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

IN THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL DIVISION, PIETERMARITZBURG

Appeal Case No: AR132/2024
In the matter between:

TROPICAL WINTER TRADING (PTY) LTD FIRST APPELLANT
KRUGER ATTORNEYS AND CONVEYANCERS SECOND APPELLANT

and

HENDRIKA PETRONELLA FOURIE FIRST RESPONDENT
KARIEN KRUGER SECOND RESPONDENT
REGISTRAR OF DEEDS: PIETERMARITZBURG THIRD RESPONDENT


Coram: Radebe, P Bezuidenhout and Mossop JJ
Heard: 6 June 2025
Additional written argument submitted on: 18 July 2025
Delivered: 1 August 2025


ORDER


On appeal from: KwaZulu-Natal Division of the High Court, Pietermaritzburg ( Z P
Nkosi J, sitting as the court of first instance):

The appeal is dismissed with costs on the attorney and client scale , which the first
and second appellants are to pay jointly and severally, the one paying the other to be
absolved.



JUDGMENT


MOSSOP J (RADEBE and P BEZUIDENHOUT JJ concurring):

Introduction
[1] The farms Glen Ashton (Glen Ashton), 1 Twyfelhoek (Twyfelhoek) and
Moeders Rus (Moeders Rus) are located near the town of Newcastle in KwaZulu-
Natal and their ownership is at the core of this appeal. When referring to the m
collectively, I shall refer to them as ‘the three farms ’ and w hen speaking of them
individually, I shall refer to them by their respective abbreviated farm name just
mentioned. It is common cause that all three farms appear on a single Deed of
Transfer bearing number T1752/1962 (the Title Deed). In the same area where the
three farms may be found is the Vulintaba Country Estate (the Vulintaba Estate),
which consists of a rural housing estate, a hotel, and a golf course. The Vulintaba
Estate was pioneered and developed by the first appellant, which also owns several
parcels of land in its vicinity.

[2] The first appellant, represented by the second appellant who are its
attorneys, initially brought an ex parte application (the ex parte application) before
this court to gain access to one of the three farms , Glen Ashton, for the declared
purpose of constructing a firebreak or firebreaks thereon. When the ex parte
application was ultimately finalised several months later , the first appellant had not
only been granted leave to access Glen Ashton for the stated purpose, and had
accessed it, but it had also been declared to be entitled to acquire ownership of the
three farms and subsequently had acquired such ownership. All of this was achieved

1 The first and second respondents have consistently referred to this farm in their respective affidavits
as ‘Glen Aston.’ However, the Title Deed reveals that its correct name is ‘Glen Ashton.’

without notice being given to the owners of the three farms and without the first
appellant’s notice of motion in the ex parte application ever being varied from simply
claiming a right of access to Glen Ashton, to claiming a right to acquire ownership of
the three farms.

[3] Upon finding out what had occurred, the first and second respondents, who
have an interest in the three farms, sought leave to intervene in the ex parte
application and sought the rescission of the decision to permit the first appellant to
acquire ownership of the three farms (the joinder and rescission application).

[4] The first and second respondents succeeded on both scores and this court ,
through Z P Nkosi J (Nkosi J), permitted them to join the ex parte application and
then rescinded the order permitting the first appellant to take ownership of the three
farms and directed that the transfer of the three farms to the first appellant be
reversed (the judgment) . It is against the judgment , which included a costs order
granted against the second appellant, that this appeal has been brought.

Ownership history of the farms
[5] It is convenient to set out the ownership history of the three farms at the
outset of this judgment. Nothing that is stated in this regard is in issue.

[6] Insofar as this appeal is concerned, Hendrik Petrus Geldenhuys (Hendrik)
may be considered to be the original owner of the three farms. He was the first
respondent’s father , was twice married and his wives collectively bore him twelve
children, with an equal number of sons and daughters. Hendrik passed away on 31
December 1960 and he bequeathed the three farms to his six sons and the
husbands of his six daughters, in undivided shares . Approximately t wo and a half
years after he died, the three farms were transferred, in undivided shares, into the
names of Hendrik’s 12 nominated heirs.2

[7] The first respondent’s name appears as one of Hendrik’s heirs on the Title

[7] The first respondent’s name appears as one of Hendrik’s heirs on the Title
Deed and, thus, as a co -owner of the three farms . Mr Vorster, who appeared for the

2 Transfer occurred on 16 March 1962.

first and second respondents on appeal, candidly acknowledged that he could not
explain how the first respondent’s name came to be on the Title Deed, given
Hendrik’s apparent philosophy that only males should inherit the three farms. But the
fact that Hendrik’s daughter’s name appears on the Title Deed is common cause and
is not disputed.


The first appellant’s ex parte application
[8] The first appellant approached this court on 6 June 2019 with its ex parte
application. Not only was it brought ex parte, but it was also brought as an urgent
application.

[9] It is necessary to state the terms of the order sought by the appellant in full
in its notice of motion:
‘1. That the Applicant is entitled to bring this application on an ex parte basis;
2. That the Applicant be granted full access and possession of the property
known as Farm Glen Ashton 8589HS, P .O (Pietermaritzburg), Kwazulu-Natal held
under Title Deed 1752/1962 measuring 191.447 HA for the purposes of creating and
maintaining fire breaks on the Property for the duration of the interim order in terms
of the National Veld and Forest Fire Act 101 of 1998 at the Applicant’s own cost;
3. That the Applicant sh all within 14 (fourteen) days after the granting of the
interim order publish the said order in 1 (one) national and 1 (one) local newspaper
in circulation in the Magisterial District of Newcastle for a period of 30 (thirty) days to
inform the owners of the Property of the interim order;
4. The applicant shall within 15 (fifteen) days after the granting of the interim
order attend to the Master of the High Court as well as the Department of Home
Affairs to establish the status of the owners or successors in title of the Property;
5. The applicant shall within 12 (twelve) months after the granting of the interim
order file Supplementary Affidavits with the above Honourable Court to provide (sic)
necessary information regarding the ownership of the Property and attempts to trace

necessary information regarding the ownership of the Property and attempts to trace
the owners and their successors in title and shall enroll the matter for adjudication at
the first available date wherein the Applicant may either request extension of the
interim order or such relief that is appropriate after information is gathered;

6. That any interested party may at any time for the duration on the interim
order anticipate the return date by giving due notice to the Applicant
7. The costs for this application to be paid by the Applicant.’

[10] A copy of the order granted on 6 June 2019 forms part of the appeal record.3
There are, however, two different versions of the order in the appeal record. One
version of the order, which I shall refer to as ‘the first order’, is typed in the usual
form employed by the registrar of this court : it bears the insignia of ‘The Judiciary
Republic of South Africa’, is signed by the registrar (Ms R J Jooste) and is marked
with the stamp of the registrar’s office, dated 6 June 2019. It records that the relief
set out in the notice of motion was granted , save for the fact that the period of 12
months mentioned in paragrap h 5 of the order quoted above was reduced to a
period of six months.

[11] The second version of the order4 is largely identical to the first order, save for
paragraph 5 thereof. That paragraph now has manuscript amendments made to it ,
which are not initialled or dated. Paragraph 5 now reads as follows, with the words
excised from the first order identified with a strikethrough line and the added
manuscript amendments highlighted in bold italic print:
‘The applicant shall within 12 (twelve) months after the granting of the interim order
on 26 February 2020 file Supplementary Affidavits with the above Honourable Court
to provide the necessary information regarding the ownership sworn valuation of
the Property and attempts to trace the owners and their successors in title and shall
enroll the matter for adjudication at the first available date (wherein the Applicant
may either request extension of the interim order or such relief that is appropriate
after information is gathered;’
I shall refer to this order as ‘the amended order’.

[12] On first consideration , it appears difficult to determine which of the two

[12] On first consideration , it appears difficult to determine which of the two
orders is the true order granted. But , in my view, this ostensible dilemma is simply
resolved. The first clue to resolving the issue is the previously mentioned fact that
both orders are laid out in the format favoured by the registrar of this court and bear

3 Appeal record at pages 92-94.
4 Appeal record at pages 117-119.

the devices of this court . They were thus typed by a member of the administrative
staff of this court and were therefore not handed up to the presiding judge on 6 June
2019 by the first appellant’s counsel. When the two orders are further considered, it
is evident that the amended order is simply a copy of the first order and must have
been produced after the first order was typed. This is evident from the fact that a
grammatical error in the first order has been corrected in the second order (the
insertion of the manuscript word ‘the’ at the end of the second line in the typing
referred to above).

[13] That the true order is the first order is placed beyond doubt by the fact that
there was another court appearance before the appearance of 26 February 2020
referred to in the amended order , namely an appearance on 4 December 2019 . The
matter was thus never simply adjourned directly from 6 June 2019 to 26 February
2020. Finally, in its answering affidavit in the joinder and rescission application, the
first appellant stated that the:
‘… period of 12 months was reduced to 6 months at the suggestion of the
Honourable Acting Justice Jikela.’

[14] If that is so, as it appears to be, then the amended order is not the order
handed down by Jikela AJ , because it does not contain a reference to the reduced
period of six months. The reference to that period of time has been excised from the
amended order and replaced with the fixed date of 26 February 2020.

