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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO: 2022-33975
In the matter between:
GERTRUIDA MARIA VAN WYK Applicant
and
JAMES PETER VAN NIEKERK First Respondent
JOHANNES GEORGE MARTIN Second Respondent
REGISTRAR OF DEEDS, PRETORIA Third Respondent
(1) REPORTABLE:
(2) OF INTEREST TO OTHER JUDGES:
(3) REVISED:
10/03/2026 _________________________
DATE SIGNATURE
________________________________________________________________
JUDGMENT
THIS JUDGMENT IS HANDED DOWN REMOTELY AND WILL BE
CIRCULATED TO THE PARTIES ELECTRONICALLY.
________________________________________________________________
WELGEMOED, AJ
[1] This is an opposed application that was set down for hearing on the
opposed motion roll for 24 November 2025 and heard on 2 7 November
2025, wherein I reserved judgment . T he applicant sought the following
relief:
“1. That the first and second respondents be directed to deliver the
originally signed consent to cancel the caveat, 1 -19480/20100,
recorded against the property known as PORTION 843 (PORTION
OF PORTION 64) OF THE FARM KAMEELDRIFT 298,
REGISTRATION DIVISION JR, PROVINCE OF GAUTENG, held
under Deed of Transfer T[...] to the applicant's attorneys within 5
days from this order.
2. That the first respondent be directed to sign all such documents and
do all things necessary required to give effect to the transfer of
PORTION 843 (PORTION OF PORTION 64) OF THE FARM
KAMEELDRIFT 298, REGISTRATION DIVISION JR, PROVINCE OF
GAUTENG, held under Deed of Transfer T[...], failing which the
sheriff of this Court is authorised to sign all such documents and do
all things necessary required to effect transfer and registration of the
property in the applicant's name.
3. That the first and second respondents be ordered to pay the costs
associated with the removal of the caveat, I -19480/2010C, recorded
against the property known as PORTION 843 (PORTION OF
PORTION 64) OF THE FARM KAMEELDRIFT 298, REGISTRATION
DIVISION JR, PROVINCE OF GAUTENG, held under Deed of
Transfer T[...].
4. Alternatively to prayers 1 and 3, that the caveat, under reference
number: I- 19480/2010C and recorded against the property known as
PORTION 843 (PORTION OF PORTION 64) OF THE FARM
KAMEELDRIFT 298, REGISTRATION DIVISION JR, PROVINCE OF
GAUTENG, held under Deed of Transfer T[...], be set aside and that
the third respondent is ordered to remove the caveat recorded
against the property.
5. That the first and second respondents be ordered to pay the costs of
this application on an attorney and client scale.”
[2] The first and second respondent s (“respondents’ ”) oppose the relief
sought and, in turn, advance a counter application in which they seek the
following relief:
“1. The Applicant is ordered to vacate the following property after
expiry of a period of 3 months following service of the Notice of
Counter Application and supporting Affidavit on the Applicant:
Portion 843 (Portion of Portion 64) of the Farm Kameelddf 298
(Registration Division JR, Gauteng Province)
('the Property')
2. The Applicant shall vacate the Property:
a. by handing over the keys granting access to the Property to
the First Respondent's attorney and by providing the First
Respondent's attorney with such access code(s) as may be
necessary; and thereafter
b. to enter the Property again only with the prior written
permission of the First Respondent.
3. Should the Applicant fail or refuse to vacate the property in the
manner set out in paragraph 2 above, the Sheriff of the Honourable
Court is authorized and ordered (at the costs of the Applicant) to
replace the locks granting access to the Property.
4. It is declared that the principal debt secured by Mortgage Bond (No
B[...]) dated 21 July 2006 over the Property ('the Mortgage Bond',
had lapsed.
5. The Third Respondent is authorized and ordered to cancel the
Mortgage Bond No. B[...] referred to in the preceding paragraph.
6. Costs of the Counter Application.”
BACKGROUND:
[3] The facts of the application are largely common cause between the parties
and are set out hereunder.
[4] In October 2005, the applicant sold the property known as Portion 843
(Portion of Portion 64) of the Farm Kameeldrift 298, Registration Division
JR, Province of Gauteng, ("the property") to the first and second
respondents as co -purchasers in terms of a written sale agreement. The
property is zoned as agricultural land with consent use for a guesthouse
and tea garden.
[5] The property was subsequently transferred and registered in the name of
the first respondent in 2005 after the parties signed an addendum to
remove the second respond ent as a contracting party. A mortgage bond
was also registered over the property as security for payment in favour of
the applicant.
