THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable
Case no: 899/2024

In the matter between:

GROUNDSWELL DEVELOPMENTS AFRICA (PTY) LTD FIRST APPLICANT
JEAN PIERRE NORTJE SECOND APPLICANT
HORIZON GROUP (PTY) LTD THIRD APPLICANT
and
CATHERINE JUDY BROWN RESPONDENT

Neutral citation: Groundswell Developments Africa (Pty) Ltd and Others v Brown
(899/2024) [2025] ZASCA 170 (12 November 2025)
Coram: PETSE, MBHA and DLODLO JJA
Heard: 15 August 2025
Delivered: 12 November 2025
Summary: Section 17(2)(f) of the Superior Courts Act 10 of 2013 – validity of the
agreement of sale – validity of the builder’s lien relied upon misrepresentation –
unlawful conduct by the second applicant – second applicant failed to show that a
grave failure of justice would result or that the administration of justice would fall into
disrepute if an order was not granted varying the decision of the high court and the
two judges of this Court refusing leave to appeal – application for reconsideration
dismissed.

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_________________________________________________________________________________

ORDER

_________________________________________________________________________________

On application for reconsideration: referred by Molemela P in terms of s 17 (2)(f)
of the Superior Courts Act 10 of 2013:
1 The application in terms of s 17(2) (f) of the Superior Courts Act 10 of 2013 is
dismissed.
2 The second applicant is liable for the respondent’s costs on a scale between
attorney and client.
3 Paragraph 2 of this order is suspended for ten days to afford the second
applicant an opportunity, if so advised, to serve on the respondent’s attorneys and file
with the Registrar of this Court an affidavit showing cause why paragraph 2 hereof
should not take effect after ten days.
4 The respondent is granted leave, if so advised, to deliver an affidavit in answer
to that of the second applicant within five days of the filing of such affidavit.
_________________________________________________________________________________

JUDGMENT

_________________________________________________________________________________

Mbha JA (Petse and Dlodlo JJA concurring):

Introduction
[1] This is an application brought by the applicants in terms of s 17(2) (f) of the
Superior Courts Act 10 of 2013 (the Superior Courts Act), for the reconsideration of
an order of this Court, per Mabindla-Boqwana JA and Mantame AJA, made on 11 July
2024. In terms of this order, this Court dismissed with costs the applicants’ application
for leave to appeal on the grounds that there were no reasonable prospects of success
in an appeal and that there is no other compelling reason why an appeal should be
heard. The President of this Court has exercised her discretion to refer the decision
of the two aforementioned judges , of 11 July 2024 , to this Court for reconsideration
and, if necessary, variation.

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Background
[2] The parties in this matter are Groundswell Developments Africa (Pty) Ltd
(Groundswell), the first applicant; Mr Jean Pierre Nortje (Mr Nortje) in his personal
capacity, the second applicant; Horizon Group (Pty) Ltd (Horizon), the third applicant;
and Ms Catherine Judy Brown (Ms Brown), the respondent. It is common cause that
Mr Nortje was at all relevant times the alter ego of both the first and third applicants.
All the issued share capital in each of the two companies registered in Mr Nortje’s
name.

[3] The respondent brought an application in the Western Cape Division of the
High Court , Cape Town (the high court) seeking, in the main, an order that the
agreement of sale (AOS) concluded between the respondent and the first applicant
be declared invalid and of no force and effect, alternatively cancelled and an order
that the builder’s lien relied on by the third applicant a lso be declared void and of no
legal force and effect. The remaining prayers constituted ancillary relief and were
dependent on the success of the main relief.

[4] The AOS was between Ms Brown on the one hand as the seller and
Groundswell on the other as the purchaser and was in respect of Ms Brown’s
residential property in Sea Point, Cape Town (the property) which she inherited from
her deceased father. Mr Nortje marketed the property on Ms Brown’s behalf, as her
estate agent, based on her exclusive mandate to obtain a willing and able buyer for
the property. There were two offers to purchase received from potential buyers on
3 February 2020 and 24 February 2020 respectively, but which were never presented
to Ms Brown. It is common cause that Mr Nortje presented Ms Brown with the AOS
on 19 March 2020 and that she signed it on 20 March 2020.

[5] On 18 March 2020, Mr Nortje, while purporting to act on behalf of Groundswell,
granted a letter of authority to one Ms Crystalla du Plessis (Ms du Plessis) authorising

granted a letter of authority to one Ms Crystalla du Plessis (Ms du Plessis) authorising
her to conclude a sale of immovable property transaction on behalf of Groundswell.
She was neither a director, a shareholder nor employee of Groundswell. Ms du Plessis
signed the AOS on 21 March 2020 as purchaser of the property on behalf of

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Groundswell.