[15] It must therefore be that the manuscript additions evident in the amended
order are the later work of a person not performing the functions of a judge or
registrar of this court and the amended order does not reflect the order actually
granted by the court on 6 June 2019. I must find, therefore, that there was no
suggestion of a valuation report being permitted, or ordered, when the matter first
served before this court.

[16] That impacts upon the appellants’ submissions on appeal regarding what the

[16] That impacts upon the appellants’ submissions on appeal regarding what the
court knew and when it came to know it. The mention of a ‘sworn valuation’ in the
amended order appears, on the face of it, to be an attempt to introduce the prospect
of a valuator becoming involved far earlier than it actually occurred. Mr Marais SC,

who appears for the appellant s, relied upon the amended order in formulating his
argument before us , when he stated in his heads of argument that the amended
order must have come about through an oral amendment made by counsel , then
appearing for the appellant, from the bar.5

[17] Before this judgment was delivered, the parties were invited to submit further
written argument on an issue that was not addressed at the appeal hearing. I shall
return to that issue in due course. Both parties took up the invitation (the first and
second respondents only belatedly). Mr Marais, for the appellants, delivered
additional written argument. For purposes of the current issue under consideration,
the following submission in that written argument needs to be highlighted:
‘… on 6 June 2019, Jikela AJ granted Tropical Winter access to Glen Ashton and
gave leave to it to file supplementary affidavits to provide a sworn evaluation of the
property …’.6

[18] I do not think that this submission is correct, nor is the earlier submission of
an oral amendment being made from the bar . No basis for th e granting of the
amended order appears in the founding affidavit of the ex parte application , for there
is no mention whatsoever of a valuation report being necessary or being sought: why
should there be , when all that was being sought was access to Glen Ashton to
construct the required firebreaks? No court could reasonably grant relief that was not
claimed in the founding affidavit or in the notice of motion. I must find, therefore, that
on 6 June 2019 , there was no mention of a valuation report being required and that
the concept of the valuation report was introduced by the first appellant at a later
stage.

[19] As to the reason advanced by the first appellant for the bringing of the ex
parte application, it explained in its founding affidavit that Glen Ashton posed a fire
risk to the properties that it owned , and to the Vulintaba Estate itself , because its

risk to the properties that it owned , and to the Vulintaba Estate itself , because its
owners had allegedly not complied with their statutory duty to construct firebreaks on
it in terms of the provisions of s 12 of the National Veld and Forest Fire Act 101 of

5 See the appellants’ heads of argument at page 2, para 4, where the following is stated: ‘The relief
sought was presumably orally amended to provide for Tropical Winter to obtain a sworn valuation of
Glen Ashton.’
6 See appellants’ written argument para 11(b)(i).

1998.7 The first appellant alleged that it had previously suffered damage to its
properties by runaway fires that had either originated on, or crossed, Glen Ashton. It,
however, did not identify which of its properties had been damaged, when they had
been damaged or where exactly the fire , or fires , had originated. It also did not
explain why it had not turned to the courts when such a loss was allegedly sustained.
The only detail that it did provide was that it had allegedly suffered damage of
R550 000. How, and by whom, that amount was calculated was also not disclosed.

[20] The ex parte application was allegedly urgent, so explained the deponent to
the first appellant’s founding affidavit , Mr Jacobus Lamprecht (Mr Lamprecht) ,
because at the time that it was brought , the fire season was fast approaching.
Explaining why it had brought the application on an ex parte basis, Mr Lamprecht
stated that the first appellant had:
‘… no way of currently contacting the various owners of the Property for reasons set
out here under and it is respectfully submitted that the Applicant’s vested interest
and a statutory duty in and regarding the subject matter of this Application bestows
on it the locus to bring this Application on an ex parte and urgent basis.’

[21] The only explanation that then followed from Mr Lamprecht was that the first
appellant had not been successful in establishing whether any of the first eight of the
12 co-owners whose names appear on the Title Deed were still alive (the co -
owners). The reason for the uncertainty about whether the co-owners were alive was
that the first eight heirs would all be 100 years or older if they were alive, given their
respective dates of birth which also appear on the Title Deed .8 According to Mr
Lamprecht, the ninth and tenth co-owners mentioned on the Title Deed, Pieter
George Slabbert van Zyl (born 14 July 1911) and Hermanus Christiaan Michiel
Geldenhuys (born 8 August 1931) (Hermanus), were unquestionably deceased

Geldenhuys (born 8 August 1931) (Hermanus), were unquestionably deceased
because the first appellant had managed to acquire a copy of each of the the final
liquidation and distribution accounts of their respective estates and those documents
were appended to the founding affidavi t. However, nothing at all was said about the

7 Section 12(1) of the National Veld and Forest Fire Act 101 of 1998 reads as follows: ‘Every owner on
whose land a veldfire may start or burn or from whose land it may spread must prepare and maintain
a firebreak on his or her side of the boundary between his or her land and any adjoining land.’
8 The dates of birth mentioned in the Title Deed ranged from 2 November 1897 (Willem Daniel van
Niekerk) to 4 June 1941 (the first respondent).

11th and 12th co-owners. The first respondent was the 12 th co-owner. She was not
100 years old, having been born on 4 June 1941 , and the conclusion drawn in
respect of the likely continued existence of the other co-owners accordingly could not
be safely drawn with respect to her.

[22] It is important to note that the phrase ‘the Property’ mentioned in the extract
above was a term defined by the first appellant itself. It did not mean the three farms.
It meant only Glen Ashton, as reflected in the following statement in the founding
affidavit:
‘8.1 The property known as Farm Glen Ashton 8[...] H[...] , P:O
(Pietermaritzburg), KwaZulu -Natal held under Title Deed 1752/1962 measuring
191.447 HA (hereinafter referred to as “the Property.”)’

[23] Mr Lamprecht went on to state in the founding affidavit that:
‘Since the Title Deed only contains dates of birth and no Identity Numbers it has
proven most challenging to trace the owners or to establish whether or not they have
next of kin. In the event where some or all of the owners are deceased it has been
impossible to establish how their estates were concluded save for those established
in “FA9” and “FA10”.’
I shall revert to annexure ‘FA9’ again shortly.

[24] It was abundantly clear from the founding affidavit that the first appellant
only sought access to a single farm, namely Glen As hton. This was , perhaps,
understandable because the first appellant had included a sketch as an annexure to
the founding affidavit, which set out the location of the three farms and the location of
the parcels of land owned by it. That sketch revealed that only Glen Ashton bordered
on any land owned by the first appellant. There was, however, no suggestion at all
that any right of access was sought, claimed, or granted in respect of Twyfelhoek or
Moeders Rus or that the first appellant sought to construct firebreaks on either of
those two farms. Nor was there any expressed intention indicating that ownership of

those two farms. Nor was there any expressed intention indicating that ownership of
the three farms was the first appellant’s true goal.

The hearing on 4 December 2019

[25] The first order having been granted, the ex parte application was re-enrolled
for hearing on 4 December 2019, ostensibly for the purpose of the first appellant
reporting to this court on the steps that it had taken to locate the owners of Glen
Ashton. This date was within the span of the period of six months ordered in terms of
paragraph 5 of the first order.

[26] On that day, t he first appellant delivered a supplementary affidavit (the
supplementary affidavit) . The deponent, who was again Mr Lamprecht, dutifully
reported that the first appellant had complied with the first order:
‘I specifically state that the Applicant has attended to the fire breaks as stated in the
order and that the fire breaks consist of a width of approximately 400 metres which
constitutes 200 metres on the farm of the property (sic) and a further 200 metres on
the property of the applicant.’
Mr Lamprecht did not disclose, as he later would do, that the first appellant had also
gained access to Twyfelhoek and Moeders Rus and had constructed firebreaks on
those two farms without any authorisation from the court permitting it to do so.

[27] As regards any attempts made to locate the owners of the three farms, very
little was said about what the first appellant had done. Mr Lamprecht, however, made
the following further representations:
‘22. I further state that it is my respectful submission that due to the age of these
individuals, it is highly likely that there are no people to act for and on behalf of these
individuals.
23. I again respectfully refer the above Honourable Court to the Title Deed and
state as the dates of births are contained on the Title Deed and no identity numbers,
there is no way of tracing any of the owners as per the title deed (sic) nor is there
any way of establishing whether or not there are any next of kin.’

[28] Annexure ‘FA9’ was referred to earlier: It is the final estate account of
Hermanus, an heir of Hendrik . It was obviously in the possession of the first

Hermanus, an heir of Hendrik . It was obviously in the possession of the first
appellant and was put up by it and it forms part of the appeal record. While it may be
correct for Mr Lamprecht to state that no identity numbers appeared on the Title

Deed, Hermanus’s identity number appeared in the heading to annexure ‘FA9’. 9 The
first appellant had, thus, at least , one identity number of the 12 co-owners whose
names appeared on the Title Deed. In the game of cricket, the phrase ‘one brings
two’ is often used to highlight the possibility of the fall of one wicket immediately
leading to the fall of a second wicket. In this instance, it is likely that if the identity
number of Hermanus had been utilised, it may have led to the discovery of another
identity number, or numbers, of the other co-owners of the three farms.

[29] From the contents of the supplementary affidavit, it is evident that the first
appellant lost sight of the requirements of paragraph s 4 and 5 of the first order .
Paragraph 4 required the first appellant to approach the Master of the High Court
and the Department of Home Affairs to conduct further investigations concerning the
co-owners of the three farms and paragraph 5 required it to set out what steps it had
taken to trace the co -owners of Glen Ashton. The supplementary affidavit was
entirely silent on what the first appellant had done in compliance with these two
paragraphs of the first order.

