Zitonix (Pty) Limited v K201250042 (South Africa) (Pty) Limited

Zitonix (Pty) Ltd was a tenant of five retail shops in the Gateway Theatre of Shopping in Umhlanga, KwaZulu-Natal, owned by K201250042 (South Africa) Pty Ltd (the lessor). The leases were concluded in Cape Town in February 2016, with Marcel Joubert (the controlling mind of Zitonix and its sole director) signing as surety. Zitonix's registered office and domicilium citandi et executandi was in Hout Bay, Cape Town. Zitonix repeatedly fell into arrears with rental payments. On 22 August 2016, Joubert was finally sequestrated. The lessor cancelled all five leases on 31 August 2016, relying on rental arrears and on clause 16.1(e) of the leases, which entitled the lessor to cancel if any surety was sequestrated. The lessor applied to the Western Cape Division for confirmation of the cancellations and eviction of the tenants. Holderness AJ granted the orders sought. Zitonix appealed.

• Whether the Western Cape Division of the High Court had jurisdiction to hear the application when the property was situated in KwaZulu-Natal
• Whether an eviction application based on contractual cancellation (rather than title or possession) is an action in personam or in rem
• Whether Joubert's alleged ignorance of clause 16.1(e) (entitling cancellation upon surety's sequestration) constituted iustus error sufficient to invalidate the cancellation

The appeal was dismissed with costs including those of two counsel. Paragraph 3 of the order of the Western Cape Division of the High Court was set aside. The cancellation of the five leases was confirmed and the eviction orders granted by the High Court were upheld.

Where a claim for cancellation of lease agreements and eviction of tenants is based solely on the terms of the lease agreements (contractual breach) and not on the lessor's title or possessory rights, the action is in personam and not in rem. In such cases, the court of the tenants' domicile and the place where the contracts were concluded has concurrent jurisdiction with the forum rei sitae. Ignorance of a contractual term (in this case, a clause entitling the lessor to cancel upon the surety's sequestration) does not constitute iustus error where the party is an experienced businessperson who was legally represented, and who had previously entered into numerous similar agreements containing the identical term, and where the clause was clearly set out in the agreement under an appropriate heading.

The Court observed that section 42(1) and (2) of the Superior Courts Act 10 of 2013 permits the execution of court process throughout South Africa. A division of the High Court does not have authority to make orders directing the officers (Sheriff or Deputy Sheriff) of another division to execute its orders. If a party needs to execute an eviction order in a different province, they may obtain a writ of ejectment from the Registrar of the division where the property is located, and that division's Sheriff will execute it by virtue of s 42. No special court order to that effect is required. The Court noted that the High Court had dealt comprehensively with other defences raised (including alleged anti-competitive conduct that should be referred to the Competition Tribunal) and that these were not pursued on appeal.

This case clarifies the distinction between actions in rem and in personam in the context of eviction applications. It establishes that where eviction is sought purely on contractual grounds (cancellation of a lease for breach) rather than based on ownership or possessory rights, the claim is in personam. Consequently, the court of the defendant's domicile and place where the contract was concluded has concurrent jurisdiction with the forum rei sitae. The judgment also reinforces the application of iustus error principles in commercial contexts, holding that experienced businesspeople who are legally represented cannot claim ignorance of clear contractual terms, particularly when they have entered into multiple similar agreements containing identical provisions. The case provides guidance on the proper execution of eviction orders across different court divisions under s 42 of the Superior Courts Act.