Umhlaba Erf 1 Properties CC v Shell Downstream South Africa (Pty) Ltd (03929/2019) [2025] ZAGPJHC 13 (14 January 2025)

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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this
document in compliance with the law and SAFLII Policy

REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG

Case Number: 3929/2019

In the matter between:
In the matter between:
UMHLABA ERF 1 PROPERTIES CC Applicant
and
SHELL DOWNSTREAM SOUTH AFRICA (PTY) LTD First Respondent
OJ INVESTMENTS CC Second Respondent
REGISTRAR OF DEEDS Third Respondent
EKURHULENI METROPOLITAN MUNICIPALITY Fourth Respondent

Summary
Commercial eviction – ownership dispute – res judicata – privies – respondent
cannot pursue counter -application asserting ownership without rescinding court (1) REPORTABLE : YES
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: NO
______________ _________________________
DATE SIGNATURE
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order confirming applicant’s ownership of contested property – improvement lien –
improvement lien cannot be exercised when underlying claim has prescribed


JUDGMENT


FRIEDMAN AJ :

[1] In February 2019, the applicant (“Umhlaba”) instituted an application in which
it seeks the following relief:
a. An order confirming the termination, alternatively cancellation, of “the short -term lease between the Applicant and the First Respondent in
respect of leased premises known as the Amandla Service Station”.
b. An order ejecting “the First Respondent and all other persons occupying the leased premises through the First Respondent, including the Second Respondent . . . within 15 days of the date of this order” and ancillary relief designed to give effect to this order.
c. A monetary claim for:
i. R1 539 510.00.
ii. R105 000.00 per month from 1 December 2018 to the date on which
the first and second respondents vacate the premises, plus VAT and
interest.
[2] The first respondent has opposed this application and brought a counter -
application, discussed below. The second respondent, OJ Investments CC, has not opposed this application. An order joining the Registrar of Deeds and the Ekurhuleni Metropolitan Municipality (“the Municipality ”) was granted on 22 May 2019. This has
some significance, and I address it below.

[3] There was, on the papers, a dispute about whether the first respondent is the
same entity which, on the first respondent’s version of the facts as described below,
acquired a right to transfer of the land which is the subject of this dispute. By the time
of the hearing, this issue had largely become irrelevant. I shall, therefore, refer to the
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first respondent below simply as “Shell” and do not intend to distinguish between the
first respondent and its predecessors.

[4] The premise of Umhlaba’s application is that it is the owner of p ortion 6 of Erf
2[…], T[…] Extension 12 Township (“ portion 6”) and that Shell is occupying part of it
unlawfully. Portion 6 is a consolidation of portions 4 and 5 of Erf 2[ …]. Portion 6 is
the land on which the Amandla Service Station is located. The second respondent
operates the service station in terms of an agreement with Shell . Portion 4 was the
part of the property on which the service station was built and portion 5 was vacant
land.

[5] Umhlaba’s notice of motion may be broken down into two broad categories.
First, its ejectment claim is based on its claim to ownership of portion 6 and the
notion that Shell has no right to occupy it. Secondly, it claims monetary relief in
relation to a short -term contract of lease which may or may not have been concluded
between it and Shell, and Shell’s occupation of the property. The relief envisaged by prayer 1 of its notice of motion (ie, a declaration that the short -term lease has
terminated or was cancelled) has been overtaken by the fact that Shell disputes that
any such lease was concluded in the first place. As a result, Umhlaba did not press
for that relief in argument. In substance, Umhlaba seeks compensation for Shell’s
occupation of the premises – either in terms of a short -term lease or as holding- over
damages.

[6] Shell’s counter -claim is based on the premise that it has a right, which arose
before Umhlaba acquired transfer of p ortion 6, to the transfer by the Municipality of
that property to it. Shell’s counter -claim seeks to undo the transfer of p ortion 6 to
Umhlaba and compel the Municipality to transfer p ortion 6 to Shell.
1 When it comes
to the dispute about the short -term lease and holding- over rental, only p ortion 4 is
relevant because it is common cause that, whether or not a short -term lease
agreement was actually concluded, any lease agreement concluded between the
parties would only ever have related to p ortion 4.

1 The papers are not entirely clear, or I am not reading them properly, on the question whether
the counter -claim covers the whole of portion 6 or simply the part of portion 6 on which the
Amandla Service Station is built. Nothing turns on that, for the purposes of this judgment.
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[7] For the remainder of this judgment, I shall describe p ortion 6, ie the property
which is the subject of the ownership dispute, as “the property” or the “disputed property”. I shall describe p ortion 4, which is a far less prominent character in this
story, as “the Service Station portion”.
The background
[8] Multiple affidavits have been filed in this matter and the court file gives the
impression, at least superficially, that there are various complicated factual disputes .
In my view, many of those disputes are not key to the proper resolution of this application and so I attempt, below, to focus only on what is relevant.

[9] It seems relatively clear on the papers that, before Umhlaba came onto the
scene, Shell thought that it had purchased the contested property from the
Municipality . On its version – which is not seriously disputed when it comes to what I
say here – in 1992 Shell first purchased another property (described in its affidavit s
as “the second property”) from the Municipality . Shell bought the second property
with the intention of constructing a petrol service station on it. However, during the preparation for the building, it turned out that the second property was further away
from the main road in the area than initially thought. As a result, Shell says that it
concluded an agreement with the Municipality to exchange the second property for
the contested property. Shell has provided a resolution, taken by the Municipality in
1993, resolving to approve this exchange agreement.

[10] In 1993 and 1994, necessary rezoning was sought and consent given for it,
and the building was completed by Shell in either late 1993 or early 1994 (the deponent to Shell’s answering affidavit is not sure). Necessary sub- divisions were
also approved during this period, but they seem not to have been registered. There
was, thereafter, a process which spanned roughly sixteen years, in which there was
an initial attempt by Shell’s various representatives and attorneys to have the contested property transferred to it, a long lapse of time in which nothing seems to
have happened, and then renewed attempts. In November 2003, the Municipality
wrote to Shell to say that it had instructed private attorneys to attend to the
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registration of the contested property in Shell’s name. In February 2004, the
Municipality published a notice in terms of section 79(18)(b) of Local Government
Ordinance, 1939 notifying the public of its intention to transfer the contested property to Shell and providing for objections , if any, to be made.

[11] Thereafter, Shell says that attempts were made to compel the Municipality to
transfer the property to Shell , with litigation being contemplated but then not
pursued. Shell is hamstrung in this case by the fact that the relevant employees now
responsible for this matter were not involved in the early phases (including the period
between 2003 and 2010) and are constrained to rely on file notes and documentary
records to piece the facts together. There is not much evidence of what happened
between 2003 and 2010. But in October 2010, the Municipality passed a resolution
approving the exchange agreement (this being 17 years since its first resolution to
this effect). This time, however, it made the approval subject to a condition that Shell pay in a sum of R262 200, which the Municipality said was the difference in value
between the second property and the contested property.

[12] In its answering affidavit, Shell says that it rejected the Municipality ’s unilateral
imposition of a new condition – ie, that Shell had to pay the difference in market
value of the two properties. But, other than that, there is no detailed information
about what happened between 2010 and 2017. Certainly, despite apparently
rejecting the Municipality ’s attempt to extract a larger purchase price, Shell took no
steps to assert its rights during that period.

[13] Umhlaba operated the Amandla Service Station for a time, from around 1996.
Umhlaba entered into negotiations with the City , in 2001 and 2002, to purchase the
contested property. This led to the conclusion of a sale agreement in 2003. Shell
says that Umhlaba’s sole member, the deponent to the founding affidavit, must have
used information which he acquired during his tenure as an operator of Shell’s petrol
station to appreciate that transfer of the contested property to Shell had never been
completed. It would seem that, armed with this knowledge, he approached the
Municipality to purchase the contested property and exploited the fact that the official
with whom he engaged was either ignorant of the agreement between the
Municipality and Shell or was willing to overlook it.
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[14] For a period of around nine years, Umhlaba took no legal action to enforce its
rights under the 2003 sale agreement. However, in 2012, it demanded that the
Municipality co-operate to give it transfer of the contested property. When the
Municipality failed to do so, Umhlaba brought an application to compel transfer. The
application was not opposed by the Municipality , which was the only party cited as a
respondent. On 25 July 2012, Mr Justice Mabesele (“Mabesele J”) granted the order sought, and ordered the Municipality to take certain steps to effect transfer of the
contested property to Umhlaba. Although it is not entirely clear to me what happened
between 2012 and 2017, by 2017 the contested property had been registered in
Umhlaba ’s name (on 6 November 2017, to be precise) .

[15] In 2017, having achieved this transfer, Umhlaba wrote to Shell to ask it to
explain the basis on which it occupied the property. Umhlaba said that it was
interested in concluding a long lease with an operator of a petrol station on the
property, and was willing to enter into negotiations with Shell if it was interested. Umhlaba, in its letter to Shell, also explained that it was amenable to concluding a
short -term lease pending the finalisation of any negotiations.
[16] It is not necessary for me to go into granular detail about what transpired in
2017 and 2018. The bottom line is that Shell is clearly a large company, which
understandably has had staff turnover since the beginning of this saga in 1992 and
(perhaps less understandably) inconsistent record- keeping and/or succession
planning. This resulted in a scenario in which, when Umhlaba made its approach in
2017, none of Shell’s employees responsible for the property had proper knowledge
of the history. This gave rise to a situation in which, for a significant period of time, the parties negotiated based on the commonly -accepted premise that Umhlaba was
the owner of the contested property. It was only as a result of investigations
conducted by Shell in parallel to these negotiations (and prompted by them), that
Shell’s current employees (at least, as of the time when the affidavits in this matter
were exchanged ) began to piece together the history from various documents which
they found or were given.