[30] At this stage, inexplicably and astoundingly , the application morphed in
effect, if not in form, from an application to gain access to Glen Ashton to an
application by the first appellant to acquire ownership , not just of Glen Ashton, but
also of Twyfelhoek and Moeders Rus. Mr Lamprecht, after describing the placing of
adverts in the media designed to attract the attention and response of the co-owners
of Glen Ashton, none of which had achieved that effect, proposed that a valuator be
appointed to value ‘the Property’ and that the first appellant:
‘… be allowed to proceed with the transfer of the property.’

[31] The value of ‘the Property’ was to be the value arrived at by the valuator to
be appointed and that value would be paid by the appellant into the Guardian’s Fund
to allow:

to allow:
‘… any potential owners and/or their heirs, legates (sic) or beneficiaries’
to lodge a claim against the amount so deposited.

9 The heading to annexure ‘FA9’ reads as follows: ‘Eerste en finale likwidasie en distribusierekening in
die boedel van wyle Hermanus Christiaan Michiel Geldenhuys identiteitsnommer 310808 5037 081
ongetroud pensionaris van Daisalaan 21 Newcastle’.

[32] What was the justification for this sudden and extraordinary development?
The motivation for it was explained as follows by Mr Lamprecht:
‘In amplification of the above, I respectfully state that the risk that the Applicant has
each and every single year due to the excessive veld fires in the Newcastle area far
outweighs any potential rights that any potential owners may have to the property.’

[33] The thinking of the first appellant appeared to be that whilst it had never
previously regarded it as being necessary to bring an application in the form of the
ex parte application because of the potential threat of veld fires , it now believed that
it would be prejudiced by the need to bring such an application each year going
forward if it was not permitted to acquire the three farms. It is difficult to comprehend
what was intended by the first appellant’s submission that its rights ‘far outweigh’ the
co-owners’ ownership rights in the three farms . But what is perfectly plain from this
statement is that the first appellant acknowledged the existence of the co -owners’
rights in respect of the three farms . This was thus not a situation , on the first
appellant’s version, where the co -owners had abandoned their rights to the three
farms, as would later be argued on appeal.

[34] On 4 December 2019, E Bezuidenhout AJ granted the following order:
‘1. The access of the Applicant to the Property as per the order dated 6 June
2019 at paragraph 3 of the said Order is extended until 26 February 2020;
2. The Applicant is granted consent to file further Supplementary Affidavits
upon receipt of a valuation report regarding the valuation of the Property, which
valuation will be attached to the Supplementary Affidavit;
3. The Notice of Set Down as well as a notice calling upon intended parties
related to the owners of the property to contact Applicant’s attorney of record will be
published in one local newspaper circulated within the district of Newcastle at least

published in one local newspaper circulated within the district of Newcastle at least
two weeks prior to the date of hearing in (sic) 26 February 2020.
4. The costs for (sic) the ex parte application be paid by the Applicant.’
I shall refer to this order as ‘the second order’.

[35] It is to be appreciated that the second order again referred to the defined
term of ‘the Property’. Moreover, it will be further appreciated that this order is not the
amended order referred to earlier.

The hearing on 26 February 2020
[36] On 26 February 2020, the ex parte application came before Seegobin J and
the first appellant delivered the further supplementary affidavit contemplated in
paragraph 2 of the second order (the further supplementary affidavit). Nothing was
said in the further supplementary affidavit about what had been done to establish
whether all the owners of Glen Ashton were, in fact, dead or what steps had been
taken to attempt to trace them or their descendants.

[37] From the wording used in the founding affidavit , it is perfectly plain that the
first appellant did not know whether all the co -owners of the three farms were dead.
Because of this, it was required to vaguely speculate regarding the possibility that
‘some or all of the owners are deceased ’. That statement itself conceded the
possibility that some of the co -owners may still be alive. Notwithstanding this, i t
appeared that the first appellant assumed that they were all dead. Indeed, counsel
for the first appellant (not Mr Marais) confirmed as much when he appeared before
Seegobin J, when the following interchange between the bench and counsel for the
appellant occurred:10
‘SEEGOBIN J: … It looks like everyone who was involved in this matter has died.
MR SWIEGERS: Indeed so.
…
MR SWIEGERS : …M’Lord, the simple fact is that the names and the title deed,
every single one of them would be in the Guinness World Book of Records if they
were still alive today, M’Lord.
SEEGOBIN J: Yes.’

[38] This, of course , was an incorrect understanding by both the court and
counsel. The first respondent was but a youthful 78 years of age, which would not
have earned her an entry in the Guinness Book of Records because of her

have earned her an entry in the Guinness Book of Records because of her

10 The transcript was put up by counsel for the appellant s, Mr Marais, as an annexure to his
supplementary heads of argument.

exceptional antiquity. Thus, n ot every co-owner was dead. However, even if all the
co-owners were, in fact, dead, that would not have amounted to a hill of beans,11 for
their heirs would have taken their place s as persons with an interest in the three
farms. Neither the court nor counsel appeared to contemplate that the original heirs
may themselves have had heirs.

[39] Seegobin J accordingly granted the following order:
‘1. The applicant shall make payment in the amount of R1,254,687.03 into the
Guardians Fund within a reasonable time.
2. The funds deposited by as (sic) per paragraph 1 hereto into the Guardian’s
Fund will be for the benefit of all interested parties yet unknown in relation with (sic)
the transfer of the immovable property as ordered herein.
3. A copy of this Order will be served by way of Sheriff of the High Court on the
Master of the High court (sic) of South Africa within 7 (seven) days after the granting
of this Order.
4. The Registrar of Deeds will upon confirmation of the payment of the funds
as per paragraph 1 hereto, as well as service of this Order by the Sheriff of the High
Court, transfer the property held under title deed 1752/1962 measuring 871.3 6 HA
(“the Property”) into the name of the Applicant or its nominee which transfer will be
attended to by Kruger Attorneys & Conveyancer with telephone number (011) 766
1428.
5. The Registrar of Deeds is here by authorised to do all such things and the
Applicant is authorised to sign all such documents as is necessary to transfer the
Property into the name of the Applicant.
6. No order as to costs.’
I shall refer to this as the ‘third order’.

[40] The third order was sought, and granted, without the first appellant drawing
the court’s attention to the fact that it had not, in truth, exhausted all attempts to
locate the co -owners of the three farms, nor was it specifically drawn to the court’s
attention that the effect of the third order was that the first appellant was acquiring

attention that the effect of the third order was that the first appellant was acquiring
ownership of not one farm, Glen Ashton (throughout defined as being ‘the Property’),

11 Something that has little or no value: Merriam-Webster Online Dictionary (https://www.merriam-
webster.com/dictionary/hill%20of%20beans).

but of all three farms. There was no express mention by the first appellant of the fact
that it intended to acquire two additional farms , which on its own version did not
border on any of its land and were never the focus of the ex parte application .
Furthermore, the notice of motion was never changed at all and still simply sought
access to Glen Ashton. It hardly bears mentioning that it is not for the court to
decode an applicant’s cryptic intention: in ex parte applications , it is the applicant’s
duty to be excessively forthright and explain everything in granular detail.

[41] After placing advertisements in two newspapers that only drew attention to
Glen Ashton, the first appellant obtained the right to acquire all three farms from this
court. In achieving this, it is disturbing that the reference to ‘the Property’, defined to
mean Glen Ashton by the first appellant, suddenly fell away in the third order. The
reference was now not to ‘the Property’ (as defined) but was to ‘title deed
1752/1962’. The first appellant had that Title Deed. It knew that it dealt with all three
farms, but it did not specifically draw this to the attention of the court. It is difficult to
see this in any other way as being a form of deception.

[42] On 6 August 2020, the disputed farms were transferred into the name of the
first appellant on the strength of the third order.

The first respondent’s knowledge of the legal proceedings
[43] The focus of this judgment must now shift from what the first appellant did to
how the first and second respondents came to realise what it had done. Because the
initial application was brought on an ex parte basis, neither the first nor the second
respondent was served with any of the founding , or subsequent papers, filed by the
first appellant. However, both the first and second respondents , ultimately, did
acquire knowledge of what had happened. This happened fortuitously and not

acquire knowledge of what had happened. This happened fortuitously and not
through any effort made on the part of the first appellant. How this occurred merely
served to highlight how abysmal and desultory the first appellant’s attempts at
locating the co-owners of the three farms were , if there were, in fact, any such
attempts made.

[44] On 11 March 2020 , a Ms Zelda Strauss (Ms Strauss), who is employed by
Mulilo Renewable Project Developments Proprietary Limited (Mulilo), made inquiries

at the Vulintaba Estate about who owned Moeders Rus. She was directed to a
company located in the town of Newcastle called Ni-Da Transport. The owner of that
business was apparently well informed about local matters, and after consulting with
the owner , Ms Strauss was then referred to a Ms Gerda Greyvenstein (Ms
Greyvenstein), a niece of the first respondent. Ms Greyvenstein referred Ms Strauss
to a nephew of the first respondent who, in turn, referred her to the first respondent’s
son, Mr Phillipus Fourie (Mr Fourie). On 13 Marc h 2020, barely two days after her
quest to locate the co-owners of Moeders Rus commenced, Ms Strauss contacted
Mr Fourie, who referred her to the second respondent.

