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




THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not Reportable
Case no: 149/2023
In the matter between:
SHAAN NORDIEN FIRST APPELLANT
TAVIA NORDIEN SECOND APPELLANT
and
KIDROGEN RF (PTY) LTD FIRST RESPONDENT
CITY OF CAPE TOWN SECOND RESPONDENT
Neutral citation: Nordien and Another v Kidrogen RF (Pty) Ltd and Another
(149/2023) [2025] ZASCA 159 (23 October 2025)
Coram: MAKGOKA, WEINER and KGOELE JJA and HENDRICKS and
NAIDOO AJJA
Heard: 6 September 2024
Delivered: : This judgment was handed down electronically by circulation to
the parties’ representatives by email, publication on the Supreme Court of
Appeal website and released to SAFLII. The date and time for hand-down of the
judgment is deemed to be 11h00 on 23 October 2025.
Summary: Property law – eviction – lease agreement signed by directors of
the company which owned the property without indicating that they acted on

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behalf of company – lessee challenging owner’s standing in eviction application
– rei vindicatio – rectification – general principles restated.


ORDER

On appeal from: Western Cape Division of the High C ourt (Goliath AJP and
Cloete and Thulare JJ concurring, sitting as court of appeal):

The application for special leave to appeal is dismissed with costs to be paid by
the first and second applicants jointly and severally, the one paying the other to
be absolved.


JUDGMENT

Hendricks AJA:
[1] This is an application for special leave to appeal and, if granted, the
determination of the appeal itself . The matter was , on special application for
leave to appeal to this Court, referred for oral argument in terms of s 17(2)(d) of
the Superior Courts Act 10 of 2013 (the Act) .1 It is therefore a two -pronged
approach in that at first, it is the determination of whether special leave to
appeal should be granted, and if so, the determination of the merits of the appeal
itself. The test for the determination of special leave to appeal is different from
the test to be applied on the merits of the appeal .2 The parties were directed to
be prepared to argue the merits of the application if called upon to do so.

1 Section 17(2)(d) provides:
‘The judges considering an application referred to in paragraph (b) may dispose of the application without the
hearing of oral argument, but may, if they are of the opinion that the circumstances so require, order that it be
argued before them at a time and place appointed, and may, whether or not they have so ordered, grant or refuse
the application or refer it to the court for consideration.’
2 In Westinghouse Brake and Equipment (Pty) Ltd v Bilger Engineering (Pty) Ltd 1986 (2) SA 555 (A), this
Court stated that ‘an applicant for special leave to appeal must show, in addition to the ordinary requirement of

3

[2] The litigation history of this matter has its genesis in the order granted in
the Western Cape Division of the High Court (the high court), where Fortuin J
granted an order dismissing an application for eviction with costs . The
application was launched by Kidrogen RF (Pty) Ltd ( Kidrogen) against Mr
Shaan Nordien (Mr Nordien) and Mrs Tavia Nordien and their son (the Nordien
family). Kidrogen applied for leave to appeal which was also dismissed with
costs by the high court. It then petitioned this Court for leave to appeal, either to
the Western Cape Division of the High Court (the Full Court) or to this Court.

[3] Leave to appeal was granted by th is Court to the Full Court. The Full
Court upheld the appeal against the order and judgment of Fortuin J, which was
set aside and substituted with an order : granting the application for rectification
of the written lease agreement; evicting the Nordien family; ordering Mr
Nordien to pay an amount of R250 800 as arrear rental ; as well as the costs of
the application. Dissatisfied with the order and judgment of the Full Court, Mr
Nordien successfully petitioned this Court, and an order was granted in terms of
the provisions of s 17(2)(d) of the Act, as alluded to earlier.

[4] The background facts to this application are largely common cause.
Kidrogen is the registered owner of a residential immovable property, situated
at 6[...] T[....] Street, Parklands, Western Cape (the property). On 30 October
2019, a written lease agreement was entered into between Mr Nordien as lessee,
and Mr Davids and Mr Peter as lessors. Mr Davids and Mr Peter are directors of
Kidrogen. An addendum was also concluded between Mr Nordien and Mr Peter
on behalf of Kidrogen, decreasing the annual rental increase from 15 per cent to
10 per cent. There was also a three-month rental relief from March 2020 to May
2020, as a result of the Covid -19 pandemic. The Nordien family took

2020, as a result of the Covid -19 pandemic. The Nordien family took

reasonable prospects of success, that there are special circumstances which merit a further appeal’ These would
include ‘: (a) the appeal raises a substantial point of law; (b) the matter is of very great importance to the parties
or of great public importance; and (c) where the refusal of leave to appeal would probably result in a manifest
denial of justice. . .’; Beadica 231 CC v Sale’s Hire CC (1191/2018) [2020] ZASCA 76 (30 June 2020) para 29

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occupation of the property. On 5 February 2020 , Kidrogen and Mr Nordien
entered into an agreement of sale of the property. This agreement of sale was
subsequently cancelled. It was alleged by Mr Nordien that a nother sale
agreement of the property was entered into on 8 March 2020. This was disputed
by Kidrogen. The sale of the property did not come to fruition.

