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IN THE HIGH COURT OF SOUTH AFRICA
NORTH WEST DIVISION, MAHIKENG
Not Reportable
Case No: 5562/2024
In the matter between:
GORDON ROBERT CORNISH First Applicant
LORNA JANET CORNISH Second Applicant
and
JOHNY RAMETSI First Respondent
THE CITY OF MATLOSANA
LOCAL MUNICIPALITY Second Respondent
Coram: Petersen ADJP
Date enrolled: 30 January 2026
Judgment reserved: 30 January 2026
Delivered: This judgment was handed down electronically by circulation to the
parties’ representatives via email. The date and time for the hand-down of the
judgment is deemed to be 12h00 on 09 February 2026.
Summary: Land – Eviction – Application in terms of Prev ention of Illegal Eviction
from and Unlawful Occupation of Land Act 19 of 1998 (PIE Act) – point in limine of
res judicata – whether previous dismissal in Magistrate’s Court due to insufficient
proof of ownership bars High Court application – court finding that dismissal for
insufficiency of evidence is not final and continued unlawful occupation constitutes
new cause of acti on – defence of de facto ownership based on “sweat equity” and
verbal agreement – Alienation of Land Act 68 of 1981 – requirement for written deed
of alienation – registered owners’ vindicatory rights upheld – eviction granted.
ORDER
1. The point in limine based on res judicata is dismissed.
2. The application for the eviction of the First Respondent and all persons
occupying the property through or under him, situated at 3 […] P[...]
Street, La Hoff, Klerksdorp, North West Province, is granted.
3. The First Respondent and all those occupying through him are ordered to
vacate the property on or before 30 April 2026.
4. Should the First Respondent fail to vacate the property by the date
mentioned in paragraph 3 above, the Sheriff of the High Court (or his/her
deputy) is authorized and directed to evict the First Respondent and all
persons occupying the property through him from 04 May 2026.
5. The First Respondent is ordered to pay the costs of this application on the
applicable Magistrates’ Court Scale.
________________________________________________________________
JUDGMENT
________________________________________________________________
Petersen ADJP
Introduction
[1] This is an application for the eviction of the first respondent and all those
occupying through him from the residential property situated at 3 [...] P[...]
Street, La Hoff, Klerksdorp (“the property”). The application is brought in terms
of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act
19 of 1998 (“the PIE Act”).
[2] The applicants, Mr. Gordon and Mrs. Lorna Cornish, allege that they are the
registered owners of the property and that the first respondent, Mr. Johny
Rametsi, is an unlawful occupier whose right of occupation has been validly
terminated. The second respondent is the local municipality with jurisdiction
over the area where the property is situated.
[3] The first respondent opposes the application. An Answering Affidavit was
filed in opposition to the application. He appeared in person at the hearing of
the application. His attorney of record has no right of appearance in the High
Court. That notwithstanding, Heads of Argument were prepared, albeit delivered
late. The Heads of Argument of the first respondent were admitted, following no
opposition from the applicants . The first respondent at the outset of the hearing
intimated that whilst he had counsel who was not available, he was desirous of
proceeding with the matter in person since his heads of argument were admitted
by this Court . Later in his oral submissions , the first respondent intimated that
he w ould seek a postponement of the application . After engaging him on his
earlier intimation, and that a postponement would occasion costs, he maintained
his earlier decision to proceed with the matter as an unrepresented litigant.
[4] The first respondent essentially opposes the application on two grounds .
Firstly, on a point in limine based on the principle of res judicata, contending
that this matter has already been adjudicated in the Klerksdorp Magistrate’s
Court. Secondly, on a defence on the merits , claiming that he is the de facto
owner of the property by virtue of a business agreement and “sweat equity ”
invested in a close corporation, Prothane Industries CC.
Point in limine: Res Judicata
[5] On the point in limine based on the principle of res judicata , the first
respondent contends that the Magistrate’s Court previously adjudicated the
relief sought in the present application for the District of Matlosana under case
number 1602/23, where the eviction application was dismissed on 05 February
2024. The first respondent argues that this dismissal constitutes a final judgment
on the merits, barring the applicants from approaching th e High Court. He
submits that the current application is an attempt to “get a second bite at the
cherry” on the same cause of action.