[6] The first respondent defaulted on his payment obligations and the parties
cancelled the sale agreement by mutual writ ten agreement, dated 21 April
2011 (“the 2011 agreement”) . In terms of the 2011 agreement, the
applicant became entitled to the re -registration of the property into her
name forthwith. The 2011 agreement further records that an amount of R
1 851 693.77 was due an d owing to the applicant as at 28 February 2011
by the first respondent in respect of the original purchase price , which
amount the first respondent was unable to repay. Conseqeuntly, the 2011
agreement to re-register the property back into the name of the applicant .
The Respondents also signed a power of attorney at this stage to effect
transfer of the property back into the applicant’s name.
[7] In paragraph 2.3 of the 2011 agreement, the first respondent undertook to
sign all documents necessary to give effect to transfer and registration of
the property back into the applicant’s name . The first respondent is
refusing to comply with his obligations under the memorandum of
agreement wherefore the applicant is se eking the necessary relief to
compel compliance with this term.
[8] The first and second respondents concluded an antenuptial contract (the
"anc") and entered into a civil union during or about 2008, out of
community of property with the exclusion of the accrual. The applicant was
not aware of this fact. In terms of the anc, the first respondent donated an
undivided half share in the property to the second respondent.
Subsequent to the first and second respondents ’ civil union and the
registration of their anc, the first and second respondents had a caveat
recorded against the property in favour of the second respondent, which
intended to give effect to the donation of the undivided half share in the
property as it was recorded in the f irst and second respondents' anc. The
caveat was recorded under reference number: I-19450/2010C.
[9] During August 2021 , it came to the attention of the applicant that the
caveat was recorded against the said property when the applicant’s
attorneys attended to the re-registration and transfer of the property in to
the applicant’s name.
[10] On 20 August 2021 the applicant’s attorney of record requested the first
and second respondents to undersign the consent to cancellation of the
caveat.
[11] Shortly thereafter the first and second respondent signed the consent to
cancellation of caveat and emailed a copy thereof to the applicant’s
attorneys’ offices, without returning the original copy thereof , it appears to
have been signed in August 2021.
[12] The r espondents failed to provide the original signed document to the
applicant. Instead, on 4 November 2021, the applicant’s attorney received
a letter from the respondent’s attorney stating that the respondents had
withdrawn and cancelled the signed consent t o cancellation documents.
The reason provided in the answering affidavit for signing the consent is
because the respondents erroneously accepted that the caveat was
invalid.
ISSUES TO BE DECIDED:
[13] The parties contend in the joint practice note that the following issues
need to be decided:
Applicant aver that :-
13.1. The first respondent purchased Plot 64 from the applicant and
undertook to pay the balance of the purchase price by means of
monthly instalments.
13.2. The property was regi stered in the name of the first respondent,
with a mortgage bond securing the debt in favour of the
applicant.
13.3 The first respondent defaulted on making the agreed payments,
and the parties entered into a further agreement in 2011, noting
the first respondent's default and indebtedness.
13.4. The parties further agreed in terms of the 2011 agreement that
the first respondent would transfer the property to the applicant in
light of his default and indebtedness.
13.5. The first respondent now contend s that the applicant's claim for
the transfer of the property per the 2011 agreement constitutes
an independent debt which has become prescribed, entitling the
first respondent to an order evicting the applicant from the
property.
Respondents aver that :-
13.6 The applicant became entitled to registration of Plot 64 into her
name forthwith in terms of the agreement concluded on 21 April
2011.
13.7 The applicant now seeks specific performance in terms of the
agreement more than a decade later and the first respondent
contends that the applicant's right to have the property
transferred into her name, had become prescribed.
13.8 The first respondent counterclaimed for the eviction of the
Applicant from Plot 64 and because the principal debt was
extinguished with the conclusion of the 2011 agreement,
cancellation of a Mortgage Bond registered in favour of the
applicant.
13.9 The Applicant opposes the Counter Application on the grounds
that it was a tacit term of the Agreement that the Respondents
would not in future rely on prescription. In the alternative , the
Applicant contends that the running of prescription was not
completed, alternatively was interrupted alternatively is not a
“debt” as defined in the Prescription Act, Act 68 of 1969 (“the
Prescription Act”).
[14] I will deal with the issues raised hereunder.
THE PRESCRIPTION ISSUE:
[15] It is clear fr om the above background that the applicant and respondents
view the 2011 agreement as valid and binding . I agree with this
contention.
[16] From 2011 to date, the applicant has been in occupation of the property
and the respondents showed no interest in the property. In fact, the parties
acted at all relevant times in accordance with the express provisions of the
2011 agreement and indicated to the outside world that the applicant is
the owner of the property.
[17] In terms of this agreement, the first respondent h ad the intention to re -
transfer the property to the applicant and was in law entitled to effect
transfer of the property back to the applicant, as the first respondent was
the owner of the property at that stage.
