Van Niekerk and Another v Van Niekerk and Others (Leave to Appeal) (19928/2024) [2025] ZAWCHC 493 (27 October 2025)

Case Note

Van Niekerk and Another v Van Niekerk and Others (Case No. 19928/2024), High Court of South Africa, Western Cape Division, Cape Town — Judgment on leave to appeal delivered 27 October 2025, per Moosa AJ (Reportable)

Reportability

This judgment is reportable because it clarifies an increasingly encountered point at the intersection of co-ownership disputes and housing rights: whether an order granted under the actio communi dividundo that terminates co-ownership and regulates division, allocation, and sale of immovable property amounts, without more, to an eviction that triggers the procedural safeguards of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998. The Court holds that such an order, properly interpreted via the triad of text, context, and purpose, does not in itself constitute an eviction where it does not direct or require the occupants to vacate. This clarification is significant for practitioners structuring relief that dissolves co-ownership while respecting occupiers’ rights.

The judgment also restates the threshold for leave to appeal under section 17(1)(a) of the Superior Courts Act 10 of 2013, emphasizing that a judge must be persuaded that there is a reasonable prospect that an appeal would succeed — not that it might. By applying this standard to a fact pattern involving self-represented litigants alleging a PIE violation, the Court provides guidance on balancing access to justice and finality in litigation.

Finally, the costs analysis is noteworthy. It addresses the appropriate approach to costs against unrepresented litigants asserting rights to housing, considers fairness in the exercise of the costs discretion, and refers to Uniform Rule 67A(2) and (3), thereby offering practical guidance on costs management where constitutional interests and lay participation in litigation intersect.

Cases Cited

• Britz v Sequeria [2020] 2 All SA 415 (Free State Division, High Court, Bloemfontein)
• Municipal Employees’ Pension Fund and Others v Chrisal Investments (Pty) Ltd and Others 2022 (1) SA 137 (Supreme Court of Appeal)
• Z.I v W.I and Another (13142/2022) [2023] ZAWCHC 95 (Western Cape Division, Cape Town) (9 March 2023)
• Caratco (Pty) Ltd v Independent Advisory (Pty) Ltd 2020 (5) SA 35 (Supreme Court of Appeal)
• MEC for Health, Eastern Cape v Mkitha and Another [2016] ZASCA 175 (Supreme Court of Appeal) (25 November 2016)
• S v Smith 2012 (1) SACR 567 (Supreme Court of Appeal)
• Ramakatsa and Others v African National Congress and Another [2021] ZASCA 31 (Supreme Court of Appeal) (31 March 2021)
• Eke v Parsons 2016 (3) SA 37 (Constitutional Court)
• De Wit NO and Another v Smit and Others (19076/2024) [2025] ZAWCHC 481 (Western Cape Division, Cape Town) (21 October 2025)
• Shoprite Checkers (Pty) Ltd v Kgatle and Another (2023) 44 ILJ 2564 (Western Cape Division, Cape Town)

Legislation Cited

• Superior Courts Act 10 of 2013, section 17(1)(a) and section 17(1)(a)(ii)
• Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998
• Legal Practice Act 28 of 2014

Rules of Court Cited

• Uniform Rules of Court, rule 67A(2) and rule 67A(3)

HEADNOTE

Summary

This is an application by the First and Second Respondents (self-represented) for leave to appeal against an order granted on 21 July 2025 in an actio communi dividundo application brought by their brothers, the First and Second Applicants. The underlying order terminated free co-ownership of five properties in Wellington following the expiry of a usufruct on their mother’s death, allocated two erven to the First and Second Respondents respectively, and directed the sale of three erven at a reserve price, with detailed ancillary directions concerning transfers, trust monies, set-off and equitable adjustments.

The Respondents contended that the order effectively evicted them and their families from their homes without compliance with the PIE Act. They also sought a variation of the terms of division to allow them to retain ownership of the erven on which their homes stand, subject to paying fair value.

Moosa AJ condoned the late filing of the leave application but dismissed it on the merits. Applying section 17(1)(a) of the Superior Courts Act and established interpretive principles, the Court held that the order did not direct eviction or require the Respondents to vacate any residence. There was thus no reasonable prospect that an appeal would succeed. Costs followed the result on a party-and-party scale, with counsel’s fees allowed on scale B, and liability joint and several.

