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[2026] ZAGPPHC 381
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Brits v Klopper and Another (A316/2023; 2021-24785) [2026] ZAGPPHC 381 (14 April 2026)
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IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
Appeal case no.
A316/2023
A quo case number:
2021-24785
Date
of hearing: 6 October 2025
Date delivered: 14
April 2026
(1)
REPORTABLE:
YES
/NO
(2)
OF INTEREST TO OTHERS JUDGES:
YES
/NO
(3)
REVISED
DATE
14/4/26
SIGNATURE
In the application
between:
TJAART
NICOLAAS BRITS
Appellant
and
HESTER
PETRONELLA KLOPPER
First Respondent
GERT
ROELF JACOBUS BRITS
Second Respondent
JUDGMENT
SWANEPOEL
J
: (
MNGQIBISA-THUSI
J AND NYATHI J CONCURRING)
[1]
The appellant sought judgment in the court a quo against the first
respondent for the sum of R
1 833 334.34, which the
appellant had paid to the first respondent as part-payment of the
purchase price of an immovable
property, namely, Portion 3 of the
Farm Blesbokfontein, Registration Division I.R., The Province of
Gauteng (“the property”).
[2]
On 5 May 2017 the parties entered into a written instalment sale
agreement in terms of which the
appellant and the second respondent
purchased the property from the first respondent. The appellant duly
paid the sum of R 1 833 334.34
to the first respondent in
consideration of the sale. It is common cause that the property is
agricultural land within the meaning
of the Subdivision of
Agricultural Land Act, 70 of 1970 (“the Subdivision Act”).
[3]
It is also now also common cause that the agreement was void
ab
initio
in terms of the Alienation of Land Act, 68 of 1981 (“the
Alienation Act”), as agricultural land may not be sold by way
of an instalment sale agreement. The agreement is also void
ab
initio
for non-compliance with section 3 (b) of the Subdivision
Act, 70 of 1970.
[4]
On 1 July 2017 the appellant took possession of the property. During
October 2020 the appellant
was advised that the agreement was void
for non-compliance with the Alienation Act. The appellant’s
attorney demanded repayment
of the purchase price and interest on 20
October 2020, but was rebuffed. In a letter dated 18 March 2021 the
first respondent accepted
that the agreement was void and that
restitution should be made. The first respondent, however, refused to
return the purchase
price on the grounds that the appellant had had
use of the property for some four years, and that the appellant had
allegedly been
unduly enriched by its occupation of the property. In
addition to the enrichment claim, the first respondent professed to
have
a damages claim, as a result of the appellant allegedly not
maintaining the property. The result was that the first respondent
refused to refund the monies.
[5]
The appellant has also instituted action in the Magistrate’s
Court, claiming the sum of
R 150 000, apparently as an
enrichment claim for improvements allegedly made to the property.
[6]
It is trite that in the event of an agreement being void, the parties
have to restore possession
to the other party of that which they have
taken pursuant to the agreement. In these papers the first respondent
accepted that
restitution would be required. However, the first
respondent took the following
in limine
points:
[6.1]
That the matter is
lis alibi pendens
,
due to the appellant issuing an action in the Magistrate’s
Court for payment resulting from the alleged unjust enrichment
referred to above;
[6.2]
That there is not a complete cause of action in that the appellant
and the second respondent
had not tendered the return of possession
of the farm;
[6.3]
That there is an irresoluble dispute of fact in that the parties
disagree whether the
agreement is void in terms of the Alienation
Act, or the Subdivision Act.
[7]
The Court a quo upheld the plea of
lis alibi pendens
, and
ordered each party to pay its own costs. It is unclear on what basis
the point
in limine
was upheld without the application being
dismissed. Save for the points
in limine
, the first respondent
has no defence to the application. The second and third points
in
limine
can be quickly disposed of. As far as the incomplete cause
of action is concerned, possession of the property has been restored
to the first respondent. As for the second point
in limine
, it
is, in my view, immaterial whether the agreement is void for
non-compliance with either the Alienation or the Subdivision Act.
The
fact is that the parties agree that the agreement is void, with the
result that there has to be restitution. There is no true
dispute of
fact.
[8]
The first respondent argued that the claim has been brought under
section 28 of the Alienation Act,
and that it prescribes what relief
may be sought in cases where an agreement is void for non-compliance
with the Alienation Act.
The first respondent contends that the
Alienation Act requires a plaintiff to bring suit for all the relief
that it seeks in one
action.
[9]
I do not understand section 28 to say so. Section 28 provides for the
relief that a party seeking
restitution pursuant to a void agreement
may seek. It does not state either expressly, nor implicitly, that
the relief must be
sought in one action or application. It may be
that a plaintiff might be hit with the once and for all rule, if it
were to seek
payment in different actions, on the same cause of
action. That is, however, not what the appellant has sought to do.
[10]
The third point
in
limine
requires more attention. The defence of
lis
alibi pendens
is
akin to the defence of
res
judicata.
In respect of both defences, the elements of the defence are that the
parties and the issue are the same
[1]
.
The rationale behind the defence is that it is undesirable to allow
two different courts to decide the same issue independent
of one
another, either where a dispute is still pending (lis alibi pendens),
or where the dispute has already been determined (res
judicata).