[6] In Transalloys v Mineral -Loy1 the Supreme Court of Appeal (‘”SCA”)
reaffirmed the trite requirements applicable to a plea of res judicata , with
reference to previous authorities . The SCA reaffirmed that for res judicata to
operate it must be shown that the earlier judgment relied upon was a final
judgment, and that there must be identity of parties and of the subject -matter in
the former and in th e present litigation. Reference was made to the earlier
decision of the SCA in Prinsloo NO & others v Goldex 15 (Pty) Ltd & another 2
[2012] ZASCA 28; 2014 (5) SA 297 (SCA) where the principles of res judicata
and the issue estoppel were described as follows:
[10] The expression “res iudicata” literally means that the matter has already been decided.
The gist of the plea is that the matter or question raised by the other side had been finally
adjudicated upon in proceedings between the parties and that it therefore cannot be raised
again. According to V oet 42.1.1, the exceptio was available at common law if it were shown
that the judgment in the earlier case was given in a dispute between the same parties, for the
same relief on the same ground or on the same cause (idem actor, idem res et eadem causa
petendi)…”
[7] The SCA in Prinsloo NO & others v Goldex 15 (Pty) Ltd & another further
noted that in time the requirements were, however, relaxed in situations which
gave rise to what became known as issue estoppel. With reference to Smith v
Porritt and Others3, it was explained, following the decision in Boshoff v Union
Government4 1932 TPD 345, that the ambit of the exceptio res iudicata has over
the years been extended by the relaxation in appropriate cases of the common -
law requirements that the relief claimed and the cause of action be the same
(eadem res and eadem petendi causa ). The SCA emphasized that w here the
1 Transalloys v Mineral-Loy (781/2016) [2017] ZASCA 95 (15 June 2017) at para [22].
1 Transalloys v Mineral-Loy (781/2016) [2017] ZASCA 95 (15 June 2017) at para [22].
2 Prinsloo NO & others v Goldex 15 (Pty) Ltd & another [2012] ZASCA 28; 2014 (5) SA 297 (SCA).
3 Smith v Porritt and Others 2008 (6) SA 303 (SCA) para 10.
4 Boshoff v Union Government 1932 TPD 345.
circumstances justify the relaxation of these requirements those that remain are
that the parties must be the same ( idem actor) and that the same issue ( eadem
quaestio) must arise.
[8] The SCA stated that the latter involves an inquiry whether an issue of fact or
law was an essential element of the judgment on which reliance is placed.
Where the plea of res iudicata is raised in the absence of a commonality of
cause of action and relief claimed it has become commonplace to adopt the
terminology of English law and to speak of issue estoppel. It pointed out
however that , as was stressed by Botha JA in Kommissaris van Binnelandse
Inkomste v Absa Bank Bpk 5, that this is not to be construed as implying an
abandonment of the principles of the common-law in favour of those of English
law. The defence remains one of res iudicata.
[9] Where the defence of res iudicata is raised, courts are required to carefully
scrutinize whether it in fact is applicable. This, by implication means that e ach
case must be considered on it own pa rticular facts and any extension of the
defence will be on a case -by-case basis as stated in Kommissaris van
Binnelandse Inkomste v Absa 6. Very importantly r elevant considerations will
include questions of equity and fairness, not only to the parties themselves but
also to others.7
[10] The three requirements for a plea of res judicata are well-established:
Firstly, there must be a previous judgment by a competent court between the
same parties. Secondly, it must be based on the same cause o f action and the
5 Kommissaris van Binnelandse Inkomste v Absa Bank Bpk 1995 (1) SA 653 (A) at 669D,
667J – 671B.
6 At 670E – F.
7 Caesarstone Sdot-Yam Ltd v World of Marble and Granite 2000 CC & others [2013] ZASCA 129;
2013 (6) SA 499 (SCA) paras 21 and 22.
same subject matter. Thirdly, a crucial requirement is that the previous judgment
must be final and definitive of the merits.