[45] Ms Strauss informed the second respondent that Mulilo was in the business
of developing renewable sources of electricity through the erection of wind turbines
on rural land. Ms Strauss, according to the second respondent, explained to her that
Mulilo wanted to erect 30 wind turbines on Moeders Rus and was prepared to pay a
rental of R10 000 per month per wind turbine erected for a period of 25 years . Not
surprisingly, this generated considerable interest and excitement in the second
respondent, and she sought the approval of the first respondent to negotiate further
with Mulilo. Permission was given by the first respondent who, prior to approving of
what was to happen, had also allegedly ascertained the wishes of the progeny of the
deceased co -owners. She was told by them to proceed. A draft option and draft
notarial lease 12 were prepared for signature by the soon -to-be contracting parties ,
but just before these documents were signed, Mulilo caused a Deeds Registry check
to be performed and ascertained that Moeders Rus was no longer owned by the first
respondent and the other co-owners but was now owned by the first appellant
consequent upon the granting of the third order.

[46] Shocked and surprised by this discovery, the first and second respondents

[46] Shocked and surprised by this discovery, the first and second respondents
brought the joinder and rescission application.

The joinder and rescission application
[47] The first respondent explained in her founding affidavit in the joinder and
rescission application that after transfer of the three farms had occurred from the late

12 The draft notarial lease d oes not reveal the same rental terms as understood by the second
respondent and as narrated above.

Hendrik’s estate to his heirs , the new co-owners let them to a tenant farmer, a Mr
Danie du Toit (Mr du Toit). The rental income received from Mr du Toit was used to
maintain the three farms and to pay the imposts, if any, levied upon them. The lease
with Mr du Toit was ultimately terminated to permit a sibling of the first respondent,
the already mentioned Hermanus, to take up farming on the three farms. As
previously noted, his name also appears on the Title Deed as a co-owner. He grazed
cattle on the three farms from 1991 until his death in December 2012. He retained
his undivided share in the three farms at the time of his death and, as he died
intestate, his undivided share in them was inherited by his two daughters. The
second respondent is one of his daughters and she was formally appointed as the
executrix of her father’s estate upon his death.

[48] The first respondent went on to state that following upon the death of
Hermanus in 2012, her son, Mr Fourie , and her two great -nephews, one of whom is
Mr Paul Geldenhuys (Paul), sought, and obtained, her permission to graze their
cattle on the three farms. The first respondent was approached for her consent
because of the 12 persons named in the Title Deed, she was by then the only one
still alive. According to the first respondent, since 2012, her son and her two great -
nephews had been grazing their cattle on the three farms, as the late Hermanus did,
and she asserted that the three farms were being put to this very use at the time that
the appellant’s ex parte application was brought before this court. This was
confirmed by Mr Fourie in an affidavit that he delivered. Mr Fourie explained that a
part of the three farms was used for summer grazing and a part for winter grazing.
He stated that neither he nor the first respondent’s two great-nephews resided on the
three farms but that the ir farm hands did in their own dwellings and th e farm hands
also kept their own livestock on the three farms.

also kept their own livestock on the three farms.

[49] The first appellant was in no position to dispute the distant history of the
three farms, as it possesse d no direct knowledge thereof. It did, however, dispute
some of the more recent history: it disputed that the first respondent’s son and great-
nephews are presently using the three farms to graze their cattle and assert ed that
there was currently no farming activity taking place on the three farms. The first
appellant d id, however, concede that i t had from time to time encountered ‘local
labourers’ tendin g to cattle that cross onto various properties. This appears to be

largely in conformity with what Mr Fourie state d. The first appellant also denie d the
first respondent’s allegation that there were dwellings on Moeders Rus and that
those dwellings have been used from time to time to accommodate the first
respondent’s family’s gatherings.

The judgment
[50] Having heard both parties, Nkosi J delivered his judgment on 22 May 2023
and granted the first and second respondent s’ joinder application and rescinded the
third order, ordering the retransfer of the three farms.

[51] A large portion of the judgment was devoted to considering three points in
limine taken by the first appellant in its answering affidavit resisting the relief claimed
by the first and second respondents . Remarkably, it was su bmitted by the first
appellant in one of those points that the first respondent, a living co-owner of the
three farms, and the second respondent, the formally appointed executrix of her late
father’s estate which contained his undivided share in the three farms, lacked locus
standi in judicio to bring the joinder and rescission application. The right to own
property is, after all, protected in terms of s 25(1) of the Constitution and an owner of
property is entitled as of right to protect their rights to the property when it is
claimed.13 All the points in limine were rightly rejected by Nkosi J.

[52] In his judgment, Nkosi J dealt with the history of the matter with great
thoroughness and concluded that the facts of this case placed it squarely within the
purview of Uniform rule 42(1) in that the third order was gra nted erroneously in the
absence of the first and second respondents. He concluded , further, that it was not
legally competent for the third order to have been granted, particularly if the way in
which the relief claimed was considered. Thus, the third order could not be
sustained, and it fell to be rescinded, and the status quo ante revived, which included
the retransfer of the three farms.

the retransfer of the three farms.

[53] In framing their relief in the joinder and rescission application, the first and
second respondents sought an order of costs de bonis propriis against the first

13 Katha v Pillay N.O. and Others [2025] ZASCA 106 para 18.

appellant’s attorneys , the second appellant . Nkosi J observed that , in his opinion ,
there was a legitimate case to be made for such an order, as attorneys should not be
permitted to ‘sneak’ applications past a court by failing to make a full and frank
disclosure of all the relevant facts. He concluded that had the necessary disclosures
been made by the first appellant, the prospects of the relief sought by it being
granted were non-existent. He opined, further, that:
‘In this instance, it appears to me there is more than mere negligence. There was a
deliberate and conscious attempt, if not a reckless one, to conceal information and
mislead the court. This conduct is close, if not equivalent to acquiring someone's
property through fraudulent means, which cannot, and should not be countenanced.’

[54] Nkosi J accordingly granted an order in the following terms:
‘1. The applicants be joined in the ex parte application of Tropical Winter
Trading (Pty) Limited (Case Number: 3635/19P) as first and second respondents
respectively.
2. The order granted by Seegobin J, on 26 February 2020, in the ex parte
application of Tropical Winter Trading (Pty) Limited (Case Number. 3635/19P), is
rescinded and set aside.
3. The registration and transfer of the following properties (collectively referred
to as “the farms”) to the first respondent is set aside:
3.1 the Remainder of the Farm Glen Ashton, No. 8589, Registration division HS,
Province of Kwazulu -Natal, held under title deed number: T2380/2020, in
extent 191,6466 (one hundred & ninety -one comma six four) hectares, first
registered by Crown Grant Number G8589/1914 and previously held by
Deed of Transfer Number: T1752/ 1962;
3.2 Portion 6 (of 3) of the Farm Twyfelhoek No. 3 […], Registration Division HS,
Province of Kwazulu -Natal, held under title deed number: T23804/ 2020, in
extent 192, 6811 (one hundred & ninety -two comma six eight one) hectares,
first transferred by Deed of Partition Transfer Number: T2420/1927, and

first transferred by Deed of Partition Transfer Number: T2420/1927, and
previously held by Deed of Transfer Number: T1752/1962; and
3.3 The Farm Moeders Rus No. 11657, Registration Division HS, Province of
Kwazulu-Natal, held under title deed number: T23804/2020, in extent 487,
7306 (four hundred & eighty seven comma seven three zero six) hectares,

first registered by Crown Grant Number G11657/1930 and previously held by
Deed of Transfer Number: T1752/1962.
4. The first respondent he ordered to take all steps necessary, within one
month of service of this order upon it, to effect transfer of the farms to the erstwhile
owners, or their successors in title.
5. In the event of the first respondent failing, refusing, or neglecting to comply
with prayer 4:
5.1 that the applicant (s) be authorized to instruct a conveyancer to prepare the
necessary documents to effect transfer of the farms to the erstwhile owners,
or their successors in title;
5.2 that the first respondent be ordered to sign the documents referred to in
prayer 5.1, within 5 (five) days of demand; and
5.3 that the Sheriff be authorized to take all steps contemplated in prayer 5.2 in
and on the first respondent’s stead and behalf, should the first respondent
failed to do so.
6. The cost of the application, and the cost associated with giving effect to the
relief prayed for in the preceding paragraphs, be paid by the first respondent, jointly
and severally with its attorneys, Messrs. Kruger Attorneys and Conveyancers of 3[...]
M[...] Street, Horizon, Roodepoort, the one paying, the other to be absolved, on the
scale as between attorney and client.
7. The Registrar of this Court forward a copy of this judgment to the Legal
Practice Council to investigate the conduct of the attorneys referred to in paragraph
6.'

The notice of appeal
[55] The appellant s sought leave to appeal the judgment from Nkosi J. The
application was refused. A n application was then made to the Supreme Court of
Appeal for leave to appeal . On 29 November 2023, this application was, surprisingly
in my view, granted.