[5] On 7 October 2020 , Kidrogen requested payment of the arrear rental that
was due. Mr Nordien indicated that he was awaiting funds from his offshore
account and would make payment of the arrear rental before the end of October
2020. This did not happen and no further rental payments were made. The lease
agreement was cancelled by Kidrogen, which then launched an application for
eviction and payment of the arrear rental in the amount of R250 800 plus costs.

[6] Mr Nordien opposed this application on the basis that Kidrogen relies on
implied rectification of the written lease agreement without having pleaded
rectification. It is common cause that Mr Davids and Mr Peter entered into the
written lease agreement with Mr Nordien. He raised as a defence in his
answering affidavit, that he did not contract with Kidrogen, but with Mr Davids
and Mr Peter in their personal capacities. This led to an application for
rectification to allege that the written lease agreement was entered into between
Mr Nordien and Kidrogen, duly represented by Mr Davids and Mr Peter.

[7] As rectification was not pleaded, t he contention was that the application
was fatally defective. Furthermore, Mr Nordien contend ed that the lease
agreement was not validly cancelled, and he is not in unlawful occupation of the
property. In addition, he is not in unlawful occupation of the property in terms
of the agreement of sale entered into. The sale agreement contains a clause that
stipulates that he will not be liable for occupational rental pending the
finalization of the sale agreement. Lastly, no case was made out for the amount

5

claimed as arrear rental. The Full Court granted the order set out in paragraph 2,
supra. It is against this order of the Full Court that special leave to appeal is
requested.

[8] Central to this appeal is the issue whether the Full Court was correct in
ordering rectification of the written lease agreement. It is trite that a written
contract can be rectified if it does not accurately reflect the common intention of
the parties. Contract rectification is a legal procedure used to amend the written
documents of a contract when it fails to mirror the intention of the parties due to
mutual errors or omission s. Rectification has no effect on the rights and
obligations of the parties. It does not create a new contract but merely serves to
correct the written memorial of the contract.

[9] Rectification of a written agreement is a remedy available to parties in
instances where an agreement reduced to writing, through a common mistake,
does not reflect the true intention of the contracting parties. Didco tt J in Spiller
and Others v Lawrence3 emphasized that:
‘(i)t is not the agreement between the parties which, on the other hand, is rectified. The Court
has no power to alter it. To do so would be to amend their exclusive prerogative. All that the
Court ever touches is the document.’
The onus is on a party seeking rectification to show on a balance of
probabilities, that the written agreement does not correctly express what the
parties had intended to set out in the agreement.

[10] It was submitted on behalf of Mr Nordien that rectification should not be
applied for in motion proceedings, but in an action. The general rule is that
rectification should be sought by way of action , however, this rule is not
immutable.4 In Gralio v DE Claassen5 the following is stated:

3 Spiller and Others v Lawrence 1976 (1) SA 307 (N).
4 Amlers’ Precedents of Pleading – LT Harms at 298.
5 Gralio (Pty) Ltd v DE Claassen (Pty) Ltd 1980 (1) SA 816 (A).

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‘Indeed (leaving aside cases in which the contract is by law required to be in writing), a
defendant who raises the defence that the contract sued upon does not correctly reflect the
common intention of the parties, need not even claim formal rectification of the contract; it is
sufficient if he pleads the facts necessary to entitle him to rectification and asks the court to
adjudicate upon the basis of the written contract relied upon by the plaintiff as it stands to be
corrected.’6

[11] In the judgment of the Full Court, it was stated that regard must be had to
all the evidential material holistically. There is a plethora of correspondence
between Mr Nordien and Kidrogen. Amongst it is an addendum to the lease
agreement. Although it was only signed by Mr Peter, it is nevertheless common
cause that the addendum was agreed to. So too, there is correspondence from
Mr Nordien to the effect that he was awaiting funds from his offshore account
which he will u se to settle the arrear rental. A letter of demand was sent from
Kidrogen to Mr Nordien to which the latter did not reply. Mr Nordien failed to
raise in such correspondence the issue of who the parties to the lease agreement
were. It was always accepted in the correspondence and further agreements that
Kidrogen, and not Mr Peter and Mr Davids, was the landlord and owner of the
property.

[12] Mr Nordien submitted that the Full Court misdirected itself in granting
rectification. An application for rectification of the lease agreement was made a
day before the hearing of the application by Fortuin J, which was dismissed on
the basis that the granting of rectification would be prejudicial to Mr Nordien as
it amounts to short notice. Furthermore, that no case for rectification was made
out in the founding affidavit. It is indeed true that no case was made out in the
founding affidavit . But this is because the defence was only raised by Mr
Nordien in the answering affidavit that he entered into a written lease agreement

Nordien in the answering affidavit that he entered into a written lease agreement
with Mr Davids and Mr Peter in their personal capacities and not in their

6 Ibid at 824B-C.

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representative capacities on behalf of Kidrogen. He also denied that he entered
into the written lease agreement with Kidrogen.

