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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this
document in compliance with the law and SAFLII Policy
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG
Case Number: 2025-199655
(1) REPORTABLE: YES / NO
(2) OF INTEREST TO OTHER JUDGES: YES/NO
(3) REVISED: YES/NO
11/11/2025
In the matter between:
SERAGE N.O.; TSHEPO MOGATIKEDI
[in his official capacity as the appointed Applicant
receiver and liquidator in the divorce joint
estate between KJ R[…] and N R[…]]
and
R[…]; N[…] First respondent
R[…]; K[…] J[…] Second respondent
JUDGMENT1
AMM, AJ
1. The applicant is an attorney and the Court appointed receiver and liquidator of the
respondents’ joint estate (as at the date of their divorce, being 25 August 2022).
1 This application was allocated and called before me as an urgent application in the
Insolvency Motion Court. Whilst this the application is possibly more suited to the Family
Motion Court; after engaging with the Senior Judge, I undertook to accommodate the
litigants by nevertheless hearing and determining this application. They were happy for me
to do so.
2
2. In his said representative capacity, the applicant has, subject to a usual 30-day type
mortgage bond suspensive condition, procured the sale of a residential immovable
property owned by the joint estate. The signed or accepted offer to purchase is dated
26 September 2025. The purchaser is one Ms Sodaba.
3. In respect of the mortgage bond suspensive condition, Standard Bank has provided an
“Approval in Principal” in respect of the purchaser’s home loan application. It did so on
6 October 2025.
4. As its lodestar, the ultimate relief sought in this application - as confirmed on behalf of
the applicant during his opening argument - is aimed at the protection, the brining into
operation (via compliance with its suspensive condition) , and implementation of a
September 2025 signed offer to purchase (also referred in th is judgment as the “sale
agreement”).
5. The applicant claims that the first respondent is frustrating the fulfilment of the
mortgage bond suspensive condition with the signed offer to purchase by frustrating
access to the immovable property for purposes of it being inspected and valued by
Standard Bank.
6. The applicant more specifically alleges the following in paragraph 9.19.3 under the
rubric “urgency”:
“[T]he purchaser’s bond application has been approved in principle. The
purchaser’s bond application which is to cover the purchase price and generate
income or profit to the joint estate is at the risk of being withdrawn i f the bank
agents or assessors are not allowed into the property to perform valuations.”
7. Accordingly, the applicant seeks the following central relief in its notice of motion (Court
Online dated 24 October 2025):
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“1. [The usual wording for a prayer for urgency].
2. An order directing First Respondent to allow the Applicant in the
execution of his office as receiver and liquidator and any persons
appointed by the Applicant unhindered access to the immovable property
described as Portion 113 (Portion of Portion 94) of the Farm B […] 533,
Registration Division J.Q, Province of Gauteng.
3. An order directing the First Respondent to whenever directed by
Applicant to allow entry and access to the immovable property described
as Portion 113 (Portion of Portion 94) of the Farm B[…] 533, Registration
Division J.Q, Province of Gauteng of the third parties, estate agents,
prospective buyers any persons whose services are enlisted by Applicant
to render specific professional services to enable the Applicant to
execute the mandate of his appointment as receiver and liquidator.
4. An order directing the First Respondent not to prevent or obstruct the
completion of the sale and registration of transfer of the immovable
property described as Portion 113 (Portion of Portion 94) of the Farm
B[…] 533, Registration Division J.Q, Province of Gauteng to the
purchaser Gamase Sodaba on the basis of a sale agreement concluded
between Applicant and Ms. Sodaba during 24
th2 September 2025.
5. In the event that the First Respondent refuses or fails to comply with
either order in 2 to 4 above, Applicant be permitted to approach court on
the same papers supplemented where necessary for an order to declare
Respondent to be in contempt of Court and for her committal to a term of
imprisonment for any conduct found to be a contempt of court order.
6. First Respondent be ordered to pay the costs of this application on Scale
A such costs to be debited against Respondent’s share in the liquidation
and distribution of the net profit in joint estate.”
