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

60 Reportability
Land and Property Law
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Brief Summary

Leave to appeal — Application for leave to appeal — Late filing without condonation — Respondents unrepresented and unfamiliar with court procedures — Court granted condonation in interests of justice — Applicants and Respondents, brothers and co-owners of properties, sought termination of co-ownership and sale of properties due to failed consensus — Court ordered termination of joint ownership and division of properties, balancing rights of parties — Application for leave to appeal dismissed with costs.

Comprehensive Summary

Case Note


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


Reportability


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


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


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


Cases Cited



  • Britz v Sequeria [2020] 2 All SA 415 (Free State Division, High Court, Bloemfontein)

  • Municipal Employees’ Pension Fund and Others v Chrisal Investments (Pty) Ltd and Others 2022 (1) SA 137 (Supreme Court of Appeal)

  • Z.I v W.I and Another (13142/2022) [2023] ZAWCHC 95 (Western Cape Division, Cape Town) (9 March 2023)

  • Caratco (Pty) Ltd v Independent Advisory (Pty) Ltd 2020 (5) SA 35 (Supreme Court of Appeal)

  • MEC for Health, Eastern Cape v Mkitha and Another [2016] ZASCA 175 (Supreme Court of Appeal) (25 November 2016)

  • S v Smith 2012 (1) SACR 567 (Supreme Court of Appeal)

  • Ramakatsa and Others v African National Congress and Another [2021] ZASCA 31 (Supreme Court of Appeal) (31 March 2021)

  • Eke v Parsons 2016 (3) SA 37 (Constitutional Court)

  • De Wit NO and Another v Smit and Others (19076/2024) [2025] ZAWCHC 481 (Western Cape Division, Cape Town) (21 October 2025)

  • Shoprite Checkers (Pty) Ltd v Kgatle and Another (2023) 44 ILJ 2564 (Western Cape Division, Cape Town)


Legislation Cited



  • Superior Courts Act 10 of 2013, section 17(1)(a) and section 17(1)(a)(ii)

  • Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998

  • Legal Practice Act 28 of 2014


Rules of Court Cited



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


HEADNOTE


Summary


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


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


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


Key Issues



  • Whether an actio communi dividundo order that terminates free co-ownership and regulates division/sale of immovable property amounts to an “eviction” necessitating compliance with the PIE Act.

  • The proper test for leave to appeal under section 17(1)(a) of the Superior Courts Act and whether reasonable prospects exist that an appeal would succeed.

  • The permissibility of seeking, via a leave application, a variation of the substantive terms of a final order regulating division.

  • The appropriate costs order in circumstances involving unrepresented litigants asserting rights to housing.


Held


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


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


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


THE FACTS


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


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


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


THE ISSUES


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


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


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


ANALYSIS


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


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


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


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


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


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


REMEDY


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


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


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


LEGAL PRINCIPLES


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


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


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


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


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

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
(WESTERN CAPE DIVISION, CAPE TOWN)

CASE NO: 19928/2024
REPORTABLE

In the matter between:
LEON HAUPTFLEISCH VAN NIEKERK First Applicant

JOHANNES NEL VAN NIEKERK Second
Applicant

and

DIEDERIK JOHANNES VAN NIEKERK First
Respondent

DAVID MORRIES CILLIERS VAN NIEKERK Second
Respondent

THE REGISTRAR OF DEEDS , CAPE TOWN Third
Respondent

Coram: MOOSA AJ
Heard: 14 October 2025

Delivered: 27 October 2025 (delivered via email to the parties)
___________________________________________________________________
ORDER
___________________________________________________________________
The First and the Second Respondents’ application for leave to appeal is dismissed
with costs. Counsel’s fees are allowed on scale B. First and Second Respondents ’
liability for costs is joint and several, with one party paying and the other absolved.
___________________________________________________________________
JUDGMENT
(LEAVE TO APPEAL)
___________________________________________________________________
Moosa AJ:
[1] This judgment relates to an application (“the petition”) for leave to appeal filed
by the First Respondent and the Second Respondent (“the Respondents”) in respect
of the whole of my order issued on 21 July 2025 ( “the order s”). Since appeals lie
against court orders rather than the reasons that underpin them, I do not discuss the
reasons for the granting of the orders, except where doing so is deemed necessary.

[2] For the sake of convenience, the parties are referred to as in the main case.