Is the matter appealable?
[56] The reason why it was so surprising t hat leave to appeal was granted was
because what was essentially being appealed against was the rescission of the
order permitting the first appellant to acquire the three farms. The direction that the

three farms be retransferred followed as a necessary consequence of the decision to
order rescission. The Supreme Court of Appeal has, in a long line of cases,
determined that the rescission of an order is not appealable because it is ,
essentially, interlocutory in nature. In De Vos v Cooper & Ferreira ,14 Grosskopf JA
stated that:
‘Hierdie appèl gaan in die eerste plek oor die vraag of ’n landdroshofbevel vir die
tersydestelling van ’n vonnis by verstek appelleerbaar is of nie. Die vraag na die
appelleerbaarheid is vir die eerste maal pertinent deur lede van hierdie hof geopper.
Beide partye aanvaar nou, na my mening tereg, dat so ’n bevel nie vir appèl vatbaar
is nie. So ’n bevel het immers nie enige finale of beslissende uitwerking op die
geskilpunte in die hoofgeding nie…’

[57] Thereafter, in HMI Healthcare Corporation (Pty) Limited v Medshield Medical
Scheme and Others,15 Ponnan JA observed that
‘It is plain that a rescission order does not have a final and definitive effect… The
rescission order simply returns the parties to the positions which they were in prior to
the ex parte order being granted.’

[58] FirstRand Bank Ltd v McLachlan and Others16 followed this line of reasoning
and in Member of the Executive Council for Health and Social Development of the
Gauteng Provincial Government v Motubatse and Another17 the court stated that:
‘The order of the full court is plainly wrong because it is trite that a rescission order is
not appealable. It is interlocutory in nature and does not deal with the definitive rights
of the parties.’

[59] Before us, n one of the parties considered whether the granting of a
rescission order was appealable, and this issue was consequently not debated when
the appeal was heard. Having come to th e view that the judgment may not be
appealable, we thought it advisable to invite counsel to deliver written argument on
the issue.

14 De Vos v Cooper & Ferreira [1999] 4 All SA 432 (A) para 1.

the issue.

14 De Vos v Cooper & Ferreira [1999] 4 All SA 432 (A) para 1.
15 HMI Healthcare Corporation (Pty) L imited v Medshield Medical Scheme and Others [2017] ZASCA
160 para 18.
16 FirstRand Bank Ltd v McLachlan and Others [2020] ZASCA 31; 2020 (6) SA 46 (SCA) para 21.
17 Member of the Executive Council for Health and Social Development of the Gauteng Provincial
Government v Motubatse and Another [2023] ZASCA 162 para 2.

[60] The appellant s acknowledged that it was settled law, as evidenced in the
authorities to whom the parties’ attention was drawn by this court (mentioned above),
that a rescission order is not appealable. However, it was submitted that , in the light
of recent judgments of the superior courts of this country 18 that appeared to have
moved away from the well -known approach postulated in Zweni v Minister of Law
and Order,19 it would be in the interests of justice to accept that the judgment was
appealable. Our attention was drawn to the following extract from Consortium
Comprising KC Cottrell Co Ltd and Others v Santam Ltd and Others,20 where
Opperman J stated the following:
‘To sum up: i n general a litigant should advance a constitutional interest or assert
and demonstrate that she will suffer irreparable harm if the application for leave to
appeal were refused, in order for a Court to conclude that, despite non -compliance
with Zweni, the interests of justice dictate that leave be granted.’

[61] Counsel for the first and second respondents, Mr Vorster, submitted that it
was clear that orders rescinding previous orders were not appealable, but properly
agreed that even where the prerequisites set out in Zweni were not met, then in
terms of Cyril and Another v Commissioner for South African Revenue Service ,21
leave to appeal could still be granted if it was in the interests of justice that the order
be regarded as an appealable decision. He submitted that on the facts of this matter,
the judgment should not be regarded as an appealable order because it was not in
the interests of justice to view it as appealable.

[62] I can discern no constitutional issue at play in this instance nor is any
irreparable harm suggested. It is plain to me that the judgment by Nkosi J set
matters right by reversing what had previously been ordered and no more . The
judgment did not determine anything insofar as the relief claimed in the ex parte

judgment did not determine anything insofar as the relief claimed in the ex parte
application was concerned. That being the case, by rights the judgment was not

18 International Trade Administration Commission v SCAW South Africa (Pty) Ltd [2010] ZACC 6;
2012 (4) SA 618 (CC) para 53; Eskom Holdings SOC Ltd and Another v Sonae Arauco (Pty) Ltd
[2024] ZASCA 177; 2025 (3) SA 78 (SCA) para 34.
19 Zweni v Minister of Law and Order 1993 (1) SA 523 (A) (Zweni).
20 Consortium Comprising KC Cottrell Co Ltd and Others v Santam Ltd and Others [2024] ZAGPJHC
598 para 29.
21 Cyril and Another v Commissioner for South African Revenue Service 2024 ZASCA 32.

appealable. However, this court is required to follow the directions of the Supreme
Court of Appeal, for not to do so would be to invite selectivity and, perhaps, chaos
into the appeal system with lower courts choosing which orders of the Supreme
Court of Appeal to follow and which to disregard. The matter will thus be approached
on the basis that it is properly before us on appeal.

The abandonment of relief on appeal
[63] There is, however, a further unsatisfactory aspect to this appeal. What was
stated in the appellants’ application to the Supreme Court of Appeal to secure leave
to appeal is not known , as their application to that court does not form part of the
appeal record before us . But , presumably, they must have advanced reasons in
respect of which it was contended that Nkosi J had erred in setting aside the third
order, ordering the retransfer of the three farms and determining the issue of costs. It
is safe to infer that what was stated in the appellant s’ notice of appeal filed with this
court, after being granted leave to appeal , mirrored its submissions to the Supreme
Court of Appeal.

[64] In its notice of appeal, the appellants claimed that Nkosi J had erred in:
(a) Granting the rescission of the third order;
(b) Fixing a period of a month within which retransfer of the three farms was to
occur to their erstwhile co-owners;
(c) Permitting the first respondent to instruct a conveyancer if the appellant
failed to attend to the retransfer of the three farms as ordered;
(d) Permitting the sheriff to take steps if the appellant failed to comply with the
judgment;
(e) Ordering costs against the appellants; and
(f) Failing to refer the matter to oral evidence.

[65] The grounds set out in sub -paragraphs (b), (c) and (d) above were not
persisted with by counsel for the appellant s and were not argued and shall not be
considered further.

[66] Before us, in keeping with the metamorphosis of the ex parte application

[66] Before us, in keeping with the metamorphosis of the ex parte application
from the claiming of a right of access to a single farm to a right to acquire ownership

of the three farms, there was a significant sea change in the relief claimed on appeal
by the appellants.

[67] Firstly, and most significantly, it was no longer claimed that Nkosi J had
erred in rescinding the third order . Secondly , there was a further concession that
Nkosi J had not erred in directing that the retransfer of the three farms should occur.

[68] What the appellant s now claimed on appeal was set out as follows in the
heads of argument prepared by Mr Marais:
‘In these circumstances it is respectfully submitted that the appeal should succeed,
at least partially and that the judgment and Order granted be set aside and replaced
with the following relief:
(a) the Order granted by Seegobin J on 26 February 2020 [the third order] is set
aside;
(b) the Third Respondent is directed to do all things necessary to set aside the
transfer of the three farms;
(c) the matter is referred back to the Court a quo for determination of the first
application launched by Tropical Winter under case number 3635 /19P [the ex parte
application], with leave given to the parties to exchange further affidavits in the
course of that application;
(d) the Respondents are directed to pay the costs of the Second Appellant;
(e) the remaining costs in both the initial application [the ex parte application]
and the appeal shall be costs in the cause of the matter referred back to the Court a
quo.’

[69] Mr Marais, quite correctly in my view, also conceded that the points in limine
raised by the first appellant before Nkosi J lacked any legal merit . He further, fairly,
conceded that the first and second respondents were clearly entitled to act with
regard to the three farms without the consent of the other co -owners (although it was
the first and second respondents’ contention that they, in fact, had that consent) and
that the joinder of the other co -owners to the joinder and rescission application was
not necessary.22

22 Snyman and Others v African Mines Corporation, Ltd 1907 TS 996.

[70] Whether even the reduced relief proposed by Mr Marais should be granted
to the appellants is thus now the true focus of this appeal. I now consider each of the
component parts of that proposal.

The setting aside of the judgment
[71] Given the nature of the concessions made by the appellants, it is difficult to
understand upon what basis it can be submitted that the judgment is flawed and falls
to be set aside. The significance of the judgment was that it had the effect of
rescinding the third order and it directed that the transfer of the three farms to the
first appellant be reversed. By making the concessions mentioned above, Mr Marais
conceded that such relief was properly granted , yet he nonetheless still proposed
that the judgment be set aside.

[72] The basis of the argument for the setting aside of the judgment now appears
to be that Nkosi J impermissibly found that the three farms had not been abandoned
by their co -owners. The appellant s’ heads of argument expanded upon this and
stated that the issue of abandonment:
‘… ought not to have been dealt with finally but ought to have formed the subject
matter of enquiry and determination after the Seegobin Order had been set aside
and referred back to the Court.’