8. With the aforesaid relief sought in the notice of motion in mind, two preliminary or
8. With the aforesaid relief sought in the notice of motion in mind, two preliminary or
introductory observations must be made. First, for the reasons set out in this judgment,
a determination of the question of the claimed urgency in this application is intrinsically
tied up with the merits of the application; as such, determining one, ineluctably results
2 The offer to purchase (annexure TSM2 to the replying affidavit) was accepted (signed) by
the applicant on 26 September 2025. Nothing material however turns on this small
difference in dates.
4
in a determination of the other. Second, the relief sought in paragraphs 2 and 3 of the
notice of motion is sought within the context of the relief sought in 4 of the notice of
motion, and that set out in paragraphs 4 and 5 above, namely the purpose of such
relief is to protect the enforcement of the September 2025 signed offer to purchase.
9. The mortgage bond suspensive condition is foreshadowed in clause 1.2, but resides in
10.1, of the signed office to purchase. These clauses read (my emphasis):
“1. PURCHASE PRICE
1.2 The balance of the purchase price shall be paid in cash on registration of
transfer of the property into the name of the Purchaser which amount
shall be secured by a bank guarantee upon the terms and conditions
usually imposed by the financial institution which guarantee shall be
delivered within Thirty (30) Days after acceptance of this offer or
fulfilment of the suspensive conditions referred to in clause 10.1.”
and
“10. SUSPENSIVE CONDITION
10.1 This offer is subject to the suspensive condition that the Purchaser … is
able to raise a loan upon the security of a mortgage bond to be passed
over the Property by a bank or other financial institution, for the sum of
not less than R4 400 000.00 within 30 days of acceptance of this
agreement, (which time may be extended by the Agent at the Agent’s
sole discretion for a further period not exceeding 15 days) . The parties
hereto specifically agree that such extension will be of full force and
effect and binding on both the Purchaser and the Seller irrespective of
whether such extension is communicated to either the Purchaser or the
Seller. The parties specifically agree that the suspensive condition shall
be deemed to be fulfilled on the date that the Purchaser obtains a
quotation and/or pre-agreement statement from any financial institution in
terms of which such financial institution offers a loan to the Purchaser in
an amount of not less than the amount referred to above. …”
5
10. What then is a suspensive condition (also known as a condition precedent)? To this
answer this question, in general terms , regard must be had to the following trite
features and principles of a suspensive condition, namely:
10.1. A contract that includes a suspensive condition is normally indicated by the
contract’s use of the words “subject to”.3
10.2. A suspensive condition does what its name suggests . It is a contractual
condition that suspends the operation of a contract, either wholly or partly, until
the happening of an uncertain future event.4
10.3. Pending the fulfilment of the suspensive condition, the contract nevertheless
remains binding because it is only the operation of the contract that is
suspended.
10.4. This means inter -alia that, pending the fulfilment of the suspensive condition,
neither party can resile from the agreement.
5 Nevertheless, a party cannot
enforce any rights arising from the agreement until the suspensive condition
has been fulfilled.6
10.5. A suspensive condition usually has an agreed date or time limit for its fulfilment.
If the suspensive condition is fulfilled timeously, the contract is brought into
operation and is enforceable.
3 Pangbourne Properties Ltd v Gill & Ramsden 1996 (1) SA 1182 (A).
4 RH Christie, Digest of the Law of Contract, page 39 et al.
5 Odendaalsrust Municipality v New Nigel Estate Gold Mining Co Ltd 1948 (2) SA 656 (O)
665-7; Ex Parte Universal Insurance Co Ltd 1949 (3) SA 801 (T) 806. Appropriate damages
may also be claimed for breach of the contract during this interim / pending period - see
Frasers Ltd v Nel 1929 OPD 182; and Massey-Harris Co (SA) Ltd v Van der Walt 1932 EDL
115.
6 See inter -alia First National Bank of SA Ltd v Lynn NO 1996 (2) SA 339 (A) and Mia v
Verimark Holdings (Pty) Ltd [2010] 1 All SA 280 (SCA).