[3] The application for leave to appeal was filed late without an accompanying
application for condonation. The Respondents are unrepresented (lay) litigants who
are unfamiliar with the intricacies of the rules of court procedure. Mr Harmse, for the
Applicants, adopted a pragmatic approach. He did not object to condonation being
granted at the Respondent’s request from the bar. I duly obliged and granted it in the
interests of justice and ensuring that finality is brought to this matter on its merits.

[4] At this juncture, some context is useful. The Applicants and the Respondents
are brothers who, some decades ago, became the registered co-owners of erf 9[…],

9[…]2, 9[…]3, 1[…], and 1[…]2 Wellington, Western Cape (“the properties”) . The ir
co-ownership was subject to a usufruct which terminated on the death of their
mother in February 2024 . Shortly thereafter, the Applicants , both living overseas,
commenced litigation. They sought an order to place the five (5) properties under the
management and administration of Seeff Boland Winelands for the mutual benefit of
the co-owners. On 24 April 2024, Mthimunye AJ granted such an order under case
no. 6982/2024.
[5] On 11 September 2024, the Applicants approached this Court under a
different case number. In terms of the actio communi dividundo, they sought an order
that the joint ownership of the properties be terminated and that the properties be
sold. Relief of this nature is competent on notice of motion. See Britz v Sequeria
[2020] 2 All SA 415 (FB) par a 11. The application was initiated after attempts at
reaching consensus on the termination of the co -ownership and the division of the
properties failed.

[6] The Respondents opposed the application. They delivered detailed answering
affidavits, much of whose contents were irrelevant to the substance of the
application. At all material times, the Respondents were unrepresented, although I
extended opportunities to them to obtain legal representation. They could not afford
it.

The impugned court order
[7] On 21 July 2025, I issued an order terminating the parties’ free (as distinct
from bound) co-ownership of the properties. I also granted ancillary relief. My orders
are quoted in paragraph [9] below. In reaching my conclusion favouring termination, I
took into account, inter alia, the rights of the Respondents as property owners,

balanced against the right of the Applicants to seek termination of the free co -
ownership; the parties’ inability to reach consensus; the f act that the Respondents
reside on some of the properties with their families, and they do not pay any rent for
their occupation; and the continued retention of the properties does not benefit the
Applicants at all.

[8] The termination of the joint owne rship and my orders that regulate the
division of properties accords with the principles discussed in relevant case law. See,
for e.g., Britz v Sequeria supra paras 11 - 17; Municipal Employees' Pension Fund
and Others v Chrisal Investments (Pty) Ltd and O thers 2022 (1) SA 137 (SCA) ; and
Z.I v W.I and Another (13142/2022) [2023] ZAWCHC 95 (9 March 2023) paras 5 - 9.
[9] In the interests of fairness and equity to the Applicants and the Respondents
as co-owners (see Britz v Sequeria supra para 15), I directed as follows:
‘Having heard the Applicants’ Counsel as well as the First and the Second
Respondents acting in person, and having read the papers filed of record in this
application, IT IS ORDERED THAT:
1. The joint ownership of the Applicants, the First Respondent, and the Second
Respondent is, by the actio communi dividundo, terminated forthwith in respect
of the following immovable properties situate in Wellington, Western Cape: erf
9[…], erf 9[…]2 and erf 9[…]3 (commonly known as nos. 5[…] - 6[…] C[…]
Street, Wellington); erf 1[…] (commonly known as no. 7[…] C[…] Street,
Wellington); and erf 1[…]2 (commonly known as no. 9[…] B[…] Street,
Wellington).

2. Division of the properties listed in paragraph 1 above shall occur as follows:
a. Erf 1[…]2 Wellington (no. 9[…] B[…] Street, Wellington), whose fair market
value for purposes of case no. 19928/2024 and this order is R4 000 000,00 (Four
Million Rand), shall become the sole and exclusive property to be registered
forthwith by the Third Respondent in the First Respondent’s name;

forthwith by the Third Respondent in the First Respondent’s name;
b. Erf 1[…] Wellington (no. 7[…] C[…] Street, Wellington), whose fair market
value for purposes of case no. 19928/2024 and this order is R5 000 000,00 (Five

Million Rand), shall become the sole and exclus ive property to be registered by
Third Respondent forthwith in Second Respondent’s name; and
c. Erven 9[…], 9[…]2, and 9[…]3 Wellington shall be offered for sale together in
the open market at their cumulative fair market value, subject to a reserve price
of R20 200 000,00 (Twenty Million Two Hundred Thousand Rand).