[18] The respondents contend however that the applicant's claim for the
transfer of the property into her name, constitutes a “debt” as
contemplated in Section 10(1) of the Prescription Act. The debt arose on
21 April 2011 which is more than 3 years prior to the date when the
application was brought and, in the premises, the applicant's claim for
transfer of the property into her name had become prescribed by virtue of
the provisions of Section 11(d) of the Prescription Act in 2014.
[19] Under circumstances where the applicant's claim against the first
respondent had become prescribed, she also no longer has locus standi
to seek cancellation of the caveat registered against the property.
[20] The applicant argu es that in terms of the 2011 agreement, the
respondents relinquished their rights to the property. In essence, there is a
tacit or implied term to the effect that, the applicant would not raise
prescription as a defence to the re-registration of the property.
[21] Further, if the relief sought is indeed a “debt” as defined in the Prescription
Act, that such a debt is still secured by a mortgage bond, which is
registered over the property for any claim of any nature . Wherefore, the
prescriptive period is 30 years.
[22] There is a further argument in terms of whi ch the applicant contends that
the “debt” was only due upon demand. After demand the respondent
signed the document and cannot withdraw such consent.
[23] Starting with the last point. It is evident that the 2011 agreement expressly
states that the first respondent is obliged to, on demand, sign all the
necessary documents to effect transfer. Clause 2.3 of the 2011 reads:
“2.3 Van Nlekerk ondemeem om op aanvraag alle nodige dokumentasie te
onderteken by voormelde oordragprokureurs ten einde oordrag van die
onroerends eiendom in die naam van Van Wyk ts bewerkstellig.”
[24] In this respect I am of the view , the debt only became due in 2021, when
demand was made and did not prescribe in the circumstances.
[25] Secondly, the objective facts of this matter show that there is merit in the
contention of the applicant that the respondent tacitly agreed to the
liability, namely the re -registration of the property in the applicant’s name
for the following reasons, even after 2014.
[26] Section 14 of the Prescription Act, provides as follows:
“14 Interruption of prescription by acknowledgement of liability
(1) The running of prescription shall be interrupted by an express or
tacit acknowledgement of liability by the debtor.
(2) If the running of prescription is interrupted as contemplated in
subsection (1), prescription shall commence to run afresh from
the day on which the interruption takes place or, if at the time of
the interruption or at any time thereafter the parties postpone the
due date of the debt from the date upon which the debt again
becomes due.”
[27] The relevant test in determining whether there was a tacit
acknowledgment of liability as set out in Investec Bank Ltd v Erf 436
Elandspoort (Pty) Lt d And Others 2021 (1) SA 28 (SCA) , where the
SCA indicated the following:
“[29] Cape Town Municipality v Allie NO concerned whether the Cape Town
Municipality had acknowledged liability and so had interrupted
prescription in terms of s 14 of the Act in relation to Ms Allie's claim. In
dealing with s 14(1) of the Act, Marais AJ identified what he described as
a number of self-evident aspects of the section. They were:
'Firstly, I do not think the acknowledgment of liability need amount to a
fresh undertaking to discharge the debt. ''I admit I owe you R100'' is
manifestly an acknowledgment of a liability to pay R100 but it is not a
fresh or new undertaking to pay it…
Secondly, full weight must be given to the Legislature's use of the word
''tacit'' in s 14(1) of the Act. In other words, one must have regard not only
to the debtor's words, but also to his conduct , in one's quest for an
acknowledgment of liability. That, in turn, opens the door to various
possibilities. One may have a case in which the act of the debtor which is
said to be an acknowledgment of liability, is plain and unambiguous. His
prior conduct would then be academic. On the other hand, one may have
a case where the particular act or conduct which is said to be an
acknowledgment of l iability is not as plain and unambiguous. In that
event, I see no reason why it should be regarded in vacuo and without
taking into account the conduct of the debtor which preceded it. If the
preceding conduct throws light upon the interpretation which sho uld be
accorded to the later act or conduct which is said to be an
acknowledgment of liability, it would be wrong to insist upon the later act
or conduct being viewed in isolation. In the end, of course, one must also
be able to say when the acknowledgment of liability was made, for
otherwise it would not be possible to say from what day prescription
commenced to run afresh…
Thirdly, the test is objective. What did the debtor's conduct convey
outwardly? I think that this must be so because the concept of a tacit
acknowledgment of liability is irreconcilable with the debtor being
permitted to negate or nullify the impression which his outward conduct
conveyed, by claiming ex post facto to have had a subjective intent which
is at odds with his outward conduct.