[13] As alluded to, t here was an addendum entered into between Mr Nordien
and Kidrogen duly represented by Mr Peter. This is common cause. This being
the case, it means that Mr Nordien admit s that he contracted with Kidrogen ,
quite contrary to the argument that the lease agreement was entered into with
Mr Davids and Mr Peter in their personal capacities. To add to this, there were
demands made for payment of the arrear rental amount by Kidrogen. The
demands were not disputed by Mr Nordien. On the contrary, Mr Nordien stated
that he will pay the arrear rental amount when he receive s money from his
offshore investment. This too, is an admission by Mr Nordien that he contracted
with Kidrogen.

[14] Mr Nordien also contended that he was not in unlawful occupation of the
property. This, he base d on the fact that he and Kidrogen entered into a sale of
the property. In terms of the sale agreement concluded on 5 February 2020, he
would not be liable for payment of any occupational rental until the property
was transferred into his name. He does, however, not make an argument that he
performed in terms of the sale agreement.

[15] It is common cause that the sale agreement concluded on 5 February 2020
was duly cancelled by Kidrogen. Mr Nordien contended that another sale
agreement was entered into during March. This is disputed by Kidrogen. Even if
it were to be accepted that the sale agreement was not cancelled, the question
that begs an answer is how can Mr Nordien be in lawful occupation of the
property in terms of a sale agreement concluded with Kidrogen, which makes
reference to a written lease agreement which, on his version, was not concluded
with Kidrogen, but with Mr Davids and Mr Peter in their personal capacities?

8

[16] I am of the view that Mr Nordien did not make out a case for special
leave to appeal to be granted to this Court . The Full Court was correct in
granting the requisite rectification of the written lease agreement. There is no
merit in this application for special leave to appeal. Special leave to appeal
should consequently be refused.

[17] In the result, the following order is made:
The application for s pecial leave to appeal is dismissed with costs to be
paid by the first and second applicants jointly and severally, the one
paying the other to be absolved.

__________________
RD HENDRICKS
ACTING JUDGE OF APPEAL

Makgoka JA (Weiner and Kgoele JJA and Naidoo AJA concurring):
[18] I have read the judgment prepared by my Colleague, Hendricks AJA (the
first judgment). I agree with its order. I write separately because in my view,
Kidrogen comes home on the rei vindicatio principle as the owner of the
property. I also consider that the rectification issue, to the extent it needs to be
considered, needs fuller treatment.

[19] The issue in the application is whether Kidrogen had the locus standi to
apply for the eviction of Mr Nordien. That question arose because the lease
agreement upon which Mr Nordien occupied the property, was signed by two of
Kidrogen’s directors, Mr Andile Peter (Mr Peter) and Mr Essa Davids (Mr
Davids). They are referred to in the lease agreement as the Lessor, and there is
no indication that they signed it on behalf of Kidrogen. This fact is the sole
basis on which Mr Nordien resisted Kidrogen’s applicati on for his eviction. The

9

high court considered it meritorious. It dismissed Kidgrogen’s application for
rectification to reflect it as the true lessor. It subsequently dismissed Kidrogen’s
eviction application on the basis that it lacked locus standi.

[20] Mr Nordien’s assertion that Kidrogen is a ‘stranger’ to the lease
agreement, and therefore, not the lessor, must be viewed against this factual
background. It is common ground that Kidrogen is the owner of the property.
Mr Peter and Mr Davids are two of its directors. In addition, Mr Peter is also the
Chief Executive Officer (CEO) of Kidrogen. The first applicant, Mr Nordien,
was the Managing Director of Eyethu Masiti Construction, a subsidiary of
Kidrogen.

[21] On 30 October 2019, a written lease agreement in respect of the property
was concluded between Mr Nordien as lessee, and Mr Peter and Mr Davids, the
latter reflected as ‘the lessor’. As mentioned, Mr Peter and Mr Davids are
directors of Kidrogen. Clause 4 of the written lease agreement made the
commencement date of the lease retrospective to 1 November 2017.

[22] On the same date, ie 30 October 2019, an addendum was concluded,
which reduced the annual percentage rental escalation from 15 per cent to 10
per cent per annum effective from an earlier date, being 31 July 2019. Although
this addendum was only signed by Mr Nordien, it is common ground that it was,
in fact, concluded between Kidrogen and Mr Nordien, as the latter admitted
Kidrogen’s allegations to that effect. 7 Notably, the addendum is on Kidrogen’s
letterhead, which reflects Mr Peter as Kidrogen’s CEO. It is recorded that the
addendum ‘is hereby a part for all purposes of the Lease Agreement between . .
. [Mr] Andile Peter on behalf of Kidrogen (Pty) Ltd as Landlord and Shaan
Nordien as tenant’. (Emphasis added.)