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[17] It is common cause that, until Shell finally had sufficient information to dispute
Umhlaba’s ownership of the contested property, the negotiations were aimed at
concluding a long- term lease agreement. What is in dispute is whether a short -term
lease in respect of the Service Station portion was concluded to govern the
relationship pending the finalisation of the long- term lease.
[18] On Umhlaba’s version, a short -term lease agreement was concluded orally,
and remained in force while the negotiations continued. When Shell decided to change tack, reject the premise that Umhlaba was the owner of the contested
property, and decided to dispute Umhlaba’s ownership, Umhlaba says that it
cancelled the short -term lease because it took the view that Shell had repudiated it.
The relief which it seeks in the notice of motion is primarily based on the premise
that Shell is liable for the rental which was due under the short -term lease until the
date of Shell’s apparent repudiation (this is how it reaches the lump- sum figure of
R1 539 510.00
2) and then for the agreed monthly rental amount for the period
between Shell’s repudiation and the date on which it ultimately vacates the property. In almost a throwaway paragraph, at the end of the founding affidavit, Umhlaba says that, if this Court finds that no short -term lease was concluded between the parties,
Shell has been enriched at the expense of Umhlaba Properties in the amount of R105 000 per month (exclusive of VAT) – which is the sum which, on Umhlaba’ s
version, the parties agreed as the rental under the short -term agreement – and that
Umhlaba “has been impoverished in the same amount”.
The issues
[19] The overarching problem, which gives rise to this application, is that both
parties claim a right to transfer of the property arising from agreements with the Municipality . It is common cause that, as things stand, Umhlaba has the stronger
apparent claim, since it holds the title deeds. But, as may already be seen from the facts described above, the situation is not that simple (at least, according to Shell) .


2 The VAT rate changed from 14% to 15% during the time in which Umhlaba claims Shell
occupied the premises under the short -term lease. It is not necessary for me to go into any
detail about how this lump- sum is calculated.
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[20] In Shell’s counter -application, it seeks to have the registration of the property
in the name of Umhlaba cancelled. It also seeks an order requiring the Municipality
to transfer the property to it. Shell’s claim that the transfer to Umhlaba should be set
aside is based largely (but not exclusively) on the doctrine of notice. It says that
Umhlaba was aware, when it concluded the agreement of sale with the Municipality ,
that Shell had already concluded an agreement with the Municipality to acquire the
property. (This is the agreement, mentioned above, in which the Municipality agreed
to exchange the contested property for the second property, subject to Shell paying
a small sum reflecting the value by which the contested property exceeded the second property.)

[21] To identify the issues clearly, it is necessary for me to explain how it came to
be that Shell did not assert its ownership claim earlier.

[22] As I mentioned above, Umhlaba obtained the order granted by Mabesele J in
2012, but the contested property was only transferred to it in November 2017.

[23] Shell was informed of the court order granted by Mabesele J in two letters,
dated 25 April 2014 and 23 May 2014 respectively, by attorneys acting for the Municipality . In the first letter, the Municipality ’s attorneys recorded that “[f]or reasons
unknown, most probably lack of communication”, the Municipality did not oppose
Umhlaba’s application. The purpose of the letter, according to the author, was to bring the court order to Shell’s attention, “to enable [Shell] to protect its interests (if
any)”. The second letter was sent to check whether Shell had received the first letter
and to ask “whether we may proceed with the transfer of the portion of the erf to
Umhlaba Properties CC or whether your company wishes to get legal advice to
intervene in this matter”.

[24] The deponent to Shell’s answering affidavit says that Shell replied to the
Municipality ’s letter s to say that the person to whom the letter s were addressed was
no longer employed in the relevant department, but that the letters would be brought
to the attention of the correct person. Unless I am missing something, this reply is not in the papers – this is not important, because this issue is not in dispute. Shell
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says that “for reasons unknown to [it]”, these letters did not come to the attention of
the correct department and, accordingly, no action was taken in respect of them .
[25] Shell was put on notice that Umhlaba claimed ownership of the property when
Umhlaba wrote to it on 13 December 2017, asserting ownership of the contested
property and initiating the negotiations which led, on Umhlaba’s version, to the
conclusion of a short -term lease agreement. It was this letter which triggered a
process in which Shell made various enquiries, asked its attorneys to get hold of the Court file in Umhlaba’s 2012 application, and pieced together the facts which it then
set out in its answering affidavit. It seems clear from some of the correspondence
attached to the answering affidavit that there was a mix -up (or something else) within
the Municipality in which different officials were dealing with the engagements with
Umhlaba, on the one hand, and Shell on the other, which led to
agreements/commitments to sell the contested property both to Umhlaba (reflected in the 2003 agreement ) and Shell (reflected in the 1993 and 2010 resolutions
confirming the exchange agreement , albeit that Shell views the second of these
resolutions as having unilaterally amended the terms of the original agreement by
imposing a new condition) .
[26] I have explained above how Umhlaba formulated its case, when it launched
this application on 5 February 2019. By the time of the hearing, its position had
changed, in so far as the claim based on the short -term lease was concerned. In the
founding affidavit, it pleaded that a short -term rental agreement had been concluded
at a meeting between Shell and Umhlaba on 24 January 2018. Its version is that the
intention was for the short -term lease to apply until the parties agreed the terms of a
long- term agreement in respect of the Service Station portion – but, on its version, a
self-standing agreement, which was not conditional on any long- term lease
agreement being concluded, was agreed on that date. It says that the agreement
endured until it was terminated on 8 November 2018. That is the date when Shell
took the position that Umhlaba was not the lawful owner of the property, which
carried the implication that it refused to conclude a long- term lease agreement in
respect of the contested property with Umhlaba.

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[27] In its answering affidavit, Shell disputes that a self -standing short -term
agreement had been concluded. Its version i s that various references to a short -term
lease, both in the meeting in January 2018 and correspondence exchanged during
the negotiations, were always to a short -term agreement which was conditional on a
long- term agreement being concluded. It says that, since no such agreement ever
was, the short -term agreement was not binding either (a suspensive condition having
never been fulfilled). For this reason, in its answering affidavit, it also disputes that
there was any agreement on rental, and so it disputes the quantum of Umhlaba’s
monetary claim for unpaid rental , alternatively enrichment .

[28] Despite this, i n Shell’s heads of argument, it does not argue that the
application (at least in so far as the unpaid rental component i s concerned) should
be dismissed because there were foreseeable disputes of fact. Rather, it argues that
there are various disputes of fact which suggest that the matter should be referred to
trial or oral evidence. It list s the dispute about whether a short -term lease agreement
was concluded as one of the issues which should be referred to oral evidence or
trial. During the hearing, Mr Kairinos , who appeared for Umhlaba, made clear that, in
the light of Shell’s response to the allegations in relation to the short -term lease, and
the position it adopted in its heads of argument, Umhlaba no longer pressed for the
rental relief. In response to a question from me, Mr Smit expressly agreed that
Shell’s position is that this issue , amongst other disputes relevant to its side of the
case, should be referred to oral evidence or trial, depending on my overall view of the merits.

[29] As a result, by the time of oral argument (and confirmed after the hearing in a
draft order proposed and uploaded on behalf of Umhlaba), it was common cause
that, if the counter -application were to be dismissed and Umhlaba’s claim to
ownership (and consequential entitlement to Shell’s eviction) confirmed, Umhlaba’s
claim in respect of the short -term agreement should be referred to trial (Umhlaba’s
primary contention, confirmed in its draft order) or oral evidence.

[30] So, from Umhlaba’s perspective, its case is now relatively straightforward. It
seeks the ejection of Shell from the contested property on the basis that it is the
owner of that land. Its claim to ownership is based on the simple fact that it now
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holds a deed of consolidated title, which was registered pursuant to Mabesele J’s
order described above. In addition to the ejection order, it wants the referral to trial which I have already d escribed.

[31] The complexity arises from Shell’s side of the case. It brings the counter -
application because it says that it should be recognised as the true owner of the
contested property having concluded a purchase agreement with the Municipality
first, and in circumstances where Umhlaba knew that it had done so. Since Shell alleges that Umhlaba knew of Shell’s right to the property, it argues that the doctrine
of notice prevents Umhlaba from asserting ownership, notwithstanding the transfer of
the contested property to it.
[32] In addition, for various reasons not relevant here, Shell says that the
agreement between Umhlaba and the Municipality is void ab initio (ie invalid from the
outset) . So, on the basis of these arguments, it says that it is entitled to be granted
the relief in the counter -application, which is the cancellation of the transfer of the
contested property to Umhlaba, and the subsequent transfer of the property to it.

[33] However, by the time of the oral hearing it had proposed two draft orders,
neither of which was premised on me granting the counter -application on the papers.
Its primary contention, as reflected in these draft orders, was that various issues
should be referred to oral evidence (first prize) or alternatively that the main
application should stand as a simple summons and trial pleadings thereafter
exchanged. As far as I understand the second of these draft orders, it envisages that
the entire dispute between the parties be referred to trial.

[34] But this is not the end of the matter, from Shell’s perspective, because it also
has a defence to Umhlaba’s application, even if I am against it on the counter -
application. It says that it cannot be evicted from the disputed property, even if
Umhlaba is found to be the true owner, because it has an improvement lien over the
property. In its answering affidavit it says that it “at all times” was a bona fide possessor of the disputed property, believing that it had the consent of the Municipality to occupy it . It says that the service station was built on the assumption
that the Municipality had consented to the transfer of the disputed property. It says
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that it is entitled to claim the lesser of how much it spent to build the service station
and how much the value of the land has increased as a result of its expenditure. It
attaches a valuation report to its answering affidavit in which the view is expressed that the property has increased in value by R13 480 000.00. It says that it has spent
R10 068 618.17 on building the service station and installing certain services. It
therefore says that it is entitled to exercise its lien until it is paid the latter of these amounts. One of the issues which it wants referred to oral evidence is whether it has abandoned the improvement lien (since Umhlaba says that it did) . Another is the
determination of its “out of pocket expenses” for the improvements made to the
disputed property.

[35] The seeming complexity of this matter is amplified by some of Umhlaba’s
responses to the answering affidavit and counter -application. Some of them have
fallen away, and some do not arise for determination in the light of my favoured approach to this matter. I shall therefore focus only on what, in my view, remains relevant.
[36] Umhlaba, picking up on some of the facts in the answering affidavit, argues
that, on Shell’s version, Shell had a right to the transfer of the contested property
from 1993 onwards. Also on Shell’s own version, various steps were taken between
2003 and 2010, including Shell almost , but not, bringing legal proceedings.
Furthermore, Shell itself, in its answering affidavit, expressly acknowledges that, in 2014, the Municipality brought the 2012 court order to Shell’s at tention and expressly
suggested that it might wish to take steps to undo its consequences. Therefore,
Umhlaba says that, on Shell’s own version of the facts (including its admission that
various employees and representatives engaged with the Municipality over multiple
years in an attempt to enforce Shell’s rights) , its claim to the transfer of the property
against the Municipality has long- since prescribed. Relying on the same facts, it also
says in its papers that Shell is now estopped from relying on the exchange
agreement. In a supplementary answering affidavit (which was initially subject to a
rule 30 application which has now, thankfully, been resolved by agreement b etween
the parties), Umhlaba says that , in order to assert its alleged rights under the
exchange agreement, Shell ought to have applied to rescind the 2012 order when it
became aware of it in 2014.
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[37] Umhlaba also pleads prescription in respect of Shell’s claim for damages
based on unjustified enrichment (the premise of the enrichment lien).