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10.6. The operative date of the contract is however retrospective, namely with effect
from the date of the conclusion of the contract7 (i.e. not the date of the fulfilment
of the condition) unless the contract provides otherwise.8
10.7. If the suspensive condition is, in due course, not fulfilled or complied with, the
contract is rendered void. 9 This means that the contract will fall away if the
condition is unfulfilled.10
10.8. As such, th e date or time limit for the suspensive condition’s fulfilment cannot
be extended or waived at any time after the date or time for the fulfilment of the
suspensive condition has run its course or lapsed.11
10.9. Finally, on the question of onus, a litigant that seeks to rely on a contract
subject to suspensive condition must plead and prove fulfilment of the
suspensive condition.12
11. What about a mortgage bond suspensive condition?
11.1. A mortgage bond suspensive condition of the type in issue in this application
(also commonly referred to as a “mortgage bond condition” or “finance
7 Peri-Urban Areas Health Board v Tomaselli 1962 (3) SA 346 (A) 351E-352A.
8 G & G Investment and Finance Corp (Pty) Ltd v Kajee 1962 (2) SA 73 (D) 80D.
9 Christie’s The Law of Contract in South Africa, 8 th Edition, page 183. Administrateur -
Generaal vir die gebied Suidwes-Afrika v Hotel Onduri (Edms) Bpk 1983 (4) SA 794 (SWA);
Southern Era Resources Ltd v Farndell Ltd (in liquidation) 1993 (1) SA 493 (A) 505A -B;
Command Protection Services (Gauteng) (Pty) Ltd t/a Maxi Security v South African Post
Office 2013 (2) SA 133 (SCA) [10]; Swart v Starbuck 2017 (5) SA 370 (CC) [6] [34].
10 Basson v Remini 1992 (2) SA 322 (N) 327C.
11 Trans-Natal Steenkoolkorporasie Bpk v Lombaard 1988 (3) SA 625 (A); De Villiers v BOE
Bank Ltd 2004 (3) SA 1 (SCA) 17; Abrinah 7804 (Pty) Ltd v Kapa Koni Investments CC
2018 (3) SA 108 (NCK) [65] – [67].
12 Kate’s Hope Game Farm (Pty) Limited v Terblanchehoek Game Farm (Pty) Ltd 1998 (1) SA
12 Kate’s Hope Game Farm (Pty) Limited v Terblanchehoek Game Farm (Pty) Ltd 1998 (1) SA
235 (SCA) , McHardy v Olifant 1905 ORC 42 44; Leo v Loots 1909 TS 366 370, Trollip v
African Timbers 1946 AD 1063 1070; Resisto Dairy (Pty) Ltd v Auto Protection Insurance Co
Ltd 1963 (1) SA 632 (A) 644G.
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condition”) is a standard or expected feature in South African offers to purchase
immovable property.
11.2. Suspensive conditions, especially within the context of immovable property
transactions, are required to be clearly defined, timeously met, and met in full
(i.e. fulfilled precisely in forma specifia
13). For example, if a signed offer to
purchase requires that the buyer must secure mortgage bond finance of
R1,000,000.00 within 30-days, an approval of R900,000.00 does not equate to
due compliance with the suspensive condition; neither does obtaining approval
on day 31 (i.e. after the lapse of the suspensive condition).
11.3. In amplification of that already stated regarding the legal principles applicable to
suspensive conditions, t he court in Basson v Remini and Another
14 held that
ordinarily a suspensive condition in an immovable property transaction is only
fulfilled once the mortgage loan agreement is in place (i.e., the purchaser has
accepted the bank ’s conditions for the conclusion of the relevant loan
agreement and the accompanying mortgage bond security).
11.4. The indubitable purpose and underlying intention of the inclusion of a mortgage
bond suspensive condition in an offer to purchase protects both the purchaser
and the seller in the proposed property transaction.
11.4.1. In the above regards, if the purchaser does not financially qualify for the
mortgage loan, the purchaser is able to “walk away ” from the property
transaction without any financial repercussions or obligations.
