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[2026] ZAGPPHC 196
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Myburgh v Mamerotse Community Property Association and Another (2024-109327) [2026] ZAGPPHC 196 (18 February 2026)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION,
PRETORIA
CASE
NO.:
2024-109327
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER JUDGES: NO
(3)
REVISED: NO
Date: 18 February 2026
E van der Schyff
In
the matter between:
LEON
MYBURGH
APPLICANT
And
THE
MAMEROTSE COMMUNITY
PROPERTY
ASSOCIATION
FIRST RESPONDENT
THE
MINISTER OF RURAL DEVELOPMENT
SECOND RESPONDENT
AND
LAND REFORM
JUDGMENT:
Van
der Schyff
J
Introduction
[1]
The
applicant
,
Mr
.
My
b
u
rg
h
,
app
r
oached
the
court
for
final
relief
.
This
i
s
an application
against
the
first
r
espondent
,
the
Mame
ro
tse
Community
Property
Association
(CPA)
,
to
grant Mr. Myburgh access to the CPA
'
s
farms and to perm
i
t
him
to
remove his Kudu and Nyala from the farms
.
Mr
.
Myburgh claims
ownership of the Kudu and Nyala on the farm
.
[2]
This
rei
vindicatio
application
was preceded by two urgent applications
,
one in which
the matter was struck from the roll for lack of urgency
,
and the second
was removed from the urgent roll
,
with a tender
for costs, on receipt of the CPA's supplementary affidavit. Mr
.
Myburgh
elected
not
to
prosecute the app
l
ication
on an urgent basis.
[3]
It is trite
that the primary purpose of
rei
vindicat
i
on
i
s
to protect ownersh
i
p
rights
,
allowing
any
person who can
establish ownership to recover their property
.
The
factual averments
[4]
The factual
averments
,
as
extracted from the founding and answering affidavits
,
are that Mr
.
Myburgh and
the CPA entered into an agreement in February 2018
.
Mr
.
Myburgh
believed this to be a lease agreement. The written agreement
,
signed by Mr
.
Myburgh and on
behalf of the CPA
,
r
eflects
that the part
i
es
agreed that Mr
.
Myburgh leased
the property described
,
for among
others
'
game
breeding
'
for
a period of five years
.
The parties
also recorded the following
:
"
6
.
3
.
1
The game on the farm shall be sold to and bought by the Lessee
(
Mr.
Myburgh) upon the finalization of game count to be done end of August
20
1
8
which game shall become the property of the Lessee
:
-
6
.
3.2
Upon the termination of the lease the parties shall conduct a game
count
of
all
the game on
the property
and
t
he
Lessor
shall pu
r
chase
the game.
"
[5]
On 18 March 2018, a
game count was
c
onducted
by Jonnie Aviation Helicopter Services
.
The Game
Evaluation Sensus
report
indicates the
presence of the following game on the farm: Impala
-
62
,
Zeb
r
a
-6
;
Giraffe -
3
,
Warthog -5
.'
T
he
report indicates a 90
%
count
accuracy
.
Mr
.
Myburgh states
that it was agreed between himself and the CPA that he would pay R150
000.00 for the game al
r
eady
on the
farm. He
attached
proof
of payment
,
indicating
that he paid
the amount
in
three instalments to the CPA's account.
[6]
Mr
.
Myburgh then
purchased a Nyala bull and four Nyala ewes in February 2019. In April
2019
,
he
purchased 10 Kudu
.
In May 2019
,
he purchased
an additional four Impala and six Kudu. In June 2019
,
he purchased
one Kudu and 28 Impala
,
and on 14
July
,
he
purchased a further five Nyala ewes
.
During the
term of the lease agreement
,
various
animals were sold
,
culled
,
or removed
from the farm
.
[7]
Mr
.
Myburgh
informed the CPA
'
s
chairman of his intention to term
i
nate
the lease agreement in April 2024 and attached correspondence
evidencing the parties' mutual agreement to terminate
.
Subsequent to
the termination
,
however
,
Mr. Myburgh
was denied access to the farms and denied the right to relocate the
an
i
mals
from the farm. An arrangement was later agreed to ensure the
well-being of the animals
,
Mr
.
Myburgh claims
to be his.
[8]
The CPA
corresponded with Mr
.
Myburgh
'
s
attorney
.
The
CPA denied Mr. Myburgh
'
s
ownership of the game and called on him to prove it. The CPA claims
that the agreement of sale of the animals is unlawful due
to
non-compliance with clause 7 of the CPA
'
s
constitution
.
[9]
In this
court
,
Mr
.
Myburgh is
only seeking restoration of the Kudu and Nyala on the farm
.
He accepts
,
for purposes
of the application
,
that a factua
l
dispute exists
pertaining to the purchase of the game that was on the farm when the
lease agreement was concluded
.
He thus
abandoned the relief sought in respect of those animals
.
