SAFLII Note: Certain personal/privat e details of parties or witnesses have been redacted from this
document in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
WESTERN CAPE DIVISION, CAPE TOWN
Case No.: 2026-044677
In the matter between:
MARIA ANNA DE RIDDER Applicant
and
ROSE-MARIE NELSON First Respondent
TREVOR TIFFANY NELSON Second Respondent
THE REGISTRAR OF DEEDS, CAPE TOWN Third Respondent
BARRY AND MOUTON ATTORNEYS Fourth Respondent
FRANCOIS HENRY FRANCIS Fifth Respondent
LEE-ANN PETOORS Sixth Respondent
Coram: Montzinger AJ
Heard: 12 March 2026
Delivered: 25 March 2026
Summary: Urgent application seeking interim interdictory relief – Elderly owner –
transfer of immovable property to stepdaughter on a revoked power of attorney –prima
facie calculated and unlawful deprivation of ownership – urgent interim inte rdict to
preserve property and the rental income – vulnerability of applicant and need to fund
frail-care – interim interdict granted
ORDER
1. The applicant’s non -compliance with the rules pertaining to form, time periods
and service is condoned and the matter is heard as one of urgency.
2. First Respondent is interdicted from selling, alienating, encumbering, altering,
improving or otherwise dealing with the property described as Erf 6[...],
Ladismith and situated at the corner of Hospital and Crafford Streets, Ladismith
(“the property”) held by her under Deed of Transfer Number 0[...] (“the title
deed”), registered as such with the Third Respondent, either personally or
through the Second Respondent.
3. The Third Respondent is inter dicted from transferring the property to any third
party, and is further directed to note the interdict against the property as provided
for in section 3 of the Deeds Registries Act 47 of 1937.
4. Fifth and Sixth Respondent are ordered to pay all rental payments in respect of
the garden flat into the trust account of Raubenheimers Incorporated , the details
of which will be provided with the service of this order.
5. The relief in paragraphs 1 - 4 above shall serve as interim relief, pending
finalisation of the final relief sought in the normal course, under Part B of the
notice of motion.
6. Costs of the proceedings under Part A to stand over for adjudication when Part B
of the application is heard.
7. A copy of this order to be served by the Sheriff on all respondents.
JUDGMENT
Montzinger AJ
Introduction
[1] This matter served before me on the urgent roll on Thursday, 12 March 2026. The
applicant sought interim relief under Part A of the notice of motion pending the
determination of Part B.
[2] All the respondents received notice of the application , including the Registrar of
Deeds and the fifth and sixth respondents, the occupiers of the garden flat affected
by the relief. The fourth respondent has indicated that it does not oppose the relief.
No other respondent has delivered either a notice to oppose or answering papers.
The matter accordingly served unopposed before me.
The facts in support of the application
[3] The applicant is an 89-year-old woman who has been residing in the Precious Life
Nursing Home in George since about July 2023. The first respondent is her
stepdaughter and the second respondent her step -son-in-law (the “Nelsons”). The
applicant was the reg istered owner of Erf 6[...], Ladismith, situated at the corner
of Hospital and Crafford Streets, Ladismith, since 2004. During January 2026 the
property was transferred into the name of the first respondent, with the assistance
of the second and fourth respon dents, without the applicant’s knowledge or
express consent and without any compensation being paid to her. The fifth and
sixth respondents (the “tenants”) occupy the garden flat on the property and pay
monthly rental in respect of that flat.
[4] On the papers before me, the applicant’s mental competence and capacity to
manage her affairs are well documented with medical reports and a social
worker’s report. For present purposes, it suffices to record that these documents
indicate material impairment in her ability to appreciate and manage her financial
and legal affairs.
[5] A Deeds Office search dated 15 October 2025 still reflected the applicant as the
registered owner of Erf 6[...], Ladismith. However, a purported deed of sale in
favour of the fi rst respondent was apparently concluded on 14 October 2025 and
was signed by the second respondent, ostensibly in terms of a general power of
attorney granted to him by the applicant on 2 May 2024. That general power of
attorney, however, had been formally revoked by the applicant on 23 September
2025, prior to the signing of the deed of sale.