[6] The conclusion of this document , ie letter of authority, by Mr Nortje raises a
number of inevitable questions:
(a) First, Ms du Plessis, an unknown private individual, appears from nowhere and
is merely granted authority to bind Groundswell, a company of which Mr Nortje is the
sole shareholder and director, to acquire immovable property with all the
responsibilities and obligations (including financial obligations) , which normally
accompanies contracts of this nature, without a resolution from Groundswell to do so.
(b) Second, Mr Nortje undertakes therein to resign as director, have Ms du Plessis
appointed as director instead and cause all issued shares in Groundswell to be
registered in her name on transfer of property into the name of Groundswell. The
document ostensibly therefore appears to serve a dual purpose. First, it acts as a letter
of authority to Ms du Plessis. Second, it acts as a separate contract where Mr Nortje,
in his personal capacity and as a director and sole shareholder of Groundswell, binds
himself to allow Ms du Plessis to step into his shoes as the sole director and
shareholder of Groundswell if and when the transfer of the property occurs.
(c) Third, there are no other terms and conditions, no quid pro quo and, as far as
the document is concerned, Ms du Plessis becomes the owner of a company which
would own real estate on transfer of the property without having paid one cent. Most
surprisingly, the property to be acquired is not identified. The conclusion is irresistible
that this was deliberate to create the impression that this document was just of a
general nature and that Ms du Plessis could use Groundswell to acquire any
immovable property she may wish, using Groundswell as her vehicle to do so.
(d) As this document was signed on 18 March 2020 , it is clear that it was
customised for the acquisition of Ms Brown’s property. In fact, in para 69 of Mr Nortje’s

customised for the acquisition of Ms Brown’s property. In fact, in para 69 of Mr Nortje’s
answering affidavit he affirmed unequivocally that after he had introduced her to
Ms Brown’s property telling her that it had potential if it could be repaired, he then
offered that she could use Groundswell for the transaction.

[7] The origin of the builder’s lien relied upon by the third applicant originates from
clause 7 of the AOS which deals with occupation. The clause appears, on a proper

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interpretation, to grant beneficial vacant occupation of the property to Groundswell for
purposes of cleaning, repairs and renovations. It reads, in relevant part, as follows:
‘7.1 The seller will prove (sic) the Purchaser with Beneficial Vacant Occupation of the Property
to do cleaning and repairs/renovations , within 7 days of the Signature Date and agrees that
the Purchaser can come to an agreement with the current tenant to assist in this matter.’
The reference to the current tenant at that stage was a reference to Ms Brown’s late
father’s girlfriend, who still occupied the property but vacated it shortly thereafter.

[8] The AOS described explicitly the extent of the repairs and renovations to be
effected by the purchaser on the property. It provides that:
‘7.2 The Seller acknowledges that the Tenant ha ve (sic) made makeshift and unauthorised
changes to the property and that the woodwork, plasterwork, ceilings and paintwork is in a
very poor condition an d therefore agrees that the Purchaser can proceed to remedy same
from date of occupation to facilitate bank approval.’

[9] There is no time limit or anything that indicates that this situation can only
continue for a determined period . Furthermore, there is no provision that this may
include anything else than what is specified in the AOS. As will be seen later, Mr Nortje
decided, unbeknown to Ms Brown and without obtaining her prior consent , to build,
inter alia, two additional bathrooms and two kitchens on the property.

[10] The aforesaid clause 7.2 also contains , in my view, an anomaly in that the
‘purchaser’ did not have and was not required to obtain the assistance of a bank to
finance the sale. Ms Brown in fact states that the use of the words ‘facilitate bank
approval’ in that clause was never explained to her by Mr Nortje. This is not disputed.
Even more alarming is the fact that unlike the other two potential offers to purchase
the property referred to earlier, the AOS did not require the purchaser to pay any

the property referred to earlier, the AOS did not require the purchaser to pay any
deposit or guarantee within a short time after signature thereof, as this is usually the
case whenever similar sale agreements of property were concluded. I will revert to this
aspect later when I deal with other apparently onerous terms of the AOS, which were
patently weighted against or were disadvantageous to Ms Brown.

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[11] On 25 March 2020 , Groundswell and Horizon concluded a renovation and
repairs agreement (the R and R agreement ), in terms of which Horizon as service
provider, was to facilitate repairs, renovations and improvements to the property. This
agreement was neither discussed with nor disclosed to Ms Brown and it was sent to
her just before the legal proceedings in this matter were instituted. This was the very
first time that Ms Brown became aware of its existence , some two years after the
conclusion of the AOS.

[12] The salient points about the R and R agreement are the following:
(a) The scope of the work recorded in clause 5 goes far beyond what is envisaged
in the AOS and includes building two new bathrooms and two new kitchens, rebuilding
all aspects of the approximately 200 square metres of residential dwellings, rebuilding
of the boundary w all, excavation and removal of 60 cubic meters of soil from the erf
and so forth. This is despite the fact that this agreement records that the right to do
these works is established in clause 7 of the AOS. The R and R agreement then sets
the total contract cost at about R3.5 million, which is even higher than t he purchase
price of the property of R3 million, agreed to by Ms Brown and as stipulated in the
AOS.
(b) Horizon, which does not feature at all in the AOS, is granted possession of the
property without Ms Brown’s knowledge and this agreement stipulates that she may
not interrupt or interfere with the works in progress, albeit she was not even privy to it.
Importantly, clause 12.5 of this agreement establishes a builder’s lien in favour of
Horizon and a right to take (and retain) possession of the property until such time as
the contract costs are fully paid.
(c) Pursuant to Horizon’s right to full possession of the property in terms of
clause 8, Mr Nortje started residing on the property and also used it as his office.
Although he never provided a date when he started living on the property, he

Although he never provided a date when he started living on the property, he
nonetheless confirmed his occupation thereof and justified it on the basis that the
purchaser (Ms du Plessis or Groundswell) had the right to beneficial occupation and
was satisfied that he was providing the service and being on the premises on her
behalf. On the other hand, Ms Brown did not know when or who took occupation of
her property.