13 "In forma specifica" is a Latin phrase meaning simply that something must be performed in a
particular or specified way for it to be considered valid or legally binding.
14 1992(2) SA 322 (N).
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11.4.2. Similarly, the seller is not indefinitely tied down by the financial inability
or uncertainties of the proposed purchaser. A seller is thus able to
(re)market the immovable property.
11.5. An equally common feature in South African mortgage bond transactions is
what is known as an a pproval in principle. An approval in principle merely
means that that the relevant bank or credit providing institution has approved
the bond loan amount in princip le but the legal and final approval is still subject
to the (proposed) finance granter finding value in the immovable property (i.e.,
appropriate security) within the context of the loan amount requested.
12. The signed offer to purchase in issue in this application, in clear terms, requires that
something more than an approval in principle is required in order for the suspensive
condition to be fulfilled. In this regard, the signed offer to purchase specifically requires
the purchaser “to raise a loan upon the security of a mortgage bond … within 30-days
of acceptance of this agreement (which time may be extended by the Agent at the
Agent’s sole discretion for a further period not exceeding 15 days)”.
13. Because the applicant confirmed that the agent had not provided the 15-day
discretionary extension, I say nothing further in this regard. A s such, because the offer
to purchase was “accepted on 26 September 2025, the 30 -day suspensive condition
period expired at the latest on Monday, 27 October 2025 (26 October 2025, being a
Sunday).
14. For the avoidance of any doubt, t he signed offer to purchase sets the threshold, or
minimum requirement, for the raising of a mortgage bond loan, and as such the
deemed fulfilment of the suspensive condition to include and take place “on the date
that the Purchaser obtains a quotation and/or pre-agreement statement from any
financial institution.”
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15. As such, as a minimum for purposes of fulfilling the suspensive condition, the
purchaser was required to (i) provide a quotation and/or pre-agreement statement from
any financial institution and (ii) do so by, the very latest, Monday, 27 October 2025. As
already indicated, the failure to tirelessly for the suspensive condition results in the
voiding of the signed offer to purchase.
16. As already indicated, the fulfilment of a suspensive condition after the time limit
imposed does not give rise to a binding sale agreement. 15 The question therefore now
to be answered is whether the purchaser timeously fulfilled the suspensive condition in
the signed offer to purchase? Otherwise stated, did the purchaser, on or before
Monday, 27 October 2025, obtain “a quotation and/or pre-agreement statement from
any financial institution”?
17. In paragraph 9.14 of the founding affidavit, the applicant asserts the following is:
“The purchaser has been granted an approval of a bond guarantee in the sum of
[R]4.4 million”.
18. The aforesaid statement is however factually incorrect. This is for a panoply of reasons
including (i) if it were correct, there would have been no need for the bringing of this
application, (ii) the allegation is also at odds with that stated in paragraph 9.19.3 of the
founding affidavit, and (iii) as demonstrated below, all that has happened in respect of
the fulfilment of the suspensive condition is Standard Bank providing the purchaser
with an “Approval in Principal”. It did so on 6 October 2025.
19. For the reasons that follow, the relied upon Standard Bank “Approval in Principal” is not
the “quotation and/or pre-agreement statement” required by clause 10.1 of the signed
15 Dirk Fourie Trust v Gerber 1986 (1) SA 763 (A).
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offer to purchase. The “Approval in Principal ” expressly informs, provides and states
(as the case may be):
19.1. that her “Standard Bank loan application has been approved in principle …
subject to the following conditions: …”;
19.2. lists, at its page 2, the following “Special Condition”: “FAVORABLE PROPERTY
ASSESSMENT” - this is described, in turn, as “[a] satisfactory valuation of the
property that is being purchased”;
19.3. also lists, at page 2, the following “Additional R equirements”: “In order for your
application to be finalised, please fax requested documents to [….] or provi de
them to your Origination Channel, as indicated above”; and
19.4. the following in the second last paragraph on the same page 2 (my italics):
“… If you meet the conditions above to our satisfaction, we will send you
a quotation and pre- agreement statement to consider . This pre -
agreement quotation statement will set out the detailed terms and
conditions applicable to the loan.