7 For an unexplained reason, the addendum reflects its date as 13 July 2019.

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[23] On 5 February 2020, the parties entered into an Agreement of Sale in
terms of which Mr Nordien would purchase the property from Kidrogen for
R2,995,000, payable upon registration of transfer. It was recorded in clause 2.1
of the sale agreement that Mr Nordien was in occupation of the property ‘in
terms of an existing lease agreement.’ (Emphasis added.) Clause 4.2 of the Sale
Agreement reads:
‘The lease agreement contemplated under paragraph 2.1 above shall endure until the date of
registration of transfer. Should the sale be cancelled for any reason whatsoever, the lease
agreement shall remain in full force and effect.’
Kidrogen subsequently cancelled this sale agreement.

[24] As a result of the COVID -19 lockdown, Mr Nordien experienced
financial difficulties. In consideration thereof, Kidrogen provided Mr Nordien
with a three -month rental suspension. As record thereof, Kidrogen required Mr
Nordien to sign an acknowledgement of debt in favour of Kidrogen relating to
arrear rental. The acknowledgement of debt form, dated 6 September 2020, is
under Kidrogen’s letterhead. It authorises Kidrogen to deduct from Mr
Nordien’s service fee ‘the relief on rental’ in favour of ‘ Kidrogen (Pty) Ltd’. In
the relevant part, the document states that:
‘I, the above mentioned [Shaan Nordien] hereby authorize Kidrogen (Pty) Ltd to deduct from
my service fee as specified below.’ (Emphasis added.)

[25] On 25 August 2020, Mr Nordien sent an email to Mr Peter in which he
informed him, among other things, that due to the COVID -19 lockdown, he was
experiencing cashflow problems. However, he agreed that the full amounts he
owed to Kidrogen should be deducted from his 5 per cent profit share from the
Sitari Project once the houses were sold.8 This is what he said:

8 Sitari here refers to a building project Mr Nordien was developing for the Kidrogen at Sitari Country Estate in
Somerset West.

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‘The unforeseen COVID -19 lockdown has caused me tremendous cash flow issues, but the
full amounts due to Kidrogen may be deducted from 5% Sitari Project profit sharing once the
houses are sold.’ (Emphasis added.)

[26] As of October 2020, Mr Nordien was still in arrears with rental.
On 7 October 2020, Ms Lusanda Nyamela sent an email from a Kidrogen email
address to Mr Nordien, enquiring when he intended to make payments towards
the arrear rental. Ms Nyamela pointed out that Mr Nordien was at that stage ‘in
breach of the [Acknowledgement of Debt] agreement signed in respect of the
COVID-19 relief granted to you as there [were] no further amendments made to
the agreement. Please urgently advise when we can expect payment.’

[27] In response to the above email, Mr Nordien, on 8 October 2020,
undertook to settle the arrears by the end of October 2020. That did not happen.
On 6 November 2020, Ms Nyamela followed up with Mr Nordien regarding the
payment he had previously committed to in his correspondence. On 8
November 2020, Mr Nordien stated that he was awaiting funds from his
offshore account and would settle the arrears owed to Kidrogen as soon as he
received the funds.

[28] On 24 November 2020, Kidrogen’s attorneys served a letter on Mr
Nordien by sheriff, cancelling the lease agreement. The letter clearly stated that
it was written on Kidrogen’s instructions regarding the lease of the property.
The lease agreement was attached to the letter, which also referenced the
addendum, the acknowledgement of debt, the arrears, the demand for payment,
and the failure to settle the arrears. Mr Nordien was given until 31 December
2020 to vacate the property. There was no response to this letter.

In the high court

12

[29] Kidrogen subsequently launched an application for the eviction of
Mr Nordien and for payment of the arrear rental of R250 800. The second
applicant, cited as the second respondent in the eviction application, is Mr
Nordien’s former wife. Mr Nordien opposed the application. In his answering
affidavit, he set out in detail his business association and dealings with
Kidgrogen, none of which is relevant for present purposes.

[30] Regarding the specific allegations in Kidrogen’s founding affidavit,
Mr Nordien admitted that Kidrogen owns the property. Having made this
admission, the only defence he raised was that Kidrogen was not a party to the
lease agreement, as it was between him, on the one hand, and Mr Peter and Mr
Davids, on the other. Therefore, he contended that Kidrogen’s cancellation of
the lease was ineffective, and he was not unlawfully occupying the property.

[31] Mr Nordien did not provide any meaningful response to Kidrogen’s
detailed engagement with him regarding the addendum, the demand for him to
pay the arrear rental, or his undertakings to pay Kidrogen once he received his
offshore funds. However, he did comment on the acknowledgement of debt he
signed in favour of Kidrogen as follows:
‘I further point out that the Acknowledgment of Debt. . . in relation to the rental relief for the
months of March, April and May 2020, authorises [Kidrogen] to deduct three amounts of
R20,900.00, over a period of three months, from my service fee’. In other words, in terms of
the acknowledgement it was within [Kidrogen’s] powers to deduct the said amounts from my
monthly remuneration, which it has failed to do.’

[32] In its replying affidavit, deposed to by Mr Peter, Kidrogen reiterated that
it is the registered owner of the property, and that Mr Peter and Mr Davids, as
its directors, were mandated to enter into all agreements on its behalf, including

its directors, were mandated to enter into all agreements on its behalf, including
the impugned lease agreement. Mr Peter emphasised that ‘the lease agreement
was signed by Mr Davids and I in our capacities as directors of [Kidrogen].’