[38] There are various other points, which I would describe as minor (without
wishing to trivialise them), taken in the papers. There was , as I have already
mentioned, also initially an opposed rule 30 application, relating to the admission of
Umhlaba’s supplementary answering affidavit. This was, essentially, settled as
recorded in correspondence prior to the hearing, by the parties agreeing to let the
affidavit in, and the conditional response to that affidavit too.

[39] So, as a result of the way in which the disputes unfolded in the papers, and
also various concessions and reformulations of positions in oral argument, it seems to me that the relevant issues, which must be determined to resolve the disputes are:
a. Whether Shell is legally capable of raising its argument , at this stage, that
the agreement between Umhlaba and the Municipality is void , taking into
account the 2012 order .
b. Whether Umhlaba is correct that, even if Shell had a valid claim against
the Municipality stemming from the exchange agreement, Shell’s claim
has now prescribed.
c. Whether Umhlaba is correct that, even if Shell had an enrichment claim at
some stage, it has now prescribed and, if so, the implications for the lien
on which Shell relies .
d. If I am with Umhlaba on its main application and the counter -application,
whether the issues relevant to the short -term lease agreement should be
referred to trial or oral evidence.
e. If I am with Shell that neither its claim to insist on transfer now or its
enrichment claim has prescribed and that it is legally capable of seeking
transfer now despite the 2012 order , various issues in relation to whether
both components of its case should be referred to trial or oral evidence.
[40] It is also necessary for me to say something briefly about the participation of
the Municipality and the Registrar of Deeds in this application, because it was an
issue which I raised with the parties and which was subject to debate in the hearing.
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The validity of Umhlaba’s agreement and the role of the court order
[41] A notable feature of this case is that, on Shell’s own version, it was informed
of the 2012 court order in 2014. Also on its own version, its attorneys uplifted the
court file in that matter during 2018, when enquiries were being made to establish
the true facts in relation to the contested property. Shell has not, at any stage,
sought to rescind the 2012 order. This despite the fact that it devoted quite a lot of
space in its answering affidavit to explaining why, on Umhlaba’s own version in the
2012 transfer application, Shell ought to have been joined. If that is true, then it
surely follows that Shell would (at least, in principle, and subject to other
considerations such as the prospects of success) be entitled to rescind the order in
terms of rule 42(1)(a) of this Court’s rules
3 or the common law.
[42] Shell takes the position that it was not obliged to rescind the 2012 order. Its
argument is that the court order is, in essence, not binding on Shell because the dispute between the Municipality and Shell – and, indeed between Umhlaba and
Shell arising from Shell’s argument that the agreement between Umhlaba and the
Municipality is void – is not rendered res judicata by the 2012 order. Shell says that
this self -evidently must be so, because it was not a party to those proceedings. And,
on its argument, once the issue is not res judicata between it and the other parties, it
is entitled to dispute the validity of the transfer of the contested property to Umhlaba now, without setting aside the 2012 order.
[43] Umhlaba, for its part, says that the 2012 order carries the implication that “any
defences to transfer which could have been raised by [the Municipality ] (such as the
alleged defects in the sale agreement) became res judicata between [Umhlaba and the Municipality ] and it does not lie in Shell’s mouth to rely on such to set aside the
said sale agreement or to set aside the transfer based on such”. Shell’s retort to this,
if I understand it correctly, is that even if these defences are res judicata as between
the Municipality and Umhlaba, they are not res judicata as between Shell and the
Municipality . On this basis, so the argument goes, Shell is entitled to raise them now.

3 Rule 42(1)(a) of the Uniform Rules provides that a Court may rescind an order which was
“erroneously sought or erroneously granted in the absence of any party affected thereby”.
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[44] The parties raised multiple arguments in support of their competing claims of
ownership, most of which do not speak to the 2012 order . However, it seems to me
that the main issue which I must resolve is whether it is competent for Shell to seek
the relief in its counter -application without setting aside the 2012 order.

The plea of res judicata and the concept of “privies”
[45] It has, with good reason,
4 become somewhat unfashionable to use Latin in
modern South African legal writing. But the fundamental principle underlying the res judicata plea is, understandably given its origins, best reflected in the Latin phrase: “interest reipublicae ut sit finis litium ” – “it is in the interest of the State that there be
an end to litigation”.
5
[46] There are, by now, countless cases which tell us when the plea of res judicata
is available, and the requirements. We know that if a matter is res judicata, it means that it has been finally determined between the parties to the litigation.
6 We also
know that, in order to succeed in showing that a matter is res judicata, the party
raising the plea must show that a dispute was (a) finally determined in previous
litigation involving (b) the same parties and (c) with respect to the same subject
matter or thing.7 A further requirement – that there be the same cause of action –
does not appear to be part of our law (although often recited as one of the elements
of the plea). This is because the doctrine of “issue estoppel” is now clearly part of our law, and it is based (at least in part) on the notion that a plea of res judicata is

4 I mean no disrespect to my standard 6 (as it then was) Latin teacher, Mrs Wolf. Indeed, I mean
no disrespect to the language itself. However, since so few modern lawyers (much less the general public, to whom judicial law is meant to be accessible) are schooled in it, excessive use
of Latin terminology and maxims would only serve to undermine clarity.
5 See Clermont “ Res Judicata as a Requisite for Justice ” 68 Rutgers University Law Review
(2016) 1066 at 1069.
6 See, for example, Skog NO v Agullus 2024 (1) SA 72 (SCA) at para 64.
7 MV Silvergate; Tradax Ocean Transport SA v MV Silvergate Properly Described as MV
Astyanax 1999 (4) SA 405 (SCA) at paras 53 to 54.
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available even where the cause of action in previous litigation was not identical, but
where a dispute in respect of the same subject -matter was resolved.8
[47] In Amalgamated Engineering Union,
9 the Appellate Division, as it then was,
referred to a treatment of the topic of res judicata by Voet. Voet discussed various parties who, although self -evidently not the same, are considered in law to be the
same for the purposes of determining whether a matter is res judicata. Such parties are described as “privies”. The Appellate Division pointed out that one of the categories mentioned by Voet was:
“purchaser and seller, if the seller has either won or lost the action; but not if it is the purchaser who has been sued and who has either won or lost, the exceptio rei judicatae passing from seller to purchaser but not from
purchaser to seller, since the purchaser derives his right from the seller, not the seller from the purchaser; unless the seller has joined in the action commenced against the purchaser, or the seller has been notified by the purchaser of the action and the threat of eviction and has nevertheless, despite the notification, left the purchaser to fight the suit by himself, in which event the result of the suit would enure to the benefit or the loss of the seller
as well, as he had not merely the opportunity, but also the duty of
undertaking, along with the purchaser, the defence of the article which had been sold by him. The judgment of the Transvaal Court therefore stands merely as an application of Voet's proposition that in the circumstances the
seller and the purchaser are, for the purposes of the exceptio rei judicatae,
regarded as being the same party.”
10
[48] In Royal Sechaba Holdings ,
11 the Supreme Court of Appeal (“ SCA”) relied on
the extract from Amalgamated Engineering Union which I have just quoted to say the
following:

8 See the very helpful discussion in the judgment of Cameron J in Ascendis Animal Health (Pty)
Ltd v Merck Sharp Dohme Corporation 2020 (1) SA 327 (CC) at paras 112 to 114, and the
authorities cited there.
9 Amalgamated Engineering Union v Minister of Labour 1949 (3) SA 637 (A) .
10 Amalgamated Engineering Union (above n 9) at 654 .
11 Royal Sechaba Holdings (Pty) Ltd v Cloete 2014 (5) SA 562 (SCA) at para 1 4.
17
“It was contended by Royal Sechaba that one of the essential requirements
for a successful reliance on either res judicata or issue estoppel, that the
parties must be the same (idem actor), was not proven by the respondents. It is accepted that the idem actor requirement does not mean identical parties
but that 'same parties' for the purposes of res judicata and issue estoppel
includes their privies. The principle that a party's privies may also rely on an
earlier judgment to found a defence of res judicata or issue estoppel originated from a statement in Voet's Commentarius ad Pandectas 44.2.5
where various illustrations are given of those who are 'deemed' to be the
'same person' or who are identified with one another for the purposes of res
judicata, such as a deceased and his heir, a principal and his agent, a person
under curatorship and his curator, a pupil and his tutor, a creditor and debtor
in respect of a pledged article if the debtor gave the article in pledge after losing a suit in which a third party claimed it, and a purchaser and seller, if the seller has won or lost the action.”
[49] The concept of a privy, who is considered for the purposes of the res judicata
rule to be the same entity as a party to litigation, was described succinctly by Wallis
JA in Caesarstone Sdot -Yam Ltd
12 as a party “deriving [his or her] rights from that
other person”.

[50] In Aon South Africa,13 Wallis JA quoted14 the following formulation of the
parameters of issue estoppel, first stated by the Transvaal Provincial Division in Boshoff :
15
“Where the decision set up as a res judicata necessarily involves a judicial
determination of some question of law or issue of fact, in the sense that the decision could not have been legitimately or rationally pronounced by the tribunal without at the same time, and in the same breath, so to speak, determining that question or issue in a particular way, such determination,

12 Caesarstone Sdot -Yam Ltd v The World of Marble and Granite 2000 CC 2013 (6) SA 499
(SCA) at para 42 .
13 AON South Africa (Pty) Ltd v Van den Heever NO 2018 (6) SA 38 (SCA) .
14 AON South Africa (above n 13 ) at para 22.
15 Boshoff v Union Government 1932 TPD 345 at 350 -1.
18
though not declared on the face of the recorded decision, is deemed to
constitute an integral part of it as effectively as if it had been made so in express terms.”