[11] I have had regard to the judgment of the Magistrate’s Court of 18
September 2025 under c ase number 1602/23, attached to the papers , and
included with the Heads of Argument of the first respondent . In that judgment,
the learned Magistrate found that there w as a “dispute of ownership ” which
could not be resolved on the papers and that the applicant had failed to attach
necessary agreements. The dismissal was, in effect, one based on a dispute of
fact due to insufficiency of evidence on the ownership of the pr operty, rather
than a positive finding that the first respondent had a permanent right to occupy.
[12] In particular, the Magistrate dismissed the application specifically because
the applicants failed to discharge the onus of proving ownership at that time,
having failed to attach the Title Deed. It is trite that a dismissal due to
insufficient evidence does not constitute a final judgment that extinguishes a
cause of action; it merely signifies the case was not proven on the papers filed at
that time.
[13] The applicants rely on a new notice of termination of 14 August 2024. This
new notice of cancellation, based on an alleged continued breach or a new
period of holding over, constitutes a new cause of action. It is a trite principle of
our law th at where the cause of action has evolved or where the dismissal was
not final on the merits, res judicata cannot succeed.
[14] The circumstances of the present application, having its genesis in the
Magistrates’ Court, where the applicants were unsuccessful with an eviction
application against the first respondent, are an alogous, if not on all fours with
those in Zulu N.O. v Mbazo and Another 8 where Hlatswayo AJ provides the
following factual background:
‘[6] This matter has a long history of litigation, particularly in the magistrates ’ Court. The
applicant commenced eviction litigation against the first respondent in the Ntuzuma
magistrates' court under case number 1665/2013. It appears this case was eventually finalised
in 2014. According to the applicant this application was dismissed when the magistrates
Court upheld some of the points in limine that were raised by the first respondent.
…
[8] On 2 December 2021 the applicant instituted new eviction proceedings in the high court.
On 4 April 2022 an order directing service of Section 4(2) notice in terms of the PIE Act was
issued by this court. The first respondent opposes the ap plication for his eviction and has
raised a number of points in limine.
[9] It is worth mentioning that the first respondent has been in occupation of the property for
over 10 years. It appears from the applicant's affidavit that she has been in occupation since
2013 when his sister, Khumbuzile Gule, vacated the premises. The composition of the first
respondent's family is however unclear and both parties did not place that information before
me.’
[15] In Zulu N.O. v Mbazo and Another9, the first point in limine raised by the
first respondent was a plea of res judicata. In that matter, t he first respondent
contented that the application for his eviction was dealt with by the Ntuzuma
Magistrates Court in 2013 and was dismissed , and that a similar application by
the applicant was dismissed in 2020. The first respo ndent in that matter
contended, as the first respondent does in the present application, that the
application consisted of the same parties and the same cause of action that was
determined by a competent court. As Mr. Rametsi argues, the first respondent in
that matter also argued that the appropriate remedy for the applicant lies with
that matter also argued that the appropriate remedy for the applicant lies with
8 Zulu N.O. v Mbazo and Another (D11353//21) [2024] ZAKZDHC 32 (24 May 2024).
9 At paras [10] and [11].
the appeal or review procedure. Resultantly, it was argued that th e application
for eviction was res judicata.
[16] I align myself with the reasoning in Zulu N.O. v Mbazo and Another, where
Hlatshwayo AJ held that even where a previous eviction application has been
dismissed, the first respondent’s continued occupation of the property
constitutes a separate and fresh cause of action upon which an applicant may
institute new proceedings. As Hlatshwayo AJ noted:
“Each continued occupation amounts to a separate cause of action... and accordingly, there
is no merit to the defence of res judicata.”
