1
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 DIVISION, JOHANNESBURG
Case Number: 24530/2019
In the matter between:
THANDI SIBEKO FIRST APPLICANT
RICMOND SIBEKO SECOND APPLICANT
THAMI MBELE THIRD APPLICANT
NELISIWE DAPHNEY SIBEKO FOURTH APPLICANT
and
TEBOBO OTTO MODISE FIRST RESPONDENT
DIPELOANA PAULINA SIBEKO SECOND RESPONDENT
DIPELOANA PAULINA SIBEKO
(in her capacity as the Representative of the Master
In the Estate Late Bheki Simon Sibeko) THIRD RESPONDENT
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: NO
20 February 2026
_______________ ___________________
DATE SIGNATURE
2
THE REGISTRAR OF DEEDS FOURTH RESPONDENT
THE MASTER OF THE HIGH COURT FIFTH RESPONDENT
FIRST RAND BANK LTD SIXTH RESPONDENT
JUDGMENT
TWALA J
Introduction
[1] This is an application by the applicants for the cancellation of two deeds of transfer
pertaining to an immovable property, namely Erf 1 […] , Emdeni Township,
Johannesburg ("the property"). The applicants seek to set aside the transfer of the
property to the late Bheki Simon Sibeko and the second respondent, which
property was subsequently transferred to the first respondent by the second
respondent. The applicants claim that they are the lawful heirs in the estate of the
late Nomasonto Carolina Sibeko ("the deceased"), who was the original owner of
the property, who died intestate on 31 December 2009.
[2] The application is vehemently opposed by the first respondent who has filed a
comprehensive answering affidavit. It is worth noting that the second to the sixth
respondents are not participating in these proceedings – hence going forward in
this judgment I shall refer to the parties as the applicants and the respondent.
Factual background
3
[3] It is common cause that after the death of the Late Carolina Sibeko who was the
owner of the property, her son, the Late Bheki Simon Sibeko was appointed by the
Master of the High Court as the estate representative and the sole heir in her estate.
The Late Bheki Sibeko then took transfer of the property into his name and that of
his spouse who is the second respondent in this case. When the late Bheki Sibeko
died on 16 December 2015, his spouse sold the property to the first respondent for
the sum of R450 000 which amount was secured by a bond of R396 00 0 passed by
the sixth respondent over the property.
Legal Principles
[4] It is trite that the rei vindicatio prin ciple is a cornerstone of our property law. It
allows the rightful owner of property to reclaim his or her property from anyone
who possesses it unlawfully, regardless of whether there is a con tractual
relationship between them. Put in another way, the rei vindicatio principle entitles
only the owner of the property to vindicate his or her property wherever it is.
Ownership is the only requirement which the claimant must prove and not
contractual rights.
Discussion
[5] The applicants contend that they are the intestate heirs of the Late Nomasonto
Sibeko who is their grandmother since they are the surviving issues of her daughter
who predeceased her. The Late Bheki Sibeko is the ir uncle who misrepresented to
the Master that he is the only surviving he ir to the estate of the Late Nomasonto
Sibeko – thus the Late Bheki Sibeko obtained transfer and ownership of the
property through fraudulent means. Since the first transfer was obtained through
unlawful means which is fraud, then no transfer that follows would be lawful for
on one can transfer more rights than what they have.
4
[6] I am unable to agree with the applicants. Firstly, the applicants approach this Court
relying on the remedy of rei vindicatio. Rei vindicatio is only available to the
owner of a thing which he or she can vindicate wherever it is for he or she is the
owner. Ownership is the only requirement to sustain an action under the rei
vindicatio principle or remedy. The applicants allege that they are intestate heirs,
but they were n ever and are still not the owners of the property and therefore
cannot avail themselves of the rei vindicatio remedy. On this basis alone the
applicants’ case falls to be dismissed.
[7] In Prinsloo v Venter and Others
1 the court stated the following with regard to the
principle of rei vindication:
“It is inherent in th e nature of ownership that possession of the res should normally with
the owner and it follows that no other person may withhold it from the owner unless he is
vested with some rights enforceable against the owner. The owner in instituting a res
vindicatio need therefore do no more than allege and prove that he is the owner and that
the defendant is holding the res. The onus being on the defendant to allege and establish
any right to continue to hold against the owner.”2
[8] It is apparent that where an application brings a rei vindicatio or vindicatory
action, he or she needs to prove that he or she is the owner of the property and that
the property is in the possession of the first respondent. It does not matter whether
the possession is bona fide or not . However, in the present case , the respondent
does not possess the property, but he is the owner by virtue of the title deed issued
to him by a lawful authority, the Registrar of Deeds . There is no other better and
authentic proof of ownership of immovable property other than the title deed
issued by the Registrar of Deeds.
[9] I am of the respectful view therefore that the applicants fall short on this point as
[9] I am of the respectful view therefore that the applicants fall short on this point as
they claim to be the lawful heirs to a portion of the property and not that they are
the own the property. The ineluctable conclusion is therefore that the applicants
1 80848/2014, 10 December 2014 [2015] ZAGPPHC, 10 December 2015
2 Id para 53
5
have failed to establish that they are the owners of the property and therefore are
not entitled to the remedy of the rei vindicatio action.
[10] In the premises, I make the following order:
1. The application is dismissed;
2. The applicants are liable, jointly and severally, the one paying the other to
be absolved, for the costs of the first respondent on the party and party scale
B.
_________________________
TWALA M L
JUDGE OF THE HIGH COURT,
SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
Date of Hearing: 16 February 2026
Date of Judgment: 20 February 2026
Appearances
For the Applicants: Advocate J Shivambo
Instructed by: P Shikwambana Inc
Tel: 011 040 3939
Email: cedric@ps-attorneys.co.za
6
For the First Respondent: Advocate Meintjes
Instructed by: Retief & SJ Meintjes Attorneys
Tel: 082 453 9231
Email: sj@sjmlaw.co.za
This judgment and order was prepared and authored by the Judge whose name is reflected
and is handed down electronically by circulation to the parties/their legal representatives
by email and by uploading it to the electronic file of this matter on CaseLines. The date of
the order is deemed to be the 20 February 2026.