[10]
He claims,
however
,
that
the evidence proves that at least two of the species which are
currently on the farm
,
the Nyala and
Kudu
,
were
not on the farm when he initially took occupation of the farm
.
These species
were subsequently independently purchased and introduced
.
[11]
In the first
answering affidavit
,
the CPA states
that the lease agreement is not disputed. The
CPA states
that
the
'
alleged
sale
'
of
their animals was in
contravention
of their
constitution
.
They further
contend that the counting process relied on by Mr. Myburgh is not
accurate as
"
it
speaks of 90
%
accuracy,
which means it is not 100
%
and therefore
it cannot be relied upon
,
or it creates
a problem as to how many animals to date which constitute 10% balance
on counting
."
Considering
the facts
[12]
The CPA does not deny
in the first opposing affidavit that Mr
.
Mybu
r
gh
bought animals that he released on the farms
:
As to the
averment that he bought the specific number of different species of
animals
,
the
CPA answers
:
"
We are
not
i
nvolved
here
.
They
[the invoices] do not take his issue anywhere
.
We are not
involved there
;
we know
nothing about that because it was not part of our lease
".
The CPA also
states that
"
we
were not aware of any animals he purchased somewhere and moved into
our
farm
.
He
must
have
to
inform
us
,
so
that
we
cou
l
d
know
which
animals
he bought
,
so there could
be proper distinction between our animals and his
."
(sic)
[13]
In summary
,
the CPA
'
s
oppos
i
t
i
on
to the relief sought
,
as evidenced
by the init
i
al
opposing papers
,
is that the
agreement regarding the animals on the property at the time the
agreement was signed is unlawful
,
and that they
have no knowledge of other animals brought onto the farm by Mr
.
Myburgh
.
It is only
i
n
the CPA
'
s
supplementary
opposing
affidavit
,
filed after
Mr
.
Myburgh
filed his replying affidav
i
t
,
and in answer
to the supplementary
founding
affidavit filed
,
that the CPA
claims
that
there were indeed Nyala and Kudu on the properties when the lease
commenced
.
[14]
The CPA then
filed a further supplementary affidavit and requested the court
'
s
indulgence in accepting the affidavit. The CPA sta
t
es
that at the time of deposing to the answering affidavit
,
the
informatio
n
c
onta
i
ned
i
n
the further supplementary affidavit was not available
.
The CPA raised
a
p
o
i
nt
of
lis
pendens
in th
is
affidavit
,
claiming that
the urgent application is st
i
ll
pending
.
Do
the papers disclose a bona fide factual dispute?
[15]
The question
at the core of the
rei
vindicatio
application
is whether Mr
.
Myburgh has
made out a case that he is the owner of the Nyala and Kudu on the
farm
,
or
whether further oral evidence is required to prove ownership
.
[16]
It is common
cause that the lease agreement
stipulated
that the properties
l
eased
by Mr. Myburgh would
,
among others
,
be used for
game breeding
.
It is also
common cause that the agreement concluded between Mr
.
Myburgh and
the CPA provided for the sale of game
.
The validity
of the agreement of sale
i
s
challenged
,
but not the
fact that such an agreement was concluded
.
It is l
i
kewise
not disputed that a game count was conducted arid that a price was
agreed between Mr. Myburgh and the
person
purporting to
represent the CPA
,
pursuant to
which an amount of R150 000 was paid into the CPA
'
s
bank account for the game reflected in the Game Evaluation Sensus.
The Sensus report does not reflect the presence of the spec
i
es
Kudu and Nyala.
[17]
Mr
.
Myburgh
clearly stated at the outset of the litigation that there was game on
the farm and that he introduced Kudu and Nyala
.
It is
,
however
,
only in a
supplementary answering affidavit that the CPA avers
,
without
substantiating the averment
,
that Kudu and
Nyala were on the farm at the time the lease agreement was concluded
.
The C'PA fails
to provide any explanation from the person who acted on its behalf at
the t
i
me
the agreement was concluded
.
The CPA fails
to e
x
plain
why it accepted the three-installment payment of R150 000
.
00
,
which amount
was paid into the CPA
'
s
bank account.
[18]
Can it then
,
in these
circumstances
,
be said that a
material dispute of fact arose regarding the ownership of the
K
udu
and Nyala that renders it imposs
i
ble
to determine this issue on application? The time-tested principle set
out in
Room
Hire
Co
(Pty
)
Ltd v
Jeppe Street Mans
i
ons
(Pt
y)
Ltd
1949 (3)
SA 1155
(T) at 1165 finds application in this matter
.
Murray AJP
explained
:
'
A
bare denial of the applican
t'
s
material avermen
t
s
cannot be regarded as sufficient to defeat [the] applicant
'
s
right to secure relief by mot
i
on
proceedings in appropriate cases
.