3. Registration of transfer of erf 1[…] Wellington and erf 1[…]2 Wellington under
paragraphs 2a and 2b above shall occur immediately. Fourie Pretorius Inc of
Bloubergrant, Cape Town are appointed to effect registration of these transfers.
If, within ten (10) days of this order, this firm fails to accept its appointment as
well as the obligations imposed, then Bill Tolken Hendrickse Attorneys of Bellville
are appointed in their stead, subject to the same obligations indicated below.

4. The transferee of erf 1[…] Wellington and erf 1[…]2 Wellington indicated in
paragraphs 2a and 2b respectively shall be liable for the conveyancers’ charges,
inclusive of Value -Added Tax at the prescribed legal rate (if applicable ), and
transfer duty (if any) which may be incurred to give effect to the transfers
contemplated by the orders in 2a and 2b above respectively: Provided that all
rates and taxes, and other costs, charges, and/or disbursements of whatsoever
nature incurred in respect of erf 1[…] Wellington and erf 1[…]2 Wellington (as the
case may be) for purposes of giving registration of transfer of these properties to
their intended transferees shall be jointly borne by the Applicants, the First
Respondent, and the Second Respondent in equal shares as co-owners.

5. The mandate and authority of Seeff Boland Winelands conferred by order of Ms
Acting Justice Mthimunye in this Court on 24 April 2024 in case no. 6982/2024 is
terminated with immediate effect in relation to erf 1[…] Wellington and erf 1[…]2
Wellington. The a uthority to manage, control, and administer these erven shall

Wellington. The a uthority to manage, control, and administer these erven shall
forthwith be as follows: in respect of erf 1[…]2 Wellington, the First Respondent;
in respect of erf 1[…] Wellington, the Second Respondent. Pending registration
of transfer of these properties, the Applicants, the First Respondent, and the
Second Respondent shall share equally in all rental generated therefrom. The
First and the Second Respondents respectively shall account to each other and
the Applicants for their share of any nett rentals collected up to date of transfer.

6. All funds held in trust by Seeff Boland Winelands as at the date of this order in
respect of erf 1[…] Wellington and erf 1[…]2 Wellington shall, within twenty one

(21) days of this order be paid into the trust banking accoun t of the attorneys
responsible for effecting registration of transfer pursuant to paragraph 3 above,
and such funds shall be held in trust under the Legal Practice Act, 2014 for the
credit of the Applicants, the First Respondent, and the Second Respondent, each
of whom shall have an equal share in those monies. These funds shall be used
for purposes of these attorney trust creditor’s individual and/or collective
obligations contemplated in paragraph 4 above. Any excess funds remaining on
registration of transfer of erf 1[…] Wellington and erf 1[…]2 Wellington shall then
be paid forthwith to the attorney trust creditors entitled thereto under this order.

7. Seeff Boland Winelands shall, within ten (10) days of this order, provide the
Applicants, the Fir st Respondent, the Second Respondent, and the transferring
attorneys appointed pursuant to paragraphs 3 above and 16 below with a full and
proper accounting, in writing, of all funds collected and disbursed in relation to
each of the five (5) immovable properties managed, controlled, and administered
pursuant to the order of Ms Acting Justice Mthimunye under case no. 6982/2024.

8. By reason of the division ordered in paragraphs 2a and 2b above, the First
Respondent and the Second Respondent shall be liable to compensate each
other and the Applicants in the following sums:
a. In respect of erf 1[…]2 Wellington, First Respondent is liable to pay Applicants
and the Second Respondent the sum of R3 000 000,00 (Three Million Rand) to
be shared equally, that is, R1 000 000,00 (One Million Rand) to each;
b. In respect of erf 1[…] Wellington, the Second Respondent is liable to pay the
Applicants and First Respondent the sum of R3 750 000,00 (Three Million Seven
Hundred and Fifty Thousand Rand) to be shared equally, that is, R1 250 000,00
(One Million Two Hundred and Fifty Thousand Rand) to each.

(One Million Two Hundred and Fifty Thousand Rand) to each.

9. Set-off shall apply to the First Respondent’s aforementioned indebtedness to the
Second Respondent, and vice versa. Applying set -off to the debts referred to in
paragraphs 8a and 8b, the First Respondent’s indebtedness to the Second
Respondent is reduced to NIL, and the Second Respondent’s indebtedness to
the First Respondent is reduced to R250 000,00 (Two Hundred and Fifty
Thousand Rand).

10. The First Respondent and Second Responden t’s indebtedness contemplated in
paragraphs 8 and 9 above shall be settled as a first draw against their respective

shares of the nett proceeds yielded from the sale and registration of transfer of
erven 9[…], 9[…]2, and 9[…]3 Wellington contemplated in paragraph 2c above.