[73] This is an interesting argument , but it faces certain difficulties . The
proposition supposes that the appellant had always contended that the three farms
had been abandoned and that this was an issue that fell to be determined by the
court. But this is not the case , because the ex parte application sought a right of
access to Glen Ashton only, and the issue of the abandonment of that farm simply
did not arise in the founding affidavit. It is uncontroversial to acknowledge that an
applicant’s case must be made out in its founding affidavit. 23 If there was no
allegation that Glen Ashton had been abandoned, then there was no possibility of a
suggestion that Twyfelhoek and Moeders Rus had also been abandoned, for those

suggestion that Twyfelhoek and Moeders Rus had also been abandoned, for those
farms were intentionally, and by design, not the focus of the ex parte application.

23 Standard Bank of South Africa Ltd v Jwara and Others [2012] ZAGPJHC 5 para 12.

[74] That abandonment of the three farms was not alleged in the ex parte
application is placed beyond doubt when the following extract from the founding
affidavit in that application is considered:
‘12.4 It is submitted that the balance of convenience favours the Applicant in that
the Declaratory Order requested will not in any way prejudice any owner of the
Property currently living or otherwise. There are no cost orders sought against any of
the owners of the Property.
12.5 It is further submitted that any access or possession granted by the above
Honourable Court to the Applicant on a temporary basis will not disrupt any of the
owner's rights and as such any interested party can anticipate the interim order
should sign be granted.’

[75] From this it is clear that the first appellant acknowledged the existence of the
co-owners and their rights to the three farms and did not hold the view that they had
abandoned them. The fact that it was submitted that the co -owners would not be
prejudiced by the order sought can only mean that it was never the first appellant’s
case that the co-owners had abandoned their ownership interests in the three farms.

[76] The only express mention of the notion of the abandonment of the three
farms appeared in the first appellant’s answering affidavit in the joinder and
rescission application. In that document, the first appellant blew both hot and cold. It
firstly argued, as one of its previously mentioned points in limine, that the joinder and
rescission application should fail because the first and second respondents had not
joined the other co -owners of the three farms in the application. That proposition
therefore acknowledged that the three farms had co-owners. But then it argued that
the first and second respondents only took an interest:
‘… in the farms long since abandoned, when a commercial opportunity seems likely.’

[77] The first appellant cannot have it both ways : either the three farms ha d co-

[77] The first appellant cannot have it both ways : either the three farms ha d co-
owners who ought to have been joined in the joinder and rescission application, or
the three farms had been abandoned and therefore had no co-owners, who therefore
did not need to be joined . In agreeing before us that Nkosi J correctly ordered the

three farms to be retransferred, the first appellant leaves very little room for the
argument that they had been abandoned by their co-owners.

[78] The death knell for the abandonment argument is to be found in the first
appellant’s answering affidavit in the joinder and rescission application. As already
mentioned, t he first and second respondent s’ case was that the three farms were
being used for the purpose of grazing cattle belonging to the first respondent’s son,
Mr Fourie, and her two great -nephews. In the answering affidavit, the following
appears:
‘As stated, the farms have no infrastructure or roads leading to them and therefore is
(sic) not inhabited. While the farms may be used for cattle grazing they are without
any commercial value.’
This is a concession that the three farms are being used, as alleged by the first and
second respondents, and therefore could not possibly have been abandoned.

[79] But, assuming for the sake of argument that a case for abandonment had
been made out, where would that leave the first appellant? In some considerable
difficulty and in no better position , in my view. In the past there may have been a
debate about what happens to land abandoned by its owner: Voet was of the view
that such land could be acquired through occupation,24 while Grotius25 and Van der
Keessel26 were of the view that such land accrued to the State. It is the latter view
that generally prevails today in our law , and abandoned land is regarded as having
accrued to the State automatically without any form of delivery.27 The prevailing view
would mean that there is no easy way for the first appellant to acquire ownership of
the three farms, for it made out no case whatsoever for occupation by it of the three
farms. Indeed, the whole purpose of the ex parte application was to secure access to
Glen Ashton, which points to the fact that the first appellant did not claim to already
have been in occupation of it or the other two farms.

have been in occupation of it or the other two farms.


24 Voet 41.1.10; See also Reck v Mills en ‘n Ander 1990 (1) SA 751 (A) at 757C-D.
25 Grotius 2.1.54.
26 Van der Keessel Praelectiones ad Gr 2.1.
27 De Villiers and Others v GJN Trust and Others [2018] ZASCA 80; 2019 (1) SA 120 (SCA) para 7;
Rainbow Diamonds (Edms) Bpk en Andere v Suid -Afrikaanse Nasionale Lewensassuransie -
maatskappy 1984 (3) SA 1 (A).

[80] We were not directed to any authority that indicated that abandoned property
could simply be purchased, nor have I found any such authority. To whom would
such payment be made? Given the prevailing view mentioned above, it could only be
made to the State. But i n this instance, the first appellant paid a sum of money into
the Guardian’s Fund to enable anyone with an interest in the three farms to claim his
or her share of that payment. The obvious question that must be asked is if the first
appellant truly believed that the three farms had been abandoned, why would any
compensation be payable to anyone? A true abandonment would have to have been
accompanied by an intention to claim no further benefit from that land. No right to
compensation would arise, or be payable , or claimable , in the event of a true
abandonment.

[81] Rather than making out a case for abandonment, it appears to me that that
what the first appellant sought, and was granted, was a form of private expropriation
unknown in our law.

The setting aside of the third order
[82] In my view, the third order should simply never have been granted. In any
event, the relief that was granted was not the relief that was sought in the notice of
motion. Ordinarily, r elief that goes beyond what is claimed in a notice of motion
cannot be granted28 because a court may only decide issues that have properly been
raised before it for decision.29 Mr Marais suggested in his written argument that:
‘… despite absence of any formal amendment of the Notice of Motion it cannot be
disputed that, ultimately, the Notice of Motion was orally or tacitly amended to
provide for transfer of the property.’

[83] Such an argument may be capable of being sustained in a commercial
setting between two independent contracting parties, but it is not an argument in my
view that can be confidently advanced in an ex parte application before a court in the
absence of one party. If an amendment is to be sought to the relief claimed in such

absence of one party. If an amendment is to be sought to the relief claimed in such
an application , it must be done openly and on record and should not be made

28 Baront Investments (Pty) Ltd v West Dune Properties 296 (Pty) Ltd and Others 2014 (6) SA 286
(KZP) paras 80-82.
29 Magistrates Commission and Others v Lawrence [2021] ZASCA 165; 2022 (4) SA 107 (SCA) paras
78-79.

subject to speculation as to whether the relief claimed had been tacitly varied. The
acquisition of the three farms was not the issue before the court in the ex parte
application. In my view, where notice has not been given to the other side , the
requirement to only determine the issue before the court becomes even more
compelling.

[84] By virtue of the concessions made by the appellants that the setting aside of
the third order was correctly ordered by Nkosi J , it is not necessary to determine
whether he correctly found that Uniform rule 42(1) was of application.

The ordering of the retransfer of the three farms
[85] That the retransfer of the three farms was correctly ordered by Nkosi J is
also now common cause following the appellants ’ concessions and all necessary
steps should be taken as expeditiously as possible to restore the three farms to their
co-owners.

The ex parte application should be allowed to proceed
[86] The appellants propose that the ex parte application should be allowed to
proceed, with each side entitled to deliver further affidavits . The suggestion is
unappealing to me for several reasons.

[87] The purpose for bringing the ex parte application has been overtaken by the
passage of time and events and has become moot. The first appellant sought access
to one farm to construct firebreaks thereon and was given that access and has
constructed whatever firebreaks it wanted to construct. In fact, on its own admission,
it impermissibly went even further and created firebreaks on Twyfelhoek and
Moeders Rus without ever seeking permission to do so, and it appears to have taken
the view that it could do as it wished. There is nothing left in dispute in the ex parte
application. For it to proceed, the relief claimed would have to be signifi cantly
amended. The ex parte application would have to be transformed into something that
it presently is not. I can see no point in that.

it presently is not. I can see no point in that.

[88] In addition to this, I have a fundamental difficulty in accepting that the
appellants are entitled to this relief. The ex parte application was flawed in its very

essence, for it is reasonably certain that the first appellant made no attempt to trace
the co-owners of the three farms , yet it informed the court that it had made those
efforts. I come to that conclusion for four reasons:
(a) Firstly, not a single piece of evidence was put up to establish what the first
appellant actually did to locate the co -owners. The conventional way of finding
difficult to find people is to instruct a tracing agent. Was this done in this instance? If
so, who was instructed to trace the owners? When were they instructed? What was
the tracer able to ascertain? None of this has ever been disclosed by the first
appellant;
(b) Secondly, the fact that the first appellant had obtained the final estate
accounts of two of the deceased co -owners would have made finding the ir living
relatives a matter of some simplicity: the Master of the High Court could have been
approached to provide the necessary information. The persistent complaint of the
first appellant that it did not know the identity number s of any of the co -owners has
already been demonstrated to be false in relation to Hermanus;
(c) Thirdly, the fact that Ms Strauss of Mulilo had no difficulty in finding the
second respondent in two days renders it entirely probable that the first appellant
itself made no effort at all to locate the co -owners. Had it done so , it is likely that
what it discovered would inexorably have led it to the first respondent; and
(d) Fourthly, had the first appellant made inquiries at the Vulintaba Estate, its
own creation, it would have been led directly to one of the first respondent’s great-
nephews, Paul, who was issued with a gate pass to enter the Vulintaba Estate for
the specific purpose of allowing him to access the three farms. A copy of the gate
pass is attached to the appeal record. It records the date that it was issued on, being
13 June 2019, and it contains Paul’s identity number.

