SAFLII Note: Certain personal/privat e 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
GAUTENG DIVISION, PRETORIA
CASE NO: 200576/2025
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO THE JUDGES: YES/NO
(3) REVISED.
DATE: 19 NOVEMBER 2025
SIGNATURE:
In the matter between:
TSA MAMELODI OILS (PTY) LTD First Applicant
TIYANI VAVANUNA MBALATI N.O. Second Applican t
BANGISITA BERNARD MKHONDO N.O. Third Applicant
GLORIA GWEBU N.O. Fourth Applicant
and
MANDI OIL (PTY) LTD First Respondent
GANDHI PII MOGOLEGO Second Respondent
TOTALENERGIES MARKETING SOUTH AFRICA (PTY) LTD Third Respondent
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JUDGMENT
LABUSCHAGNE J
[1] The applicants applied for urgent relief pertaining to a filling station in
Mamelodi. The first applicant is the owner of the land on which a filling
station has been operated for 16 years by the first respondent and its
predecessors in terms of lease agreements.
[2] The second, third and fourth applicants are trustees of a family trust (the
Mbalati Trust) which entered into a lease agreement with the first
respondent, leasing the filling station and certain outbuildings to the first
respondent. This lease has run from 2019 to November 2024 and expired
(according to the applicants) on 01 November 2024. The respondents
contend that it has extended the lease to 2029. This is disputed by the
applicants. There are pending eviction proceedings in terms of which the
applicants seek to evict the respondents for, inter alia, failure to pay rent.
[3] The applicants contend in argument that one of the suspensive conditions of
the lease was not complied with and the lease is consequently invalid. The
suspensive condition relates to the second respondent binding himself as
surety for the liabilities of the first respondent. This is not an issue before me
but before the court hearing the eviction application.
[4] Attached to the application was a letter of 08 October 2025, in terms of
which the first respondent confirm ed that it would not be renewing the lease
beyond 2029 and intends selling the goodwill of the business it had built up
over 16 years for R18,5 million. The respondents offered the applicants a
right of first refusal to purchase the goodwill and gave them 90 days within
which to respond.
[5] In an answering letter t he applicants retorted that the goodwill was not
attached to the respondents but belongs to the family trust as lessor.
[6] The applicants consequently seek urgent relief restraining the respondents
from representing that the y own the goodwill , in their attempts to sell the
business . The first respondent is intent on selling the goodwill for its own
benefit. The respondents argue that the 90 days give n the applicant s to
purchase the goodwill has not expired. If this is an indication th at the
respondents will only thereafter offer the business and its goodwill to outside
parties, then the applicants would not be able to be in court time ously to
interdict such conduct in the normal c ourse. I am therefore satisfied that the
matter is urgent.
[7] The respondents have raised a number of points in limine . These include
urgency. Urgency is not a point in limine. It is an essential part of the onus of
an applicant in urgent court proceedings. I have dealt with urgency. The
second point in limine is that the first applicant lacks locus standi . It is
merely the owner of the property and is not a party to the lease agreem ent. It
however does not seek any relief either. As owner of the land its proprietary
rights are i mplicated by a threatened sale of the business by the
respondents. It therefore has locus standi as an interested party.
[8] The respondents thirdly contend that the Mbalati Family Trust is not properly
before court. It has three trustees but the resolution pertaining to the
institution of the application w as signed by only two of the trustees. The
fourth applicant (who is the third trustee) did not sign it, although she is cited
as a party to the court proceedings. She did file a confirmatory affidavit
supporting the application.
[9] The fourth point in limine is that the applicants effectively seek final relief but
have not pleaded all the elements of a final interdict. The respondents
contend that the applicants have not established a clear right, that
irreparable harm is reasonably apprehended and that they do not have an
alternative remedy.
THE FACTS
[10] From the papers it is apparent that the respondents believe that the goodwill
of the filling station vests in the first respondent and intend realising that
goodwill for its benefit.
[11] The Mbalati Family Trust concluded a lease agreement with the first
respondent on 09 August 2019. In terms thereof, the first respondent leased
the premises where the filling was situated on Erf 1[...], Mamelodi, including
the building used as staff facilities. The premises would only be used for the
sale of petrol, diesel, paraffin, sale of other petroleum products and for
purposes ancillary to the service/filling station business, including a
convenience store.
[12] The lease period run out on 01 November 2024. There is a dispute on
whether the lease was extended or not. The applicants contend that it was
not extended, or validly extended, whilst the respondents contend that it was
extended until 2029.