…
Fourthly, while silence or mere passivity on the part of the debtor
will not ordinarily amount to an acknowledgment of liability, this will
not always be so. If the circumstances create a duty to speak and
the debtor remains silent, I think that a tacit acknowledgment of
liability may rightly be said to arise…”
[28] The actions of the first respondent aforesaid, in context, objectively
amounts to a continuous express (alternatively a tacit) acknowledgement
of the existing liability on the part of the first respondent to sign all the
documents necessary in order to re -register the property in the applicant’s
name. This conduct only seized in 2021, when the first respondent refused
to provide the original cancellation document for the caveat.
[29] In addition to the above , the Deeds Registry system is a negative system
and registration does not guarantee title; and if ownership did not legally
pass, the register can be corrected to reflect the true owner. See Nedbank
Limited v Mendelow NO (686/12) [2013] ZASCA 98 at para 12.
[30] There is further much to be said that the relief that the applicant is seeking
is not a “debt” as defined in the Prescription Act. In this respect, the
Constitutional Court in Makate v Vodacom (Pty) Ltd (CCT52/15) [2016]
ZACC 13 held that the term “debt” as used in the Prescription Act, in light
of our Constitution should be given a narrow meaning:
“[91] In Road Accident Fund, [62] this Court, having expressed reservations on
whether an obligation may constitute a debt contemplated in the Prescription Act,
stated that the failure to meet a prescription deadline set in terms of the Act,
denies a litigant access to a court. What this means is that if the Act finds
application in a particular case, it must be construed in accordance with section
39(2). On this approach an interpretation of debt which must be preferred, is the
one that is least intrusive on the right of access to courts
[92] However, in present circumstances it is not necessary to determine the exact
meaning of “debt” as envisaged in section 10. This is because the claim we are
concerned with falls beyond the scope of the word as determined in cases
like Escom which held that a debt is an obligation to pay money, deliver goods, or
render services. Here the applicant did not ask to enforce any of these
obligations. Instead, he requested an order forcing Vodacom to commence
negotiations with him for determining compensation for the profitable use of his
idea.”
[31] Applying the narrow definition of the word “debt” this court would be
inclined to find that the relief sought by the applicant, namely the signing of
a document by the first respondent is not a debt, under the present
circumstances. The failure to sign the necessary documents is rather a
case of a continuing wrong, although it arises from a single act in the past,
where there can be no question of prescription. As was stated in Makate v
Vodacom (Pty) Ltd (CCT52/15) [2016] ZACC 13 at para 192:
“[192] In the case of a continuing wrong there can be no question of prescription
even though the wrong arises from a single act long in the past. The reason,
which may appear somewhat artificial, but which is well established, is said to be
that while the original wrongful act may have occurred at a past time the wrong
itself continues for so long as it is not abated.”
[32] In light of the above findings, it is not necessary to finally determine this
point.
[33] Accordingly, the applicant’s claim ought to succeed, and the respondents
counter application ought to fail. Cost s to follow the event, inclusive of
costs on scale C as both parties employed senior counsel and the matter,
in my view , was sufficiently complex enough to justi fy the employment of
senior counsel.
ORDER:
[34] Consequently, I make the following order:
1. The first and second respondents be directed to deliver the originally
signed consent to cancel the caveat, 1 -19480/20100, recorded
against the property known as PORTION 843 (PORTION OF
PORTION 64) OF THE FARM KAMEELDRIFT 298, REGISTRATION
DIVISION JR, PROV INCE OF GAUTENG, held under Deed of
Transfer T[...] to the applicant's attorneys within 5 days from this
order.
2. The first respondent be directed to sign all such documents and do
all things necessary required to give effect to the transfer of
PORTION 843 (PORTION OF PORTION 64) OF THE FARM
KAMEELDRIFT 298, REGISTRATION DIVISION JR, PROVINCE OF
GAUTENG, held under Deed of Transfer T[...], failing which the
sheriff of this Court is authorised to sign all such documents and do
all things necessafy required to effect transfer and registration of the
property in the applicant's name.
3. The first and second respondents be ordered to pay the costs
associated with the removal of the caveat, I -19480/2010C, recorded
against the property known as PORT ION 843 (PORTION OF
PORTION 64) OF THE FARM KAMEELDRIFT 298, REGISTRATION
DIVISION JR, PROVINCE OF GAUTENG, held under Deed of
Transfer T[...]. 4.
4. The counter application of the first and second respondent s is
dismissed.
5. The first and second respondents are ordered to pay the costs of this
application and the counter application on Scale C;
_____________
WELGEMOED CJ
ACTING JUDGE OF THE HIGH COURT
OF SOUTH AFRICA GAUTENG
DIVISION, PRETORIA
Date of Hearing: 27.11.2025
Date of Judgment: 10.03.2026
Counsel for Applicant: Adv J Van Den Berg SC
Counsel for Respondents: Adv BC Stoop SC