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THE REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
WESTERN CAPE DIVISION, CAPE TOWN
CASE NUMBER: 7891 / 2023
In the matter between:
J[...] M[...] M[...] Plaintiff
and
H[...] A[...] M[...] First Defendant
CARA DOROTHY MASUREIK Second Defendant
JOOST BERNARDUS VAN LIER Third Defendant
PAM GOLDING PROPERTIES (PTY) LTD Fourth Defendant
THOMSON WILKS ATTORNEYS Fifth Defendant
REGISTRAR OF DEEDS, CAPE TOWN Sixth Defendant
Summary: Amendment - Doctrine of Notice - New Claims subject
to Exception - Amendments Refused.
Coram: Wille, J
Heard: 12 March 2026
Delivered: 20 April 2026
___________________________________________________________________
JUDGMENT
WILLE, J:
INTRODUCTION
[1] This is an opposed application about an amendment. The background and
context are sad and unfortunate, but important. The court has tremendous sympathy
for the plaintiff. However, I am enjoined to apply the law. This application is wrapped
in legality and soaked in finality.1
[2] The plaintiff seeks the following relief against the defendants: (a) that the sale
agreement for certain immovable property by the first defendant to the second and
third defendants be declared unlawful and set aside ; (b) that the registration of
transfer of ownership of th is immovable property into the name of the second and
third defendants be declared unlawful and set aside, and (c) that the first defendant
be declared to be the owner of the property and that the records of the fifth defendant
be rectified to reflect th e first defendant as the owner of the property. The alleged
reasons for the setting aside of these property transactions are five in number . They
are:
(a) that the sale took place in bad faith.
(b) that the sale is in contravention of public policy.
(c) that the sale was a fraud perpetrated by the first defendant.
1 The natural sympathy is with the plaintiff, but the law supports the defendants.
(d) that the sale infringes on the plaintiff’s constitutional rights to housing, and
(e) that the sale infringes on the plaintiff’s constitutional rights to access to court.2
BACKROUND
THE EXCEPTION
[3] Initially, the plaintiff failed to make out the necessary averments to entitle her
to the relief sought , whereupon the second and third defendants filed an exception
alleging that her particulars of claim were wanting.3
[4] Following an extensive argument, t he exception was upheld . The plaintiff
was given leave to amend her claims against the defendants. The plaintiff f iled a
notice of intention to amend, and the defendants filed a notice of objection. This then
led to the current opposed application for an amendment.4
[5] In summary, the plaintiff seeks to introduce and formulate a fresh claim
relying on the principle of the ‘doctrine of notice’ to set aside the sale and transfer of
the property by the first defendant to the second and third defendants.5
[6] In the alternative, it is pleaded that the first defendant had a legal duty not to
sell and transfer the property, and the second and third defendants had a legal duty
to refrain from purchasing and taking transfer of the property.6
[7] Finally, to give legal effect to the plaintiff’s claims (as sought by way of the
proposed amendments) , the plainti ff claims that if the sale and transfer of the
property is set aside, the first defendant be interdicted and restrained from again
selling the property pending the finalisation of the divorce action instituted by the