[2]
[11] On
this issue the Court a quo held as follows:
“
In
principle, a matter is pending before another court involving the
same parties on the same set of facts. Though in casu, it is
to
declare the agreement void ab initio resulting in the repayment of
amounts paid and interest, and the other in the magistrates’
court is a damages claim. These claims emanate from the same set of
facts and the agreement.”
[12]
For the defence of lis alibi pendens to succeed, the first respondent
has to demonstrate three elements:
[12.1]
The litigation must be between the same parties;
[12.2]
The cause of action must be the same;
[12.3]
The same relief is sought in both matters.
[13]
What is regarded as the same cause of action is answered in
Caesarstone
(supra)
[3]
:
“
[20]
Although not referred to by him, Boshoff v Union Government
[1932 TPD
345]
provided authority for Milne J’s view in regard to the
application of res judicata. Boshoff claimed damages from the
government
arising from the allegedly wrongful cancellation of a
lease and his ejectment from a farm owned by the defendant. The plea
of res
judicata was based on proceedings for Boshoff’s
ejectment, founded on the lawful termination of the lease. After
considering
the authorities on what is meant by the ‘same cause
of action’ Greenberg J concluded that this requirement would be
satisfied in the circumstances described in the following passage
from Spencer-Bower’s Res Judicata
[4]
:
‘
Where
the decision setup as a res judicata involves a judicial
determination of law or issue of fact, in the sense that the decision
could not have been legitimately or rationally pronounced by the
tribunal without at the same time, and in the same breath, so
to
speak, determining that question or issue in a particular way, such
determination, though not declared on the face of the recorded
decision is deemed to constitute an integral part of it as
effectively as if it had been made so in express terms.’”
[14]
In
Smith
v Porritt and Others
[5]
the enquiry was framed as follows:
“
Following
the decision in Boshoff v Union Government
1932 TPD 345
the ambit of
the exception res judicata has over the years been extended by the
relaxation in appropriate cases of the common-law
requirements that
the relief claimed and the cause of action must be the same (
eadem
res
and
eadem
petendi causa
) in both the case in
question and the earlier judgment. Where circumstances justify the
relaxation of these requirements those
that remain are that the
parties must be the same (
idem actor
)
and that the same issue (
eadem quaestio
)
must arise. Broadly stated, the latter involves an enquiry whether an
issue of fact or law was an essential element of the judgment
on
which reliance is placed.”
[15]
The parties in the two matters are the same. Are the issues for
determination the same? In this
application it is common cause that
the agreement is void ab initio, an aspect that would have been at
the heart of both cases
had the issue not become agreed. In such a
case, the matter would have been
lis pendens
. However, that
issue is no longer in dispute. The relief now sought in this case is
simple restitution, following from the fact
that the agreement is
void. In the Magistrate’s Court the appellant is seeking
compensation for unjust enrichment on the
basis that he allegedly
made improvements to the property. In the Magistrate’s Court
the appellant would have to prove that
improvements were made, that
he was impoverished by the improvements, and the extent to which the
first respondent was enriched
by the improvements.
[16]
None of these issues arise in this case., nor is the same relief
sought in the two matters. There
is, therefore, no danger that
this court might be deciding an issue that is also before another
court for determination. The Court
a quo did not, in my respectful
view, ask the correct question. The question is not whether the same
facts underpin the two matters,
but whether an issue that is required
to be determined in both cases, between the same parties, is
the same.
[17]
In the premises the third point in limine should also have been
dismissed.
[18]
As far as interest is concerned, it is my view that
section 28
of the
Alienation of Land Act is
not applicable to this transaction.
Consequently interest must run from date of demand. There are no
special circumstances to justify
the punitive costs sought by the
appellant, despite the parties’ vehement (and fruitless)
attacks on one another.
[19]
Therefore, I propose the following order:
[19.1]
The appeal is upheld.
[19.2]
The order of the Court a quo is amended to read as follows:
“
1.
The sale of land agreement between the appellant and the respondents
is declared to be invalid.
2.
The first respondent shall pay the
appellant
R 1 833 334.34.
3.
The first respondent shall pay interest at the applicable interest
rate as it may be from time to time,
from date of demand, being 20
October 2020, to date of payment;
4.
The first respondent shall pay the costs of the application on Scale
B.”
[19.3]
The first respondent shall pay the costs of the appeal on Scale B.
C
SWANEPOEL J
JUDGE OF THE HIGH
COURT
GAUTENG
DIVISION, PRETORIA
I agree:
N.P. MNGQIBISA-THUSI J
JUDGE OF THE HIGH
COURT
GAUTENG DIVISION,
PRETORIA
I agree:
NYATHI J
JUDGE OF THE HIGH
COURT
GAUTENG DIVISION,
PRETORIA
Counsel
for the appellant:
Adv.
L Swart
Adv.
W Venter
Instructed
by:
Taute
Bouwer & Cilliers Inc.
Counsel
for the first respondent:
Adv.
P Greyling
Instructed
by:
Odendaal
Attorneys
Heard
on:
8
October 2025
Judgment
on:
14
April 2026
[1]
Voet
44.2.7
[2]
Caesarstone
SDOT-YAM Ltd v World of Marble and Granite 2000 CC and Others
2013
(6) SA 499
(SCA) at para. [18]: “The pleas of res judicata and
lis pendens are undoubtedly cognate pleas and it follows that the
elements
required to establish the one are the same as the elements
required to establish the other.”
[3]
At
para [20]
[4]
At
350 to 351
[5]
2008
(6) SA 303
(SCA) at para 10