Key Issues

• Whether an actio communi dividundo order that terminates free co-ownership and regulates division/sale of immovable property amounts to an “eviction” necessitating compliance with the PIE Act.
• The proper test for leave to appeal under section 17(1)(a) of the Superior Courts Act and whether reasonable prospects exist that an appeal would succeed.
• The permissibility of seeking, via a leave application, a variation of the substantive terms of a final order regulating division.
• The appropriate costs order in circumstances involving unrepresented litigants asserting rights to housing.

Held

The Court held that an appeal would not have reasonable prospects of success. Properly interpreted against its language, context, and purpose, the 21 July 2025 order did not require the Respondents to vacate their homes and therefore did not constitute an eviction order triggering the procedural safeguards under the PIE Act. Appeals lie against orders, not reasons, and there was no textual or contextual foundation for treating the order as an eviction.

An application for leave to appeal is not the proper vehicle to obtain a variation of the terms of the order dividing the properties; the relief sought in effect attempted to reconfigure the division rather than identify appealable error. No “other compelling reason” under section 17(1)(a)(ii) was established.

Late filing was condoned in the interests of justice given the litigants’ unrepresented status and the importance of housing rights. Costs followed the result on a party-and-party basis, with counsel’s fees allowed on scale B. Punitive costs were refused in light of the Respondents’ bona fide but mistaken interpretation of the order and the constitutional significance of the rights asserted.

THE FACTS

The parties are brothers and registered co-owners of five erven in Wellington. Historically, their co-ownership was subject to a usufruct in favour of their mother, which terminated upon her death in February 2024. The Applicants, who reside overseas, commenced proceedings shortly thereafter seeking the professional management of the properties. On 24 April 2024, by order of Mthimunye AJ in case no. 6982/2024, Seeff Boland Winelands was appointed to manage and administer the properties for the benefit of all co-owners.

Negotiations to terminate co-ownership and divide the properties failed. On 11 September 2024 the Applicants launched application proceedings under a different case number, invoking the actio communi dividundo to terminate the joint ownership and divide/sell the properties. The Respondents opposed, filing expansive answering papers that, in the Court’s view, traversed issues with limited relevance to the narrow relief sought. The Respondents remained unrepresented despite judicial encouragement to obtain representation.

On 21 July 2025, the Court issued a detailed order terminating free co-ownership and structuring the division. Two erven were allocated for transfer to the First and Second Respondents (with agreed valuations and equalizing payments), while the three remaining erven were to be marketed and, if unsold within eight months, auctioned with a fixed reserve price. The order further addressed management mandates, transfer arrangements, trust monies, set-off, authorizations in default of signatures, and cost-sharing for transfer-related expenses. The present judgment concerns the Respondents’ subsequent, late-filed application for leave to appeal that order.

THE ISSUES

The central issue was whether the Respondents demonstrated reasonable prospects that an appeal would succeed, as required by section 17(1)(a) of the Superior Courts Act. This required a dispassionate assessment of whether an appellate court would, not might, reach a different outcome on the grounds advanced.

Within that inquiry, the key substantive question was whether the 21 July 2025 order, on a proper interpretation, constituted or effected an eviction of the Respondents and their families from their homes, such that the order was incompetent for non-compliance with the PIE Act. The Respondents’ case rested on the contention that the order compelled their removal or, at a minimum, deprived them of the right to remain in occupation.

A subsidiary procedural issue was whether the Respondents could use the leave mechanism to secure a variation of the division and allocation of properties, effectively asking the Court to refashion the final order in accordance with their preferred outcomes. Costs, including the appropriateness of punitive costs in the circumstances of lay litigants asserting housing-related rights, also arose.

ANALYSIS

Moosa AJ began by condoning the late filing of the petition. The Respondents appeared in person and lacked familiarity with procedural requirements. The Applicants’ counsel did not oppose condonation, and the Court deemed it in the interests of justice to regularize the application so that finality could be achieved on the merits. This approach underscores the Court’s sensitivity to access-to-justice considerations without prejudicing the substantive threshold that governs leave.

Turning to the merits, the Court emphasized that appeals lie against orders, not reasons. The inquiry was whether there existed a reasonable prospect that an appellate court would decide differently. Applying section 17(1)(a) and the principles articulated in Caratco (Pty) Ltd v Independent Advisory (Pty) Ltd, S v Smith, MEC for Health, Eastern Cape v Mkitha and Another, and Ramakatsa and Others v African National Congress and Another, the Court stressed that the test is stringent: a realistic, non-speculative prospect that the appeal would succeed is required; a mere possibility will not suffice.

