I agree with the applicant’s contention that this reasoning is illogical because the rescission application “ has not even been issued let alone been granted” . The first respondent cannot use the assets to “ trade at a new premises” until the attachment order is rescinded. [44] In paragraph 46 and further of the answering affidavit the first respondent states the following: [14] “ 46. It is clear that the lease agreement is unenforceable due to the above illegalities and failure of the applicant to comply with the Act. 47. Accordingly, the first respondent has to vacate , but cannot do so on the timelines provided for as the applicant has attached the movable assets. 48. There is no urgency as the applicant cannot give illegal occupation to a new tenant. The Courts do not enforce illegal contracts. 49. The applicant must also release the attachment of the movable assets in order for the respondents to vacate . (Own emphasis) 50. The occupancy certificate, which is a mandatory requirement for the occupancy of immovable property in terms of section 14(4)(a) of the National Buildings Regulations and Building Standards Act 103 of 1977 (the Act) was not obtained and cannot be obtained. 51. The applicant is committing an offence in terms of section 4(1) of the National Building Regulations and Building Standards Act, 103 of 1977. 52. The Court cannot allow a new tenant to illegally occupy the leased premises from 1 November 2025 as this will allow the new tenant occupation of the property in the absence of an occupancy certificate issued by the CoJ in terms of section 14 of the Building Standards Act. 53. There is accordingly no urgency. 55. Without it, it is unlawful for anyone to occupy the building. …” [45] The first respondent states: “ 58. The respondents are in the process of finalising the application to set aside the attachment of the movable assets in light of the agreement being illegal, invalid and unenforceable … 59. Granting the eviction of the first respondent pending the leave to appeal will be severely prejudicial for the first respondent. The first respondent runs a business from the premises . (Own emphasis) …” [15] [46] In paragraphs 69 to 72 the first respondent states the following: “ 69. There is no irreparable harm in the matter as the new tenant has no right to legal occupation of the lease premises. The applicant has no legal obligation to give illegal occupation of the leased premises to the new tenant. 70. The respondent denies the allegation with regard to the first respondent “suffering no harm” as it needs time to vacate and 7 days’ notice was not reasonable and the respondent needs a minimum of 30 days . ” (Own emphasis) 71. The first respondent is in business rescue and the removal of the goods into storage is absurd as the first respondent needs to trade at a new premises . (Own emphasis) 72. It cannot move out with all the goods being attached – which will be set aside in a separate application.” [47] I agree with the applicant’s contention that the first respondent is hypocritical and mala fides in their refusal to vacate the leased premises. The applicant argues that the respondents are dishonest in their refusal to vacate the leased premises: [47.1] The respondents aver that they cannot trade from the leased premises, yet brazenly continue to trade therefrom; [47.2]  The respondents consent to vacating the leased premises (in fact contending they need thirty days to do so) yet want to remain in occupation of the leased premises; [47.3] The respondents state that they want to bring a rescission application but have not done so in the two weeks since delivering their answering affidavit in the main application, nor in the three months since the attachment order was made final . [48] It appears that the applicant is correct when the applicant argues that the respondents simply want to frustrate and delay the first respondent’s eviction from the leased premises to allow them to continue trading from the leased premises without paying rental to the applicant. The applicant requests the Court to view the section 18(3) application in the context of this patently mala fide conduct of the first respondent. [49] The respondents state that they have to vacate the leased premises (and in fact consents to vacating the leased premises in their notice of counter-application), however the first respondent wishes to do so on its own terms and at its leisure – 30 days after the rescission application has been finalised, yet it has taken no steps to even issue the rescission application. [50] In the respondents’ counter-application in the main application they inter alia seek an order that: [50.1] the respondents are to launch an application for the setting aside of the attachment of the first respondent’s movable assets under case number 2025/089430 “ within 14 days of the granting of this order” ; [16] [50.2]  in paragraph 3 of the counter-application they seek an order that: “ 3. The respondent agrees to vacate the premises within 30 days of the final determination of the application as referred to in paragraph 2 above.” [17] [51] It was argued that on the instance of the first respondent the Court a quo in paragraph 2 of the Order ordered that: “ 2. The first respondent is to launch an application for the setting aside of the attachment of the first respondent’s movable assets under case number 2025/089430 within 30 days of the granting of this Order.” – instead of within 14 days of the granting of this Order as sought in the counter-application. [52] It is instructive that the respondents’ counsel on a question posed by the Court as to why the rescission application/upliftment of the attachment application has not yet been brought in view of the fact that the first respondent claims prejudice and state that it cannot trade without the equipment, responded to say that the first respondent has 30 days within which to launch