plaintiff against the first defendant.7
2 Thus, a constitutional argument is introduced.
3 This was decided by way of a judgment by my former colleague, Allie, J.
4 The first, second and third defendants oppose the amendment application.
5 The introduction of a fresh claim by way of an amendment is legally permissible.
6 This claim is in essence also a fresh or new claim.
7 This too, is a fresh or new dependent claim by the plaintiff.
[8] The second and third defendants object to the proposed amendments on the
grounds that the amendments sought, if granted, will not disclose a cause of action
against the first, second and third defendants.8
THE PLAINTIFF AND THE FIRST DEFENDANT
[9] The plaintiff and the first defendant are married out of community of property,
with an accrual regime. Their divorce action is still pending. The plaintiff and the first
defendant have separate estates. They may contract debts that burden their
respective estates, and they may alienate all or any of the assets of the ir estates,
subject to the rule that one spouse may not seriously prejudice the other.9
CONSIDERATION
THE ACCRUAL CLAIM
[10] It is trite that in normal circumstances the accrual system only comes into
operation at the dissolution of a marriage , either by the death of a spouse or by
divorce. Thus, the plaintiff has no vested right in any of the assets, investments or
property of the first defendant prior to this strike date.10
[11] The plaintiff’s claim (provided that her accrual proves to be smaller than that
of the first defendant) is, in essence, a contingent right to claim half of the accrual in
the estate of the first defendant upon the dissolution of their marriage. Pending th e
dissolution of their marriage, the plaintiff did not (and does not) enjoy a general legal
right to prevent the first defendant from selling the property to the second and third
defendants.11
[12] The plaintiff has a legal relationship with the first defendant under which she
enjoyed a right to occupy the property . This is a sui generis right, as she is the
spouse of the first defendant , and this sui generis right is part and parcel of his
8 They say that the particulars of claim will remain subject to a exception.
9 Reeder v Softline Ltd and Another 2001 (2) SA 844 (W) at 848 to 849.
10 There is an exception to this by way of legislation intervention.
11 Reeder v Softline Ltd and Another 2001 (2) SA 844 (W) at 848 to 849.
spousal duty of support towards the plaintiff. This is where the essence of the legal
argument in this opposed application for amendment lies.12
[13] I say this because, as a matter of pure logic, the plaintiff’s rights to reside in
the property should ordinarily only co me to an end upon divorce (if this is even
granted) when she is no longer the spouse of the first defendant.13
[14] That having been said, th is does not mean that the plaintiff enjoys any
proprietary right in the property, and thus, the amendment sought (relying on the
doctrine of notice) will not cure the legal lacuna in the proposed amendment because
no legal cause of action against the first defendant (as pleaded) has been
demonstrated.14
A LEGAL DUTY NOT TO SELL
[15] The plaintiff allege s that the first defendant had a legal duty not to sell and
transfer the property pending the outcome of their divorce, and that the second and
third defendants had a legal duty to refrain from purchasing and taking transfer of the
property. The allegation is that the sale and transfer of the property is thus void.15
[16] In my view, t he legal duty as contended for and relied on by the plaintiff is
relevant when determining the unlawfulness of claims founded in our tort law. The
remedies that flow from the establishment of such a claim (based on a legal duty) are
damages, and, in certain cases, urgent interdictory relief may be granted. In certain
cases, a n application may be launched for an interdict restraining a person from
committing or continuing his or her wrongful conduct . I say this also because it is
challenging to understand on what legal basis an order or declaration may be sought
declaring the sale of the property in these circumstances void. This is especially so
in cases where registration of transfer has taken place . In this case, the property in
12 Baker v Baker 2021 JDR 0038 (KZD) at para [6].
13 But in this case the plaintiff is no longer occupies the former matrimonial home.
13 But in this case the plaintiff is no longer occupies the former matrimonial home.
14 This even more so since the second and third defendant have taken transfer of the property.
15 It is challenging to understand the underlying basis for this alleged legal duty.
question has been transferred to the second and third defendants, and they have
legal title and a real right in and to the property.16
CONSTITUTIONAL ISSUES
[17] The plaintiff also relies on an alleged contravention of her constitutional right
of access to the courts.17
[18] The plaintiff contends that the sale and transfer of the property violate public
and legal policy . Th ese arguments are also advanced in support of the legal duty
argument.18
[19] In the judgment dealing with the exception, it was held (rightly or wrongly) that
any claim by the plaintiff based on the alleged breaches of her con stitutional rights,
as well as the allegations that the sale and transfer of the property allegedly violated
public and legal policy, was insufficient to disclose a cause of action against the first
defendant.19
[20] I say this because the cause of action now sought to be introduced by way of
the proposed amendment is very different. In addition, the facts do not support the
plaintiff’s case because the plaintiff was not a party to the agreement of sale
concluded between the first defendant and the second and third defendants.20
INTERDICTORY RELIEF
[21] Finally, the plaintiff seeks to introduce a claim that , if the sale and transfer of
the property are set aside, the first defendant also be interdicted and restrained from
once again selling the property pending the finalisation of the divorce action instituted
by the plaintiff against the first defendant. As a matter of pure logic, the order sought
here depends entirely on whether (or not ) the plaintiff successfully obtains an order
16 Everfresh Market Virginia (Pty) Ltd v Shoprite Checkers (Pty) Ltd 2012 (1) SA 256 (CC) at [63] to
[67].