11. The Applicants, the First Respondent, and the Second Respondent shall each be
entitled to market the sale of the properties listed in paragraph 2c above, and
each shall be entitled to do so personally and/or through an estate agent
appointed by him for this purpose.

12. If the properties listed in paragraph 2c above is unsold after eight (8) months
from the date of this order, then those properties shall be sold at public auction to
the highest bidder through the office of the Sheriff of the High Court with
jurisdiction in Wellington, subject to the reserve price stated in para 2c above.

13. The Applicants, the First Respondent, and the Second Respondent shall be
entitled to payment of their respective equal share of the nett proceeds from the
sale of the property upon registration of transfer into the purchaser’s name(s),
less any deductions permissible by the terms of this order read in its entirety.
14. In addition to any other deductible cost, charge, or debt contemplated in this
order, the following expenses reasonably and necessarily incurred for the
registration of transfer of erven 9[…], 9[…]2, and 9[…]3 Wellington shall be
permissible as a deduction against the proceeds yielded from the sale of these
properties:
a. any commission due to an estate agent/cy who was the effective cause of the
sale; alternatively, should these properties be sold at a public auction, then the
auctioneer’s fees payable in respect of any completed sale;
b. the costs of obtaining an entomologist’s and electrician’s certificate;
c. the cost of obtaining a plumbing certificate;
d. the cost of obtaining a rates clearance certificate; and
e. any other costs or charges reasonably and necessarily incurred in order to
successfully conclude the sale and registration of the transfers concerned.

successfully conclude the sale and registration of the transfers concerned.

15. The Applicants, the First Respondent, and the Second Respondent shall co -
operate with each other and each other’s estate agents in the marketing of the
sale of erf 9[…] Wellington, erf 9[…]2 Wellington, and erf 9[…]3 Wellington
including, but not limited to, providing access to these properties at all

reasonable times for the parties or their estate agents, and prospective buyers
for viewing purposes.

16. Bill Tolken Hendrickse Attorneys of Bellville are appointed to attend to the
registration of transfer of erf 9[…] Wellington, erf 9[…]2 Wellington, and erf 9[…]3
Wellington as contemplated in paragraph 2c above. If this firm is unwilling to
accept its appointment with its concomitant obligations then, in that event, Fourie
Pretorius Inc of Bloubergrant, Cape Town are appointed for this purpose, subject
to the same obligations arising from this order.

17. The Applicants, the First Respondent, and the Second Respondent shall sign all
necessary documentation and take all steps as is required to conclude the sale
agreement contemplated in paragraph 2c and to effect transfer of their undivided
shares of the properties referred to in paragraphs 2a, 2b, and 2c into the
intended transferees’ or purchasers’ names. If any of the Applicants and/or the
First Respondent and/or the Second Respondent fail to sign any documentation
within ten (10) days of a written request by the duly appointed transferring
attorneys acting pursuant to this order, then the Sheriff of the High Court in
whose jurisdiction the relevant property/ie s is/are situated, is authorized and
mandated to sign any such documentation and to take such steps on such
party’s behalf.

18. If an application for the issue of a duplicate original of tittle deed T32976/1979 is
required, then the transferring attorneys appointed pursuant to paragraphs 3 or
16, whichever transfer occurs first, is/are authorized to apply for same and the
Applicants are empowered to be the only signatories to any affidavits or other
documents required for the application. If any o f the Applicants fail to sign any
documentation within ten (10) days of a written request by the duly appointed
transferring attorneys, then the Sheriff of the High Court in whose jurisdiction the
properties are situated is authorized and mandated to sign same.

properties are situated is authorized and mandated to sign same.

19. The mandate and authority conferred on Seeff Boland Winelands by order of Ms
Acting Justice Mthimunye in this Court on 24 April 2024 in case no. 6982/2024 is
extended but only in relation to erf 9[…] Wellington, erf 9[…]2 Wellington, and erf
9[…]3 Wellington and then only until the date of registration of transfer in respect
of these specific properties, subject to the following restriction on its powers:
Seeff Boland Winelands may not incur any expense for the improvement, repair,

or maintenance to these properties, or any of them, without the prior written
consent of the Applicants, the First Respondent, and the Second Respondent,
which consents shall not be withheld unreasonably.