13


[33] On 30 August 2021, Kidrogen issued its notice of intention to amend its
notice of motion by adding a new prayer 9, in terms of which the lease
agreement would be rectified by: (a) inserting after the words ‘made and entered
into by and between’ the words ‘Kidrogen RF (Pty) Ltd (Lessor) herein
represented by’; (b) removing the identity numbers of Mr Peter and Mr David,
and deleting them as ‘lessor’; and (c) substituting these with the words ‘both
persons duly authorised for and on behalf of the Lessor’.

[34] On 9 September 2021, Mr Nordien delivered his notice of objection to the
notice of intention to amend. The grounds of objection were that: (a) Kidrogen
had no locus standi to seek rectification of an agreement to which it is not a
party; (b) there was a misjoinder to the extent that the signatories to the lease
agreement, Mr Peter and Mr Davids, were not joined as parties to the
proceedings; (c) No grounds for rectification were made out in the founding
papers; (d) the grounds for rectification had not been established.

[35] It was specifically stated that ‘the founding papers did not allege that
a mistake was made in the drafting of [the lease agreement] nor do the founding
papers contain any’. Furthermore, it was stated that there were no allegations
that the lease agreement did not accurately reflect the parties’ common
intention, nor what the true intention of the parties was. It was emphasised that
Kidrogen should be non -suited since it had not made out its case for
rectification in the founding affidavit.

[36] On 14 September 2021, the day before the hearing of the eviction
application, Kidrogen submitted its ‘Notice of Motion (as amended)’, which
included the new prayer 9, as referenced earlier. It also served notice of motion
informing Mr Nordien that it would seek rectification of the lease agreement

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based on the terms previously stated. That application was to be heard
concurrently with the main eviction application on 15 September 2021.

[37] The high court first considered Kidrogen’s opposed application for
amendment to its notice of motion. It agreed with Mr Nordien’s arguments and
held that Kidrogen had not established a proper case for rectification in its
application. On the face of the lease agreement, the court held, Kidrogen was
not a party to the lease. Furthermore, the application for rectification was filed
late, and Mr Nordien did not have sufficient opportunity to respond. The court
held that Kidrogen was attempting to substitute itself for Mr Peter and Mr
Davids, without joining the latter. The high court reasoned that this would
prejudice Mr Nordien.

[38] Consequently, the high court dismissed Kidrogen’s application to amend
its notice of motion. Concomitantly, its eviction application was dismissed
because, without rectification of the lease agreement, the cancellation is not
valid as ‘it was not given by a party to the agreement.’ As a result, the high
court found that Kidrogen lacked the standing to cancel the lease, since it was
not a party to it. Additionally, the court reasoned that Kidrogen had not
established a prima facie case for the relief sought.

In the Full Court
[39] The Full Court identified three grounds on which Mr Nordien’s defence
rested, namely: (a) whether Kidrogen had locus standi to seek rectification of an
agreement to which it is allegedly not a party (the locus standi issue); (b)
whether rectification was competent when Mr Davids and Mr Peter had not
been joined (misjoinder issue); (c) whether rectification was competent when no
grounds for it had been advanced in the founding papers.

15

[40] As to the first ground, the Full Court held that the written lease agreement
did not faithfully record the agreement between the parties, but mistakenly
reflected something else that was not meant, ie that Mr Peter and Mr Davids
signed the lease in their personal capacities. The court held that this was
misleading and unreliable evidence, which ordinarily, would be rejected.
However, instead of rejecting it, the court held that it must be corrected so that
it matches the facts and thus becomes reliable. That, the court held, would give
effect to the true intention of the parties.

[41] Regarding non -joinder, the Full Court dismissed the point on the basis
that given that Mr Peter and Mr Davids were the directors of Kidrogen, they
would not be prejudiced by the non -joinder. As to the third ground, the Full
Court acknowledged that no grounds for rectification were made out in
Kidrogen’s founding papers. However, the court did not consider this to be an
insurmountable obstacle in Kidrogen’s path. It reasoned that prior to the
launching of the eviction application, Mr Nordien had never contended that the
lease was not one between him and Kidrogen. The facts, it held, demonstrated
that at all material times up to the delivery of his answering affidavit, Mr
Nordien had considered Kidrogen to be the lessor, despite the reference in the
written version of the lease to Mr Davids and Mr Peter as the lessor.

[42] The Full Court noted an additional ground raised by Mr Nordien,
apparently during argument in the high court, namely that rectification is
generally not permitted in application proceedings. The Full Court dismissed
this argument summarily. However, its reasoning for that conclusion is not clear
from its judgment. The Full Court referenced Rule 28(3) of the Uniform Rules
of Court, which states that a party objecting to an amendment must specify the

16

grounds for such an objection. 9 But, as demonstrated earlier, Mr Nordien had
fully set out his grounds of objection to Kidrogen’s proposed amendment.
Viewed in this light, the Full Court’s reasoning for summarily dismissing this
point is difficult to follow.