17 This is presumably in the context of the plaintiff’s right to housing.
18 That what occurred was generally against public policy.
19 The cause of action in this case was entirely different.
20 Barkhuizen v Napier 2007 (5) SA 323 (CC) at [27] to [30
that the sale and transfer of the property by the first defendant to the second and
third defendant is set aside.21
[22] Other than the ‘dependency’ issues referred to immediately above, again, the
facts are not in support of this claim by the plaintiff. I say this because the plaintiff
would not, as a matter of course, be entitled to this type of relief, as the first
defendant is the owner of the property. Thus, the plaintiff would have to make out a
case entitling her to anti -dissipation relief, which would have depended on the
prevailing circumstances at the time.22
PREJUDICE AND INJUSTICE
[23] The primary object of allowing an amendment is to obtain a proper ventilation
of the disputes between the parties . This is to determine the real issues between
them, so that justice may be done . The power of the court to allow material
amendments is, accordingly, limited only by considerations of prejudice or injustice to
the opponent.23
[24] The prejudice adjudication involves consideration of a party's rights regarding
the subject matter of the litigation . Put another way, where a party would be no
worse off if the amendment were granted, there is no prejudice in granting the
amendment because the mere loss of the opportunity of gaining time is not an
injustice.24
[25] Except in exceptional c ircumstances, an amendment ought not be allowed
where its introduction into the pleadings would render such pleading the subject of a
further exception. The proposed amendment must result in a triable issue being
introduced into the pleadings.25
21 It is a “dependent” claim.
22 RS v MS and Others 2014 (2) SA 511 (GJ) at [16] and [17].
23 YB v SB 2016 (1) SA 47 (WCC) at [10] and [11].
24 Myers v Abramson 1951 (3) SA 483 (C) at 451 A – B.
25 Barnard v Barnard 2000 (3) SA 741 (C) at [41].
[26] To allow the amendments as sought in this case would render t he particulars
of the claim (once more) subject to an exception. I say so because there is an
inherent defect in the plaintiff’s pleadings, as the proposed pleadings do not disclose
a cause of action resulting in any triable issue against the first, second and third
defendants.26
CONCLUSION
[27] It must be so that an amendment will not be allowed where the granting
thereof will not contribute to the determination by the court of the real issues between
the parties. Put another way, there is no point in allowing a plaintiff to amend her
particulars of claim if her claims will be subject to a successful exception in due
course.27
[28] As a matter of pure logic, litigants should be discouraged from insti tuting
actions when they have no cause of action. This must be so, because holding
otherwise would mean that the same parties would reappear on the same issues in
fresh actions.28
ORDER
[29] For these reasons, I make the following order:
1. The application for leave to amend is refused.
2. The applicant (plaintiff) shall be liable for the costs of an incidental to
the application to amend on the scale as between party and party (as
taxed or agreed) together with the costs of counsel on Scale B.
__________
E. D. WILLE
(Cape Town)
26 Marney v Watson 1978 (4) SA 140 (C) at 144 F–G.
27 Strydom v Derby-Lewis 1990 (3) SA 96 (T) at 102 C-F.
28 Solomon v Spur Cool Corporation [2002] All SA 359 (C) at 368.