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[13] Mr Nortje explained (in his answering affidavit) that the purpose of clause 7 in
the AOS was to allow Ms du Plessis, the potential buyer, to do repairs and renovations
to the property before taking transfer as there was no likelihood of obtaining a bond
on the property in its current state. Mr Nortje’s statement is telling and , of necessity,
raises the following inferences, namely:
(a) The purchaser, ie Groundswell or Mr Nortje himself, required a bond to finance
the purchase price, meaning that the purchaser was not able to pay the purchase
price.
(b) The purchaser realised that he, she or it would not get a loan to pay the
purchase price due to the state of the property.
(c) Neither Ms du Plessis, Groundswell nor Mr Nortje were able purchasers of the
property.
(d) On Mr Nortje’s version, the purchaser, ie Ms du Plessis, through Groundswell,
or Mr Nortje himself , intended to finance renovations and repairs on Ms Brown’s
property through their own funds or a loan. They would continue with this arrangement
until the purchaser was satisfied and could successfully secure a bank loan. Only then
would they proceed to request transfer of the property from Ms Brown.

[14] The patently unsatisfactory picture that emerges from this scenario is that
Ms Brown’s right to a speedy sale and transfer of the property was completely
disregarded. This is because there were no time frames stipulated or specifications of
what would be permitted and what not, save that remedying work, plaster work,
ceilings and paintwork may proceed.

[15] According to Mr Nortje, the scope of the ‘project’ in respect of repairs and
renovations is actually to be found in his recordal thereof on his website which he
created for this purpose and that such recordal, referred to as JPN 18, had to be read
with the R and R agreement. The JPN 18 contains a long list of some 70 odd itemised
attendances to be performed by Horizon or Mr Nortje himself, on the property.

attendances to be performed by Horizon or Mr Nortje himself, on the property.

[16] However, what is pertinent is that the R and R agreement read with JPN 18,

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does not even resemble anything provided for in clause 7 of the AOS, and even on
Mr Nortje’s own version, this constituted a recordal of his own observations and
opinion of what had to be done, but all or most of which is not authorised by the AOS.
Quite significantly, Mr Nortje does not state or claim that there was an agreement with
the owner of the property, that this JPN 18 was required in terms of the existing AOS
or that an addendum to the AOS was required to make provision for what he intended
to do on the property.

[17] Ms Brown asserts unequivocally that she never received a ny list like the
JPN 18. Although she had access to the website that Mr Nortje created, she never
saw any list with similar content. She stated, however, that there was a shorter list of
things that had to be done on the website. Clearly, and as stated earlier, the scope of
work recorded in clause 4 of the R and R agreement goes far beyond what is
envisaged in the AOS , albeit that this agreement records that the right to do these
repairs and renovations is derived from clause 7 of the AOS.

[18] Mention has been made of the fact that the R and R agreement was neither
disclosed to nor discussed with Ms Brown. In addition, nowhere does the AOS
authorise Groundswell, the so-called purchaser, to enter into a contract with a third
party to do what is envisaged in clause 7 of the AOS , moreover at a cost of
R3.5 million, which is more than the agreed purchase price of the property, with the
option of additional costs.

[19] Surprisingly, clause 6 of the R and R agreement in particular, does not impose
any obligation on Groundswell, the purported ‘client’ in terms of that agreement and
‘purchaser’ of the property as per the AOS, to finance the repairs and renovations up
front or as the work progresses. Instead, Groundswell undertakes to pay the total cost
only before or on taking transfer. The most probable explanation for th is situation is

only before or on taking transfer. The most probable explanation for th is situation is
that the repairs and renovations were to be financed either by Mr Nortje himself or
through the so-called service provider, Horizon.

[20] The service provider Horizon was in terms of clause 10 of the R and R

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agreement entitled to use water, electricity and any other municipal service on the
property paid for by Ms Brown, and not Groundswell. Ms Brown asserts that she had
been paying municipal rates and taxes on the property, which is still the case, and that
at the time of the institution of this litigation she had spent in excess of R55 000 in this
regard. In addition, whilst she had pa id in excess of R320 000 for the cleaning and
repairs on Mr Nortje’s specific request, which was not denied, she had never seen any
proof of contribution by the alleged ‘purchaser’ in any capacity. Although Mr Nortje
admitted these averments, he never deemed it necessary to disclose the conclusion
of the R and R agreement to Ms Brown.

[21] Although Groundswell , as the purchaser, purported to grant guarantees
involving Ms Brown in clause 12 of the R and R agreement, this was clearly a ruse.
Neither Ms du Plessis nor Mr Nortje discussed this with Ms Brown. Consequently, she
never agreed to it and was entirely unaware of these arrangements. Groundswell then
pledged the benefit of the AOS to Horizon as ‘surety’ for the payment of the total
contract costs in the amount of R3 .5 million . This arrangement clearly anticipates
Mr Nortje, either personally or through Horizon, revealing himself as the true buyer of
the property at the end of the process or just before transfer.