20. All funds held in trust by Seeff Boland Winelands as at the date of this order in
respect of erf 9[…] Wellington, erf 9[…]2 Wellington, and erf 9[…]3 Wellington
shall, within twenty one (21) days of this order be paid into the trust banking
account of the attorneys responsible for effecting transfer pursuant to paragraph
16 above ( even if a sale has not yet been concluded), and such funds shall be
held in trust under the Legal Practice Act, 2014 for the credit of the Applicants,
the First Respondent, and the Second Respondent, each of whom shall have an
equal share in those monies.

21. These funds shall be used for purposes of the relevant attorney trust creditor’s
individual and/or collective financial obligations contemplated in this order
including, but not limited to, that enumerated in paragraphs 14 and 19 above.
Any excess funds remaining on registration of transfer of erven 9[…], 9[…]2, and
9[…]3 Wellington shall then be paid forthwith to the attorney trust creditor entitled
thereto in terms of this order.

22. Each party shall pay their own costs in relation to this application.’


Grounds for the leave to appeal application
[10] The Respondents contend that their intended appeal would have reasonable
prospects of success. Although they do not rely on the grounds contemplated in s
17(1)(a)(ii) of the S uperior Courts Act (“the SC Act”) , namely, that ‘ there is some
other compelling reason why the appeal should be heard’ , I considered whether any
such ground exists on the facts of this case . See Caratco (Pty) Ltd v Independent
Advisory (Pty) Ltd 2020 (5) SA 35 (SCA) para 2. I did not find any basis for such a
ground here.

[11] Therefore, the enquiry in this application for leave is singular, namely, whether
I opine that a reasonable prospect exists that an appeal would succeed. After
consideration of the basis for the application , I answered this question in the
negative.

[12] The Respondents contend that an appeal has prospects of success because
the effect of my orders , as quoted i n paragraph [9] above , is that I have not only
terminated their co-ownership of the properties, but also terminated the ir rights (and
the rights of their respective families, including children) to continue to reside in their
homes which are erected on erf 9[…]2 and 9[…]3 Wellington respectively.

[13] Shorn of all its frills, the application for leave is predicated on the contention
that my orders have the effect of evicting the Respondents (and their spouses and
children) from their homes without due process being followed, namely, without
compliance with the prescribed procedure set out in the Prevention of Illegal Eviction
from and Unlawful Occupation of Land Act 19 of 1998 (“the PIE Act”). In addition, the
Respondents contend that my orders providing for the sale of certain properties and
the allocation to them of specific ones should be varied to the effect that they could
each retain possession and ownership of the erven on which their homes are
erected, subject to payment by them respectively of the fair value for each property
concerned.
Principles for leave to appeal
[14] Recently, in De Wit NO and Another v Smit and Others (19076/2024) [2025]
ZAWCHC 481 (21 October 2025) paras 13 - 16, I summarised the principles which
are germane to the adjudication of an application for leave grounded in s 17(1)( a) of
the SC Act. I will not repeat those principles here in any detail, exce pt to reiterate

that a n intended appeal should have reasonable merits so that a different result
‘would’ be attained. See MEC for Health, Eastern Cape v Mkitha and Another [2016]
ZASCA 175 (25 November 2016) paras 16 - 17. A judge must, based on proper
grounds, opin e that there is a reasonable, not remote , prospect of success on
appeal. This requires a dispassionate analysis and examination of the facts and the
law applicable to the issue s sought to be appealed . See S v Smith 2012 (1) SACR
567 (SCA) para 7. Leave can only be granted in this case if I, on a sound, rational
basis, opine that a realistic chance (i.e., a real prospect ) exists that an appellate
court would, not might, decide differently the outcome of the issues that are sought
to be appealed on the grounds adduced by the petitioners seeking leave to appeal .
See Ramakatsa and Others v African National Congress and Another [2021] ZASCA
31 (31 March 2021) para 10.

Application of the legal principles to the facts
[15] The Respondents are dissatisfied with the orders granted by me and seek a
variation thereof as regards the division of the properties. An application for leave to
appeal cannot be used for the purpose o f obtaining a variation of my orders.
Accordingly, t o succeed in their bid for leave to appeal , t he petitioners bear the
burden to demonstrate that the orders granted by me, properly understood, are
tantamount to an eviction order in respect of the First a nd the Second Respondent,
including their respective families. If it amounts to an eviction , then leave to appeal
should be granted. If not, then leave to appeal falls to be refused and the application
dismissed.
[16] To decide whether my impugned orders have the effect of an eviction order as
contended for purposes of the application for leave , the orders are to be interpreted.