[17] For ease of rea ding, it is apposite to refer to the reasoning in Zulu N.O. v
Mbazo and Another:
‘Res judicata
[17] The plea of res judicata is well settled in our law. It is premised on the preclusion of suits
that are relitigated on the same facts and law decided upon by an earlier court. In Bafokeng
Tribe v Impala Platinum and Others 1999 (3) SA 517 (BH) the following was stated:
‘...the essentials of the exceptio res judicata were threefold, namely that the previous
judgment had been given in action or application by a competent court (1) between the same
parties, (2) based on the same cause of action, (3) with respect to the same subject matter or
thing. Requirements (2) and (3) are not immutable requirements of res judicata. The subject
matter claimed in the two relevant actions did not necessarily and in all circumstances
have to be the same. Where there was a likelihood of the litigant being denied access to
the court in the second action, to prevent injustice, it is necessary that the said essentials
of the threefold test be applied . Conversely in order to ensure overall fairness, 2 or 3
above might be relaxed.'
As was observed in Smith v Porritt and others [2007] ZASCA 19 SCA; [2007] SCA 19 RSA,
2008 (6) SA 303 SC A unless the defence of res judicata is carefully circumscribed it is
capable of producing hardship and positive injustice to the individuals. Thus, relevant
considerations will include questions of equity and fa irness not only to the parties themselves
but to others.
[18] It is apposite to mention that the primary purpose of the doctrine of res judicata is to
prevent unnecessary repetition of litigation between the parties, harassment of defendant with
multiple suits and to bar the same dispute being adjudicated upon by our courts with the
adverse results of conflicting and contradictory decisions.
[19] In this matter the first respondent bears the onus to establish the essential requirements
of res judicata. The first respondent relied on the Magistrates Court order dated 20 January
2021 and submitted that the applicant ’s eviction application was dismissed and further
alleged that the 2020 application was likewise dismissed. The evidence presented to me
shows that the 2020 application was not dismissed but was withdrawn and the respondent ’s
answering affidavit admits this. The respondent's averments in this regard are without
substance and are contradictory.
[20] …. Regardless of the reasons for the dismiss al of the 2014 eviction application by the
Magistrate's Court, it is common cause that to date the first respondent continued with
occupation of the said property. Each continued occupation amounts to a separate cause
of action upon which the applicant may institute eviction proceedings and accordingly,
there is not merit to defence of res judicata.” (emphasis added)
[18] In the present application, the first respondent has continued to occupy the
property after the previous dismissal in the Magistrates’ Court . Consequently,
the plea of res judicata is legally unsustainable on both grounds . The point in
limine is consequently dismissed.
limine is consequently dismissed.
The Merits: Ownership and the Right to Occupy
[19] The applicants have attached proof of their registered ownership of the
property to the founding papers in this application by providing a Windeed
search assert ing their status as registered owners. As registered owners, they
possess a prima facie right to possession and the authority to institute eviction
proceedings as the persons in charge.
[20] The first respondent opposes the application on the ground that he has a
right to occupy the property . He alludes in his papers and persisted in his oral
submissions with reference to a “process of transfer ” or an “unsigned lease
agreement” that allegedly entitled him to ownership.
[21] The defences raised by the first respondent to the ownership of the property
by the applicants are legally and factually insufficient . Firstly, the Alienation of
Land Act 68 of 1981 requires that the sale of immovable property be reduced to
writing and signed by both parties to be valid. This defence raises a fundamental
point of law regarding the alienation of land in South Africa. Section 2(1) of the
Alienation of Land Act 68 of 1981 provides that:
‘No alienation of land after the commencement of this section shall... be of any force or effect
unless it is contained in a deed of alienation signed by the parties thereto or by their age nts
acting on their written authority.’
[22] The first respondent has failed to produce a valid Deed of Alienation or a
Title Deed registered in his name. He in fact concedes that no such written deed
of alienation/transfer was finalized or signed by the second applicant (who is a
co-owner). The first respondent instead contends that he “became the owner ”
through a business agreement involving “Prothane” and that the property was to
be transferred to him as part of his “sweat equity.” He admits that the transfer
has not yet taken place, stating they were “in the process of transferring
ownership.”
A verbal agreement, or a “business understanding ” regarding sweat equity, is
insufficient in law to transfer ownership of immovable property.