This approval in principle is valid for five business days.”
20. All things considered, in its own express terms, the Standard Bank “Approval in
Principal” (i) records that it is not a “quotation and/or pre-agreement statement”, and
(ii) requires that the “Special Condition” and “Additional requirements” must first be
complied with before a “quotation and/or pre-agreement statement” is provided, and
then on or before Monday, 13 October 2025 (providing for the “five business days”
validity period of the “Approval in Principal”).
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21. With the above in mind, it is common cause, especially within the context of the
platform upon which this application is pursued and the urgent relief sought, that the
“Special Condition” in the Standard Bank “Approval in Principal ” has not been fulfilled.
The first respondent’s alleged frustration of the valuation process stands at the true
heart of this application, and its claimed urgency. It also cannot be seriously disputed
that the “five business days” expired on Monday, 13 October 2025.
22. When presented with the above facts, c ounsel for the applicant sought to argue that
because Standard Bank provided an “Approval in Principal” timeously (i.e., within the
30-day suspensive condition period):
22.1. the running of the 30-day suspensive condition period ran, or commenced to
run a fresh, on the date upon which Standard Bank furnished the Approval in
Principal; and
22.2. that the recommencement of the running of this re-instated 30-day period was
due to “run out” shortly - in approximately 10 days’ time; with the result that
there was a pressing need for the granting of the urgent relief sought by the
applicant.
23. Given the applicant’s submissions, an interpretation of the offer to purchase is required
(with a particular focus on the mortgage bond condition). The now trite “modern” South
African approach to the interpretation of legal documents requires an “integrated” or
“unitary” process or investigation that requires considerations of text, context and
purpose.
16
16 See inter-alia Betterbridge (Pty) Ltd v Masilo and Other NNO 2015 (2) SA 396 (GNP), as
affirmed by the SCA in inter -alia Tshwane City v Blair Atholl Homeowners Association 2019
(3) SA 398 (SCA), and Capitec Bank Holdings Ltd v Coral Lagoon Inv 194 (Pty) Ltd 2022 (1)
100 (SCA), University of Johannesburg v Auckland Park Theological Seminary and Another
2021 (6) SA 1 (CC). See also Natal Joint Municipal Pension Fund v Endumeni Municipality
12
24. Otherwise stated, the language used in the document, understood within the context in
which it is used, and having regard to the purpose of the document, must be
considered in an integrated or unitary fashion 17 - the process being objective and not
subjective18; so that an interpretation is arrived at that is coherent, salient and
businesslike.19
25. With the aforesaid “integrated” or “unitary” interpretation process in mind, I am unable
to find any support for the applicant ’s interpretation of the mortgage bond suspensive
condition; be it alone, or within the context of the signed offer to purchase as a whole.
The interpretation proposed by the applicant is incoherent, obtrusive, and
unbusinesslike. It creates the potential for a never-ending loop of the re-running, or re-
setting, of the 30-day suspensive condition clock. This proposed interpretation results
in a contractual and interpretive aberration; at direct odds inter-alia with (i) the offer to
purchase’s, and the suspensive condition’s, express wording, (ii) the context for the
suspensive conditions inclusion in the offer to purchase, and (iii) the aforesaid purpose
of the suspensive condition and also its 30-day limit (intended contractual certainty).
26. All things considered, because it is common cause that the “Agent” did not provide the
possible 15 -day discretionary extension (the applicant’s counsel submitted that she
was not required to for the reasons listed in paragraph 22 above), the sale agreement
has undoubtably lapsed. It moreover does not matter that it had lapsed shortly after the
2012 (4) SA 593 (SCA) par 18; Bothma -Batho Transport (Edms) Bpk v S Bothma & Seun
Transport (Edms) Bpk 2014 (2) SA 494 (SCA).