The relevant interpretive principles are usefully summarised in case law. In Eke v
Parsons 2016 (3) SA 37 (CC) para 29, the apex court held:
‘… Here is the well-established test on the interpretation of court orders:
“The starting point is to determine the manifest purpose of the order. In interpreting a
judgment or order, the court’s intention is to be ascertained primarily from the
language of the judgment or order in accordance with the usual well -known rules
relating to the interpretation of documents. As in the case of a document, the
judgment or order and the court’s reasons for giving it must be read as a whole in
order to ascertain its intention.”’
[17] Having regard to the triad of text, context, and pur pose in relation to my
orders quoted in paragraph [9] above, I opine that there is no so und, rational basis
on which I can justifiably conclude that an appellate court would interpret my orders,
or any part thereof, as having the effect of evicting the Respondents or any of them ,
including their respective families, from their homes. Nothing stated in my order
requires them to vacate their home s. Any interpretation to that effect would have to
be winkled, impermissibly so, out of the contextual crevices of my impugned orders.

[18] In the premises , I conclude that the ground s for appeal adduced do not pass
the test in s 17(1)(a) of the SC Act and the application for leave must, therefore, fail.

Costs
[19] There is no reason to deviate from the usual rule that costs follow success. Mr
Harmse argued that punitive costs are warranted in this matter because the
application for leave was hopeless and bound to fail . He also submitted that the
Respondents should not be seen as ‘men of straw’. He argued that, by virtue of my
order dated 21 July 2025, they are entitled to significant sums on the sale of ce rtain
properties.

[20] For their part, the Respondents pointed out that they are unrepresented
litigants who are only seeking to protect their right, and that of their spouses and
children, to a home. They explained that they interpreted my order as havin g the
effect of not only allocating unto each of them a particular property, but also requiring
them to vacate the property that they currently occupy. They each informed me that
their interpretation of my order to this effect was further supported by the fact that the
agents at Seef f Boland Winelands directed that they are to vacate the property, or
pay rent.

[21] When considering whether to mulct a litigant with costs , including the
applicable scale , a court exercises a wide discretion . A judicial discr etion must be
exercised judiciously. Doing so in the context of a costs order requires adherence to
basic notions of fairness to both sides, and necessitates p roper consideration of
those circumstances that are germane to a determination of the question of liability
for costs, including the appropriate scale. No hard and fast rules can be laid down in
advance. See Shoprite Checkers (Pty) Ltd v Kgatle and Another (2023) 44 ILJ 2564
(WCC) para 37.

[22] On the question of liability for costs and the scale , relevant considerations
include, but are not confined to, the following : (i) the circumstances peculiar to the
case at hand ; (ii) the issues at stake and the degree of thei r complexity; (iii) the
presence of p oor conduct by either litigant during the litigation; (iv) whether conduct
by one litigant caused prejudice to another which prejudice should be addressed
through an appropriate costs order; (v) whether the poor conduct complained of may
be excused , or may be mitigated, to any degree by reason of , for e.g., a lack of
proper understanding of court rules or procedures , or the law generally , due to the

absence of legal representation; and (vi) the provisions of Uniform Rule s 67A(2) and
(3).
[23] After careful consideration of these factors and how they apply to the
application before me, I am unable to acquiesce to the request for punitive costs.

[24] The Respondents are lay litigants with no legal representation. They were
required to interpret on t heir own my order s dated 21 July 2025. It comprised 22
paragraphs and stretched over 9 pages. Although my orders do not, and were never
intended to, evict the Respondents from their homes, i t is conceivable that the y may
have misconstrued the import and th e effect of my orders so far as concerns their
rights to continue to reside in their homes. Owing to the importance of the right to
housing and the fact that the Respondents argued , at the hearing, for relief that was
designed to protect th is constitutional right, I conclude that a punitive costs order
against these unrepresented litigants would be unfair. They are not schooled in law.
A party-and-party costs order would suffice, with Counsel’s fees allowed on scale B.

Order
[25] In the result, the following is ordered:
(a) The First and the Second Respondents’ application for leave to appeal
is dismissed with costs. Counsel’s fees are allowed on tariff scale B.
(b) The First and the Second Respondents’ l iability for costs is joint and
several, with one party paying and the other being absolved.


_____________________
F. MOOSA

ACTING JUDGE OF THE HIGH COURT

Appearances
For Applicants: SA Harmse
Instructed by: Ingwersen Feenstra Marais Attorneys
(P Marais)

For the First Respondent: In person
For the Second Respondents: In person

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