The Respondents’ principal contention was that the 21 July 2025 order effectively evicted them and their families from their homes without compliance with the PIE Act. The Court held that this argument hinged on the proper interpretation of its earlier order. Applying Eke v Parsons, the order must be read holistically, with due regard to its text, context, and purpose. On its face and in context, nothing in the order directed the Respondents to vacate their homes, nor did it impose any vacate deadlines or authorize their removal. The order’s purpose was to terminate free co-ownership and regulate division and sale, not to evict.

The Court further observed that the respondents’ misapprehension was understandable to a degree given their lack of legal training and the complexity of the order. Their perception may also have been influenced by communications from the managing agents concerning rent or vacating, but such communications could not supplant or extend the plain meaning of the Court’s order. The order even preserved interim arrangements for management and rental accounting pending transfer, reinforcing that it did not, by itself, dispossess or evict the Respondents.

To the extent the Respondents sought to restructure the division so that each retained ownership of the erf where his home is located, the Court held that an application for leave to appeal is not an appropriate vehicle to obtain a variation of a final order. The actio communi dividundo relief granted reflected equitable division principles (as discussed in Britz v Sequeria, Municipal Employees’ Pension Fund and Others v Chrisal Investments (Pty) Ltd and Others, and Z.I v W.I and Another), including valuations, equalizing payments via set-off, and shared proceeds from sale. The Respondents did not demonstrate error in the exercise of the Court’s discretion warranting appellate intervention.

No “other compelling reason” under section 17(1)(a)(ii) was shown. The Court’s order neither infringed the Respondents’ constitutional right to housing nor short-circuited PIE processes because it did not institute or authorize eviction. Given the absence of any textual basis for an eviction interpretation, the asserted PIE non-compliance could not create reasonable prospects of success on appeal.

REMEDY

The application for leave to appeal was dismissed. The Court concluded that there was no reasonable prospect that an appellate court would arrive at a different conclusion concerning the lawfulness or effect of the 21 July 2025 order. The interpretive exercise, when conducted according to Eke v Parsons, yielded a clear answer: the order did not direct or imply eviction.

Although the Applicants’ counsel pressed for punitive costs on the basis that the application was hopeless and the Respondents were not “men of straw,” the Court declined to impose such costs. The Respondents’ misinterpretation, while legally untenable, was bona fide and mitigated by their unrepresented status and the constitutional import of the rights invoked.

Costs accordingly followed the event on a party-and-party scale, with counsel’s fees allowed on scale B. The liability for such costs was made joint and several as between the First and Second Respondents, with one paying and the other absolved.

LEGAL PRINCIPLES

First, leave to appeal under section 17(1)(a) of the Superior Courts Act entails a stringent threshold: the judge must be satisfied that there is a reasonable prospect that the appeal would succeed, not merely that it might. This calls for a rigorous and dispassionate assessment of both facts and law. Authorities including S v Smith, Ramakatsa, Caratco, and Mkitha reiterate that speculation is insufficient and that the “would succeed” standard promotes finality and judicial economy.

Second, the interpretation of court orders follows the same methodology as the interpretation of documents: the order (and, where helpful, reasons) must be read as a whole, with primacy given to the language in its context and with due regard to its purpose. Eke v Parsons provides the triadic approach of text, context, and purpose. On this approach, an order regulating the termination of free co-ownership and division/sale of property does not amount to an eviction order unless it expressly or by necessary implication requires occupants to vacate.

Third, the actio communi dividundo entitles a co-owner to insist on termination of free co-ownership and empowers the court to craft a just and equitable division, which may include allocation of particular parcels, directed sales (including reserve prices), equalizing payments, and ancillary machinery to effect transfer. Authorities such as Britz v Sequeria, Municipal Employees’ Pension Fund v Chrisal, and Z.I v W.I illuminate the equitable and flexible nature of this relief and the court’s wide remedial discretion.

Fourth, an application for leave to appeal is not a mechanism to seek variation or reconfiguration of a final order on grounds of preference. The leave inquiry focuses on prospects of success on appeal, not on opportunities to revisit equitable balances already struck in the exercise of judicial discretion.

Finally, costs remain within the Court’s wide discretion, to be exercised judicially with fairness to both sides. Where unrepresented litigants assert constitutional interests in good faith, and where misunderstandings arise from complex orders, punitive costs may be inappropriate. Considerations listed in this judgment, including reference to Uniform Rule 67A(2) and (3), provide a structured, fairness-oriented framework for costs decisions in such contexts.