17 See inter-alia University of Johannesburg v Auckland Park Theological Seminary 2021 (6)
SA 1 (CC) and Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 (4) SA
593 (SCA) para 18.
593 (SCA) para 18.
18 Iveco South Africa (Pty) Ltd v Centurion Bus Manufacturers (Pty) Ltd 2020 JDR 0911 (SCA)
para 6.
19 See inter-alia Capitec Bank Holdings Limited and Another v Coral Lagoon Investments 194
(Pty) Ltd and Others 2022 (1) SA 100 (SCA) para 25, with reference to Endumeni; Bothma-
Batho Transport (Edms) Bpk v S Bothma & Seun Transport (Edms) Bpk 2014 (2) SA 494
(SCA) para 12 ; City of Tshwane Metropolitan Municipality v Blair Atholl Homeowners
Association 2019 (3) SA 398 (SCA) paras 59 -61; Swart en ‘n Ander v Cape Fabrix (Pty) Ltd
1979 (1) SA 195 (A) at 202C-D; Coopers & Lybrand and Others v Bryant 1995 (3) SA 761
(A) at 767H-768E; KPMG Chartered Accountants (SA) v Securefin Ltd and Another 2009 (4)
SA 399 (SCA) at 409I-410B.
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bringing of the application. At the time when this application was argued before me ,
there was no longer a binding and extant signed offer to purchase requiring judicial
protection.
27. Equally importantly , the Standard Bank “Approval in Princip al” (i) would have lapsed
when the applicant demanded that the Bank’s valuers be given access to the property
“commending on 15 October 2025” (see demand dated 13 October 2025), and (ii) had
already lapsed when this application. As such, Standard Bank’s “Approval in Principal”
also does not warrant, even indirect, judicial protection.
28. In the above circumstances, the applicant thus fails to establish:
28.1. the circumstances, within the prescripts of uniform rule 6(12)(b), that render his
application urgent, nor why the applicant w ould not be afforded substantial
redress at a hearing in due course; and
28.2. that, on a balance of probabilities, the applicant has a clear right,20 let alone a
prima facie right, 21 within the context of the established requirements for
interdictory relief.
29. As already indicated, considerations of the lack of merit in the application (on the basis
of clear right / prima facie right considerations as just mentioned) are, to all intents and
purposes, also dispositive of those relevant to the lack of urgency in the application. If
the signed offer to purchase has lapsed, t here is no merit in the application and, vice
versa, there is likewise no urgency in the application.
20 Nenaber v Stuckey 1946 AD 1049, and see People of His Way Ministry v Mokuke and
Others (2023/032252) [2024] ZAGPPHC 1198 (22 November 2024) para 10.
21 Steel and Engineering Industries Federation v National Union of Medical workers of South
Africa (2) 1993 (4) SA 196 (T) 199G.
14
30. Furthermore, because the signed offer to purchase has lapsed, the established
interdict requirement that the applicant is suffering an act of interference 22 that requires
judicial protection simply cannot be not satisfied.
31. In addition to the above, the founding affidavit fails to make out a case that, absent the
grant the relief sought, there is no other satisfactory remedy available to the applicant
in respect of and against the first respondent.23
31.1. At its high watermark, c ounsel for the applicant argued that no other
satisfactory remedy requirement was satisfied because the first respondent
required loan finance for purposes of a prior offer to purchase the property and
as such an inference is to be drawn regarding her financial position.
31.2. The founding affidavit however presents no established or proven facts 24 of the
first respondent’ s inability to satisfy a damages claim that the applicant may
possibly proffer against her.25 The inference is thus insufficient to discharge the
required evidentiary, at least, burden resting on the applicant. As such, this
requirement for the grant of the interdictory relief sought is not met.