[51] As pointed out, both by Wallis JA in AON South Africa and Scott JA in Smith v
Porritt,
16 this formulation in Boshoff applies to the requirement that the relief claimed
and cause of action must be the same in the two proceedings for res judicata to
apply. It did not serve as authority for the notion that the “same parties” requirement may also be relaxed.
[52] However, in AON South Africa , as in Caesarstone Sdot -Yam Ltd , Wallis JA
also pointed to the concept of treating privies as the same parties for the purpose of binding them to previous judgments on the same issues.
17 Wallis JA said that “ Voet's
description of those who are the same parties for the purposes of res judicata goes
well beyond those who are privies in the strict sense of deriving their rights from a
party to the original litigation. ”18 In fact, the SCA said in Royal Sechaba that there is
no reason in principle why even the “same parties” requirement should not be
relaxed.19 While that may or may not be taken up by the courts in due course, there
is no doubt that the concept of privity of interest is not a departure from the “same parties” requirement. It serves, instead, to expand the category of “same parties” to include those who must in law be treated as party to previous litigation even though they were not, as a matter of fact.
Does the 2012 order render the ownership dispute res judicata?
[53] Framed in simple terms, a judgment in personam resolves a dispute between
the parties to litigation, while a judgment in rem is binding on the world at large.
20
Since a judgment in rem is binding on the world at large, the question whether a

16 Smith v Porritt 2008 (6) SA 303 (SCA) at para 10.
17 See AON South Africa (above n 1 3) at para 27.
18 AON South Africa (above n 13 ) at para 27.
19 Royal Sechaba Holdings (above n 11) at para 19.
20 See City of Tshwane Metropolitan Municipality v Lombardy Development (Pty) Ltd [2018] 3 All
SA 605 (SCA) at para 28.
19
judgment in rem renders a subsequent dispute res judicata does not generally21
arise . Any party who was not joined to proceedings which resulted in an order which
operates in rem would have to apply to rescind that order if he or she considered it to
be prejudicial to his or her rights. So, the issues raised by the principles relating to
privies apply, by definition, only to judgments in personam .
[54] A judgment in rem resolves the status of a person or a thing.
22 The 2012
order arguably operates in rem , because it provides for the registration of the
contested property in Umhlaba’s name. I am mindful that Umhlaba’s claim against the Municipality to obtain transfer of the property wa s based on a personal right (as
to which, see further below). That does not, however, mean that the 2012 order does
not operate in rem . This is because, having resolved the contractual question of
Umhlaba’s entitlement to the contested property, it also determined the property’s
status (it being impossible for two or more competing entities to be declared both/all
to be the owner of one property (in the absence, of course, of a co- ownership
arrangement) ). If the 2012 order operates in rem , then it is clearly binding on Shell.
For present purposes, I assume that it only operates in personam and everything
which I say below proceeds from that premise.

[55] In my view, it seems unavoidable to conclude that Shell was a privy of the
Municipality and is therefore bound by the 2012 order.
[56] As may be seen from my summary of the cases (which I assume, hopefully
without excessive optimis m, to be comprehensive) , there has not yet been a detailed
discussion of the concept of privies in the context of proceedings relating to the sale
of property in South African law . However, as I have shown, one of the examples
given by Voet of privies was “a purchaser and seller, if the seller has won or lost the
action”. How does this example work in practice? For convenience, one should break

21 An exception which occurs to me is issue estoppel. It might be argued in certain litigation
relating to a personal dispute between the parties that one of them is bound by a finding in
previous litigation between the same parties, even where the previous litigation re sulted in a
judgment in rem . The argument would not be based on the in rem character of the previous
order, but on the fact that a dispute in the previous litigation between the same parties had
been finally resolved.
22 See Airports Company South Africa v Big Five Duty Free (Pty) Ltd 2019 (1) SA 1 (CC) at para
2.
20
the statement down into its two categories: (a) where the seller has lost the action
and (b) where the seller has won the action. Category (b), which is not applicable to
the present case, would seem to refer to the following scenario: a dispute between A and B about who is the rightful owner of a thing is resolved in favour of B. B then sells the thing to C. If A then brings a claim against C on the basis that he or she is the true owner of the thing, C may successfully raise the plea of res judicata against A. This is because C is a privy of B and so the first matter is treated as res judicata
between A and C as if C had been a party to the original litigation.
[57] Category (a) describes, essentially, the present case. On Shell’s version, it
bought the contested property from the Municipality and its counter -application is
based on the premise that the Municipality is obliged to transfer that property to
Shell. However, the Municipality has already, in substance, been determined in
previous litigation to be unable to pass transfer of the contested property to Shell
because it was obliged to transfer it to Umhlaba. This carries the implication that Shell is to be treated as the Municipality ’s privy and is bound by the 2012 order as if
it were a party.

[58] My only cause for doubt in relation to this conclusion is the approach which
seems to be followed in English law. There, the position when it comes to the sale of
property appears clearly to be that a person who derives title from a seller is only
considered to be the privy of the seller if that right was acquired after the previous
judgment was given.23 The application of this rule seems to go like this: A and B
conclude a sale agreement in which A buys a house from B. A brings an application to enforce the agreement and the court rules that B must pass transfer to A. After judgment is handed down, B purports to sell the property to C. C will be bound by the judgment which determined A to be entitled to title on the basis of being the privy of B. The counter -factual is where B concludes a sale agreement with A. Proceeding on
the premise that the agreement is invalid for some reason, B then concludes a sale agreement in respect of the same thing with C. In due course, A brings an application to enforce his rights against B, and does not cite C as a respondent because he is unaware of her. The application succeeds. C will not be treated as

23 See Powell v Wiltshire [2004] 3 All ER 235 (CA).
21
bound by that order because C concluded an agreement with B before the order was
handed down and is not therefore to be treated as B’s privy.

[59] The justification for this rule appears to be that, if A sold the property to C
before the litigation between A and B commenced (let alone was finalised by the
making of an order), it is in fact C and not A who has an interest in defending the
litigation. Once that is so, according to the reasoning, C and A cannot be treated as having a privity of interest.
24
[60] I have to admit to finding this approach hard to accept . The underlying
philosophy of the res judicata plea is that finality requires that the status of a thing be
determined once and for all when it is raised in litigation. The idea of priv ity of
interest is not to be considered in the abstract. We should focus on why this class of
litigant was recognised in the first place. The purpose, in the context of the sale of a
thing, is to prevent endless litigation brought by parties who, on their own version, derive their entitlement to transfer solely from an agreement with a party whose rights to that thing have already been determined in litigation. This imperative cannot be made dependent on the question of which party concluded the agreement first,
which necessarily relates to the merits. The whole purpose of the res judicata plea is
to avoid the repeat litigation of a previous dispute, which necessarily preclude s
revisiting the merits. The mere fact that a seller has been held, in previous litigation, to be obliged to transfer a thing to the plaintiff in that litigation means that, in
subsequent litigation, that seller cannot be held liable to transfer that thing to a new plaintiff. In the South African context, it should also be remembered that the SCA has
pointed out that the categorisation of a litigant as a privy of another litigant is not limited to the examples given by Voet. At the level of principle, it would seem to me
that the privity of interest of a buyer and seller cannot be considered to be dependent on the timing of litigation.
[61] We should also not forget that we are dealing here only with the question
whether an order renders a dispute res judicata and not whether it is fair for a party to be deprived of his or her rights without being heard. If a privy of a party to litigation

24 See Powell (above n 23 ) at 54 -5.
22
knows of litigation and declines to participate, then it could hardly be described as
unfair for that privy to be bound by the court’s order. If, on the other hand, a privy is unaware of the litigation and finds out about it only after an order is made, then he or she would have the right to seek the rescission of the order. When saying that a
buyer is a privy of a seller for the purposes of litigation, it is simply a statement of the
principle that their interests in the subject of the litigation (ie, the property subject to
the dispute) overlap sufficiently to be treated as the same.
[62] Logic therefore suggests that Shell should be treated as a privy of the
Municipality . This would render the 2012 order res judicata between Shell and
Umhlaba, just as it is res judicata between the Municipality and Umhlaba.
[63] Despite my puzzlement at the position in English law, it is appropriate for me
to exercise caution. Neither party placed reliance on the notion that Shell is the Municipality’s privy. I have considered it because Umhlaba pleaded res judicata as a defence to the counter -application and, in my view, one cannot consider whether that
defence is available on these facts without considering the issue of privity of interest .
However, because the parties did not address the issue, I am reluctant to make a
firm finding on it , especially because there may be important issues relevant to the
position in English law which I may have overlooked.
25 It is, in any event,
unnecessary for me to do so because there is another reason, in my view, why Shell
cannot impugn Umhlaba’s ownership of the contested property in these proceedings
without first rescinding the 2012 order.

The implication of registration
[64] The 2012 order required the Municipality to transfer the contested property to
Umhlaba. It is common cause that, on 6 November 2017, the process of giving effect

25 I have not been able to research the position in English law comprehensively. I have also not
been able to conduct conclusive research of Voet’s writings and the position under Roman and
Roman -Dutch law. There are, almost certainly, various complexities in all of that material which
could serve to explain why the English courts, possibly based on the Roman or Roman -Dutch
writers, adopt th e approach which I have summarised, briefly, based on the decision in Powell
(see above n 23 ). There may also be important differences between our legal systems. I have
not, for instance, researched the extent to which, in English law, a seller has a duty to protect a buyer from third -party attacks on its ownership. This may have some relevance to an
assessment of privity of interest.
23
to the 2012 order was completed , and that Umhlaba’s ownership of the contested
property was registered on that date. In terms of our abstract system of property law,
registration of immovable property passes ownership, regardless of the validity of the
underlying contract .26 All that is required for ownership of immovable property to
pass is (a) registration and (b) a so- called “real agreement” between the parties,
which is essentially a common intention for ownership to pass by transfer.27 Once
transfer of ownership of a property is effected by registration, a personal right to obtain transfer held by a buyer against a seller is converted into a real right,
enforceable against the whole world.
28 In a case where registration results from a
court order, the court order essentially replaces the real agreement requirement. Or,
put differently, where a buyer has to obtain a court order to convert a personal right (ie, arising from her contract with the seller) into a real right (ie, reflected in the registration into her name of the property subject to the contract), the court order
requiring registration confirms (by its mere existence) the validity of the real agreement.
[65] As I explained in the introductory paragraphs, Shell has, in its counter -
application, sought an order setting aside the registration of the contested property in
Umhlaba’s name. But, instead of basing its claim for this relief on the invalidity of the 2012 order (which it could have attempted by seeking an order rescinding the 2012 order coupled with a prayer to condone the delay in seeking rescission), or even the real agreement facilitating registration, Shell chose to attack the validity of the underlying agreement between Umhlaba and the Municipality. For instance, it argues that the 2003 agreement between Umhlaba and the Municipality did not comply with
section 79(18)(b) of Local Government Ordinance, 1939 (see paragraph [10] above) .
As noted earlier , it also argues that the agreement is invalid because of the doctrine
of notice.
[66] I agree with Mr Kairinos that, by adopting this approach, Shell seeks to do the
very thing which the abstract system of ownership precludes . Instead of attacking the
basis for the registration of Umhlaba’s ownership of the contested property, it directs