[89] It seems to me, therefore, that the unyielding conclusion that must be drawn

[89] It seems to me, therefore, that the unyielding conclusion that must be drawn
is that no steps were taken at all by the first appellant. In my view, that ought to have
been disclosed to Seegobin J. But it was not. In addition to that, the first appellant
ought to have disclosed that it was no longer interested merely in Glen Ashton but
also in the other two farms. Given that those two farms do not border on the
appellant’s land, an extremely convincing case would have had to be presented to
justify the relief ultimately claimed by the first appellant and granted to it . No such
case was made out, in my opinion.

[90] Where a litigant chooses to commence proceedings without notice to the
intended opponent, the law visits upon that litigant a ‘ heavy responsibility ’30 as Mr
Vorster pointed out in his heads of argument. A particular form of altruistic and
selfless conduct is required from such a litigant. This was acknowledged by the
Supreme Court of Appeal in National Director of Public Prosecutions v Basson, 31
where it held that:
‘Where an order is sought ex parte it is well established that the utmost good faith
must be observed. All material facts must be disclosed which might influence a court
in coming to its decision, and the withholding or suppression of material facts, by
itself, entitles a court to set aside an order, even if the non -disclosure or suppression
was not wilful or mala fide.’ (Authorities omitted.)

[91] In Recycling and Economic Development ,32 Cachalia JA expanded upon
these requirements when he stated that:
‘The applicant must thus be scrupulously fair in presenting her own case. She must
also speak for the absent party by disclosing all relevant facts she knows or
reasonably expects the absent party would want placed before the court. The
applicant must disclose and deal fairly with any defences of which she is aware or
which she may reasonably anticipate. She must disclose all relevant adverse
material that the absent respondent might have put up in opposition to the order. She
must also exercise due care and make such enquiries and conduct such
investigations as are reasonable in the circumstances before seeking ex parte relief.
She may not refrain from disclosing matter asserted by the absent party because
she believes it to be untrue. And even where the ex parte applicant has endeavoured
in good faith to discharge her duty, she will be held to have fallen short if the court
finds that matter she regarded as irrelevant was sufficiently material to require
disclosure. The test is objective.’

disclosure. The test is objective.’

[92] The giving of notice is a vital act intended to fully permit participation in the
imminent legal proceedings and conforms to the principle of audi alteram partem. 33

30 Recycling and Economic Development Initiative of South Africa NPC v Minister of Environmental
Affairs [2019] ZASCA 1; 2019 (3) SA 251 (SCA) (Recycling and Economic Development) para 46.
31 National Director of Public Prosecutions v Basson 2002 (1) SA 419 (SCA) para 21.
32 Recycling and Economic Development para 47.

As was said by Sutherland J in South African Airways SOC v BDFM Publishers (Pty)
Ltd and Others:34
‘The principle of audi alteram partem is sacrosanct in the South African legal system.
Although, like all other constitutional values, it is not absolute and must be flexible
enough to prevent inadvertent harm, the only times that a court will consider a
matter behind a litigant's back are in exceptional circumstances. The phrase
“exceptional circumstances” has regrettably, through overuse and the habits of
hyperbole, lost much of its impact. To do that phrase justice it must mean “very
rarely” - only if a countervailing interest is so compelling that a compromise is
sensible, and then a compromise that is parsimonious in the deviation allowed.’

[93] Where notice ought to have been given but was not, as in this case, the
court has a discretion as to whether to set the proceedings aside or not. In
Schlesinger v Schlesinger,35 the court remarked that:
‘. . . [U]nless there are very cogent practical reasons why an order should not be
rescinded, the Court will always frown on an order obtained ex parte on incomplete
information and will set it aside even if relief could be obtained on a subsequent
application by the same applicant.’

[94] The court in Schlesinger mentioned further that the non -disclosure or
suppression of facts need not be wilful or mala fide to incur the penalty of
rescission.36 This approach, it seems, is also adopted in English law. In Brink's-Mat
Ltd v Elcombe and Others,37 the court observed that where there has been a
material failure in ex parte proceedings to disclose facts that ought to have been
disclosed, the court will be:
‘… astute to ensure that a plaintiff who obtains [an ex parte order] without full
disclosure, is deprived of any advantage he may have derived by that breach of
duty.’


33 It means to ‘hear the other side’ - see R C Claassen and M Claassen Claasen’s Dictionary of Legal

Words and Phrases (June 2025 - SI 28). See also Psychological Society of South Africa v Qwelane
and Others [2016] ZACC 48; 2017 (8) BCLR 1039 (CC) paras 33-34.
34 South African Airways SOC v BDFM Publishers (Pty) Ltd and Others 2016 (2) SA 561 (GJ) para 22.
35 Schlesinger v Schlesinger 1979 (4) SA 342 (W) (Schlesinger) at 350B-C.
36 Ibid at 348E-349B.
37 Brink's-Mat Ltd v Elcombe and Others [1988] 3 All ER 188 (CA) at 193.

[95] The concept of private ownership of property, and the certainty of what such
ownership brings, is a fundamental tenet of our society and its legal system. It
permits individuals the right to own, use and dispose of their property as they see fit.
If they wish to develop the land that they own, they may do so. Equally, if they
choose not to develop it and are content to merely allow cattle to freely roam it, that
too, is their right. It follows that a failure to develop land, a fact relied upon by the first
appellant to bolster its submissions in claiming the third order, does not mean that
ownership thereof has been abandoned , for abandonment of land is not easily
inferred. Ownership is only lost when the owner gives up the property with the
intention that it should become an unowned thing. That requires a convergence of
the owner’s intention and the consequent relinquishing of physical control of the
property.38 One without the other will not establish a true case of abandonment.

[96] There is nothing here to suggest that the first respondent ever possessed
the necessary intent to give up the three farms. 39 Even if it is accepted that she
personally had shown no interest in the three farms that, to my understanding, would
have been insufficient, for as was stated in Minister van Landbou v Sonnendecker:40
‘Geen verdere gesag hoef aangevoer te word nie om te toon dat by verlating of by
prysgee daar ‘n bedoeling moet wees deur die eienaar om die eiendom prys te gee.
Namens appellant is aangevoer dat die bedoeling in hierdie saak afgelei moet word
van die volgende feite: dat die grond reeds in 1942 in die naam van Firmin
geregistreer is, dat die grond slegs een morg groot is, dat tot onlangs die grond nie
veel werd was nie, dat sedert 1942 Firmin nie in die grond belang gestel het nie, dat
in 1942 die grond in ‘n toestand van verwaarlosing was en dat Firmin van 1925 tot
1934 nie belasting op die grond betaal het nie. Hierdie feite toon ongetwyfeld dat die

1934 nie belasting op die grond betaal het nie. Hierdie feite toon ongetwyfeld dat die
eienaar oor ‘n lang tyd nie aktief belang in die grond gestel het nie maar dit is nie
voldoende nie om te bevind dat h y die bedoeling gehad het om die grond prys te
gee.’

[97] Thus, something more than a lack of involvement with the land is required to
establish its abandonment in the true sense. That this is lacking in this matter is

38 Meintjes NO v Coetzer and Others [2010] ZASCA 32; 2010 (5) SA 186 (SCA) para 16.
39 Quarrying Enterprises (Pvt) Ltd v John Viol (Pvt) Ltd and Others 1985 (3) SA 575 (ZH) at 580F.
40 Minister van Landbou v Sonnendecker 1979 (2) SA 944 (A) at 947A-C.

reinforced by the first respondent’s assertion in her a ffidavit in the joinder and
rescission application that there was an agreement between herself , her son, and
her great-nephews, confirmed under oath by her son, that they could use the three
farms for the grazing of cattle. In Ruigtevlei Farm Labour Tenant Association v
Harbich and Others,41 the court observed that:
‘It is axiomatic that if an owner of land concludes a lease in respect of his/her
immovable property it is to be concluded that there is still an intention to deal with the
property qua owner.’
That being the case, there can be no doubt that the agreement referred to by the first
respondent evidences her continued intention to deal with the three farms as a co -
owner.

[98] To the extent that Nkosi J found that the three farms had not been
abandoned, he was, in my view, entitled to come to that conclusion on the facts of
this matter.

[99] The ownership of property, which would include land, is an issue that
attracted the attention of the drafters of the Constitution, the supreme law of this
country. Section 25(1) of the Constitution was mentioned earlier in this judgment
and provides as follows:
‘No one may be deprived of property except in terms of law of general application,
and no law may permit arbitrary deprivation of property.’

[100] When considering the potential violation of a constitutional right, Southwood
AJA in a judgment that supported the majority judgment in Powell NO and Others v
Van der Merwe and Others,42 observed as follows:
‘In my view, this approach should apply equally to relief obtained on facts which are
incorrect because they have been misstated or inaccurately set out in the application
for the order (compare, Hall and another v Heyns and others ) or, as in this case
because they have not been sufficiently investigated. And it should be rigorously
applied where a right in the Bill of Rights has been violated.’ (Citation omitted.)

applied where a right in the Bill of Rights has been violated.’ (Citation omitted.)


41 Ruigtevlei Farm Labour Tenant Association v Harbich and Others [2020] ZAWCHC 182 para 26.
42 Powell NO and Others v Van der Merwe and Others 2005 (5) SA 62 (SCA) para 75.