32. As already indicated, and as per paragraphs 4, 5 and 8 above, the need for the relief
sought in paragraphs 2 and 3 of the notice of motion is not self-standing or discrete
from, but in fact tied to, the relief sought in paragraph 4 of the notice of motion. As the
applicant is not entitled to an order in terms of paragraph 4 of the notice of motion, the
relief sought in paragraphs 2 and 3 must suffer the same fate. I would nevertheless
22 Setlogelo v Setlogelo 1914 AD 221 227.
23 Celleiers v Lehfeldt 1921 AD 509 and See Exxaro Coal Mpumalanga (Pty) Ltd v TDS
Projects Construction and Newrak Mining JV (Pty) Ltd and Other 2022 JDR 1463 (SCA)
para 14.
24 Skilya Property Investments (Pty) Ltd v Lloyds of London 2002 (3) SA 765 (T) 781A -B and
24 Skilya Property Investments (Pty) Ltd v Lloyds of London 2002 (3) SA 765 (T) 781A -B and
781B-D, S v Mtsweni 1985 (1) SA 590 (A) and Caswell v Powell Duffryn Associated
Collieries Ltd [1939] 3 All ER 722 (HL) 733E-F.
25 Mandela v Falati 1995 (1) SA 251 (W) 260D-E.
15
encourage the parties to have regard to the cautionary word provided in paragraph 43
below of this judgment.
33. That said, a s a matter of caution, I also traverse the question of the non-joinder of (i)
the third-party purchaser of the immovable property and (ii) Standard Ban k in this
application.
34. In every case, a necessary or essential party is a party whose rights may be affected
by the outcome of a proceeding. It is thus trite that all parties who have a direct and
substantial (legal) interest in an application and the relief sought must be cited and
joined as necessary parties to the application.
35. The test for (non-) joinder is thus that of a “direct and substantial interest”; being a legal
interest in the subject matter of the litigation which may be affected prejudicially by the
judgment of the Court. The nature of the legal interest is dependent on the
circumstances of each case
26 but it is required to be something more than a substantial
financial or commercial interest. 27 Accordingly, a Court is required to be cautious in
ensuring that all relevant parties are before it when it is asked to make a finding and/or
order that may impact upon such parties’ rights.28
36. In fact, so fundamental are considerations of non- joinder to the rule of law , a Court can
mero motu raise the issue of joinder; even if (i) the non-joinder is not raised by the
litigating parties, (ii) it arises for the first time on appeal.29
26 Cohen v Jacobs supra at 438.
27 See also Aquatur v Sacks and others 1989 (1) SA 56 (A) at 62G; Brauer v Cape Liquor
Licensing Board 1953 (3) SA 752 (C) at 761H and Vandenhende v Minister of Agriculture,
Planning and Tourism, Western Cape and Others 2000 (4) SA 681 (C).
28 See Amalgamated Engineering Union v Minster of Labour 1949 (3) SA 637 (A) at 649 and
Klep Valves (Pty) Ltd vs Saunders Valve Company Limited 1987 (2) SA 1 (A) at 39I-40A.
29 Rosebank Mall (Pty) Ltd vs Cradock Heights (Pty) Ltd 2004 (2) SA 353 (W) at para 11.
16
37. Because the applicant seeks in this application to protect and enforce a lapsed sale
agreement, and so too a lapsed “approval in principle” of a mortgage bond, I am of the
view that both the purchaser and Standard Bank have a legal interest in the relief
sought by the applicant, particularly if the relief sought is to be granted.
38. Moreover, the need for joinder of the purchaser and Standard Bank is amplified
because, it was submitted fro m the Bar for the applicant, that the purchaser wished to
still pursue the purchase of the immovable property. This may well be so, but there was
nothing in the papers filed of record before me that endorses or confirmed this to be the
case. The purchaser was not before me to confirm this was the case, and without
Standard Bank’s participation, I am unable to determine if the purchaser’s claimed
wishes are even relevant, given that they are ultimately dependent upon Standard
Bank’s position.
39. My findings on the non-joinder of the purchaser and Standard Bank , being essential
and interested parties in this application, raises the following question: What then is to
happen with this application?
40. In Bensen v Joelson,30 the Court - echoing the concerns of Fagan AJA in Amalgamated
Engineering Union 31 - was reluctant to continue in the absence of necessary parties
who should have been joined. On the other side of the spectrum, in Absa Bank Ltd v
Naude,32 the application a quo was dismissed, via the appeal, because of the non-
joinder of interested parties.