[22] On 13 June 2022 , acting on Ms Brown’s instructions, her attorney, Mr Gabri
Jordaan, addressed a letter to Mr Nortje cancelling the AOS, the power of attorney
and the estate mandate on the ground of a misrepresentation he had committed
against her. Mr Nortje responded, on 18 July 2022 , by forwarding a document titled
‘Notice of Cession’ . This document records that as allowed for in clause 15.6 of the
AOS, Ms du Plessis was ceding with immediate effect all her and Groundswell’s rights
and responsibilities under the AOS , and specifically in rel ation to the property , to

and responsibilities under the AOS , and specifically in rel ation to the property , to
Mr Nortje. The document also mentioned that Mr Nortje was currently residing on the
property as the project ‘manager’. Ms Brown responded on the same day ,
empathetically stating that she did not accept the cession and disputed its validity.

[23] Only on 17 August 2022, did Ms Brown, as seller, receive the notice regarding
the R and R agreement, dated 25 March 2022, from Mr Nortje. This is when she came

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to know of Horizon’s existence. Following a search conducted on the Companies and
Intellectual Property Commission website, she then discovered that Horizon was
completely ‘owned’ by Mr Nortje. In her view, Horizon was Mr Nortje’s alter ego.

[24] Clause 15.6 of the AOS, on which reliance was sought to be placed by Mr Nortje
for the justification of the said ‘cession’, reads as follows:
‘The Seller agrees that the Purchaser shall have the right to cede or assign any part, share or
interest of this Agreement of Sale or any rights or obligations hereunder to a third party and
that such assignment can allow for the recovery of any cleaning, repair and renovation costs
incurred by the Purchaser’.

[25] Three distinct features characterise this ‘cession’ namely:
(a) It is undated and bears only Mr Nortje’s signature. The purported cedent’s
signature, ie, Ms du Plessis, is glaringly absent therefrom.
(b) Mr Nortje who has signed the AOS as ‘agent’ and is in fact the purported agent
in the trans action, is as far as Mr Nortje is concerned , the prescribed third party to
whom the purchaser can lawfully cede rights and obligations arising from the AOS.
However, Clause 2.19 of the AOS expressly defines ‘agent’ to mean Mr Nortje.
(c) Lastly, the AOS does not provide that the purchaser may cede its
responsibilities or obligations without the seller’s permission. This omission must be
contrasted with clause 17.6 of the other two potential offers to purchase referred to
earlier, each of which firmly provides that:
‘Neither this Agreement of Sale nor any part…nor any rights or obligations hereunder may be
ceded…without the prior written consent of the other Party.’

[26] In light of what is stated in the preceding paragraph, this purported ‘cession’
undoubtedly exposed Mr Nortje for what his true plans and intentions were, vis-à-vis
Ms Brown. His conduct was certainly inconsistent with his oft-repeated representation

Ms Brown. His conduct was certainly inconsistent with his oft-repeated representation
to Ms Brown that he always had her interests as seller at heart and that he did not
have any conflict of interest when he also represented the ‘purchaser’ Groundswell ,
which was later confirmed that Groundswell was his alter ego. This situation also
raised the question of how Mr Nortje could justify claiming an agent’s commission

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when his alter ego, Groundswell, is the purchaser and when he thereafter became the
purchaser of the property in his personal capacity after the so-called cession.

The judgment of the high court
[27] The high court (per Fortuin J) found that Mr Nortje had committed various acts
of misrepresentation. It found that specifically at the time the AOS was concluded in
March 2020, Mr Nortje was not in possession of a valid fidelity fund certificate and that
he only obtained a valid certificate on 14 February 2021. Relying, on the decision in
LEK v Estate Agents Board,1 Fortuin J held that, in the circumstances any mandate to
Mr Nortje during 2020 would have been invalid.

[28] The high court found that Mr Nortje did not disclose his own interest in the
transaction to the seller and that purchasing the seller’s property, while simultaneously
acting as her agent, is unlawful. From the common cause facts, it was clear, the high
court continued, that Mr Nortje was the true purchaser of the property and that he used
Groundswell with the assistance of Ms du Plessis as a front. On these bases, the high
court declared the AOS to be invalid and of no force and effect.

[29] The high court found that at the time that the application was brought, Mr Nortje
was residing on the seller’s property and also used it as an office without her
knowledge and consent. It further found that the initial occupation of the property was
authorised in clause 7 of the AOS, in terms of which Groundswell as ‘purchaser’ was
entitled to obtain ‘beneficial vacant possession’ , specifically and only for the purpose
of cleaning, repairs and renovations in respect of woodwork, plasterwork, ceilings and
paintwork. There was nothing in clause 7, the court held further, that permitted
Mr Nortje to occupy the property for residential purposes or for work purposes as an
office for an undetermined period, or until transfer has taken place, or until Mr Nortje

office for an undetermined period, or until transfer has taken place, or until Mr Nortje
himself unilaterally decided that the repairs were now complete. In the circumstances,
the high court held that Mr Nortje’s occupation of the property is unlawful.


1 LEK v Estate Agents Board 1978 (3) SA 160 (C).

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[30] The high court further found that over and above improperly purchasing the
seller’s property while acting as her agent, Mr Nortje had entered into a renovation and
repairs agreement with Horizon, while being the sole director of Horizon to the
detriment of his principal, the seller. It then held that Mr Nortje had used Horizon as a
façade to conceal the true facts when he personally attended to the repairs and
renovations on Ms Brown’s property, but later involved Horizon.