[101] Those words apply neatly to the facts of this matter. The first appellant
conducted no investigations but asserted that it had done all that it could to locate
the co -owners. That was false. That led directly to an order that deprived the co -
owners of the three farms of their lawful rights of co -ownership of the farms. The first
appellant now knows that not all the co -owners are dead, and that a living co-owner
opposes what it proposes to achieve. If the only basis upon which the ex parte
application is to proceed is on the issue of the alleged abandonment of the three
farms (which was never the relief claimed formally) , then a dispute of fact will
immediately arise for, as explained earlier, the first respondent asserts that the three
farms have not been abandoned and are being put to use by members of her family.

[102] Motion proceedings are not designed to deal with disputes of fact and
probabilities.43 There can therefore be very little purpose in permitting the ex parte
application to be resuscitated again and be transformed , only to refer it to trial or to
oral evidence. That this is the likely consequence was acknowledged by the
appellants when they raised, as one of their grounds of appeal , the allegation that
Nkosi J had erred in not referring the matter to oral evidence. On this topic, I am
unable to find any reference to this being sought by the first appellant in the appeal
record, other than in the notice of appeal.

[103] It seems to me that if the first appellant wishes to pursue this matter further ,
it should commence proceedings afresh , utilise action proceedings from the outset
and give due and proper notice to all those with an interest in the three farms.

[104] In the light of the authorities mentioned earlier regarding the forfeiture of any
benefits derived from commencing legal proceedings without making the full
disclosure that the law requires, there can be no suggestion that the first appellant

disclosure that the law requires, there can be no suggestion that the first appellant
should be permitted to acquire any benefits from its conduct. Allowing the ex parte
application to remain alive and to be proceeded with in a significantly modified form
would be such an advantage.


43 National Director of Public Prosecutions v Zuma [2009] ZASCA 1; 2009 (2) SA 277 (SCA) para 26.

[105] Finally, the ex parte application was commenced on the basis that it was
urgent. Such urgency was justified by the first appellant because of the approaching
fire season. It must therefore have known when the fire season would commence. It
would, looking backwards, have known when the fire season had commenced and
ended the previous year, and the years prior to that year. It did not bring any
application premised upon urgency then. It appears that it delayed bringing its
application so that it could argue that the fire season was about to occur. With its
claimed knowledge, the first appellant should have brought its application well before
the onset of the fire season. In Mlezana and Others v South African Civic
Organisation,44 Plaskett J observed as follows:
‘The judicial system, not unlike the private individual, does not take kindly to people
who push to the front of the queue. The doctrine of urgency was developed and
encapsulated in the rules of court in order to allow those for whom the wait in the
queue would not be worth it unless they push in front, to do just that without
attracting dirty looks from those behind them.’

[106] In its most basic element, it seems to me that no proper case was made out
for urgency by the first appellant and if any vestige of urgency could be identified, it
was entirely self -created. The ex parte application ought not to have been
entertained on the grounds of urgency.

Costs
[107] In his judgment, Nkosi J found that:
‘From the new facts which have since emerged in this application, it appears to me
that the first respondent/or its directors or attorneys failed to “exercise due care and
make such enquiries and conduct such investigations as are reasonable in the
circumstances before seeking ex parte relief” relating to the final order which
fundamentally violated ownership and/or possessory rights of the applicants. It
seems they were guided by a “notion of doing the bare minimum.”’

seems they were guided by a “notion of doing the bare minimum.”’


44 Mlezana and Others v South African Civic Organisation [2018] ZAECGHC 114 para 5, quoting with
approval N Manoim ‘Principles Regarding Urgent Applications' in N Haysom and L Mangan (eds)
Emergency Law at 79.

[108] Nkosi J concluded that while the first appellant, assisted by the second
appellant, was guilty of committing a ‘comedy of errors’, those ‘errors’:
‘… seem to have been geared to surreptitiously obtain transfer of the farms into its
name, taking advantage of and/or abusing the regular court system to achieve its
aims.’

[109] In the view that I take of the matter, I am not inclined to agree that a comedy
of errors fully describes what the appellant did, and I must respectfully differ with the
views of Nkosi J in that regard . It appears to me that the conduct of the first
appellant, and its legal representative , the second appellant, was far more
calculating than comedic.

[110] Having chosen not to attempt to locate any of the co -owners and having
elected to proceed without the giving of notice, the second appellant, and perhaps
even Mr Lamprecht himself, who , after all, describes himself as being the first
appellant’s legal advisor, would have known of the necessity to be entirely candid in
proceeding in this fashion. Neither was.

[111] There were other unsatisfactory aspects to the conduct of the appellant s. It
was represented by the first appellant that Glen Ashton (which both it and the
second appellant well knew was actually a reference to the three farms) had no
commercial value when that was not true at all. The valuator who was appointed by
the first appellant found that the combined value of all three farms was
R1 254 687.03. It appears that this valuation failed to take notice of the Newcastle
Municipality’s valuation of the three farms, which came to a total of R7 090 000.

[112] It appeared to me that , following the concession before us that the third
order should be set aside, and the three farms retransferred, the issue of costs
ordered by Nkosi J was the true reason for the appeal. Mr Marais was asked
whether this was so. His response was that leave to appeal is seldom given when

whether this was so. His response was that leave to appeal is seldom given when
the only issue is one of costs. In that, he is correct. The substantive grounds upon
which the appellant s claimed that Nkosi J had erred have, ironically, been
abandoned by them, leaving only the flimsy ground of the ex parte application being
permitted to limp on having, in truth, already run its course, and the issue of costs.

There is something deeply unsatisfactory about this. It appears that a stratagem was
developed and applied to attack the issue of costs when an appeal directed only at
the costs awarded by Nkosi J would not have succeeded, as the appellants well
knew.

[113] The decision to proceed on an ex parte basis would not have been a
decision taken by the first appellant alone. It would also have been a decision of the
second appellant, whose function it is to guide, advise and direct the first appellant. It
is inconceivable that the second appellant would not have asked the first appellant
what steps had actually been taken by it to locate the owners of the three farms. Had
they done so, as they must have, they would immediately have realised that an ex
parte application was simply not available to their client. The ex parte application
transmogrified itself from claiming a right of access to one farm to a right to acquire
ownership of all three farms. Such conduct does not occur by chance: it occurs by
design. The way that the matter was handled, as previously observed, was deceptive
both in what was done and what was submitted to this court.

[114] Nkosi J further made the following considered remarks on the issue of costs:
‘[97] The first respondent’s attorneys launched an application, which was
vacuous in obvious respects, and in which, to the knowledge of the attorney, the
deponent deliberately omitted to disclose material facts. The attorney must have
known that the only way in which the first respondent could have succeeded with the
application (for the final relief) was to prosecute it in a stealthy and opaque manner.
[98] The attorney would have been aware of the fact that there was no evidence
to establish the necessary factual basis for the transfer of the farms to the first
respondent. Should the attorney and his client have made a frank disclosure of all
relevant facts, the application would’ve had no real prospect of success. This alone

relevant facts, the application would’ve had no real prospect of success. This alone
is a sufficient ground for an award of costs de bonis propriis.’

[115] I agree with these comments.

Conclusion
[116] An appeal court may only interfere in a judgment of a court of first instance
where that court has improperly exercised a discretion that it possesses or where

that court has erred either on the facts or on the law, or where it has come to a
decision to which a court acting reasonably could not have come. 45 None of these
aberrations appear to be present in the judgment delivered by Nkosi J.

[117] In my view, the judgment was not appealable and even if I am incorrect in
that conclusion, it is not in the interests of justice to allow the appeal. Nkosi J arrived
at the correct conclusion in a well -considered judgment. This has, belatedly, been
recognised by the appellant s in the form of their concessions. There can be no
purpose in permitting the grotesquely inaccurate ex parte application to live on in the
hope that it can be transformed into something useful and beautiful. The purpose of
the ex parte application has been served and there is nothing else to be achieved
from it.

Costs on appeal
[118] Nkosi J ordered costs on the attorney and client scale against the appellant
and its attorneys , the second appellant , jointly and severally. Having secured leave
to appeal, the appellants jettisoned the core of their objections that had seen them
acquire that leave. It seems proper to me that in such circumstances , a similar cost
order to that granted by Nkosi J should be ordered insofar as the costs of appeal are
concerned.

Order
[119] I would in the circumstances propose the following order:
The appeal is dismissed with costs on the attorney and client scale , which the first
and second appellants are to pay jointly and severally, the one paying the other to be
absolved.




MOSSOP J


45 National Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs and Others
[1999] ZACC 17; 2000 (2) SA 1 (CC) para 11.

I agree:



P BEZUIDENHOUT J



I agree and it is so ordered:




RADEBE J

APPEARANCES


Counsel for the appellants: Mr J Marais SC

Instructed by: Kruger Attorneys and Conveyancers
Roodepoort

Locally represented by:
Grant and Swanepoel Attorneys Inc.
Suite 1, The Mews
Redlands Estate
George Macfarlan Lane
Pietermaritzburg

Counsel for the first and second respondents: Mr A Vorster

Instructed by: Boshoff Incorporated
Pretoria

Locally represented by:
Shepstone and Wylie Attorneys
15 Chatterton Road
Town Hill
Pietermaritzburg