26 Legator McKenna Inc v Shea [2009] 2 All SA 45; 2010 (1) SA 35 (SCA) at paras 21- 4.
27 Legator McKenna ( above n 26 ) at para 22.
28 See eThekwini Municipality v Mounthaven (Pty) Ltd 2019 (4) SA 394 (CC) at paras 8 -20.
24
its fire at the underlying legal cause of the transfer of ownership. This is precisely
what the SCA has said, in Legator McKenna, is precluded by the abstract theory of ownership.
29 In my view, therefore, Shell is precluded from seeking the cancell ation
of the registration of the contested property in Umhlaba’s name without also seeking
an order rescinding the 2012 order.
[67] What is the effect of the legal conclusion, for the reason just given, that Shell
cannot dispute Umhlaba’s ownership of the property without setting aside the 2012 order ? It is the same, in practical terms, as a conclusion that the 2012 order renders
the present dispute res judicata. On either construction, the 2012 order is an absolute barrier to the success of any argument advanced by Shell in the present application which is inconsistent with the premise that Umhlaba is the owner of the contested property. In other words, the only way that Shell could attack the premise
of Umhlaba’s claim to ownership was to seek to rescind the 2012 order.
[68] The question is whether the judgment in Yellow Star Properties ,
30 on which
Shell sought to rely, changes the conclusions which I have reached. In my view, it
does not. The facts of that matter are somewhat complicated, so I hope that I shall
be forgiven for stating them in a simplified form. The appellant had concluded a sale
agreement with the provincial government of Gauteng in respect of certain suburban
land. When the appellant sought to enforce its rights under the agreement by
compelling transfer, it turned out that the land was not owned by the Gauteng
government, but by the n ational government. The only way that the appellant could
compel transfer was if the national government could be persuaded to issue a
specific type of certificate which reflected the Gauteng government as the owner of
the land. The national government refused to do so. It emerged, in due course, that the Minister of Public Works was the member of the national executive with the
delegated power to transfer the property. In its application to compel transfer, the appellant had cited a different Minister, the Minister of Land Affairs, as one of the
respondents. Nevertheless, the court granted the appellant’s application and made
an order which required transfer to be effected as soon as the relevant certificate

29 See Legator McKenna (above n 2 6) at para 23.
30 Yellow Star Properties 1020 (Pty) Ltd v MEC, Department of Development Planning and Local
Government, Gauteng 2009 (3) SA 577 (SCA) .
25
was issued. For reasons unimportant here, the court expressly declined to order the
national government to furnish the certificate.

[69] When it became clear that the national government would not issue the
certificate , and after the appellant heard a rumour that the land was about to be
subdivided, the appellant brought a new application, in essence to obtain an order
compelling transfer. In that matter the Minister of Public Works applied to intervene
and successfully argued that the agreement between the appellant and the Gauteng government was void ab initio (ie, lacking a lawful basis and invalid from the outset)
because the Gauteng government was not authorised to sell the property. The
second court therefore dismissed the appellant’s application.

[70] The appellant then brought an action against the Gauteng government for
damages arising from breach of the sale agreement. The Gauteng government argued that the issue of the validity of the sale agreement had been determined in the second application and was therefore res judicata as between the appellant and the province. Since damages cannot be claimed for breach of a void agreement, that finding would have knocked out the damages claim. In response to this, the
appellant argued that it was not open to the second court to conclude that the
agreement was void ab initio because the first court had held the agreement to be
valid and enforceable. This was the main question decided by the SCA, and Shell
relies on the SCA’s approach to the matter as authority that it is not bound by the
2012 order.

[71] The SCA rejected the appellant’s argument for two reasons. First, it held that
the “same parties” requirement was not satisfied. The Minister of Land Affairs had
been a respondent in the first application but not the second, and the Minister of Public Works in the second, but not the first. The Minister of Public Works, as the
entity responsible for administering the property, was not party to the first application
and was therefore not bound by any finding that the agreement was valid. Secondly,
the SCA he ld that the first judgment had not, in fact, held the agreement to be valid.
Rather, it presumed it to be valid and granted an order which was premised on its
validity only because, having dismissed a locus standi point, no other arguments to
support the agreement’s invalidity were advanced to it. Therefore the same issue –
26
ie, the validity of the agreement – had not arisen in the first and second applications.
Put differently, the validity of the agreement was not at issue in the first application,
and so the first application could not render that issue res judicata in the second proceedings.

[72] The judgment in Yellow Star is distinguishable in relation to the two issues
which, as identified above, are, in my view, dispositive of the attacks by Shell on
Umhlaba’s ownership and its attempt to assert ownership itself. First, there was no suggestion that (and therefore the SCA did not consider whether) any of the parties
to the first litigation were privies of parties to the second application. That being the
case, any parties to the second application who were not party to the first, could not
be bound by findings in the first application. Secondly, Yellow Star did not concern,
at all, the question of the circumstances in which registration of ownership can be
undone. Because of the conditional nature of the order in the first proceedings (ie,
that registration had to be facilitated on condition that the national government issued the necessary certificate), any personal right found to have been held by the appellant was never converted to a real right.

[73] It follows that the 2012 order is an insurmountable obstacle to the relief
sought by Shell in these proceedings .

The implications

[74] But what of the fact that Shell was not joined as a respondent in the 2012
application? When Wallis JA explained the principle justifying binding privies in
Caesarstone Sdot -Yam Ltd (supra), he said the following:
“It may be that the requirement of 'the same persons' is not confined to cases
where there is an identity of persons, or where one of the litigants is a privy of
a party to the other litigation, deriving their rights from that other person.
Subject to the person concerned having had a fair opportunity to participate in
the initial litigation , where the relevant issue was litigated and decided, there
seems to me to be something odd in permitting that person to demand that the issue be litigated all over agai n with the same witnesses and the same
27
evidence in the hope of a different outcome, merely because there is some
difference in the identity of the other litigating party.”31

[75] This statement gives effect to what ought to be axiomatic. The principle of
finality in litigation cannot trump the fundamental right to a fair hearing. It is an
essential bedrock of the principles discussed above that, to bind a party to an order,
that party must have been given an opportunity to participate in the proceedings
which had the potential to lead to the making of that order. It seems to me to be
incontestable – despite Umhlaba’s submissions to the contrary – that Shell ought to
have been joined to the 2012 litigation. The 2012 litigation seems to have
commenced as an urgent application. In Part A of the notice of motion, the very first
substantive prayer was an interim interdict restraining the Municipality from
transferring the contested property “either as is or as a bigger consolidated property
to Shell South Africa Marketing (Pty) Ltd or any other person, natural or juristic but
excluding the applicant itself”. Part B of the notice of motion sought the relief subsequently reflected in the 2012 order. It is not clear to me what became of the urgent application – it was set down, according to the notice of motion, on 3 July
2012 but the 2012 order (reflecting the Part B relief) was ultimately granted on 25
July 2012. I can only assume that, given the failure of the Municipality to oppose the application, the matter was moved to the ordinary unopposed roll. All of this, though, is beside the point. The relief sought in Part A clearly foreshadowed the possibility of the contested property being transferred to Shell. That, in and of itself, ought to have warranted Shell’s joinder.

[76] But the position is even clearer if one considers the founding affidavit in
support of the 2012 application. In it, the deponent annexed a letter from Umhlaba’s
attorney, sent to the Municipality on 14 May 2012, in which the possibility of a
competing claim from Shell is set out. True, the letter clearly explained why, on
Umhlaba’s version, there could never be a lawful transfer to Shell. However, it is
hard for me to understand how, in the face of these allegations, Shell was not
considered to be a party with a direct and substantial interest in the relief sought.
Umhlaba’s stance, including in argument to me , appears to have been that Shell

31 Caesarstone Sdot -Yam (above n 12 ) at para 43. My emphasis.
28
could not possibly have had a valid claim to the contested property and therefore
had no substantial and direct interest in the relief claimed in the 2012 litigation. It seems to me to be self -evident that the merits and the issue of joinder cannot be
conflated in this way.
32 Shell’s direct and substantial interest in the 2012 litigation did
not flow from its ownership of the contested property. It flowed from its claim (whether good or bad) to the contested property and the fact that the 2012 order, if granted, would prejudice that claim.
[77] I appreciate that, for some time in this protracted litigation, Umhlaba appear s
to have been in the dark about the relationship between various Shell entities and
which, if any, had a claim to the contested property . The nature of that relationship
was only cleared up in the papers in the application before me in Shell’s replying affidavit to Umhlaba’s answering affidavit to the counter -application. But that is also
beside the point. Shell’s relevant predecessor company should have been joined as a respondent in the 2012 litigation. Umhlaba clearly knew, when it launched the 2012
litigation, that Shell had a possible conflicting claim to the contested property. Knowledge of that fact was sufficient to impose on Umhlaba a duty to join Shell. (I
should say that I take the point, made by Umhlaba in one of its affidavits, that it was
totally transparent, in the founding affidavit in the 2012 litigation, about the position of
Shell. This is correct, and I do not mean to suggest that Umhlaba was underhanded
in any way, in relation to the 2012 litigation. Objectively, though, one of the Shell entities ought to have been joined in the 2012 application.)
[78] But Shell’s simple remedy to cure this injustice was to seek to rescind the
2012 order. I do not think it is inaccurate of me to distil Shell’s stance in argument
before me to the following, simple position: Shell was not a party to the 2012 litigation but should have been joined. Since it should have been joined but was not, it is free to disregard the 2012 order. But, if this were to be accepted as correct, then
there would never be a need for a non- party to seek rescission of an order , even in
cases of privity of interest or where the order creates real rights .


32 See, for example, Hlophe v Freedom Under Law and other matters 2022 (2) SA 523 (GJ) at
para 42.
29
[79] The question that then arises is this: would it be to put form over substance to
dismiss the counter -application on the basis that no rescission of the 2012 order was
sought? Would it not be possible to interpret the counter -application generously, and
to treat it, in substance, as a rescission application?

