Nordien and Another v Kidrogen RF (Pty) Ltd and Another (149/2023) [2025] ZASCA 159 (23 October 2025)

Case Note

Nordien and Another v Kidrogen RF (Pty) Ltd and Another (149/2023) [2025] ZASCA 159 (23 October 2025)

Neutral citation: Nordien and Another v Kidrogen RF (Pty) Ltd and Another (149/2023) [2025] ZASCA 159 (23 October 2025)

Court: Supreme Court of Appeal (SCA), South Africa. Coram: Makgoka JA, Weiner JA, Kgoele JA, Hendricks AJA, Naidoo AJA. Heard on 6 September 2024; judgment delivered electronically at 11h00 on 23 October 2025.

Parties: First and Second Appellants – Shaan Nordien and Tavia Nordien; First Respondent – Kidrogen RF (Pty) Ltd; Second Respondent – City of Cape Town.

Order: Application for special leave to appeal dismissed with costs, jointly and severally against the first and second applicants.

Reportability

The judgment is expressly marked “Not Reportable”. That designation signifies the court’s view that the matter does not introduce novel propositions of law requiring publication in official law reports. Nevertheless, as a judgment of the Supreme Court of Appeal, it constitutes binding authority on lower courts and retains persuasive value on the points of principle articulated, particularly where it clarifies and applies established doctrine to recurring factual patterns.

Its significance lies in the SCA’s clear reaffirmation of the owner’s remedy of the rei vindicatio, and the allocation of the onus in vindicatory eviction proceedings. The court explains that once an owner alleges and proves ownership, possession by the defendant, and the continued existence of the property, the onus shifts to the occupier to establish a right to remain. The court’s reasoning underscores that a tenant’s denial of a lease with the owner may inadvertently strengthen the owner’s vindicatory case unless the occupier can demonstrate another lawful basis for occupation.

The judgment also consolidates important procedural and substantive principles on rectification of written contracts. It confirms that rectification may be determined on motion in appropriate circumstances; that the parol evidence rule yields to rectification; that non-joinder will not defeat rectification where the relevant actors are before the court or otherwise not prejudiced; and that parties may seek rectification even when the need only crystallises after a responsive pleading reveals a new defence. Finally, the court restates, with emphasis, the elevated threshold for granting special leave to appeal under section 17(2)(d) of the Superior Courts Act 10 of 2013.

Cases Cited

Westinghouse Brake and Equipment (Pty) Ltd v Bilger Engineering (Pty) Ltd 1986 (2) SA 555 (A).

Beadica 231 CC v Sale’s Hire CC (1191/2018) [2020] ZASCA 76 (30 June 2020).

Spiller and Others v Lawrence 1976 (1) SA 307 (N).

Gralio (Pty) Ltd v DE Claassen (Pty) Ltd 1980 (1) SA 816 (A).

Chetty v Naidoo 1974 (3) SA 13 (A).

Robert Paul Serne NO and Others v Mzamomhle Educare and Others [2024] ZASCA 152.

Smit v Creeser 1948 (1) SA 501 (W).

Spilhaus Property Holdings (Pty) Limited and Others v MTN and Another [2019] ZACC 16; 2019 (4) SA 406 (CC); 2019 (6) BCLR 772 (CC).

Propfokus 49 (Pty) Ltd and Others v Wenhandel 4 (Pty) Ltd [2007] ZASCA 15; [2007] 3 All SA 18 (SCA).

McWilliams v First Consolidated Holdings (Pty) Ltd [1982] 1 All SA 245 (A).

Pretoria Portland Cement Company Ltd and Another v Competition Commission and Others [2002] ZASCA 63; 2003 (2) SA 385 (SCA).

Botha v Smuts and Another [2024] ZACC 22; 2025 (1) SA 581 (CC); 2024 (12) BCLR 1477 (CC).

Triomf Kunsmis (Edms) Bpk v AE & CI Bpk 1984 (2) SA 261 (W).

Saunders Valve Co Ltd v Insamcor (Pty) Ltd 1985 (1) SA 146 (T).

KPMG Chartered Accountants (SA) v Securefin Limited and Another [2009] ZASCA 7; 2009 (4) SA 399 (SCA).

University of Johannesburg v Auckland Park Theological Seminary and Another [2021] ZACC 13; 2021 (8) BCLR 807 (CC); 2021 (6) SA 1 (CC).