[13] The first applicant sold the immovable property by public auction on 13
March 2024 and the buyer is avoiding taking transfer of the immovable
property, whilst the respondents remain in possession.
[14] On 08 October 2025 the attorney for the first respondent wrote a letter
paragraph 2 of which reads :
“2. Our client further instructs us that it does not intend to renew the
lease agreement beyond 2029 and it therefore intends to sell its
positive brand reputation and goodwill for an amount
R18 500 000.00 (eighteen million five hundred thousand Rand) to
any suitable buyer , however your client is afforded the right of first
option to purchase the bus iness together with its intangible asset,
being its goodwill, within a period of 90 days (ninety days) of receipt
of this notice.”
[15] In a letter in response to the aforesaid, the attorney for the applicants
advised that the position of the applicants is that the lease was invalid and
that no renewal could therefore have taken place. In response to the offer of
the sale of goodwill, the following is stated:
“8. In light of our client’s application (for eviction - my insertion) and the
relief sought herein, concerning as your client puts it, ‘its positive
brand reputation and goodwill’, this letter serves to inform your client
that the Total rep utation and goodwill belongs to our client and
cannot be sold by your client, as our c lient is in the process of selling
it. We therefore have instructions to demand confirmation from your
client that it will immediately refrain from marketing the brand
reputation and goodwill and that your client will not sell the brand
reputation and goodwill, at least pending the final adjudication of our
client’s application and the relief sought therein.”
[16] In Slims (Pty) Ltd and Another v Morris NO 1988 (1) SA 715 (A), the
Appellate Division (as it then was) dealt with a lessee who, upon termination
of a lease, only retransferred the property, but n ot a liquor licen ce. The
question arose to whom the goodwill attaches. The Court a quo had held
that the liquor licence has vested in the insolvent estate of the lessee. The
Appellate Division found that the liquor licence was essential to the goodwill
of the business. At 728 E-F the following is stated in this regard:
“In Receiver of Revenue Cape v Cavanah supra Innes ACJ in fine at p 465
that:
‘Insofar as a licenced house is concerned, the connection between the
licence and the goodwill is so close that the cases in which they are
separately dealt with must be few indeed. And it was the circumstances
which probably led to Dr Greer’s candid admission that there was no
distinction between them …
… Take away the license and the goodwill perishes, because the business
of the Phoenix Hotel as a licensed hotel cannot be carried on at all.”
[17] At 279 A the Appellate Division stated per Nichol as AJA:
“The ownership of the goodwill, an inseparable part of which is the privilege
of sell ing liquor, is a jus in re , which exists independently of any jus in
personam constituted by the lease.
The trustee has restored to the lessor only the premises. Until he redelivers
also the goodwill (which requires that he takes the steps necessary to
retransfer the liquor license), the Phoenix Hotel will not have the enjoyment
of the goodwill attached to a licensed hotel, and will be deprived of that
asset.
(Cf. Bosman, Powis and Company v Norton (supra) at 207).”
[18] The goodwill attaches to the premises, and those premises need to be
restored at the termination of the lease. By parity of reasoning that incl udes
the restoration of an empowering certificate to operate a filling station in
terms of the Minerals Resources and Petroleum Products Act
[19] I was referred to Rissik Street One Stop CC t/a Rissik Street Engen and
Another v Engen Petroleum Ltd 2024 (4) SA 447 (CC) as countervailing
authority. I have read the judgment, but it is not on point . In that matter
Engen had no claim to the goodwill but might have receiv ed the benefit of it
in a sale by evicting Rissik Street One Stop. This was found to be
inequitable, and Rissik Street One Stop was permitted to remain in
possession of the filling station pending a sale so that it can realise the
goodwill it had built up over the years. In the present matter the question is
different.
[20] My conclusion is that goodwill vests in the landlord , the Mbalati Trust, and
not the first respondent . To this extent, the applicants had cause for concern.
[21] However, a point in limine was taken that the landlord (the family trust) was
not properly before court and could therefore not assert the rights. The
second, third and fourth applicants are the trustees of the family trust and the
trust is the lessor in t erms of the written lease agreement with the first
respondent.
[22] The respondents sought information in terms of Rule 35(12) and obtained a
copy of a resolution pertaining to the current proceedings passed by the
majority of the trustees.