[80] It seems to me that the answer to both questions must be no. Rescission is a
discretionary remedy,33 which is not there simply for the asking.34 Regardless
whether the application is brought under rule 42 or the common law (or both), the
basis for the application must be pleaded and a proper explanation given for the
delay.35 Because it did not see the need to seek rescission of the 2012 order, Shell
did not plead its case in this way. Because it decided not to apply for rescission, it
did not attempt to justify its delay . Indeed, one might speculate that Shell’s stance in
this matter is motivated by the appreciation of its legal team that it would have been hard to justify not seeking rescission in 2014.
[81] This brings me to a separate argument raised by Umhlaba, which from my
perspective is in fact inextricably linked to the status of the 2012 order: the contention that any claim which Shell has to the contested property has now
prescribed. As I show next, I agree with this contention. That being so, it is hard to

33 See Competition Commission of South Africa v Pickfords Removals SA (Pty) Ltd 2021 (3) SA 1
(CC) at para 54. In Williams v Shackelton Credit Management 2024 (3) SA 234 (WCC), Bishop
AJ suggested (at para 23) that, if a previous court order was granted erroneously, a court
hearing a rescission application under rule 42(1)(a) has no discretion and must grant
rescission. However, read in context, Bishop AJ appears to have meant that, when it comes to
the question of the nature of the previous order (ie, whether it was erroneously granted or not),
there is no discretion; but, when it comes to the issue of delay (and other considerations of
justice and equitability), there may be. It seems to me that there is no doubt that rescission is a
discretionary remedy. Of course, there can be no discretion as to whether a previous order was
erroneous – it either was or was not, which is an objective question of law . If it was not (not only
as to substance but, more important ly, as to whether it was erroneously granted in the absence
of a party (as an example of one of the circumstances envisaged by rule 42) ), then that is the
end of the matter and there would be no basis for rescission. But, if it was, the court would have
to decide whether to exercise its discretion in favour of rescission, taking into account factors
such as delay and the interests of justice. This seems clear from the fact that , in Botha v Road
Accident Fund 2017 (2) SA 50 (SCA) at para 13, the SCA approved the holding in Theron NO v
United Democratic Front 1984 (2) SA 532 (C) at 536G that a court considering a rescission
application under rule 42 has a discretion whether to grant the application. Self-evidently, this
discretion only comes into play if the previous order was erroneously granted. That being so, I
cannot see any room for the conclusion that a court which concludes that a previous order was
erroneously granted has no discretion to refuse rescission (some remarks in other cases to the
contrary, notwithstanding).
34 See Tom v Minister of Safety and Security 1998 JDR 0225 (E) at p 32.
35 See Ekurhuleni City v Rohlandt Holdings CC 2025 (1) SA 1 (CC) at para 9 4.
30
imagine a court exercis ing its discretion in favour of rescission, even if Shell had
asked it to do so.

Prescription of the right to claim transfer

[82] On the facts, as I have described them above, it may be seen that Shell, on its
own version of the history, acquired the right to the contested property more than
fifteen years before the 2012 order was granted. On its own version, it contemplated, but then abandoned, the idea of litigating against the Municipality in around 2006 to
compel it to transfer the contested property to it. It is true that it was not cited in the
2012 application brought by Umhlaba. And, if it had been, perhaps it would have
raised the objection that it was Umhlaba’s claim which had prescribed. After all, there was a delay of roughly ten years between when Umhlaba says that it acquired the
right to claim transfer of the contested property and when it launched the 2012 application. But, again on Shell’s own version, it was informed in 2014 of the 2012 order, but still chose to do nothing.
[83] Shell says that Umhlaba has no right to plead prescription against Shell’s
counter -application because only the Municipality may do so. This is clearly wrong.
36
Once that is so, then it seems to be relatively straightforward to conclude that Shell’s claim to the contested property has prescribed. There is a subtle, but important,
distinction between an order which determines the status of a property (ie by determining that the property is owned by X and must be transferred into its name)
and a right to claim transfer of that property. The latter relates only to a personal
right, because it arises from a contract binding only on the parties to it. That being
so, it falls within the category of a “debt”, which prescribes after three years.
37
[84] Where does that leave us? Even if one were to try to construe the counter -
application as an implicit rescission application, it would not be in the interests of justice to grant it. Let us leave aside the fact that Shell has failed to plead a proper

36 See Lipschitz v Dechamps Textiles GmbH 1978 (4) SA 427 (C) at 430- 1. See also Standard
General Insurance Co Ltd v Verdun Estates (Pty) Ltd 1990 (2) SA 693 (A) at 699; George
Singh & Co v Ensor NO 1981 (1) SA 1190 (N) at 1196- 7.
37 See eThekwini Municipality v Mounthaven (above n 2 8) at para 8.
31
case for rescission. The bigger issue is that, on these facts, it could never make out
a case to rescind the 2012 order. If its claim underpinning the counter -application
has prescribed, as it has, then what possible purpose would be served by rescinding
the 2012 order? If Shell’s claim to the contested property has prescribed, then it has
no further legal interest in overturning the 2012 order. This is clear from Shell’s own
papers, in which the claim for the cancellation of the registration of the property in
Umhlaba’s name is inextricably linked to Shell’s insistence that it is the true owner. If it is precluded from advancing the latter argument, then it has no discernible self -
standing basis for setting aside the 2012 order which facilitated the registration in
Umhlaba’s name.
Umhlaba’s ownership must be treated as unassailable
[85] It follows from what I have said above that the counter -application cannot be
granted. But what about Shell’s defences to Umhlaba’s eviction application, based on the premise that Umhlaba’s legal right to the property is built on faulty foundations? These arguments must, necessarily, also be rejected in the light of
what I have said above. Everything which I have said which precludes Shell from
ventilating its counter -application applies with equal force to its defences to the main
application. If the 2012 order is binding unless and until it is rescinded, then it must
be accepted as correct. Once that is so, Umhlaba’s eviction application rests on the
simple proposition that it has taken transfer of the contested property – and holds a
title deed as proof of this – pursuant to the 2012 order. That proposition entitles it to
assert its ownership of the property and precludes Shell from raising any arguments
attacking the underlying basis of the sale of the contested property by the
Municipality to Umhlaba.

[86] I should add for completeness that, even if I am wrong in my entire analysis of
the status of the 2012 order, the fact that the counter -application is precluded by
prescription is also a complete and self -standing reason why Shell’s opposition to the
main application must fail. Once one accepts that the cause of action underpinning the counter -application has prescribed, one has to accept that Shell’s interest in the
contested property has permanently come to an end. That being so, I cannot see
how Shell ha s any standing to oppose the main application (subject, at least in
32
principle, to its lien argument which I address below) . It has no legal interest in doing
so and has not remotely made out a case to establish any form of public -interest
standing.

Enrichment

[87] Shell’s fall- back position, which is intended to apply in circumstances in which
I dismiss the counter -application and is premised on the confirmation of Umhlaba’s
ownership of the contested property, is that it cannot be evicted because it holds an
enrichment lien. It says that it improved the value of the property substantially by
building a service station on it, which means that , as a bona fide possessor , it is
entitled to be compensated for improvements. It says that , unless and until it is
compensated for the improvement s which it made to the contested property, it is
entitled to remain in possession pursuant to its lien.

[88] In explaining the basis of its enrichment claim in the answering affidavit
(which, it must be emphasised, also constitutes a pleading in motion court), Shell says that the value of the contested property is now, as a result of the construction of
the service station, roughly R13.5 million. It says that it has spent R10 068 618.87
“building the service station and installing services”. Shell then says that it “is entitled
to exercise its lien up to and until it is paid an amount of R10 068 618.87”. Shell does
not say, in the answering affidavit, who has been unjustifiably enriched and therefore is obliged to pay this sum to it.

[89] In its reply to these allegations, Umhlaba has disputed multiple factual
premises of the entitlement of Shell to exercise its claimed lien , most notably that
Shell has been in uninterrupted possession of the contested property since the
improvements were made. As a point in limine in the replying affidavit, it also plead s
prescription of any enrichment claim which Shell might have. As Umhlaba put it,
“[m]ore than 3 years have thus expired since [Shell] knew or ought to have known of
the said sale and pending transfer and of its alleged enrichment claim, and failed to enforce either claim by legal proceedings”.

33
[90] Because Shell’s answering affidavit in this matter also stood as its founding
affidavit in the counter -application, Umhlaba’s replying affidavit in which it took the
prescription point also stood as its answering affidavit in the counter -application.
Shell therefore took the opportunity to deal with Umhlaba’s allegations about the lien,
in Shell’s replying affidavit. It denied that it had vacated the property and thereby
given up the lien. It did not, as far as I understand the affidavit correctly, grapple with
the prescription point at all. In a different context, it denied that Umhlaba had locus standi to raise prescription in respect of Shell’s claim to the contested property. But I do not understand its replying affidavit to have denied that its enrichment claim has
prescribed.

[91] Be that as it may, in supplementary written argument filed by Mr Smit on
behalf of Shell, in response to a directive which I issued, Shell argues that prescription is not applicable to an improvement lien. In support of this conte ntion, Mr
Smit relies on the decision of MEC, Department of Public Works and Infrastructure,
Eastern Cape Province v Pretorius .
38 There, the Court expressed the view that it is
“doubtful” that sections 10(1) and 11(d) of the Prescription Act 68 of 1969 can terminate an improvement lien, which is a real right.
[92] The Court’s statement, on which Shell relies, was obiter. This is because the
ratio of the decision was that the first respondent had not pleaded the enrichment lien (or the underlying claim) adequately and could not therefore rely on an enrichment lien as a defence to the eviction proceedings brought by the applicant (on behalf of the provincial government). It was therefore not necessary for the Court to decide whether a lien prescribes, which is presumably why the court was content to use the term “doubtful”, rather than anything stronger.
[93] In any event, binding authority, including of the SCA, clearly provides that all
rights of real security, including, a lien are accessory to a valid underlying claim.
39 It
is true, as the Court pointed out in Pretorius , that a n improvement lien is a real right

38 2022 JDR 2144 (ECM) at para 33.
39 See Panamo Properties 103 (Pty) Ltd v Land and Agricultural Development Bank of South
Africa [2015] 3 All SA 42 (SCA) at para s 24 and 28 and the authorities cited there; see
Silberberg and Schoeman The Law of Property 6 (ed) at para 16.2.1 p 429.
34
(as opposed to a debtor -creditor lien, which is not) . But all that this means is that it
operates against the world at large. An occupier may therefore invoke the lien as a
defence to eviction, even if the occupier has an enrichment claim not against the applicant for eviction but someone else. But if it may be shown that the underlying
claim to which the lien is an accessory is invalid, then the lien cannot be invoked any
longer. It would be absurd for the conclusion to be otherwise. It would mean that,
even though it had been unequivocally demonstrated that there is no underlying claim to protect, an occupier could hold onto the property indefinitely simply by
invoking the lien’s status as a real right. It also has the effect of artificially hiving off
part of the enquiry into the merits and ignoring the rest. On Shell’s construction, all
that the holder of an improvement lien must establish is that it improved the relevant
property, as a matter of fact (in addition to the uncontentious requirement of retained
possession, which need not detain us here) . However, to succeed in the underlying
claim for damages, the party who made the improvements would have to establish
all of the requirements of the relevant enrichment action, as well as locus standi. It would also have to address, and defeat, any claim of prescription. It makes no sense that a lien could entitle an occup ier to hold onto a property, possibly forever, despite
only establishing one of the many requirements necessary to sustain an enrichment
claim. It may be that possession and evidence of work done could alone constitute
sufficient evidence to support the granting of an interim interdict to protect a lien to
preserve the status quo. But when the underlying claim is finally shown to be invalid,
the lien may no longer be invoked.