[31] The high court concluded that Mr Nortje’s use of Horizon constituted an abuse
of juristic personality of this company as a separate entity. In the circumstances , the
court found that Horizon is not a juristic person for purposes of the repairs and
renovations work on Ms Brown’s property, but that Mr Nortje and Horizon are deemed
to be the same person as contemplated in s 20(9)(a) and (b) of the Companies Act 71
of 2008 (the Companies Act).2

[32] As Ms Brown was never privy to the R and R agreement, the high court found
the conclusion of this agreement to be an abuse. On the facts, it was clear that Horizon
is the alter ego of Mr Nortje . Given that no actual proof of the amount and expenses
in relation to the alleged repairs and renovations was provided, the high court declared
the builder’s lien relied upon by Horizon to be of no force and effect.

[33] With regard to the cession, the high court found that Groundswell had sought
to cede all its rights, benefits and responsibilities to Mr Nortje as it was entitled to do
in terms of clause 15.6 of the AOS. However, the high court noted that a cession under
this clause could only be effected to a ‘third party’. It then reasoned that as Mr Nortje

2 Section 20 of the Companies Act reads as follows:
‘Validity of company actions
….
(9) If, on application by an interested person or in any proceedings in which a company is involved, a
court finds that the incorporation of the company, any use of the company, or any act by or on behalf of

the company, constitutes an unconscionable abuse of the juristic personality of the company as a
separate entity, the court may-
(a) declare that the company is to be deemed not to be a juristic person in respect of any right,
obligation or liability of the company or of a shareholder of the company or, in the case of a non -profit
company, a member of the company, or of another person specified in the declaration; and
(b) make any further order the court considers appropriate to give effect to a declaration
contemplated in paragraph (a).’

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was in fact an agent, as defined in clause 2.19, and that he also signed the AOS as a
witness and agent, he was accordingly not a third party , as was required in clause
15.6 of the AOS. In the circumstances, the high court held that the cession was invalid
and void ab initio.

[34] On 4 September 2023, the high court granted an order, inter alia, declaring the
AOS between Ms Brown and Groundswell invalid and of no force and effect, that the
builder’s lien relied on by Horizon was void and of no legal force and that the
respondents grant vacant possession of the property to Ms Brown within 30 calendar
days of the order. The costs followed the event. The application for leave to appeal
was dismissed on the grounds that there was no reasonable prospect of success on
appeal and there was no other compelling reason why an appeal should be heard. On
11 July 2024, a subsequent petition for leave to appeal to this Court suffered the same
fate. Hence the current application referred to the Court by the President under s
17(2)(f).

The s 17(2)(f) application
[35] Before us two points in limine were raised on the respondent’s (ie Ms Brown)
behalf. First, that the respondent was prejudiced by the applicants ’ failure to comply
with the rules of this Court by failing to deliver a founding affidavit together with the
application for reconsideration timeously resulting in the President of this Court not
having all the facts before her when she referred the matter for reconsideration and
possibly variation. It is further alleged that Ms Brown was prejudiced because she was
unable to file a supplementary affidavit to address the belatedly filed founding affidavit.
Second, whether the first and third applicants, being juristic persons, could be
represented in the appeal by the second applicant, a lay person , without the leave of
this Court first having been sought and granted.

[36] The first point in limine arose under the following circumstances. The applicants

[36] The first point in limine arose under the following circumstances. The applicants
served their application for reconsideration on the respondent via electronic mail on
12 August 2024. However, the founding affidavit was not attached to the index. On
15 August 2024, the applicants served a notice of motion with a founding affidavit in

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which condonation was sought for the late filing of the application.

[37] On the same day, 15 August 2024, the respondent filed an opposing affidavit
in which it is stated, inter alia, that the respondent will abide by the President’s decision
on the condonation application. The respondent also opposed the application in terms
of the s 17(2)(f) of the Superior Courts Act on the merits.

[38] As it is common cause that the President made her decision referring the matter
for reconsideration and possibly variation on 31 August 2024, it is difficult to
understand the respondent’s complaint that when the President made her decision
she did so without having all the facts before her. Furthermore, the allegation of
prejudice does not arise at all because the respondent duly placed all the facts in
opposition to the application in her opposing affidavit on 15 August 2024. In the
circumstances, the first point in limine must fail.

[39] I now turn to consider the second point in limine raised by the respondent. It is
trite that a company cannot conduct a case in this Court except through the
appearance of a natural person who is qualified as an advocate or attorney.3 However,
cases will arise where the interests of justice may require a relaxation of that general
rule. Accordingly, superior courts have a residual discretion in any matter where such
relaxation is sought, arising from their inherent power to regulate their own
proceedings.

[40] Courts have refrained from formulating a test for the exercise of the court’s
inherent power and such cases have generally been left to the good sense of individual
judges. However, this Court has laid down that in each such instance leave must first
be sought by way of a formal application.4 In Manong & Associates (Pty) Ltd v Minister
of Public Works and Another,5 this Court said the following:

3 Yates Investments (Pty) Ltd v Commissioner for Inland Revenue 1956 (1) SA 364 (A); 1 All SA 285
(A).

(A).
4 Manong & Associates (Pty) Ltd v Minister of Public Works and Another [2010] (2) SA 167 (SCA); 1 All
SA 267 (SCA) (Manong) para 14.
5 Ibid.