[23] The document is headed “special resolution” and reads as follows:
“It is hereby agreed, on the 15 th day of September 2025, by the majority of
the trustees of:
Mbalati Family Trust
(Registration Number IT208/11) that:
1. Any action/application deemed necessary may be instituted a gainst
Madi Oil (Pty) Ltd and its directors on behalf of the Mbalati Family
Trust.
2. The Mbalati Family Trust authorises Tiyani Vavanuna Mbalati to act As
the duly authorised agent and fully authorised representative, and that
he may sign any documentation on behalf of the Mbalati Family Trust
concerning any instructions given to Jordaan & Smit Attorneys in
respect of any legal matter herein.
signed _______________
TV MBALATI
Trustee
signed _______________
BB MKHONDO
Trustee”
[24] From the aforesaid it is apparent that two of the three trustees have signed.
In terms of the Trust Deed, the founder was required to be one of the
decision makers until he died. He passed away in 2012. The difficulty
however is the absence of the signature of the third trustee on the resolution.
[25] The applicants’ counsel contends that the Trust Deed of the family trust
permits resolutions to be taken by majority. This is in accordance with
clause 8.2 of the Trust Deed. The challenge however does not relate to the
validity of the vote but to the validity of the resolution to institute the current
proceedings on behalf of the family trust. The first is an internal matter. The
second external.
[26] It bears noting that the first applicant’s only involvement in these
proceedings is as owner of the land, but not as lessor. It would therefore not
have the entitlement to claim the goodwill that vests in the family trust.
[27] Counsel for th e respondent relied on the SCA case below in support of his
contention that the trust is not properly before court.
[28] In Shepstone and Wylie Attorneys v De Witt N.O. and Another 2023 (6)
SA 419 (SCA) the following is stated:
“[22] In Steyn and Others NNO v Blockpave (Pty) Ltd 2011 (3) SA 528
(FB) (Blockpave) , the court succinctly drew the distinction between
internal and external business with outsiders. The court held that
although trustees may disagree internally on a matter, they a re
prohibited from disagreeing externally. Internal matters may be
debated and put to a vote, thereafter the voice of the majority will
prevail. However, in so far as the Trust is required to deal with
external business all trustees are required to parti cipate in the
decision-making.
[23] In Coetzee v Peet Smit Trust en Andere 2003 (5) SA 674 (T), the
court also held that unless the trust deed contained provisions to the
contrary, there was legally no reason to follow a different rule. In the
case of tru sts, joint and unanimous conduct in the alienation,
handing and management of trust assets was a prerequisite.”
[29] At paragraph [25] the following was stated:
“[25] As held by this Court in Le Grange, the trustees, when dealing with
trust property, are required to act jointly. Even when the trust deed
provides for a majority decision, the resolutions must be signed by all
the trustees. A majority of the trustees may take a valid internal
decision, b ut a valid resolution that binds a trust externally must be
signed by all trustees, including the absent or the dissenting trustee.
It is a fundamental rule of trust law, which this Court restated in
Nieuwoudt NO and Another v Vrystaat Mielies (Edms) Bpk
[2004] 1 All SA 396 (SCA), that in the absence of a contrary
provision in the trust deed, the trustees must act jointly if the Trust
estate is to be bound by their acts. The rule derives from the nature
of the trustees’ joint ownership of the trust prope rty. Since co -
owners must act jointly, trustees must also act jointly.
[26] It therefore follows that where a trust deed requires that the trustees
must act jointly if the Trust is to be bound, a majority decision will not
bind the Trust where one of the trustees, such as in this case, did not
participate in the decision -making. … In the case where the majority
decision prevails, all trustees are still required to sign the resolution.
In Land and Agricultural Development Bank of SA v Parker and
Others (Parker) 2005 (2) SA 77 (SCA); [2004] 4 All SA 261 (SCA),
this Court held that when dealing with third parties, even if the Trust
instrument stipulates that the decision can be made by the majority
of trustees, all trustees are required to participate in the decision
making and each has to sign the resolution. The court in Blockpave
restated the aforesaid principles in Parker. It went on to state that a
trust operates on resolutions and not on votes. This is significant as
the Trust does not explicitly pro vide that external decisions may be
taken by a majority vote.”
[30] If this were the current position, the Mbalati Trust would not properly be
before cou rt. However, the SCA decision in Shepstone and Wyli e was
overturned by the Constitutional Court in August 2025. The distinction
between internal decisions and outward execution thereof was found to be
invalid. By contrast , the question was wheth er the trust deed required
unanimity or whether it permitted decisions to be taken by a majority.