Venter v Liebenberg 1954 (3) SA 333 (T).

Tesven CC and Another v South African Bank of Athens 2000 (1) SA 268 (SCA); [1999] 4 All SA 396 (A).

Rand Rietfontein Estates Ltd v Cohn 1937 AD 317.

Movie Camera Company (Pty) Ltd v Van Wyk [2003] 2 All SA 291 (C).

Sigaba v Minister of Defence and Police and Another 1980 (3) SA 535 (TkS).

Tantoush v Refugee Appeal Board and Others 2008 (1) SA 232 (T).

Cook v Morrison and Another [2019] ZASCA 8; 2019 (5) SA 51 (SCA); [2019] 3 All SA 673 (SCA).

Legislation Cited

Superior Courts Act 10 of 2013, section 17(2)(d).

Rules of Court Cited

Uniform Rules of Court, Rule 28(3).

HEADNOTE

Summary

The Supreme Court of Appeal dismissed an application for special leave to appeal brought by the tenants, Mr and Mrs Nordien, against a Full Court decision that had granted rectification of a lease, ordered their eviction from a property owned by Kidrogen RF (Pty) Ltd, and awarded arrear rental. The SCA held that special leave should be refused and that the Full Court’s order stood.

Two key strands of reasoning underpin the outcome. First, the owner’s rei vindicatio furnished a sufficient basis for eviction once the tenants denied the lease with the owner yet failed to establish another lawful right to remain. Second, even if rectification were required, the record overwhelmingly demonstrated a common intention that the lessor was Kidrogen acting through its directors, notwithstanding the lease’s misdescription of the signatories, permitting rectification on motion.

The court reaffirmed that the parol evidence rule yields to rectification, that non-joinder is no bar where there is no prejudice and the relevant actors are before the court, and that the elevated threshold for special leave under section 17(2)(d) of the Superior Courts Act was not met. The tenants’ defences were found to be contrived, inconsistent with their admissions and correspondence, and incapable of displacing Kidrogen’s vindicatory claim.

Key Issues

The first issue was whether the owner, Kidrogen, had locus standi to cancel the lease and evict the occupants when the written lease named the company’s directors as “lessor” without indicating representation. The tenants argued that Kidrogen was a stranger to the lease; the court addressed whether Kidrogen could instead rely on the rei vindicatio.

The second issue concerned the competence of rectification in motion proceedings and on the papers as framed. The tenants contended that rectification had not been pleaded in the founding affidavit, was raised too late, and was procedurally defective for want of joinder of the signatories.

The third issue was whether the tenants’ residual defences—including reliance on an alleged sale agreement to avoid occupational rental, invocation of the parol evidence rule, and an attack on the timing and form of the rectification application—could stave off eviction or the arrears claim, and whether any of these sufficed to satisfy the “special circumstances” required for special leave to appeal.

Held

Held, the application for special leave to appeal was dismissed with costs. The Full Court’s order rectifying the lease, evicting the tenants, and awarding arrear rental remained operative.

Held, as owner, Kidrogen required only to establish ownership, possession by the appellants, and the continued existence of the property to succeed on the rei vindicatio. Once the appellants denied the lease with Kidrogen, the onus shifted to them to demonstrate some other lawful right to remain; they failed to do so.

Held, in any event, rectification was competent and justified on the papers. The addendum identifying Kidrogen as landlord, the acknowledgement of debt in favour of Kidrogen, the correspondence and admissions by Mr Nordien acknowledging indebtedness to Kidrogen, and the directors’ confirmatory affidavits collectively proved a common continuing intention that Kidrogen was the lessor. The parol evidence rule posed no obstacle, and non-joinder did not arise on these facts.

THE FACTS

Kidrogen RF (Pty) Ltd is the registered owner of a residential property at 6[...] T[...] Street, Parklands, Western Cape. On 30 October 2019 a written lease was concluded with Mr Shaan Nordien recorded as lessee and two of Kidrogen’s directors, Mr Andile Peter and Mr Essa Davids, recorded as “lessor”. The document did not state that they acted on behalf of Kidrogen. On the same day, an addendum—on Kidrogen’s letterhead and expressly recording Mr Peter acting “on behalf of Kidrogen (Pty) Ltd as Landlord”—reduced the escalation rate. It is common cause that the addendum was agreed and that the Nordien family took occupation.