[43] Be that as it may, the Full Court found no merit in any of Mr Nordien’s
defences. It accordingly upheld Kidrogen’s appeal with costs. It set aside the
high court’s order and replaced it with an order: (a) granting the application for
rectification of the written lease agreement; (b) evicting Mr Nordien and his
family from the property; (c) for payment by Mr Nordien of R250 800 as arrear
rental; (d) granting costs to Kidrogen.

In this Court
[44] Mr Nordien persisted with his assertion that Kidrogen did not have locus
standi to cancel the lease agreement and to bring the eviction application, as it
was not a party to the lease agreement. It seems to me that this point is
dispositive of the appeal. For its part, Kidrogen contended that as the owner of
the property, it had the necessary standing to bring the eviction application.

Analysis
Rei vindicatio
[45] It is common ground that Kidrogen is the owner of the property. Based on
the principle of rei vindicatio , it was required to do no more than allege and
prove that: (a) it is the owner of the property; (b) the property is in the
possession of the respondents; and, (c) the property is still in existence.10 As this
Court explained in Chetty v Naidoo (Chetty):11

9 Rule 28(3) of the Uniform Rules of Court provides an objection to a proposed amendment shall clearly and
concisely state the grounds upon which the objection is founded.

10 G Muller et al. Silberberg and Schoeman’s The Law of Property 6 ed (2019) LexisNexis at 270.
11 Chetty v Naidoo 1974 (3) SA 13 (A) (Chetty).

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‘It is inherent in the nature of ownership that possession of the res should normally be with
the owner, and it follows that no other person may withhold it from the owner unless he is
vested with some right enforceable against the owner (e.g., a right of retention or a
contractual right). The owner, in instituting a rei vindicatio, need, therefore, do no more than
allege and prove that he is the owner and that the defendant is holding the res - the onus
being on the defendant to allege and establish any right to continue to hold against the
owner.’12

[46] Thus, by denying the lease agreement between himself and Kidrogen as
alleged by the latter, Mr Nordien bore the burden of proving some other lawful
right to occupy the property. He could not merely assert that Mr Peter and Mr
Davids were the lessors in their personal capacities regarding a property they
did not own. He was required to demonstrate that the two gentlemen, despite
not being the owners, granted him a lawful right to occupy the property. Mr
Nordien failed to do so. This is unsurprising because Mr Peter and Mr Davids
could not transfer greater rights than they had to Mr Nordien. 13 Thus, in the
absence of an allegation that he was conferred a right in law by Mr Peter and Mr
Davids to occupy the property, nothing stands in the way of Kidrogen, as the
owner of the property, from vindicating it from him by way of an eviction
application.

[47] As an owner asserting rei vindicatio , once Mr Nordien denied the
existence of a lease agreement between him and it, Kidrogen was relieved of the
duty to prove termination of the lease. As explained in Chetty:
‘[A]lthough a plaintiff who claims possession by virtue of his ownership, must ex facie his
statement of claim prove the termination of any right to hold which he concedes the
defendant would have had but for the termination, the necessity for this proof falls away if
the defendant does not invoke the right conceded by the plaintiff, but denies that it existed.

12 Ibid at page 20B-D.
13 Smit v Creeser 1948 (1) SA 501 (W) at 507H.

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Then the concession becomes mere surplusage as it no longer bears upon the real issues then
revealed.’14

[48] Recently, in Robert Paul Serne NO v Mzamomhle Educare and Others ,15
this Court had occasion to consider a similar situation. There, the respondents
sought to resist an owner’s eviction application by alleging that: (a) the owner
had obtained ownership by dishonest means; and (b) there was no valid lease
agreement. This Court rejected the defences and stated that neither of them
establishes a right in law for the respondents to continue occupying the
property. It held that ‘the respondents cannot content themselves with a denial
of the existence of the lease agreement, yet simply remain in occupation of the
property in perpetuity without any lawful basis.’16

[49] In all circumstances, Mr Nordien had failed to establish a lawful basis to
continue occupying Kidrogen’s property in the absence of either a valid lease
agreement between him and Kidrogen or a right in law conferred by Mr Peter
and Mr Davids. Mr Nordien continues to occupy the property of Kidrogen
without paying any rental, neither to Kidrogen nor to Mr Peter and Mr Davids,
his supposed lessor. On this basis alone, his application falters.

Rectification
[50] To my mind, this issue was a red herring by Mr Nordien. Kidrogen did
not need the rectification to vindicate its right, as mentioned earlier. That should
have been the end of the matter. But, as pointed out by the Constitutional Court
in Spilhaus v MTN ,17 ‘[l]itigants are entitled to a decision on all issues raised,
especially where they have an option of appealing further. The court to which

14 Chetty fn 12 above at 21G-H.
15 Robert Paul Serne NO and Others v Mzamomhle Educare and Others [2024] ZASCA 152.
16 Ibid para 31.
17 Spilhaus Property Holdings (Pty) Limited and Others v MTN and Another [2019] ZACC 16; 2019 (4) SA 406
(CC); 2019 (6) BCLR 772 (CC).