[94] The Amandla S ervice Station was operational by no later than 1996. Some of
the improvements which Shell says that it made to the property were made by Shell
on the assumption that it would soon take transfer of the property. On its own
version, it came to appreciate, in around September 2003, that the Municipality had
not complied with its obligations under the agreement which it had concluded with
Shell. Also on its own version, Shell resolved to litigate to enforce its rights under the
agreement in 2006 b ut chose not to do so. For the purposes of section 12(3) of the
Prescription Act, prescription in respect of its enrichment claim began to run, at
absolute best for Shell, no later than 31 December 2006 (because Shell gives no
date in 2006 on which it resolved to litigate) . Arguably prescription began to run even
earlier. But, at best for Shell, prescription of the enrichment claim began to run when,
35
in 2006, Shell appreciated that it might never be given transfer of the contested
property without bringing, and then winning, an application to compel transfer. Once it appreciated that, then it ought reasonably to have appreciated (even if it did not, as a matter of fact have this realisation, an issue not canvassed on the papers) that it
had incurred expenses to improve a property which it did not own. However, it took
no steps to seek compensation for those expenses. That being so, it cannot resist
Umhlaba’s eviction application on the basis that it holds an enrichment lien. The accessory nature of that lien means that, once the underlying claim cannot be pursued, the lien loses its teeth.

[95] There is another reason why the enrichment lien defence must fail. As in
Pretorius (see above ), Shell has not adequately pleaded the legal basis of its
enrichment claim. It has pleaded, in some detail, the costs which it incurred in
building the service station. However, it has never clearly identified the defendant in the enrichment claim which its lien is meant to protect . It could only ever be the
Municipality or Umhlaba. But the claim is not clearly pleaded in relation to either.
Furthermore, Shell is clearly aware of the trite rule that a plaintiff in a claim based on unjustified enrichment may only obtain compensation for the lesser of the plaintiff’s
impoverishment and the defendant’s enrichment. However, it has misapplied it. It
seems to see the figure of approximately R13.5 million (reflecting the alleged increased value of the land) as the (unidentified) defendant’s enrichment. But that
cannot be.

[96] Although Shell disputes the validity of the 2003 agreement between Umhlaba
and the Municipality , it is common cause that the purchase price was R400 000. If
the enrichment claim is against the Municipality , then its enrichment has to be the
difference between the purchase price which it actually achieved in respect of the
property (ie, the R400 000) and the value of the property before the service station
was built. That assessment would have to be undertaken in respect of what the
Municipality received in terms of the 2003 agreement with Umhlaba. Self -evidently, it
could never be enriched to the sum of R13.5m (reflecting what Shell says is the
value of the property now), when it has long -since lost any interest in the property. Its
true enrichment, if any, was the difference between what it achieved for the property
with a service station on it (R400 000) and what it would have achieved if there had
36
been no service station on it (which, for there to have been any enrichment, would
have had to have been less than R400 000). This is not remotely canvassed in
Shell’s papers.
[97] If the enrichment claim is against Umhlaba, then it is equally defective. Any
claim against Umhlaba would have prescribed no later than three years after the
dates in 2014 when Shell was informed that Umhlaba had obtained an order
confirming its ownership of the property. And the claim would face the further
obstacle that Umhlaba bought the property with the service station already built. It
could, as a result, never have been enriched by Shell’s construction of the service
station because the improvements which Shell made were undertaken, on the
common cause facts, before Umhlaba became the owner of the property.

[98] Some of the expenses on which Shell relies to support its lien argument were
incurred long after Umhlaba and the Municipality concluded their sale agreement in 2003 and at a time (2017) when it is common cause that Shell had long- since been
alerted to the 2012 order . These expenses do not relate to the core construction of
the service station, but rather to maintaining it. In its answering affidavit, Shell says that it “was at all times a bona fide possessor believing that it owned/or was in lawful
occupation of the [contested] property with the consent of the City”. It is not clear to
me whether Shell appreciates the difference between a bona fide possessor and a lawful occupier. The former occupies a property in the genuine but mistaken belief
that it is the owner. The latter occupiers a property in terms of some lesser right (such as lease).
40 On its own version, Shell could only ever have been a possessor
of the contested property because it has never been suggested that it occupied the property in terms of a lease agreement (or something similar) with the Municipality. But, by 2014, it was not a bona fide possessor because it knew about the 2012
order.
41 In these circumstances, there is no explanation in Shell’s answering affidavit
of how it could ever be entitled to claim against Umhlaba for expenses which were
incurred after it became aware of an order awarding ownership to Umhlaba. The
claim in respect of those expenses has, in any event, long- since prescribed.42

40 See McCarthy Retail Ltd v Shortdistance Carriers CC 2001 (3) SA 482 (SCA) at para 13.
41 See Frankel Pollak Vinderine Inc v Stanton NO 2000 (1) SA 425 (W) at 436 and the authorities
cited there.
42 One could become embroiled in an arcane debate about whether the counter -application
served to interrupt prescription in respect of the few expenses which were incurred less than
37

[99] Put simply, Shell has not adequately pleaded any basis for its core contention
that it has an improvement lien arising from a valid enrichment claim. It cannot
escape this circumstance by having the whole matter referred to trial (as envisaged
by one of the draft orders which it submitted). It is well -accepted that, before an
application may be referred to trial or oral evidence, there has to be a properly
pleaded claim (or defence) on the merits.43 The purpose of a referral to trial is to
address factual disputes which require oral evidence and not to cure defective
pleading. The omissions I have described above do not flow from disputes of fact.
They arise from Shell’s failure to plead a proper basis for its enrichment claim.

[100] Therefore, as in Pretorius , Shell cannot invoke the lien, even if it is somehow
correct that prescription cannot defeat it. It has not gotten out of the starting blocks in
demonstrating that it has a valid basis for asserting a lien in the first place. It follows
that Shell cannot resist the eviction application by relying on the enrichment lien defence.

Summation of my conclusions on the merits
[101] The implication of everything which I have said above is that Umhlaba must
be treated, on a final basis, as the owner of the contested property. This is so, even
if Shell is correct that the underlying agreement in terms of which Umhlaba acquired
that ownership was invalid and even if Shell is correct that, when that agreement
was concluded, Umhlaba knew that Shell had already acquired a right to obtain
transfer of the property. Because, in my view, Shell cannot invoke an improvement
lien to resist eviction, Umhlaba should succeed in its application and, for the reasons already given, Shell’s counter -application cannot be granted.
The Municipality and the Registrar of Deeds

three years before the counter -application was brought. Since no damages claim has ever
been instituted, I am sceptical that such an argument could prevail.
43 See, for example, the judgment of Broster AJ in Voltex (Pty) Ltd v EP Inland (Pty) Ltd 2024
JDR 3346 (KZD) at para 32 and the judgment of Dippenaar J in Maredi Telecom &
Broadcasting (Pty) Ltd v PDEV Professional Development Institute (Pty) Ltd 2020 JDR 0905
(GJ) at paras 19 to 29.
38

[102] When I was allocated this matter and first looked at the papers, I could not
understand how it came to be that the Municipality and the Registrar of Deeds came to be the third and fourth respondents. The notice of motion and founding affidavit do
not mention or cite them, but they make an appearance for the first time in the
heading of Umhlaba’s replying affidavit. I therefore issued a directive in which I
asked the parties, amongst other things not relevant here, whether there was an order joining the Municipality and Registrar of Deeds as respondents and whether
they abided the decision of this Court in the main application and/or counter -
application (to paraphrase what I asked in the directive).
[103] Before the hearing, a copy of a joinder application brought by Shell in March
2019 and the order of this Court granting the application w ere uploaded to
Caselines. In addition to this confirmation that this Court did indeed join the Municipality and Registrar of Deeds as respondents, there is evidence that both the joinder application and the notice of set down were served on the Municipality and the Registrar of Deeds. However, on the morning of the hearing Mr Smit pointed out
to me that there is no evidence that the court order joining the Municipality and the
Registrar of Deeds was ever brought to their attention.

[104] I debated with the parties what should be done about this state of affairs. It
was ultimately agreed that I should hear argument and address the issue in due course, either in this judgment or in an interlocutory directive of some kind.

[105] I have already said, in a different context (earlier in this judgment), that the
merits of a dispute should not be conflated with the test for joinder. Even though
Shell’s counter -application must ultimately fail, that cannot carry the implication that
the Municipality and the Registrar of Deeds did not have to be joined as
respondents. The conclusion that they will not be prejudiced by the order granted in
this matter has only been reached as a result of a detailed consideration of the
merits, and cannot answer the prior question of whether they ought to have been
joined in the first place.

39
[106] However, it seems to me that I am now confronted with a slightly different
issue. There is no doubt that both the Municipality and the Registrar of Deeds were
made aware that an order could be granted joining them as respondents and even the date on which that order could be made. Despite having that knowledge, they
elected not to oppose the joinder application. They also took no other steps which
indicated an intention to participate in this matter, despite having been served the
joinder application (which succinctly sets out the basis of their interest in the counter -
application) and the papers in the main application. So, the question which faces me is not whether they ought to have been joined (which is clear and which happened).
The question is whether I ought to have declined (and therefore must now decline) to
make a final determination of the merits of Umhlaba’s application and Shell’s counter -application without first making completely sure that neither the Municipality
nor the Registrar of Deeds has anything to say.
[107] In this context, it seems unavoidable to me to allow the merits to play some
role. If I thought that there was any merit in the counter -application, prudence would
have obliged me to ask the parties to make a further effort to ensure that the Municipality and the Registrar of Deeds were content to abide this Court’s order. On
the morning of the hearing, when Mr Smit brought the issue of the non- service of the
joinder order to my attention, I did not yet have sufficient information (not least because I had not yet heard oral argument) to determine conclusively whether the
Municipality or Registrar of Deeds could possibly be prejudiced by any order which I was likely to make (again, in circumstances where there is clear evidence that they
were made aware both of the main application (including the counter -application)
and the joinder application) ). I was therefore faced with a choice. I could have
declined to take any step further, for fear that to do so would have harmed the
Municipality and Registrar of Deeds . Or, I could have heard argument and decided,
on a more complete picture of the case, what to do. I opted for the latter course. In
doing so, I was motivated by the desire to avoid a profound waste of resources. The
parties had prepared for argument in a voluminous matter, which has been pending
since 2019. I had read the papers and was concerned about the possibility of another judge having to deal with the matter from scratch, in circumstances where the strained resources of this Court are well -known. Again, flowing through all of this
40
was the fact that the Municipality and the Registrar of Deeds were well -aware of the
application and its implications.