that application. The respondents’ counsel furthermore argued that it was never said that the first respondent will stay there until the rescission application is adjudicated upon – the first respondent says that section 18(1) places a suspension on the applicant’s right to execute and that is what ought to be enforced. The first respondent’s counter-application however seeks vacation of the leased premises “ within 30 days of the final determination of the application [for the setting aside of the attachment]”. [53] The order in paragraph 1 of the Court order [18] orders the first respondent to provide vacant occupation of the leased premises to the applicant by no later than 31 October 2025 failing which the Sheriff of this Court is ordered and directed to take such necessary steps to provide such vacant occupation of the property to the applicant. Paragraph 1 of the Order was not made subject to the proposed rescission application to be instituted by the first respondent. # SECTION 18 OF THE SUPERIOR COURTS ACT SECTION 18 OF THE SUPERIOR COURTS ACT [54] Section 18 of the Superior Courts Act provides that: “ (1) 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. (2) Subject to subsection (3), unless the court under exceptional circumstances orders otherwise, the operation and execution of a decision that is an interlocutory order not having the effect of a final judgment, which is the subject of an application for leave to appeal or of an appeal, is not suspended pending the decision of the application or appeal. (3) 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 .” (Own emphasis) [55] The three requirements in order to succeed in a section 18(3) application are thus: [55.1] exceptional circumstances; [55.2] irreparable harm to the applicant; [55.3] lack of irreparable harm to the first respondent. ## Exceptional circumstances Exceptional circumstances [56] The Court in Incubeta Holdings Ltd v Ellis [19] recognised that the term “ exceptional circumstances” is “ indefinable and difficult to articulate” but must be considered with regard to the facts of any particular case. So, for example, in the Incubeta matter, Sutherland J granted leave to execute immediately on a Court order enforcing a restraint of trade. He did this because: “ [25] If the order is not put into operation, the relief will, regardless of the outcome of the application for leave to appeal, be forfeited by Incubeta because the short duration of the restraint will expire before exhaustion of the appeal processes. The only value in the relief is to stop the breach and protect legitimate interests during the precise period of the next four and a half months. Unrebutted evidence in the affidavits alleges a breach is taking place at this very time. Damages are not an appropriate alternative remedy precisely because the very relief obtained is posited on the absence of such a remedy being available. This places a restraint interdict in a different position to other forms of relief, such as money claims, where the aspect of irreparable harm is a factor extraneous to the substantive relief procured. Ellis will, on the probabilities, be without work for four and a half months and without pay. This will be financially detrimental. Significantly, no allegation is made that Ellis or his family will endure true hardship during this short period. If the appeal is won, Ellis’s loss of earnings can be sued for and the quantum is feasible to compute, including the loss of interest or lost opportunity cost of being out of funds and any such interest expended on borrowing for living expenses, if necessary.Moreover, Security under Rule 48(12) is available. [27] Do these circumstances give rise to ‘exceptionality’ as contemplated? In my view the predicament of being left with no relief, regardless of the outcome of an appeal, constitutes exceptional circumstances which warrant a consideration of putting the order into operation. The forfeiture of substantive relief because of procedural delays, even if not protracted in bad faith by a litigant, ought to be sufficient to cross the threshold of ‘exceptional circumstances’ .” (Emphasis added) [57] If leave to execute is not granted, the very reason an urgent eviction was sought (and granted) will be forfeited because the new lease agreement will be terminated prior to the application for leave to appeal being heard. The applicant will effectively be left with no relief, regardless of the outcome of an appeal (or an application for leave to appeal in this matter). The applicant argued that the respondents have and continue to protract the final determination of the matter – they have taken no steps to enrol the application for leave to appeal and seem content to do nothing but simply frustrate the applicant’s right to vindication. ## Urgency and irreparable harm to the applicant Urgency and irreparable harm to the applicant [58] I disagree with the respondents’ contention that the applicant will not suffer any irreparable harm. I furthermore disagree with the first respondent that any harm the first respondent may suffer outweighs the applicant’s irreparable harm. [59] The damage that the applicant will suffer is irreparable and immediate – not only will it lose a tenant that will bring in over R5 million in rental, it will be faced with the first respondent who will continue to occupy the leased premises indefinitely without paying rental or municipal charges. [60] The applicant will not be able to mitigate its damages – the further the occupation date is postponed the more irreparable damage the applicant will suffer. [61] The applicant will be left trying to recover damages from a company which: [61.1] is already indebted to it in an amount exceeding R4 million; [61.2] is already financially distressed (and in business rescue); [61.3] will be unable to meet any damages claim. [62] The respondents have argued that there is no