In 2020 Kidrogen granted pandemic-related rental relief for three months. An acknowledgement of debt, again on Kidrogen’s letterhead, authorised Kidrogen to deduct the relief from Mr Nordien’s service fee. Thereafter, arrears accrued. In October and November 2020, Mr Nordien repeatedly acknowledged the arrears and undertook to pay Kidrogen once offshore funds cleared, but he did not do so.

A sale agreement was concluded on 5 February 2020 between Kidrogen and Mr Nordien, recording that he occupied “in terms of an existing lease agreement”, with a clause maintaining the lease until transfer and providing that if the sale was cancelled the lease would continue. That sale was later cancelled. An alleged second sale in March 2020 was disputed by Kidrogen and never materialised. On 24 November 2020 Kidrogen’s attorneys cancelled the lease and demanded that the property be vacated by 31 December 2020.

Kidrogen launched eviction and arrears proceedings. In answer, Mr Nordien admitted Kidrogen’s ownership but argued that the lease was concluded with the directors personally, that Kidrogen lacked locus standi to cancel, that he was not in unlawful occupation (alternatively, was protected by a sale arrangement), and that rectification had not been properly pleaded or was incompetent in motion. Kidrogen sought to amend and to secure rectification identifying itself as lessor duly represented. The High Court dismissed the rectification and eviction. On appeal, the Full Court reversed that decision, granted rectification and eviction, and awarded arrear rental. The appellants then sought special leave to appeal to the SCA.

THE ISSUES

The court had to decide whether special leave to appeal should be granted under section 17(2)(d) of the Superior Courts Act. That required consideration not only of the prospects of success but also whether there were “special circumstances” warranting a further appeal. The threshold is materially higher than the ordinary leave standard.

Substantively, the core issue concerned locus standi and the legal foundation for eviction. The question was whether Kidrogen, as owner, could secure eviction on the rei vindicatio notwithstanding the tenants’ assertion that the lease had not been concluded with Kidrogen, or whether Kidrogen was required first to secure rectification of the lease and establish cancellation. If the rei vindicatio sufficed, the further issues around rectification would be academic.

If rectification was to be considered, the court had to determine whether it was procedurally competent and substantively justified on motion. This encompassed whether the lack of rectification allegations in the founding affidavit was fatal, whether raising rectification after the answering affidavit was permissible, whether non-joinder of the directors precluded relief, and whether the parol evidence rule barred reliance on extrinsic material establishing a common continuing intention.

ANALYSIS

Hendricks AJA, writing for the court on the special leave application, emphasised that special leave requires more than reasonable prospects; it demands special circumstances, such as a compelling point of law or a manifest risk of injustice if leave is refused. On the record, the Full Court had correctly applied established principles on rectification and eviction. The appellants’ arguments did not meet the enhanced threshold for special leave.

Makgoka JA concurred in the order but wrote separately to provide a fuller doctrinal analysis. He explained that the tenants’ locus standi defence misfired when considered through the lens of the rei vindicatio. Under Chetty v Naidoo, an owner claiming vindication must prove ownership, possession by the defendant, and the continued existence of the res. The onus then shifts to the possessor to allege and establish a right to continue holding against the owner. By denying that there was any lease with Kidrogen, the appellants relieved Kidrogen of any need to prove cancellation of a lease, and they failed to establish any alternative lawful ground for occupation. The directors, as non-owners, could not confer greater rights than they possessed; the tenants’ reliance on a purported lease with the directors, divorced from the company’s ownership, could not ground a right to remain.

On rectification, Makgoka JA regarded the point as something of a red herring, given the sufficiency of the rei vindicatio. However, he proceeded to address it for completeness and appellate guidance. The court reaffirmed the elements for rectification, as set out in Propfokus v Wenhandel: proof of a prior agreement, an intention to reduce it to writing, a drafting mistake causing the writing to diverge from the common continuing intention at the time of reduction, and the precise wording to which the instrument should be rectified. The evidential matrix—including the addendum identifying Kidrogen as landlord, the acknowledgement of debt in favour of Kidrogen, the consistent pre-litigation correspondence in which Mr Nordien recognised indebtedness to Kidrogen, and the directors’ confirmatory affidavits—amply established a common continuing intention that the lessor was Kidrogen, represented by its directors.