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‘…Lest this be misconstrued as a tacit or general licence to unqualified agents, it needs be
emphasised that in each such instance leave must be sought by way of a properly motivated,
timeously lodged formal application showing good cause why, in that particular case, the rule
prohibiting non-professional representation should be relaxed. Individual cases can thus be
met by the exercise of the discretion in the circumstances of that case. It would thus be
impermissible for a non -professional representative to take any step in the proceedings,
including the signing of pleadings, notices or heads of argument (as occurred here), without
the requisite leave of the court concerned first having been sought and obtained.’6

[41] It is common cause that Mr Nortje has not filed any application seeking to show
good cause why the rule that juristic persons cannot be represented by a natural
person who is not an advocate or attorney should be relaxed in this case. In the
absence of such application, this Court is not at liberty to simply exercise a discretion
in the vacuum to depart from this well -established rule. It therefore follows that
Mr Nortje is not permitted to represent the first and third applicants in this application.

[42] With effect from 3 April 2024, the amended s 17(2)(f) of the Superior Courts Act
reads as follows:
‘The decision of the majority of the judges considering an application referred to in paragraph
(b), or the decision of the court, as the case may be, to grant or refuse the application shall be
final: Provided that the President of the Supreme Court of Appeal may , in circumstances
where a grave failure of justice would otherwise result or the administration of justice may be
brought into disrepute , whether of his or her own accord or on application filed within one
month of the decision, refer the decision to the court for reconsideration and, if necessary,
variation.’
As Mr Nortje’s reconsideration application was lodged on 15 August 2024, after the

As Mr Nortje’s reconsideration application was lodged on 15 August 2024, after the
aforementioned amendment came into effect, it means that the previous threshold for
referral, namely ‘exceptional circumstances’ , is no longer required. The current
position is that the President of this Court is permitted to refer a matter ‘where a grave
failure of justice would otherwise result or the administration of justice may be brought
into disrepute’.

6 Ibid.

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[43] In Liesching and Others v S and Another ,7 the Constitutional Court held that
s 17(2)(f) applies once special leave has been refused, which implies that the applicant
must demonstrate something beyond the requirements for special leave. It held:
‘The proviso in s 17(2)(f) is very broad. It keeps the door of justice ajar in order to cure errors
or mistakes, and for the consideration of a circumstance, which, if it were known at the time of
the consideration of the petition, might have yielded a different outcome. It is ther efore a
means of preventing an injustice. This would include new or further evidence that has come
to light or that became known after the petition had been considered and determined.’8

[44] In order to establish whether a grave failure of justice would result or the
administration of justice would be brought into disrepute, an applicant in the position
of Mr Nortje must demonstrate that the matter involved specific criteria, including
‘substantive points of law, an issue of great public importance, or a strongly arguable
prospect of a denial of grave justice should reconsideration be refused’. 9 In Avnit v
First Rand Bank ,10 this Court understood the power of referral as one ‘likely to be
exercised only when the President believes that some matter of importance has
possibly been overlooked or grave injustice will otherwise result’. 11 The Court
emphasised that s 17 (2)(f) of the Superior Courts Act ‘is not intended to afford
disappointed litigants a further attempt to procure relief that has already been
refused’12 and that ‘[a]n application that merely rehearses the arguments that have
already been made, considered and rejected will not succeed ’.13 In this regard the
Constitutional Court has stated in no uncertain terms that s 17(2) (f) does not provide

7 Liesching and Others v S and Another [2016] ZACC 41; 2017 (4) BCLR 454 (CC); 2017 (2) SACR 193
(CC).
8 Ibid para 54.

(CC).
8 Ibid para 54.
9 Rock Foundation Properties and Another v Chaitowitz (1038/2023) [2025] ZASCA 82 (9 June 2025)
para 17.
10 Avnit v First Rand Bank [2014] ZASCA 132.
11 Ibid para 7.
12 Ibid para 6.
13 Ibid.

17
for a ‘parallel appeal process’14 or ‘additional bites at the proverbial appeal cherry’.15

[45] I now turn to consider whether or not Mr Nortje’s application satisfies or meets
the threshold set out in the amended s 17(2)(f) of the Superior Courts Act. Of necessity
in determining this issue, regard must be had to the fact that a court must be convinced
on proper grounds that there is a reasonable prospect of success on appeal or any
other compelling reason for the appeal to be heard.

[46] In sum, Mr Nortje argues that reconsideration is of critical importance because
the high court’s judgment creates numerous erroneous, ‘dangerous and potentially
harmful precedents’ that are not supported by evidence and which according to him
‘could have dire consequences for other litigants’. Mr Nortje submits that the high
court’s finding that he was not entitled to act as an estate agent at the time of the
conclusion of the AOS, as he did not have a valid fidelity fund certificate, is erroneous.
Relying on the decision in Signature Real Estate (Pty) Ltd v Charles Edwards
Properties and Others (Signature),16 he submits that the high court’ s finding
undermined estate agents’ constitutionally guaranteed right to freely engage in their
trade, occupation or profession. In this case, he had fully complied with all the
requirements of the Estate Agency Affairs Board (the Board), and any reason for the
delay in the issuing of a fidelity fund certificate lays squarely with the Board.
[47] In my view, Mr Nortje’s attempt to rely on Signature is totally misplaced. The
facts briefly, in that case, are that Signature Real Estate (Pty) Ltd (Signature (Pty) Ltd)
had fully complied with all the formalities and was entitled in terms of the provisions of
the applicable legislation to be issued with a fidelity certificate. However, the Board
erroneously issued certificates in the name of Hidicol CC instead of Signature (Pty)
Ltd. The Board conceded this. In casu, it is common cause that no fidelity fund