[108] Having adopted this course of action, I began the process of preparing this
judgment. That process necessarily put me in a position to understand the issues
fully (or at least as fully as I am able). Once it became clear to me that the counter -
application could not be granted, it struck me as an exercise in futility to postpone the final resolution of this matter by trying to give the Municipality and Registrar of Deeds a further opportunity to participate.

[109] Mr Smit , on the morning of the hearing when we were debating what to do,
expressed concern about what might happen on appeal, if I did not postpone
argument on the grounds summarised above. His point being that even if I were to
dismiss the counter -application (something obviously unclear at that stage), an
appeal court might be minded to grant it, which potentially meant that it was necessary to ensure service of the joinder order on the Municipality and the Registrar of Deeds before going further. After reserving judgment I reflected on this stance, which is reasonable and persuasive. However, I have ultimately concluded
that it is not sufficient to change my view on how to handle this issue. The fact that I
am firm in my belief that the counter -application could never succeed is not
something which should necessarily motivate me when considering the position of a
potential appeal court. However, whether this judgment will ever go on appeal is
speculative at this point. If it does, and if the appeal court decides that the
Municipality and the Registrar of Deeds should be afforded a further opportunity to
participate, the appeal court w ill have various remedies at its disposal to address the
matter.
44 This speculative set of circumstances was not enough, in my view, to justify
delaying the final resolution of this matter.

[110] The bottom line is this: by virtue of the approach which I take to this matter,
there is no prejudice to the Municipality or the Registrar of Deeds arising from my order. To have delayed this matter further to give them a further opportunity to

44 See, for example, Eden Village (Meadowbrook) (Pty) Ltd v Edwards 1995 (4) SA 31 (A) at 46- 6;
Lottostar and others v Ithuba Holdings (Pty) Ltd and others [2023] ZASCA 119 (5 September
2023) .
41
participate would have been an unnecessary elevation of form over substance. I am
accordingly satisfied that it is appropriate for me to make the order set out below without requiring any further steps to be taken in respect of those respondents.

Appropriate relief

[111] Both parties uploaded various draft orders to Caselines. I am indebted to
them for doing so, especially given the way in which the terrain shifted by the time of the hearing (which would have made formulating an order without their assistance
somewhat challenging).

[112] In the light of the substantive findings which I have made above, the main
issue which now confronts me when deciding on appropriate relief is how to handle the relief sought by Umhlaba in prayer 4 of its notice of motion (ie, the prayer for
compensation flowing from Shell’s occupation of the contested property) . Arising
from the approach adopted by the parties as summarised above (in particular, Umhlaba’s abandonment, for now, of its claim to final relief based on Shell’s occupation of the contested property), the narrow question which confronts me is
whether to refer the dispute about the rental/holding- over damages to trial or oral
evidence. Ordinarily, an applicant who brings an application when he or she ought to
have foreseen material disputes of fact should not be rewarded by the get -out-of-
gaol-free card of a referral to trial or oral evidence.
45 If Shell had taken the position
that this part of the application ought to be dismissed on the basis that Umhlaba
ought to have foreseen disputes of fact, then the question of what order to make
would have been more complicated. But since it is common cause that the dispute
about rentals/holding- over damages should not be decided on the papers, I am
relieved of the burden of confronting that complexity .
[113] I agree with Mr Kairinos that it would be preferable to refer the dispute to trial,
rather than to oral evidence. The relief envisaged in prayer 4 of the notice of motion is not capable of being compartmentalised in a way lending itself to a referral to oral evidence of narrow factual issues. Essentially the whole question relating to the

45 See Mamadi v Premier, Limpopo 2024 (1) SA 1 (CC) at para 42.
42
financial implications of Shell’s occupation is in dispute. There is a dispute about
whether a short -term lease was concluded in the first place. There is a dispute about
the quantum of holding- over damages, if no short -term lease was agreed (and, even
if one was, the dispute applies to the period after which Umhlaba says that it
cancelled that lease). Had it been common cause that a short -term lease was
concluded and there was only a narrow dispute about holding- over damages, I might
have seen things differently. But, for present purposes, I must proceed on the basis
that only prayer 4 remains alive. And, since every issue relevant to that prayer remains in dispute, a trial would be a more convenient mechanism to resolve the
matter.

[114] As mentioned briefly in the introduction, both parties agreed that there was no
need for me to resolve the rule 30 application. They agreed that the simple way of address ing the issues in that application is for me to admit all of the affidavits which
were the subject of that dispute, since both parties had a full opportunity to respond to each other’s allegations. I commend them for this approach, and intend to give effect to their agreement in the order below. All that I must add here is that, in
response to a directive which I issued, the parties recorded their agreement that the
costs of the rule 30 application should be costs in the cause. Since no agreement is
recorded as to the scale, I intend to make clear that scale A is applicable . (I
appreciate that this is the default position anyway. However, since the main costs
awards are, as explained below, on scale C, I consider it prudent to distinguish between the different cost orders expressly.)

[115] There is one issue which was not addressed in argument: the period of time
which should be given to Shell and the second respondent to vacate the property. In
Umhlaba’s draft order, it seeks a period of 15 days , which mirrors the notice of
motion. Because there was no focus on this issue in argument, I am reluctant to
acquiesce in the 15 days proposed by Umhlaba. In a commercial context, it is not
unreasonable. Rather, m y reluctance stems from the fact that I do not have any
information about the position of the second respondent (which chose not to
participate in this litigation) or anything else relevant to prejudice. Of course, since this is a commercial dispute and nobody is at risk of losing his or her home, this is
not the type of eviction application in which I am expected to be hyper -cautious in
43
order to protect constitutional rights. However, it seems to me to be appropriate to
afford Shell and the second respondent a longer time to vacate, especially because this dispute has dragged on for so long. Given that it is now more than seven years since Umhlaba obtained registration, I have to assume that it can wait a bit longer to
obtain possession of the property.

[116] There is no need for me to address the issue of costs in any detail, other than
to say what follows. Umhlaba seeks the costs of the main application and the
(dismissed) counter -application on Scale C. Because Shell’s entire approach was
premised on the need for this matter to be referred to trial or oral evidence, its draft
orders make no provision for a costs order to be made at this stage. It has not, as a
result, address ed me on what scale is appropriate. In terms of rule 67A(3)(b), I am
entitled to have regard to the complexity of the matter and the value of the claim or importance of the relief sought when I determine which scale should apply . There is
no evidence on the papers to suggest that this matter is significantly important, in the
noteworthy way envisaged by the rule, to the parties (ie, in a way which is different to the importance which all litigants attach to their disputes) .
46 However, I am satisfied
that this matter is sufficiently complex to justify a departure from the default position
(ie, in which Scale A is applicable). Certainly, from my perspective, it raised issues
which , although superficially straightforward, turned out to be complicated, requiring
careful research and consideration. Whether judges care to admit it or not, the
determination of whether to adopt Scale B or C will often be no more than a thumb-
suck. Perhaps, as in the case of hardcore pornography, we have to be satisfied with
a simple rule that we know it when we see it.47 While my own labour is not, perhaps,
a comprehensive yardstick, I can at least appreciate from my work on this judgment, and the detail in the papers, that this was not a run- of-the-mill matter. In this case, I
therefore take the view that the complexity justifies a costs award on Scale C.
[117] I accordingly make the following order:
Order

46 See Mashavha v Enaex Africa (Pty) Ltd 2024 JDR 1686 (GJ) at para 20.
47 See the judgment of Stewart J in Jacobellis v Ohio 378 US 184 (1964) at 197.
44
(1) The first respondent and all persons occupying 1 Twelve Road (a
portion of Portion 6 of Erf 2[ …], T[…] Extension 12 Township, Registration
Division IR, Gauteng) (“the property”) through the first respondent, including
the second respondent, are ordered to vacate the property within two
calendar months from the date of this order.
(2) Should any party or person described in paragraph (1) above fail to
vacate the property in the timeframe envisaged by paragraph (1) above, the
Sheriff of this Court is authorised and directed to enter upon the property and
take all steps necessary to eject such party or persons from the property.
(3) The applicant’s costs in relation to its application reflected in prayers 2
and 3 of its notice of motion are to be paid by the first respondent on Scale C
in rule 69(7) of the Uniform Rules.
(4) The first respondent’s counter -application, reflected in its notice of
motion dated 11 March 2019, is dismissed.
(5) The first respondent is to pay the applicant’s costs in relation to the
counter -application described in paragraph ( 4) above, with Scale C in rule
69(7) being applicable to those costs.
(6) The applicant and first respondent are granted leave to file their
respective supplementary affidavits (being the applicant’s supplementary answering affidavit dated 26 September 2019, and the first respondent’s
supplementary replying affidavit dated 13 July 2022).
(7) The costs of the rule 30 application brought by the first respondent are
to be costs in the cause. Scale A in rule 69(7) applies to those costs.
(8) The applicant’s claims to rentals and/or holding over damages are
referred to trial. (9) The applicant’s notice of motion is to stand as a simple summons.
(10) The applicant must deliver its declaration within 20 (twenty) court days
from the date of this order.
(11) After delivery of the applicant’s declaration, the further exchange of
pleadings, notices and documents will be governed by the provisions of the High Court Rules and applicable practice directives of this division.
(12) The costs of the applicant’s claims to rentals and/or holding over
damages are reserved for determination in the trial action.

45
ADRIAN FRIEDMAN
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION, JOHANNESBURG

Delivered: This judgment was prepared and authored by the Judge whose name is
reflected above 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 and by release to SAFLII. The date for hand down is deemed to be 14
January 2025.

APPEARANCES:

Attorney for the applicant: WP Steyn
Counsel for the applicant: G Kairinos SC
Attorneys for the
first respondent: Cliffe Dekker Hofmeyr Inc
Counsel for the
first respondent: M Smit
Date of hearing: 11 October 2024

Date of judgment: 14 January 2025