The court rejected the procedural objections. It held that rectification can be sought and granted on motion in appropriate cases, particularly where the issue emerges in response to a defence and the countervailing party has suffered no substantive prejudice. Kidrogen could not reasonably have anticipated the tenant’s “stranger to the lease” defence at the founding stage; once raised in the answering affidavit, it was permissible for Kidrogen to seek rectification by amendment and to support it on the affidavits already exchanged. Motion affidavits serve both as pleadings and as evidence; facts establishing rectification adduced in reply may be relied upon where fairness permits and there is no prejudice, with the respondent free to seek leave to supplement if necessary.

Substantively, the parol evidence rule posed no barrier. The court endorsed Venter v Liebenberg and Tesven v South African Bank of Athens, reiterating that the parol evidence rule yields to rectification: extrinsic evidence is admissible to prove the parties’ true common intention and the existence of a drafting mistake. Here, the documentary trail—addendum, acknowledgement of debt, emails, and the sale agreement’s reference to an “existing lease agreement”—was consistent and compelling. The tenant’s failure to repudiate Kidrogen’s assertions pre-litigation, per McWilliams v First Consolidated Holdings, was a strong factor against him.

The non-joinder point also failed. On the authority of Movie Camera Company v Van Wyk, joinder is necessary only if a party’s interests may be prejudicially affected, and the court found that the directors were fully aware, actively involved, and in any event not prejudiced. One of them deposed to the affidavits, and both confirmed that they had signed in their representative capacities for Kidrogen. There was therefore no procedural obstacle to rectification.

Turning back to special leave, the court restated the Westinghouse and Cook v Morrison standard: special leave requires not only prospects of success but “special circumstances” such as a substantial point of law, public or exceptional importance, or a probable denial of justice if leave were refused. The appellants made out none. On the merits, the rei vindicatio would succeed; alternatively, rectification was correctly granted; in either case, the appeal had no compelling feature warranting further ventilation.

REMEDY

The Supreme Court of Appeal dismissed the application for special leave to appeal with costs, payable jointly and severally by the first and second applicants. The immediate practical consequence is that the Full Court’s order stands. That order rectified the lease to reflect Kidrogen RF (Pty) Ltd as lessor duly represented by its directors, authorised eviction of the appellants, and awarded arrear rental in the amount of R250 800 together with costs.

The costs order reflects the court’s view that the application lacked merit and that the appellants’ defences—particularly the insistence that Kidrogen was a “stranger” to the lease in the face of overwhelming documentary admissions—were untenable. The outcome accords with the principle that unsuccessful litigants seeking special leave must ordinarily bear the costs of an unmeritorious application.

By refusing special leave, the SCA avoided duplicative litigation and upheld finality. The decision provides guidance that, where the owner’s rei vindicatio is dispositive, appellate intervention on collateral rectification disputes is unwarranted absent exceptional circumstances.

LEGAL PRINCIPLES

The judgment restates the core tenets of the rei vindicatio. An owner seeking eviction must establish ownership, possession by the defendant, and the continued existence of the property. The onus then shifts to the possessor to show a right enforceable against the owner. If the possessor denies the lease relied upon by the owner, the owner is relieved from proving termination of that lease, and the possessor must nonetheless establish another lawful entitlement to remain.

On rectification, the court affirmed that rectification corrects the written memorial of an agreement; it does not create a new contract. The party seeking rectification must prove a common continuing intention that diverges from the writing due to a mistake and must set out the actual wording sought. The court confirmed that rectification can be determined on motion where the evidential material is adequately before the court and fairness is preserved. Non-joinder will not defeat rectification where there is no real prejudice and the relevant actors are engaged in the litigation.

The court reconfirmed that the parol evidence rule yields to rectification. Evidence of a common intention and of drafting error may be admitted to align the text with the parties’ true agreement. Moreover, in motion proceedings affidavits serve both as pleadings and as evidence; material placed in reply may be considered where justified, and silence in the face of assertions that ordinarily call for repudiation may weigh heavily against the silent party as a tacit admission.

Finally, the decision underscores the stringent test for special leave to appeal under section 17(2)(d) of the Superior Courts Act. Beyond reasonable prospects of success, an applicant must demonstrate special circumstances—such as a substantial point of law or a risk of injustice if leave is refused—to justify the scarce resource of further appellate attention. Where established principles readily resolve the dispute, as here via the rei vindicatio or, in the alternative, rectification, special leave will be refused.