Ltd. The Board conceded this. In casu, it is common cause that no fidelity fund
certificate was ever issued to Mr Nortje for the year 2020 and that he only obtained a

14 Liesching and Others v S [2018] ZACC 25; 2018 (11) BCLR 1349 (CC); 2019 (1) SACR 178 (CC);
2019 (4) SA 219 (CC) para 139, See also Mkhonto and Others v Bushbuckridge Local Municipality and
Others (218/2024) [2025] ZASCA 111 (23 July 2025) para 18 ; Minister of Police and Another v
Ramabanta [2025] ZASCA 95 para 19; and Cloete and Another v S; Sekgala v Nedbank Limited [2019]
ZACC 6; 2019 (5) BCLR 544 (CC); 2019 (4) SA 268 (CC); 2019 (2) SACR 130 (CC) paras 47 and 56.
15 Ibid.
16 Signature Real Estate (Pty) Ltd v Charles Edwards Properties and Others [2020] ZASCA 63; 2020
(6) SA 397 (SCA).

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valid fidelity fund certificate on 14 February 2021. Significantly, Mr Nortje has not even
filed any supporting evidence from the Board, that this body was somehow at fault in
not issuing him with a fidelity fund certificate for 2020. In the circumstances, the high
court’s finding that any mandate to Mr Nortje as an estate agent, during 2020, would
have been invalid, is correct and cannot be faulted.

[48] Mr Nortje argues that the high court’s finding that he was the true purchaser
and that he used Groundswell with the assistance of Ms du Plessis as a front was
incorrect and ‘proven totally unfounded’. He submits that this finding is erroneous and
creates a ‘dangerous and potentially harmful precedent for any property developer or
investor as it flies in the face of the independent nature of companies’. He then argues
that Groundswell, an independent company, was in fact the buyer.

[49] I have above dealt extensively with the circumstances surrounding the coming
into existence of the AOS, which Ms Brown, as seller, signed on 20 March 2020 and
the so called letter of authority dated 18 March 2020 by which Mr Nortje authorised
Ms du Plessis to conclude the AOS on behalf of Groundswell, the purchaser of the
property. It is undisputed that Mr Nortje never disclosed to Ms Brown that he was the
sole shareholder in Groundswell, the so-called purchaser which is a registered
company. Ms du Plessis, a private individual appeared from nowhere and was merely
given authority to bind Groundswell to acquire immovable property , without even a
resolution from Groundswell to do so. At the same time , Mr Nortje had purportedly
resigned and then had Ms du Plessis appointed as sole director of that company.
Significantly, there are no other terms and conditions nor any quid pro quo but Ms du
Plessis firmly became the owner of Groundswell , which would then own Ms Brown’s
property without having paid one cent.

[50] To describe what happened as a shenanigan is, in my view, an understatement.

[50] To describe what happened as a shenanigan is, in my view, an understatement.
It is clear that Mr Nortje d evised a devious scheme , whereby he used Groundswell
and Ms du Plessis as a front to acquire Ms Brown’s property. It is clear that he was in
fact the purchaser. As he was purporting to act as Ms Brown’s mandated agent to sell
the property, the fact that he conjured up his schemes to purchase the property ,

19
without disclosing his interest in the transaction means that he allowed himself to be
in a conflict of interest situation. The high court correctly described his conduct as
being unlawful.

[51] I have , earlier on in the judgment , made reference to certain terms and
conditions in the AOS , which were particularly onerous and disadvantageous to
Ms Brown as seller, and which were materially different to the two other p rospective
offers of sale. Considering that Ms Brown’s property was in a poor state of repair and
not in a particular marketable condition, one would have expected a similar ‘voetstoots’
clause to have been in serted in the AOS but this did not happen. The other two
agreements also contained an express clause to the effect that no cession could be
done without the approval of the other party, something glaringly missing in the AOS.
In all, Mr Nortje did not act in the best interests of his ‘principal’, as so called ‘agent’.
Instead, he went to great lengths to elaborate fictitious schemes to advance his own
interests to the prejudice of his client, thereby betraying the latter’s trust.

[52] Mr Nortje criticises the finding by the high court that the builder’s lien relied upon
by Horizon to be void and of no legal force and effect to be ‘totally unfounded’.
Furthermore, as a contractor in Horizon’s position would seek to rely on a similar lien
to ensure that she or it gets paid for work done, the high court’s aforementioned finding
created ‘a dangerous and potentially harmful precedent for any contractor’.

[53] As I have pointed out earlier, the particular lien on which Horizon sought to rely
has its root in clause 7 of the AOS dealing with occupation. Groundswell , as the
so-called purchaser, was granted beneficial vacant possession of the property for the
specified purposes of cleaning, repairs and renovations. The clause further specified
that this was to be limited to the woodwork, plaster work, ceilings and paintwork.

that this was to be limited to the woodwork, plaster work, ceilings and paintwork.

