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IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
CASE NO: 027499/2024
IN THE MATTER BETWEEN:
MUZIKAYIFANI KHEHLA JOSEPH NKOSI Plaintiff
And
OCCUPANTS OF ERF 3[…] OAKDENE EXT 1 /
THULISILE GLORENCE ZULU First Respondent
UNLAWFUL OCCUPANTS OF ERF 3[…] OAKDENE EXT 1 Second Respondent
Heard: 29 April 2025
Delivered: This Judgment was handed down electronically by circulation to the parties’
legal representatives by email and by uploading to Court-Online and release to SAFLII.
The date and time for hand down is deemed to be 10:00 am on 04 February 2026.
JUDGMENT
GF JOUBERT AJ
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: NO
04 February 2026
DATE SIGNATURE
1. INTRODUCTION
1.1. This matter concerns an application by the Plaintiff, Muzikayifani Khehla Joseph
Nkosi, seeking an interdict against the First Respondent, Thulisile Glorence Zulu,
and where relevant, the Second Respondent, to prevent the Respondents from
obstructing access to a property for the purposes of marketing the property for sale.
1.2. The Plaintiff asserts that the Respondents are unlawfully preventing estate agents and
potential purchasers from accessing the property, which he intends to sell.
1.3. The nature of the relief sought is:
1.3.1. An order interdicting the Respondents from interfering with the marketing, for
selling purposes, of the property situated at 6[ …] E[…] Avenue, O […]
Extension 1, Johannesburg, Gauteng Province (“the property”).
1.3.2. An order interdicting the Respondents from refusing access and marketing of
the property by estate agents, other mandated representatives, and or prospective
purchasers.
1.3.3. An order interdicting the Respondents from intimidating unlawful occupiers
residing at the property at the Plaintiff's behest.
1.3.4. It is common cause that the Plaintiff is the registered owner of the property.
Furthermore, the First Respondent does not dispute the Plaintiff’s submission
that even though the Plaintiff agreed that the First Respondent may stay in the
property, the Plaintiff bought the property for purposes of marketing and selling
the property at a later stage and subsequently decided to market the property for
sale by inviting prospective purchasers to view the property, however, that the
Respondents repeatedly refused estate agents and or other mandated
representatives, and prospective purchasers, to access and view the property.
2. BACKGROUND
2.1. The Plaintiff and Respondent's relationship began in 2004 and involved the payment
of lobola and other customary rites, which the Respondent claims established a
customary marriage, in terms of the Recognition of Customary Marriages Act, 120 of
1998. The Plaintiff, however, characterizes the relationship as an affair, arguing that
it cannot be a valid marriage due to his existing civil marriage being concluded prior
to the alleged customary marriage with the First Respondent. The Parties agrees that
the property in question was purchased with the involvement of the Respondent, who
signed the offer to purchase, allegedly under a power of attorney from the Plaintiff.
The Plaintiff denies authorizing this and asserts that the property was intended solely
as an investment.
2.2. The Respondent has been residing in the property since its purchase and claims it as
her marital home, asserting a 50% share in accordance with the natural consequences
of a customary marriage in community of property.
3. ISSUES
3.1. The Plaintiff seeks to sell the property, but the Respondents are preventing access to
estate agents and potential purchasers for purposes of marketing the property, citing
the First Respondent’s marital rights and claims against the joint estate, as the reason
for her refusal and obstruction.
3.2. The Plaintiff contends that the Respondents have no right in law to obstruct the
marketing of the property by allowing estate agents and or other mandated
representatives, and prospective purchasers, to access and view the property.
3.3. The clear question before the court is whether the Respondents have any right in law
to obstruct the marketing of the property and refuse access to estate agents, other
mandated representatives, and prospective purchasers of the property, in the instance
where the Respondents are not the registered title holder. If no defendable right can,
rationally, justifiably, and reasonably be evidenced, should the relief pursued by the
Plaintiff be granted?
3.4. The Plaintiff, as the only, lawful registered owner of the property, argued that he is
merely seeking an interdict to access the premises for purposes of allowing access to
the estate agents and the interested purchasers, and that at no time the Plaintiff was
seeking an order that the Respondents must vacate the property.
3.5. Furthermore, the Plaintiff argued that he agreed that the Respondents are allowed to
continue to occupy the Property, however, without interfering with the prospective
marketing of the property, and specifically not to refuse or otherwise restrict, in any
manner, access to estate agents, their representatives and prospective purchasers of
the property.
3.6. Notwithstanding the offer of the Plaintiff that the Respondents may continue to stay
on the property, the Respondents repeatedly refused and obstructed the Plaintiff to
provide access to the estate agents, other mandated representatives, and or
prospective purchasers.
3.7. Consequently, the Plaintiff argues that his limited real rights are unlawfully
prejudiced as a direct result of the Respondents actions.
4. ANALYSIS
4.1. The Plaintiff and First Respondent have a long- standing relationship, which the
Plaintiff characterizes as a failed affair, whilst the First Respondent claims it
constitutes a valid customary marriage under the Recognition of Customary
Marriages Act, 120 of 1998.