Enough must be
stated by [the] respondent to enable the Court to conduct a
prel
i
minary
investigation
...
and
to
ascertain whether the denials are not fictit
i
ous
intended merely to delay the hearing
....
The
respondent's affidavits must at least disclose that there are
material issues in which there is a bona fide dispute of fact
capable
of being decided only after viva voce evidence has been heard
.'
[19]
In this
matter
,
the
court is faced with a bare
,
belatedly
ra
i
sed
statement that Kudu and Nyala were on the farm at the time the lease
agreement was concluded
.
The deponent
to the answer
i
ng
affidavit does not provide the basis for the averment
,
nor does he
explain why the statement is only raised at such a late stage
,
or how he has
the required knowledge to make such a statement. An unsubstantiated
statement
,
like a bare
denial
,
cannot
delay or defeat an applicant who approaches the court on motion
.
[20]
Mr
.
Myburgh
,
on the other
hand
,
presents
evidence that an agreement was concluded in terms of which the
parties agreed that he would purchase all the game on the
farm from
the CPA. On termination of the lease
,
the CPA would
have then purchased all the game on the farm from him
.
It was in both
parties
'
interest that
the initial inspection be correct. The game count was completed with
a 90
%
accuracy
rate
,
and
the agreed purchase price was paid
.
Whether this
agreement is valid is not an issue before this court
,
because the
validity of the agreement
,
and not the
fact of its
conclusion
,
is in dispute
.
It
s
upports
Mr
.
Myburgh
'
s
averment that there were no Kudu and Nyala on the farm and that he
introduced Kudu and Nyala to the property
.
He attaches
invoices as evidence that he purchased
Kudu and
Nyala
.
Counsel
for the first respondent made much of the fact that the
i
nvoices
were not signed
,
and that there
is no indication or e
x
ternal
confirmation of how many of the purchased animals were actually
received at the farm. Mr
.
Myburgh
'
s
evidence is
,
however
,
sufficient in
light of the bare denial of the CPA.
[21]
I am of the
view that the papers filed off record do not support a finding that a
dispute of fact regarding the introduction of
Kudu and Nyala
,
and thus the
ownership of the Kudu and the Nyala
,
exists.
Mr. Myburgh
has made out a case that he introduced Kudu and Nyala into the leased
prem
i
ses
,
that he is the
owner of the said species
,
and th.at he
is therefore entitled to remove them from the said premises
.
Lis
pendens
[22]
Mr. Myburgh
clearly stated that the second urgent court application was aborted
after the receipt of the CPA
'
s
supplementary opposing papers
.
The urgent
court application is no longer a live application and
lis
pendens
do
not come into the fray
.
When the
application was removed from the urgent court roll, wasted costs were
tendered
.
Mis-joinder
[23]
The CPA
persisted with
their
point
in
limine
of
misjoinder. Counsel submitted that the second respondent was cited
solely to ensure that this court has jurisdiction to hear
the matter
,
since the
farms in question are situated in the
North-West
Province.
[24]
The
CPA's principal place of business is in Brits, North West Province.
Although Brits is geographically located
in
the
North-West Province, it falls within the jurisdiction of the Gauteng
High Court
.
[1]
The
CPA suffered no prejudice because of the citation of the second
respondent
,
and
no relief is sought against the second respondent.
Costs
[25]
The principle
that costs follow success applies. The matter is
not
overly
complicated and does not justify costs on scale C
.
ORDER
In
the result, the following order is granted:
1.
The
points
in
limine
regarding
lis
pendens
and
mis-joinder is dismissed.
2.
The First
Respondent, the Mamerotse Community Property Association is
ordered
to grant
access to the applicant, Mr. L. Myburgh, to the farms Vogelfontein
and Vaalboslaagte, North-West Province, to enable him
to
capture
and remove his
Nyalas and Kudu.
3.
The
First Respondent is to pay the costs of the application, including
costs of counsel, on scale B.
E
van
der
Schyff
Judge
of the High Court
Delivered
:
This
judgment
is handed
down
electronically by uploading
it
to the
electronic fi
l
e
of this
matter
on Caselines
.
In
the
event that there
is
a discrepancy
between the date the judgment is signed and the date it is uploaded
to Caselines
,
the date the
judgment
i
s
uploaded to Caselines
is
deemed to be
the
date that the
judgment
is
handed down
.
For
the
applicant:
Adv.
W
.
Gibbs
Instructed
by
:
Payne
Steynberg Inc
.
For
the first
respondent:
Adv
.
D
.
Melaphi
Instructed
by
:
M
.
E
.
Makgopa
Attorneys
Date
of
the
hearing:
16
February
2026
Date
of
judgment:
18
February 2026
[1]
On
29 March 2018
,
Government
Notice 408
was
published
in
Government
Gazette
41552
.
Here
i
n
,
the
magister
i
al
distr
ict
s
over
which
the
North
West
Division
of the High Court has jur
i
sdiction
are set out. Madibeng
is
not
included
.