Ba-Gat Motors CC t/a Gys Pitzer Motoring and Another v Kempster Sedgwick (Pty) Ltd

The respondent sub-let commercial premises to the first appellant, a used-car dealership, under a written sub-lease concluded in February 2017 for a fixed term ending September 2020. The agreement contained a strict non-variation clause requiring any variation, cancellation or waiver to be in writing and signed. The second appellant bound himself as surety and co-principal debtor. In 2018, discussions took place in which representatives associated with the respondent allegedly requested the appellants to vacate the premises to make way for another dealership and suggested alternative premises. The appellants alleged that an oral agreement was concluded cancelling the sub-lease once alternative premises were secured, and that they vacated and incurred costs in reliance on this. The appellants stopped paying rent after April 2019. The respondent sued for arrear rental and applied for summary judgment, which the High Court granted.

The appeal was dismissed with costs; the High Court’s grant of summary judgment in favour of the respondent was upheld.

The case reaffirms the strength and continued application of the Shifren principle in South African contract law, particularly in the context of summary judgment. It confirms that estoppel cannot ordinarily be invoked to defeat a non-variation clause, thereby reinforcing contractual certainty and limiting attempts to rely on alleged oral variations or cancellations.