4.2. The property in question was acquired during their customary marriage, and the First
Respondent has been residing there for a considerable time. The Plaintiff intent to
market and sell the property, asserting sole ownership and denying any legal marital
rights of the First Respondent over the property. The First Respondent, however,
claims occupancy rights based on the purported customary marriage, which she
argues entitles her to a share of the property and a say in the marketing and sale of
the property.
4.3. The relief pursued by the Plaintiff is an interdict limited to compelling the First
Respondent, and where relevant, the Second Respondent, to refrain from any
interference in respect of the marketing of the property and to furthermore refrain
from any refusal of access to the property by estate agents, other mandated
representatives, and or prospective purchasers.
4.4. The relief sought by the Plaintiff does not include an order to interdict the First
Respondent from continuing to occupy and use the property or any other eviction
order. In fact the relief as required in the papers clearly recognise the continues
occupation and use of the property by the Respondents and does not pursue any other
order to limit any lawful existing rights or benefits that would have accrued, even if
the parties were to be found to be in a lawful customary marriage.
4.5. The Plaintiff furthermore contents that the mere fact that a person holds a right to
occupy a property, be it formal or implied, which grants the person a lawful servitude
right, does not confer a right in law that such a person, is equally a limited real right
holder, in the same manner as the registered owner of the property.
4.6. Counsel for the First Respondent argued that the mere fact that the First Respondent
entered into a customary marriage with the Plaintiff, confers onto her a right to
interfere with the marketing of the property and the refusal of access to estate agents,
other mandated representatives, and or prospective purchasers.
4.7. The First Respondent further contended that should the purported customary marriage
be found to be valid, it allows for the matrimonial property regime applicable to a
customary marriage to be to the benefit of both the Plaintiff and the First Respondent,
since it should be deemed as a marriage in community of property.
4.8. The principal argument advanced by the First Respondent is that the Plaintiff may not
market or cannot alienate immovable property without the consent of the other
spouse.
4.9. The First Respondent further contents that in the instance that the Plaintiff is allowed
to market and sell the property without her consent, it will result in a situation where
the Plaintiff permits arbitrary deprivation of an immovable asset, and that this in turn
will result in an asset which had formed part of the joint estate under the customary
marriage, being recognised as the sole property of the spouse under whose name the
asset had been registered, and the other spouse would no longer have a claim to a
half-share of the asset. The First Respondent contents that this scenario is akin to
unfair discrimination against the financially weaker spouse in the customary
marriage.
4.10. It is this court’s view that the First Respondent’s contention, if found to be a valid
argument may be premature, since such argument may only hold up in the instance
where the merits of the validity of the customary marriage, and associated rights of
the First Respondent, were argued based on merits pertaining to the actual, imminent,
sale conclusion of the property, post the marketing of the Property.
4.11. However, in this instance, the merits before the court are limited to the facts
pertaining to the marketing of and access to the property, and therefore this court will
only consider the facts argued in the papers placed before the court.
4.12. In this regard, the First Respondent’s Heads of Argument does not provide a
compelling, logical, legal basis for this court to believe that the Plaintiff’s claims are
in any manner countered with factually correct evidence, including the citation of
relevant statutes and case law and or alternative legal interpretations, which supports
the First Respondents’ arguments.
4.13. In contrast, the Plaintiff’s Heads of Argument strongly relied on a wellstructured
4.13. In contrast, the Plaintiff’s Heads of Argument strongly relied on a wellstructured
and rational approach, demonstrating a prima facie case for the relief sought. The
Plaintiff approach the court with an application to interdict the Respondents from
refusing access to the property for purposes of the marketing of the property, and
nothing more.
5. ORDER
5.1. The court finds that the relief sought as set out by the Plaintiff, is rational, reasonable
and justifiable and sufficiently demonstrates that the First Respondent’s, and where
relevant, The Second Respondents’ actions to prevent the Plaintiff, as the registered
owner of the property, from unfettered marketing and showing the property by estate
agents, and or other mandated representatives, and or prospective purchasers,
irrational and unlawful.
5.2. The First and Second Respondents be directed to make the property situated at 6[ …]
E[…] Avenue, O[…] Extension 1, Johannesburg, accessible to Estate Agents and or
any representatives to market, access and showcase the property, and or any matter
incidental to such marketing, access and showcasing the property, on dates to be
provided on 48-hour notice.
5.3. The First and Second Respondents are interdicted from intimidating and obstructing
any Estate Agents and or any representatives performing their duties to market and
showcase the property, and or any matter incidental to such marketing, access and
showcasing the property.
5.4. The Sheriff of the court is hereby authorised to take all necessary steps to give effect
to this order, including but not limited to, and enlisting the services of the South
African police service to ensure the execution of this order.
5.5. In considering the determination of costs, the general principle is that costs follow
success. No proper case was made out for costs to be granted on a punitive scale.
However, I am mindful of the Respondents financial constraints. The Parties are
ordered to each pay their own costs of this application, on a party and party scale,
including the costs consequent upon the employment of counsel.
_______________________
GF Joubert
Acting Judge of the High Court
Heard: 29 April 2025
Judgment: 04 February 2026
Appearances:
For Plaintiff: Adv Gaju
Instructed by: MPA Attorneys
For Respondent: Adv Keka
Instructed by: Legal Aid South Africa