19

an appeal lies also benefits from the reasoning on all issues.’ 18 Because we are
no longer the apex court, I will consider the issue.

[51] In Propfokus v Wenhandel 19 this Court affirmed that a party claiming
rectification of a written agreement has to allege and prove: (a) that an
agreement had been concluded between the parties and reduced to writing;
(b) that the written document does not reflect the true intention of the parties –
this requires that the common continuing intention of the parties, as it existed at
the time when the agreement was reduced to writing, be established; (c) an
intention by both parties to reduce the agreement to writing; and (d) that there
was a mistake in drafting the document, which mistake could have been the
result of an intentional act of the other party or a bona fide common error; and
(e) the actual wording of the true agreement.20

[52] Mr Nordien’s main complaint was that no case had been made out for
rectification in the founding papers. This is disingenuous given that up to the
point when Mr Nordien delivered his answering affidavit, he had never
suggested that Kidrogen was not the lessor, and that Mr Peter and Mr Davids, in
their personal capacities, were. On the contrary, Mr Nordien had given every
indication that he regarded Kidrogen as the lessor.

[53] Thus, Kidrogen could not have known when it launched the eviction
application that Mr Nordien would adopt the stance that it was not the lessor. It
was only after the answering affidavit was delivered that Kidrogen could apply
for rectification. Given this, it does not lie in the mouth of Mr Nordien that
Kidrogen did not make out a case in its founding papers. In this regard, the high
court held that there was no reason to raise the identity of the lessor in the

18 Ibid para 44.
19 Propfokus 49 (Pty) Ltd and Others v Wenhandel 4 (Pty) Ltd [2007] ZASCA 15; 2007] 3 All SA 18 (SCA).
20 Ibid para 13.

20

absence of any litigation. That may be so. But the failure to rebut Kidrogen’s
assertion of itself as the lessor is not without consequence . As this Court held in
McWilliams v First Consolidated Holdings:21
‘... [B]ut in general, when according to ordinary commercial practice and human
expectation firm repudiation of such an assertion would be the norm if it was not accepted
as correct, such party's silence and inaction, unless satisfactorily explained, may be taken
to constitute an admission by him of the truth of the assertion, or at least will be an
important factor telling against him in the assessment of the probabilities and in the final
determination of the dispute. And an adverse inference will the more readily be drawn
when the unchallenged assertion had been preceded by correspondence or negotiations
between the parties relative to the subject-matter of the assertion . . .’22

[54] In this present case, except for the names and identity numbers of Mr
Peter and Mr Davids in the lease agreement, every reference in the papers points
to Kidrogen as the true lessor. Throughout the exchange of correspondence with
Mr Nordien, Kidrogen asserted itself as the lessor. Mr Nordien was not only
silent about this. He also signed documents confirming it. First, an addendum to
the lease agreement in which Kidrogen was identified as the lessor, represented
by Mr Peter. Second, an acknowledgement of debt in favour of Kidrogen for
arrear rental in respect of the property.

[55] In response to Kidrogen’s demand to pay rental arrears, he undertook to
pay Kidrogen as soon as his offshore funds became available. What is more, in
Kidrogen’s replying affidavit, Mr Peter and Mr Davids, denied Mr Nordien’s
averment that they were the lessor. They did this by confirming that they signed
the lease agreement on behalf of Kidrogen.

[56] It is significant that Mr Nordien neither objected to Kidrogen’s averment
as constituting an impermiss ible new issue in reply nor sought to file a

as constituting an impermiss ible new issue in reply nor sought to file a

21 McWilliams v First Consolidated Holdings (Pty) Ltd [1982] 1 All SA 245 (A).
22 Ibid at 250.

21

supplementary affidavit to deal with it. In Pretoria Portland Cement Company
Ltd v Competition Commission 23 this Court held that a party under similar
circumstances was entitled to do so. This was affirmed by the Constitutional
Court in Botha v Smuts.24

[57] It is trite that i n motion proceedings, the affidavits constitute not only the
pleadings but also the evidence .25 In the present case, Kidrogen tendered
evidence in the replying affidavit that Mr Peter and Mr Davids signed the lease
agreement on its behalf . In the absence of an objection or a rebuttal thereto by
Mr Nordien , such evidence stood uncontradicted. It thus should have been
accepted. The high court erred in ignoring this evidence.