urgency in the matter because “ the new lease cannot be used as a pillar to support urgency as the new tenant requires [an occupancy certificate] to trade unlawfully, which it does not have and cannot obtain” and “ the Court cannot enforce illegal contracts” . [63] I agree with the applicant’s contention that this Court is not being asked to “ enforce illegal contracts” . It is being asked to allow the applicant to forthwith evict the first respondent from the leased premises. [64] The applicant has referred to authority where the Supreme Court of Appeal has dealt with this issue and has inter alia held that the lack of an occupancy certificate does not render an agreement illegal or invalid. In Wierda Road West Properties (Pty) Ltd v Sizwe Ntsaluba Gobodo Inc [20] the Court held that: “ The primary thrust of the attack against the lease agreement was, as stated, the non-compliance with ss 4 and 14 of the Act. It was contended that non-compliance rendered the agreement void ab initio and that this conclusion followed from the penal sanctions imposed in these sections.” [21] [65] The Court held that the penalty provision in section 14(4) of the Act was “ penalty itself [and] intended by the legislature to be an adequate sanction, without the lease agreement in this instance also being void” . [22] [66] The Court opined further that the Act is: “… less concerned with private law relationships between, for example, lessors and lessees, but rather with public law relationships between local authorities and builders, users and occupants. Section 14 is thus concerned in the main with ensuring compliance with the provisions of the Act and with conditions of approval.” [23] [67] In conclusion the Court held: “ [28] To sum up with regard to this first issue: non-compliance with ss 4(1) and 14(1) does not render the parties’ lease agreement void and unenforceable. There is no basis to justify reading an implied meaning into s 4(1) that the use or occupancy of a building which has no approved plans is prohibited. I discuss next the respondent’s alternative contention that the property was not fit for the purpose for which it had been let, since occupancy would have rendered the respondent liable to criminal prosecution under s 14(4)(a). [29] The respondent was at liberty to request the local authority to pursue the remedies available to it in terms of the Act, had the need arisen to do so. The conclusion is compelling that the respondent, with full knowledge of the lack of an occupancy certificate, had consented to use and occupation under the prevailing circumstances. The respondent received exactly what it had bargained for – office accommodation refurbished to its needs, in a building with an outstanding occupancy certificate which, to its knowledge, the owner (the appellant) was in the process of obtaining. The respondent never complained of this alleged unfitness for letting, and only did so after it had vacated the property and to avoid the consequences of being held to a contract it had freely entered into .” (Own emphasis) [68] The respondents’ counsel conceded that this is what the law states. [69] The applicant argued that even if the lack of the occupancy certificate renders the lease agreement with the new tenant illegal (which on the strength of Wierda Road the applicant argues it simply did not), this does not assist the respondents. [70] The applicant argued that the first respondent only raised the lack of an occupancy certificate for the first time in the answering affidavit in the eviction application after having been met with the eviction. [71] The respondents are not party to the new lease agreement – they have no privity of contract, and cannot interfere with the rights and obligations of the parties thereto. In this regard, it was held by the SCA in Letseng Diamonds Ltd v JCI Ltd and Others : [24] “ The general rule is that if two parties enter into an agreement and there has been non-compliance with its terms, it is only the contracting parties who can challenge the validity of the agreement.” [72] The applicant argued that it is for the new tenant (and only the new tenant) to raise the issue of a lack of occupancy certificate if it so desires. [73] The applicant thus argued that what is before this Court is that: [73.1] there is a valid and enforceable lease agreement between the applicant and the new tenant; [73.2] this new lease agreement is worth over R5 million to the applicant; [73.3] if leave to execute is not granted, the applicant will suffer irreparable harm. ## The lack of irreparable harm to the respondent The lack of irreparable harm to the respondent [74] The respondents do not meaningfully argue that an eviction will cause them irreparable harm. It is disingenuous of the first respondent to argue that the applicant has not set out anything in the way of alleged irreparable harm that it will suffer that justifies the granting of the application and that the applicant can simply advise the new tenant of the legal proceedings that are happening and what they entail and that it is submitted that the proceedings in respect of the application for leave “ should not take not long” . It is furthermore disingenuous of the first respondent to allege that the financial loss and inconvenience that the first respondent will suffer is what underlies its “ irreparable harm” and that such harm far outweighs any harm that the applicant may suffer. [75] The applicant has argued that at the highwater mark for the respondents, they allege that “ Granting the eviction of the first respondent pending the leave to appeal will be severely prejudicial for the first respondent” as it “ runs a business from the premises” . This contention is not only unsustainable, it is entirely disingenuous. The first respondent readily avers that it “ has to vacate” and “ cannot trade” . The first respondent readily avers that it is not entitled to