[6] Transfer of the property was subsequently registered into the name of the first
respondent on 20 January 2026. The purchase price reflected in the deed of sale is
R877,000.00 whereas the valuation of the property indicates a current market
value in the order of approximately R2.2 million to R2.375 million. The applicant
has received no payment of the reflected purchase price, and the correspondence
from the transferring attorneys suggests that the price was “regarded as settled”
on the basis that the Nelsons would care for the applicant.
[7] The conduct and modus of the Nelsons were further patently obvious when the
information provided by the office of the Registrar of Deeds is considered.
According to the Regis trar’s report there was a “lost deed” application prior to
registration. Since the applicant is in possession of the original title deed for Erf
6[...], Ladismith it meant that additional steps were required to be overcome by
the Nelsons in order to facilitate the transfer . The Nelsons proceeded to procure a
duplicate title deed, under the auspices of a ‘lost deed’ and effected transfer of Erf
6[...], Ladismith.
Requirements for an interim interdict
[8] The principles applicable to interim interdicts are well established. The
foundational requirements were articulated in Setlogelo1 and have been
consistently affirmed and refined in later authorities, including Webster2 and
Gool3. Under our current cons titutional dispensation, these principles continue to
govern the inquiry, albeit infused with constitutional values, as confirmed by the
Constitutional Court in National Treasury4.
[9] A court considering whether to grant an interim interdict must consid er four
requirements. The first is that the applicant must establish the existence of a prima
1 Setlogelo v Setlogelo 1914 AD 221
2 Webster v Mitchell 1948 (1) SA 1186 (W)
3 Gool v Minister of Justice 1955 (2) SA 682 (C)
4 National Treasury v Opposition to Urban Tolling Alliance 2012 (6) SA 223 (CC)
facie right, though open to some doubt. The right need not be proved on a balance
of probabilities. It is sufficient if the applicant places before the court evid ence
which, if accepted, establishes a right deserving of protection pending final
determination.
[10] The second requirement is a well -grounded apprehension of irreparable harm to
the applicant if interim protection is not afforded. The apprehension must be
objectively reasonable. The question is whether a reasonable person in the
position of the applicant, confronted with the same facts, would foresee the
likelihood of harm that cannot adequately be remedied by an award of damages or
some other remedy at final determination. Harm is “irreparable” in this context if
waiting for final relief would leave the applicant in a position that cannot
meaningfully be restored.
[11] The third requirement concerns the balance of convenience. The court must weigh
the prejudice that the applicant will suffer if interim relief is refused against the
prejudice the respondent will suffer if the interdict is granted. This assessment
considers the relative strength of the parties’ cases as they appear on the papers.
The stronger the applicant’s prospects of final success, the less heavily the balance
must tip in its favour, and conversely 5. Where both sides invoke constitutional
rights, or where the respondent alleges that the interdict will significantly impair
its lawful interests, the balancing exercise must be undertaken with particular care.
[12] The fourth requirement is the absence of a suitable alternative remedy. An interim
interdict is an extraordinary remedy and should not be granted where other
adequate remedies, wh ether judicial or otherwise, exist to protect the applicant’s
rights. The availability of other remedies is relevant to this inquiry.
5 Olympic Passenger Service (Pty) Ltd v Ramlagan 1957 (2) SA 382 (D)
[13] Ultimately, even where all four requirements appear to be met, the court retains a
judicial discretion whether to grant the interdict. This discretion is not unbounded.
If an applicant fails to establish at least one of the requirements, the court has no
discretion and relief should be refused. But where they are satisfied, the court
must consider all relevant circumstances to determine whether the interdict sought
is just and equitable. The requirements must not be applied mechanically; they are
interrelated and must be assessed holistically in the light of the evidence as a
whole.