[23] Secondly, applying the standard articulated in Zulu N.O. v Mbazo, the first
respondent’s averments regarding these alleged agreements are “bold and
unexplained.” He has failed to provide specific details, including dates, amounts
paid, or concrete documentary proof to substantiate his claim of a right to
ownership. As was held in Zulu, such vague allegations do not rise to the
standard of bona fide , genuine, and credible facts necessary to defeat the
owner’s vindicatory right or prevent the relief from being granted.
[24] Without a registered title deed or a valid written deed of s ale, the first
respondent cannot claim ownership. His claim is, at best, a personal right
against the applicants for specific performance (which has prescribed or is the
subject of a separate contractual dispute), but it does not constitute a real right
to the property that trumps the registered owner’s vindicatory right.
[25] The Applicants formally terminated any purported right of occupation via
the letter dated 14 August 2024. Therefore, the first respondent is an unlawful
occupier as defined in the PIE Act.
[26] Accordingly, I find that the first respondent has no valid right in law to
occupy the property and is an “unlawful occupier” as defined in the PIE Act.
Just and Equitable Inquiry
[27] Having found the occupation to be unlawful, I must determine whether it is
just and equitable to grant an eviction order, considering the factors in section
4(7) of the PIE Act.
[28] The first respondent has occupied the property for a significant period.
However, private owners cannot be expected to provide free housing
indefinitely to an unlawful occupier. The first respondent has proffered no
reasons in the papers why either himself or those o ccupying the property
through him should not be evicted.
[29] In determining what is just and equitable, a court must consider the specific
circumstances of the occupier. In Zulu N.O. v Mbazo , the court emphasized the
trite approach in our law, that w hile the judiciary must not adopt a passive
approach, it is the duty of the parties , especially when legally represented , to
place relevant information before the court regarding the rights and needs of the
elderly, children, disabled persons, and financial means.
[30] In this matter, the first respondent is legally represented yet has chosen not
to place any relevant facts before this Court , in the papers, to suggest that he or
his family are destitute, or that the second respondent cannot provide emergency
alternative accommodation. In the absence of such information and following
the approach in Occupiers of Erven 87 and 88 Berea v De wet NO and
another10, this Court is constrained to grant the eviction order based on the
available facts.
10 Occupiers of Erven 87 and 88 Berea v De wet NO and another (2017) ZACC 18; 2017 (8) BCLR
1015 (CC), 2017 (5) SA 346 (CC).
[31] I am satisfied that the procedural requirements of the PIE Act have been
met. It is just and equitable that the first respondent be ordered to vacate the
property. A reasonable period must be afforded to him to do so.
Costs
[32] There is no reason why costs should not follow the result. The applicants in
my view, although being dominus litis in choosing the forum to litigate, could,
as they have in the past, have litigated this application in the Magistrates’ Court.
A cost order commensurate with th at in the Magistrates’ Court would be
equitable in my view.
Order
[33] In the result, I make the following order:
1. The point in limine based on res judicata is dismissed.
2. The application for the eviction of the First Respondent and all persons
occupying the property through or under him, situated at 3 [...] P[...]
Street, La Hoff, Klerksdorp, North West Province, is granted.
3. The First Respondent and all those occupying through him are ordered to
vacate the property on or before 30 April 2026.
4. Should the First Respondent fail to vacate the property by the date
mentioned in paragraph 3 above, the Sheriff of the High Court (or his/her
deputy) is authorized and directed to evict the First Respondent and all
persons occupying the property through him from 04 May 2026.
5. The First Respondent is ordered to pay the costs of this application on the
applicable Magistrates’ Court Scale.
________________________
A H PETERSEN
ACTING DEPUTY JUDGE PRESIDENT OF THE HIGH COURT,
NORTH WEST DIVISION, MAHIKENG
Appearances
For the Applicants: Adv B Riley
Instructed by: SSLR Incorporated
c/o Van Rooyen, Tlhapi Wessels Inc
Mahikeng
For the First Respondent: Mr D Van Rensburg (No right of appearance
in the High Court)
Respondent appearing in person at the hearing
of the application
Instructed by: Danie Van Rensburg Attorneys