[54] It is common cause that completely unbeknown to Ms Brown, Groundswell and
Horizon, the latter completely unknown to Ms Brown at that stage, signed a R and R
agreement containing onerous and disadvantageous terms and conditions as far as
the owner and seller of the property was concerned. All of these have been discussed

20
earlier in the judgment and will not be repeated here.

[55] It bears reminding again that Mr Nortje was the sole shareholder of Horizon. On
the facts , he clearly used Horizon as a façade to conceal the true facts when he
personally attended to the repairs and renovations on Ms Brown’s property but later
involved Horizon. Clearly, Mr Nortje’s use of Horizon constituted an abuse of juristic
personality of Horizon as a separate entity. In the circumstances, I am unable to fault
the high court in finding that Horizon was not a juristic person for purposes of the
repairs and renovations on Ms Brown’s property, but that Mr Nortje and Horizon were
deemed to be the same person as contemplated in s 20(9) (a) and (b) of the
Companies Act.

[56] The high court also found that the lien sought to be relied on by Horizon was
also void on the basis that no actual proof of the amount and the nature of the
expenses was provided. Furthermore, whoever was responsible for the actual repairs
and renovations effected, was entitled to recover whatever he or it bel ieved was due
through the normal legal process. I agree totally with the high court’ s finding and
approach in this regard.

[57] Mr Nortje attacks the high court’s finding that the cession is invalid and void ab
initio as ‘totally erroneous’ and that it ‘creates a danger ous and potentially harmful
precedent for any entity acting on contracts where the rights of cession are relied on’.
He avers that as an estate agent he was not a party to the AOS and that he was in
fact a facilitator as well as a third party. Furthermore, only the parties specified as
buyer(s) and seller(s) are parties to the AOS. He then alleges that he was only a third
party to the AOS and that these are no grounds for finding that the cession is invalid,
irregular or illegal. The cession at issue is one purportedly effected by Ms du Plessis
(on behalf of Groundswell presumably) to Mr Nortje.

(on behalf of Groundswell presumably) to Mr Nortje.

[58] It is so that clause 15.6 of the AOS does provide that the seller agrees that a
purchaser of the property has a right to cede or assign any part, share, interest or
rights or obligations under the AOS to a third party. The high court found that ‘agent’

21
was defined in the AOS to refer specifically to Mr Nortje. Considering that Mr Nortje
also signed and witnessed the AOS as ‘agent’, I am unable to fault the high court in
this regard.

[59] Lastly, Mr Nortje criticises the high court’s finding of various acts of
misrepresentation on his part as being totally unsubstantiated and therefore
erroneous. I have already dealt with the various aspects and relevant facts and
documents pertaining to this matter to which Ms Brown , the seller, was not privy. In
particular Mr Nortje went to reside and use Ms Brown’s property as an office without
her knowledge and consent. The R and R agreement and the cession are other
documents that were also concluded behind her back.

[60] The question that must now be answered is whether Mr Nortje has successfully
satisfied or met the prescribed threshold for a s 17(2) (f) application in terms of the
Superior Courts Act. I have carefully analysed both the facts in this case and the high
court’s reasoning for the findings made. I am unable, as I have pointed out in this
judgment, to find fault with any of the reasoning by the learned judge who decided the
matter.

[61] In my view, Mr Nortje has hopelessly failed to show that a grave failure of justice
would result or that the administration of justice would fall into disrepute if an order
was not granted varying the decision of the high court and the two judges of this Court
who all declined to grant leave to appeal. There is nothing that shows that their
decisions to refuse leave to appeal were wrong. All that Mr Nortje has done , in this
Court, is simply an attempt to re-argue or rehearse the merits of the case, something
which s 17(2)(f) is not designed for. There is no basis whatsoever to find otherwise.

[62] The respondent also sought an order striking off irrelevant material from the
record with costs. These comprise a transcription of the arguments in the high court

record with costs. These comprise a transcription of the arguments in the high court
which number about seven pages. I do not deem it necessary that any order should
be made in this respect because there was not an enormous number of pages involved
giving rise to the complaint.

22

[63] Regarding costs, I am of the view that this application was completely meritless
from the onset. Mr Nortje’s unconscionable conduct in this entire episode also involved
misrepresentation towards his principal , the respondent, which is viewed in serious
light. For these reasons, I am of the view that the respondent should not in any way
be out of pocket regarding costs. Costs on a punitive scale is justified.

[64] In the result the following order is made:
1 The application in terms of s 17(2) (f) of the Superior Courts Act 10 of 2013 is
dismissed.
2 The second applicant is liable for the respondent’s costs on a scale between
attorney and client.
3 Paragraph 2 of this order is suspended for ten days to afford the second
applicant an opportunity, if so advised, to serve on the respondent’s attorneys and file
with the Registrar of this Court an affidavit showing cause why paragraph 2 hereof
should not take effect after ten days.
4 The respondent is granted leave, if so advised, to deliver an affidavit in answer
to that of the second applicant within five days of the filing of such affidavit.



___________________________
B H MBHA
JUDGE OF APPEAL

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Appearances

For the first and third applicants: No appearance

For the second applicant: In person

For the respondent: J C Tredoux
Jordaan and Ferreira Inc, Cape Town
Horn and Van Rensburg Attorneys, Bloemfontein