Application of the legal requirement to the facts
[14] On the papers, the applicant has demonstrated at least a prima facie right to have
the transfer to the first respondent s et aside and the property restored to her name.
She was the registered owner . T he power of attorney relied upon had been
revoked before the purported deed of sale was signed . Also, the price was far
below market value and she received no payment . Furthermore, given her mental
and cognitive state, there is a serious question whether she could lawfully and
meaningfully have approved the alienation of her property.
[15] As to irreparable harm, there is a reasonable apprehens ion that, absent immediate
relief, the property could be further alienated or encumbered, thereby permanently
depriving the applicant of her asset needed to secure her care. The applicant is a
vulnerable elderly person in frail care whose livelihood and ab ility to fund her
nursing-home costs depend materially on the value of this immovable property
and the rental income from the garden flat. Monetary compensation at some future
date would be an inadequate substitute if the immovable property is lost or
dissipated.
[16] The balance of convenience strongly favours the grant of relief. The caveat and
interdicts sought serve to preserve the status quo in relation to ownership and
prevent dealings with the immovable property pending the determination of the
relief under Part B of the notice of motion . Also, it is prudent to direct that the
rental income by the tenants be paid into a trust account of an attorney rather than
to the Nelsons. The prejudice to the Nelsons of being temporarily prevented from
dealing with the immovable property, and of having the rental income preserved,
is limited and reversible, whereas the prejudice to the applicant if relief is refused
is severe and potentially irreparable.
[17] Finally, there is no adequate alternative remedy. The a pplicant cannot feasibly
obtain equivalent protection through later damages or ordinary action
proceedings, given her age , financial vulnerability and the risk of further
disposition of the property in the meantime. In these circumstances, and
exercising my discretion, I am satisfied that the requirements for interim relief
have been met.
[18] I am not prepared at this stage of the proceedings to grant relief that has, in
substance, the effect of an eviction. The relief formulated in paragraphs 2.3 and
2.4 of the notice of motion, which sought the immediate return of possession of
the property to the applicant and interd icting the Nelsons from entering the
property without the applicant’s written consent, is in its effect indistinguishable
from an eviction.
[19] Evictions from residential premises may only be ordered in terms of the
Prevention of Illegal Eviction from an d Unlawful Occupation of Land Act 19 of
1998 (“PIE”), and then only once the procedural and substantive requirements of
that statute have been duly complied with. No such case arises on these papers,
and it would therefore be inappropriate to grant, under the guise of interim relief,
an order that effectively evicts the Nelsons from the immovable property without
compliance with PIE.
Conclusion and order
[20] In the result the following order is made:
1. The applicant’s non -compliance with the rules pertaining to form, time
periods and service is condoned and the matter is heard as one of urgency.
2. First Respondent is interdicted from selling, alienating, encumbering,
altering, improving or otherwise dealing with the property described as Erf
6[...], Ladismith and situated at the corner of Hospital and Crafford Streets,
Ladismith (“the property”) held by her under Deed of Transfer Number
0[...] (“the title deed”), registered as such with the Third Resp ondent,
either personally or through the Second Respondent.
3. The Third Respondent is interdicted from transferring the property to any
third party, and is further directed to note the interdict against the property
as provided for in section 3 of the Deeds Registries Act 47 of 1937.
4. Fifth and Sixth Respondent are ordered to pay all rental payments in
respect of the garden flat into the trust account of Raubenheime rs
Incorporated, the details of which will be provided with the service of this
order.
5. The relief in paragraphs 1 - 4 above shall serve as interim relief, pending
finalisation of the final relief sought in the normal course, under Part B of
the notice of motion.
6. Costs of the proceedings under Part A to stand over for adjudication when
Part B of the application is heard.
7. A copy of this order to be served by the Sheriff on all respondents.
____________________________
A MONTZINGER
Acting Judge of the High Court
Appearances:
Attorneys for applicant: Raubenheimers Inc.
Counsel for applicant: Ms T Le Roux