[31] In Shepstone and Wylie Attorneys v Abraham Johannes de Witt NO and
other [2025] ZACC 14 (1 August 202 5) the Constitutional Court stated per
Tolmay AJ from par [53]:
“[53] … In terms of Parker and Nieuwoudt , however, the principle is that a
trust deed can provide for something other than joint action by
trustees, and it can do so through a majority clause. The Supreme
Court of Appeal majority therefore construed the principle narrowly
with no authority for doing so.
[54] The Supreme Court of Appeal introduc ed an unwarranted distinction
between decisions of trustees in relation to internal and external
matters, and in so doing placed an incorrect restriction on the
proposition that the requirement of joint action can be modified by a
trust deed. The Supreme C ourt of Appeal also misconstrued
provisions which are routinely encountered in trust deeds, even if
precise formulations vary.
[55] The Supreme Court of Appeal majority conflated two distinct actions:
the signing of the deed of surety by the two trustees, and a written
(round robin) resolution authorising the signing of the deed of
suretyship. The majority stated that the resolution of the two trustees
at the 25 May 2013 trustee meeting and the signing of the deed of
surety were — ‘contrary to the provision s of clause 13.4 of the trust
deed, which provides that a written resolution signed by all trustees
for the time being or their respective alternates or proxies shall be as
effective as a resolution taken at a meeting of trustees.’
[56] Contrary to what the Supreme Court of Appeal majority said, the
resolution to sign the deed of surety was not a written resolution in
terms of clause 13.4. It was a resolution taken at a quorate meeting
of trustees in terms of clause 13.1. The resultant signing of the deed
of surety by the two trustees was not a resolution. It was merely the
execution of the deed following the resolution. Clause 14 of the Trust
Deed provides that such execution can be done by “at least two
trustees”. That the resolution was not a claus e 13.4 resolution is
clear from the fact that the resolution is recorded in the minutes of
the 25 May 2013 meeting. Honoré’s South African Law of Trusts 82
states in this regard that Blockpave — ‘sought to draw a distinction
between trustee decisions (as r eflected in, for example, the minutes
of trustee meetings) and formal ‘resolutions’ signed by the trustees.
The judgment creates the impression that only the latter would bind
a trust. However, there is no rule of trust administration that requires
such a degree of formality’.”
[32] In these circumstances, the resolution by two trustees was a valid resolution
at a quorate meeting and the written and signed resolution is consistent with
clause 8.2 of the trust deed. The institution of the current proceedings is in
terms of a valid resolution of the family trust.
[33] This matter demonstrates a truism in adv ocacy, and that is to check whether
the cases relied upon have not been ov erruled. The exhilaration of finding
support from the SCA may cloud the urgency of the need to check whether
the case is still good law. It must nevertheless be done in all matters, even in
urgent matters.
[34] As far as the last arg ument in limine is concerned, the founding papers d o
not expressly deal with each element of an interdict. However, the facts of
this matter are se lf-evident and each element is covered from par 45 -51 of
the founding affidavit.
[35] The Mbalati Trust as owner of the goodwill of the filling station has a right to
protect it against misrepresentation and appropriation . If interdictory relief is
not granted, the r espondents will continue asserting their claim to the
goodwill, thereby hampering the appli cants’ attempts to provide vacant
possession to the buyer who is waiting in the proverbial wings. The delay in
obtaining redress creates may scupper the concluded sale at auction of the
premises.This constitutes a reasonable ap prehension of irreparable harm.
And the applicants cannot prevent the continuation of the respondents ’
claims to the goodwill other than by obta ining ur gent relief. Despite the
shortcomings in formulation , the fac ts cover the essential features of
interdictory relief.
[36] In the premises the following order is made:
1. The matter is found to be urgent for purposes of Rule 6(12).
2. The first and second respondents are restrained from representing to
the public or third parties that the first res pondent and/or second
respondent are the holders, alternatively the owners of the positive
brand reputation and goodwill attached to the business known as
Totalenergies Mamelodi East (previously known as Total Mamelodi
East).
3. The costs of the application are to be paid by the respondents jointly
and severally, the one paying, the other to be absolved, on Scale C.
_______________________________
LABUSCHAGNE J
JUDGE OF THE HIGH COURT
APPEARANCES:
COUNSEL FOR APPLICANT : ADV KRUGER SC
INSTRUSCTED BY : JORDAAN & SMITH INC
COUNSEL FOR RESPONDENT : ADV KWINDA
INSTRUCTSED BY : MAGOGELO ATTORNEYS