[58] In seeking to avoid the inevitable conclusion from the undisputed factual
matrix, Mr Nordien called in aid the parol evidence rule to resist rectification .
The parol evidence rule is to the effect that ‘[i]f a document was intended to
provide a complete memorial of a jural act, extrinsic evidence may not
contradict, add to or modify its meaning’. 26 Kidrogen did not seek to do any of
the above. It sought to rectify a glaring mistake in the lease agreement. In
Venter v Liebenberg 27 it was held that when rectification is claimed, the parol
evidence rule yields to it. The court explained:
‘[W]hen rectification is claimed the claimant is entitled to lead evidence of the term, agreed
upon by the parties, which he alleges to have been omitted from the written document, and
the parol evidence rule gives way to the more potent requirements of the equitable principle

23 Pretoria Portland Cement Co Ltd and Another v Competition Commission and Others [2002] ZASCA 63;
2003 (2) SA 385 (SCA) para 63. See also Sigaba v Minister of Defence and Police and Another 1980 (3) SA
535 (TkS) at 550F; Tantoush v Refugee Appeal Board and Others 2008 (1) SA 232 (T) paras 51 and 71.
24 Botha v Smuts and Another [2024] ZACC 22; 2025 (1) SA 581 (CC); 2024 (12) BCLR 1477 (CC) para 56.

25 Triomf Kunsmis (Edms) Bpk v AE & CI Bpk 1984 (2) SA 261 (W) at 269G -H and Saunders Valve Co Ltd v
Insamcor (Pty) Ltd 1985 (1) SA 146 (T) at 149C.
26 KPMG Chartered Accountants (SA) v Securefin Limited and Another [2009] ZASCA 7; 2009 (4) SA 399
(SCA) para 39; University of Johannesburg v Auckland Park Theological Seminary and Another [2021] ZACC
13; 2021 (8) BCLR 807 (CC); 2021 (6) SA 1 (CC) para 18.
27 Venter v Liebenberg 1954 (3) SA 333 (T).

22

of rectification. The result is that the principle of rectification has substantially reduced the
scope of the parol evidence rule . . .’28

[59] This Court in Tesven v South African Bank of Athens ,29 with reference to
Rand Rietfontein Estates Ltd v Cohn ,30 affirmed that principle and held that the
parol evidence rule does not exclude evidence of a common continuing
intention which a party seeks to lead in support of a claim for rectification. It
follows that Mr Nordien’s reliance on the parol evidence rule is unavailing.

[60] The evidence which Kidrogen placed before the high court for
rectification comprised of the following: (a) Mr Nordien signed the addendum,
which clearly identified Kidrogen as the lessor in the main lease agreement; (b)
he signed an acknowledgment of debt in favour of Kidrogen in respect of arrear
rental; (c) he responded positively to Kidrogen’s emails demanding payment;
(d) he had never paid rental to either Mr Peter or Mr Davids, but to Kidrogen’s
appointed account; (e) Mr Peter and Mr Davids had denied in the replying
affidavit that they were the lessor, and instead, confirmed Kidrogen as the
lessor. The high court ignored the cumulative effect of this overwhelming body
of evidence in dismissing Kidrogen’s application.

[61] Mr Nordien also contended that because Mr Peter and Mr Davi ds were
not joined, rectification was not competent. There is no merit in this contention.
As correctly held in Movie Camera v Van Wyk ,31 a joinder in such an instance
would only be necessary in the case of a party who is wholly unaware of the
matter or removed from it. In the present case, Mr Peter was the deponent to the
founding and replying affidavits. In the latter affidavit, he stated that he and Mr
Davids signed the lease agreement on behalf of Kidrogen. Mr Davids confirmed

28 Ibid at 338B-C.
29 Tesven CC and Another v South African Bank of Athens 2000 (1) SA 268 (SCA); [1999] 4 All SA 396 (A)
para 16.

para 16.
30 Rand Rietfontein Estates Ltd v Cohn 1937 AD 317 at 327.
31 Movie Camera Company (Pty) Ltd v Van Wyk [2003] 2 All SA 291 (C) para 25.

23

this in a confirmatory affidavit to the replying affidavit. What is more, both
were part of the directors of Kidrogen who adopted the resolution to institute
the eviction application by Kidrogen against Mr Nordien. Thus, both were
clearly aware of the proceedings.

Special leave
[62] In the circumstances, the Full Court was undoubtedly correct to uphold
the appeal and dismiss Mr Nordien’s rather fanciful defence. This has a direct
bearing as to whether special leave to appeal should be granted. To obtain
special leave from this Court, the presence of reasonable prospects of success is
not enough. An applicant must, in addition to showing reasonable prospects of
success on appeal, demonstrate special circumstances justifying such leave.

[63] In Cook v Morrison 32 this Court provided guidelines as to what
constitutes special circumstances. Although not an exhaustive list, those
circumstances may include that the appeal raises a specific point of law, or that
the prospects of success are so strong that refusing leave could result in denial
of justice, or that the matter is significant to the public or the parties. 33 As I see
it, Mr Nordien has failed to establish any special circumstances why special
leave should be granted.

[64] In the circumstances, the application for special leave to appeal must fail.
For these reasons, I concur in the order of the first judgment.






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

24

_________________
T MAKGOKA
JUDGE OF APPEAL

25

Appearances:
For appellants: G Quixley (with him P Gabriel)
Instructed by Hayes Inc., Cape Town
Webbers Attorneys, Bloemfontein

For first respondent: L F Wilkin
Instructed by: Carelse Khan Inc., Cape Town
Honey Attorneys, Bloemfontein.