30 Bensen and Others v Joelson and Others 1985 (3) 566 (C) at 569F-H.
31 Amalgamated Engineering Union supra at 661.
32 Absa Bank Ltd v Naude N.O. and Others 2016 (6) SA 540 (SCA).
17
41. While our Courts have often ordered a stay33 of proceedings pending the non-joinder of
necessary parties34 (especially if the non-joinder is not fatal to the proceeding 35), I
believe that such an order , in the prevailing circumstances , would serve no ultimate
purpose and be a brutum fulm en.36 The staying of this application to facilitate the
belated joinder of the purchaser and Standard Bank could not, and would not, resurrect
the lapsed signed offer to purchase.
42. All things considered, leaving questions of non-joinder aside for a moment, the
administration and interests of justice would not be served if I were to merely strike the
application off the urgent roll because of a lack of urgency. This is because the
application is also, to all intents and purposes (and at the same time and for the same
reasons for it not being urgent), “dead on arrival” in respect of its merits given the
lapsed signed offer to purchase and the absence of a recognisable right requiring
judicial protection. It would be a waste of scarce judicial resources if an opposed
motion court would subsequently be required to determine the merits of this application
(when I am suitably placed to do so; notwithstanding this being a purported urgent, but
not actually urgent, application.) Accordingly, I have elected to determine, and dismiss,
this application on, and because of, its (lack of) merits.
43. Before dealing with the question of costs, I must provide a cautionary word. As I read
the court order of appointing and empowering the applicant as the appointed receiver
and liquidator of the respondents’ joint estate, the applicant is clothed with a judicially
endorsed discretion and mandate to realise any assets of the joint estate (including the
property in issue). At the risk of stating the obvious, provided the applicant acts lawfully
33 The proceedings are temporarily halted or stopped so that the applicant can have an
opportunity to join the missing / non-joined necessary party.
opportunity to join the missing / non-joined necessary party.
34 For example, see Peacock v Marley 1934 AD 1, where this approach has been available for
almost a hundred years.
35 Conrad v Key West Body Corporate 2022 JDR 2005 (GP) para 29.
36 Latin phrase meaning "senseless thunderbolt" or "empty threat". It refers to something that
appears powerful or threatening but is ultimately senseless, fruitless, ineffective or
worthless.
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and in terms of the relevant court order, it does not behove either of the respondents to
frustrate or handicap him in the exercise of his discretion and the fulfilment of his
mandate. If, for example, the first respondent believes that the applicant is not doing
so, or that he has not given “due consideration” to her wishes (see paragraph 6.2 of
such court order), she would be well advised to pursue her remedies.
44. Finally, the ordinarily rule in civil litigation in South Africa is that costs are in the
discretion of the relevant judicial officer and, that subject thereto, the usual costs order
is that costs follows the result of the litigation.37 I do not find that there is any basis for a
punitive costs order, nor to depart from the unusual costs order. A party and party costs
order suffices. Because the application is obviously important to the parties, scale B
shall apply.
45. In the result, I grant the following orders:
1. The application is dismissed.
2. The applicant is ordered to pay the costs of this application (scale B to apply).
_________________________
AMM AJ
JUDGE OF THE HIGH COURT
JOHANNESBURG
HEARD & ARGUED: 6th NOVEMBER 2025
JUDGMENT ELECTRONICALLY DELIVERED : - This judgment was handed down
electronically by circulation to the parties’ legal representatives by email. It will also be
uploaded onto CaseLines.
The date and time for the handing-down of this judgment is deemed to be:
10h00 on 11th NOVEMBER 2025.
37 Ferreira v Levin; Vryenhoek v Powel 1996 (2) SA 621 (CC) at 624.
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For the applicant: Mr T Mhlanga (Advocate)
Instructed by TM Serage Inc.
For the first respondent: Ms ZD Maluleke (Advocate)
Instructed by Mabote Gwede & Associates