remain in the leased premises and that neither it nor the new tenant can trade from the leased premises. [76] The only other point the first respondent alleges is that the first respondent requires its assets in order to trade. However, this has nothing to do with the eviction application – it is a question to be determined in the as yet unissued rescission application. The attachment of its assets is irrelevant for the purposes of this application. In the absence of an application requesting rescission of the attachment order, the respondents cannot claim that an inability to utilise its assets caused it or will cause it irreparable harm. [77] The applicant argues that the respondents will not and cannot suffer any harm let alone irreparable harm if leave to execute is granted. # FINDING FINDING [78] Accordingly and for the reasons set out above, I find that the applicant has made out a case for the relief in terms of section 18(3) of the Superior Courts Act. [79] The applicant will suffer irreparable harm if the eviction is not carried out. [80] It is only through their mala fide conduct (in alleging that the lease is void but continuing to trade from the leased premises) that the respondents can claim any prejudice - however this cannot be a basis to dismiss the application. COSTS [81] The first respondent appears to be utilising the Court process, system and Rules to mala fide advance its own interests to the detriment of the applicant. The first respondent is disingenuous to state that the applicant will suffer no irreparable harm (in the face of it placing itself under business rescue) and inter alia arguing that the financial loss and inconvenience that the first respondent will suffer underlies its “ irreparable harm” and that such harm far outweighs any harm that the applicant may suffer. It was argued that the applicant should only wait “ a short period” and explain the Court process to its new tenant, whilst the applicant may or may not further exhaust the Rules in relation to the appeal process. [82] The respondents’ counsel further disingenuously argued that the conduct of the first respondent may be called unethical or opportunistic but the conduct of the first respondent does not constitute mala fides when on the one hand the first respondent contends that the eviction is illegal, unenforceable and void ab initio and neither it nor the new tenant can trade from the leased premises and on the other hand brazenly states that it continues to trade from the premises and if not allowed to continue to do so it will suffer irreparable harm. [83] The first respondent’s conduct in agreeing to vacate the premises but then insisting on an order in its counter-application that such order is made subject to the first respondent launching the application for the setting aside of the attachment order within 14 days of the granting of the Court order (which it later changed to 30 days) and furthermore seeking vacation of the leased premises only “ within 30 days of the final determination of the application [for the setting aside of the attachment]”. The first respondent’s failure to launch rescission proceedings and taking proactive steps in this regard further points to its mala fides especially in view of the fact that it wants to make its vacating of the premises subject to the final determination of the rescission application. The first respondent’s application for leave to appeal is mainly aimed at achieving this objective The first respondent’s conduct is clearly aimed at delaying and frustrating the applicant’s claim for vindication and constitutes further mala fides . This Court must express its displeasure of a litigant behaving in this manner. Punitive costs orders are intended to deter and address litigants’ conduct that constitutes an abuse of process. The first respondent misuses the Court process and Rules of Court and undermines its intended purpose. Such conduct cannot be overlooked but must be penalised and sanctioned. # ORDER ORDER [84] Accordingly, I make an order in terms of the amended draft Court order marked “ X” . Delivered : This judgment was prepared and authored by the Judges whose names are reflected and is handed down electronically by circulation to the Parties/their legal representatives by email and by uploading it to the electronic file of this matter on CaseLines. The date for hand-down is deemed to be on 17 November 2025. HEARD ON: 11 November 2025 DATE OF JUDGMENT: 17 November 2025 FOR APPLICANT: Adv J M Hoffman E-mail: jonhoffman@counsel.co.za INSTRUCTED BY: Hadar Incorporated E-mail: jjunkoon@hadarinc.co.za Ref: J Junkoon/L Thaba/M2627 FOR RESPONDENTS: Adv Baheeyah Bhabha E-mail: INSTRUCTED BY: K G Tserkezis Inc. E-mail: dino@kgt.co.za / sonica@kgt.co.za Ref: D Tserkezis/S R Golden [1] Superior Courts Act 10 of 2013 as amended [2] University of the Free State v Afriforum and Another 2018 (3) SA 428 (SCA) [3] Annexure “FA8”, CaseLines 001-155 [4] Annexure “FA8”, CaseLines pp 001-156 to 011-222 [5] Annexure “FA8”, CaseLines pp 001-160 [6] Annexure “G” to the new tenant’s lease agreement, CaseLines, 001-193 [7] Act 103 of 1977 as amended [8] 120161 ZASCA 165 (17 November 2016) [9] At para 15 [10] CaseLines 048-70 [11] Paras 58 and 59 of the answering affidavit, CaseLines 048-71 to 048-72 [12] “ I cannot partake in, or attempt to enforce, an illegal contract, which is unenforceable and void”, Main Application, BRP Affidavit, para 34, CaseLines 011-10 [13] Section 18(3) application, answering affidavit, para 71, CaseLines 048-74 [14] CaseLines 048-69 [15] CaseLines 048-74 [16] Para 2, Counter-Application, CaseLines 008-5 [17] CaseLines, 008-5 to 008-6 [18] CaseLines, 048-28 [19] 2014 (3) SA 189 (JG) [20] 2018 (3) SA 95 (SCA) [21] Wierda Road supra at para 18 [22] Wierda Road supra at para 18 [23] Wierda Road supra at para 18 [24] 2009 (3) SA 58 (SCA) at paragraph 23 sino noindex make_database footer start