SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
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THE HIGH COURT OF SOUTH AFRICA
(NORTHERN CAPE DIVISION, KIMBERLEY)
Reportable
Case no: CA & R 78/2024
In the matter between:
JUMALO TRADING CC APPELLANT
and
MARIA HELENA VISAGIE N.O RESPONDENT
Neutral citation: Jumalo Trading CC v Visagie N.O (CA & R 78/2024) 8 May
2026.
Coram: PHATSHOANE DJP, MAMOSEBO J and TYUTHUZA AJ.
Heard: 17 November 2025.
Delivered: 8 May 2026.
Summary: Law of Sale and Lease – cancellation of commercial lease following the
sale of the leased property – rei vindicatio – whether a registered owner of a property
who has sold property but not yet transferred ownership retains locus standi to evict
– plea of non -joinder of the l andlord (purchaser of the property) raised – appeal
dismissed.
2
___________________________________________________________________
ORDER
On appeal from: the Northern Cape Division of the High Court, Kimberley (Lever J,
sitting as Court of first instance):
1. The appeal is dismissed with costs on an attorney and client scale.
2. Paragraph 1 of the order of the Court of first instance is varied as follows:
‘1. The Respondent, and all others occupying on behalf of or through it, are ordered
to vacate the property being the remaining extent of portion 5 of Farm number
187, situated in the Sol Plaatje Municipality, and to do so within 30 days from the
date of this order.’
___________________________________________________________________
JUDGMENT
Phatshoane DJP (Mamosebo J and Tyuthuza AJ concurring)
[1] The Court of first instance, Lever J, granted an order directing the appellant,
Jumalo Trading CC (Jumalo), together with all those who either through it, or on its
behalf, occupy a commercial property described as the remaining extent of portion 5
of Farm no 187, situated in the Sol Plaatje Municipality (the property) , to vacate the
said property within 10 days from the date of the order ; authorising and directing the
Sheriff of this Court to execute the order in the event Jumalo and those occupying
the property fail or refuse to vacate. Judgment was also entered against Jumalo for
the payment of R22 300 in respect of the October 2022 arrear rental . The order
carried costs against Jumalo on an attorney and client scale.1
1 Visagie N.O v Jumalo Trading CC (740/2023) [2024] ZANCHC 56 (7 June 2024).
3
[2] This is an appeal with leave of the Court of first instance and raises two
questions. First, whether the respondent, Ms MH Visagie, the executrix in the estate
of the late Mr Andre Visagie (Mr Visagie), had locus standi to bring an application for
the eviction of Jumalo. Secondly, whether Season Find 890 CC (Season Find) ought
to have been joined in the litigation. If the respondent lacked locus standi , or if
Season Find ought to have been joined, the eviction order cannot stand and must be
set aside.
[3] The factual background giving rise to this appeal is set out in some detail in
the judgment of the Court of first instance. A suitably truncated recitation of the
chronology is necessary to facilitate understanding of the issues arising for
consideration. The late Mr Visagie was the registered owner of the property in issue,
which naturally became part of his estate upon his death. He passed away on 8 June
2023, after the launch of the application to which this appeal relates. Prior to this, Mr
Visagie and Jumalo entered into a lease agreement on 16 February 2019 under
which Jumalo leased the property for a term that expired on 21 January 2021.
Thereafter, the lease continued on a month-to-month basis.
[4] On 11 October 2022 , Mr Visagie directed a WhatsApp message to Jumalo
advising it of the pending sale of the leased property to Mr Engelbrecht ; the
purchaser’s intention to keep Jumalo as a lessee of the property , and to negotiate
with Jumalo regarding some improvements that had been effected on the property. It
is not in dispute that Mr Visagie entered into an agreement of sale in terms of which
the property was sold as a going concern to Season Find on 10 October 2022 for
R3 300 000 payable in two tranches. A deposit of R2 500 000 payable within seven
days from the date of signature of the agreement , and the balance upon the
registration of the property. Possession and occupation of the property, subject to the
registration of the property. Possession and occupation of the property, subject to the
lease, would be granted to Season Find upon payment of the deposit.
[5] Jumalo accepted that Season Find had substituted Mr Visagie as the landlord.
Some correspondence was exchanged between Mr Visagie’s attorneys and Jumalo
during October and November 2022 regarding , inter alia, the payment of rental to
Season Find . Jumalo had an option to purchase the property . In anticipation of
exercising the option, it made certain improvements to the property, consisting of the
4
installation of a weigh bridge, fencing, and the construction of a warehouse, which it
claims are valued at two and a half million rand . Jumalo, however, did not exercise
the option while it was available to it and avers that some breaches of the lease by
Mr Visagie stymied the exercise of the option.
[6] While the written exchanges were underway, Jumalo had already stopped
paying rent , effective from October 2022. However, it remained in possession and
occupation of the property on the basis of what it claims to be an improvement lien.
On 26 January 2023 , the attorneys acting for both Mr Visagie and Season Find
directed a letter to Jumalo in terms of which the lease was cancelled . On 20 April
2023, Mr Visagie launched an application for the eviction of Jumalo and the payment
of all the arrear rental, which was adjusted to one month’s rental because Mr Visagie
was not entitled to ren tal after October 2022 but Season Find . When the application
was heard, and the judgment of the Court of first instance was handed down, the
property had not yet been transferred to Season Find at the Deeds Office.
[7] Before the Court of first instance and in this Court, the question of locus standi
of the executrix of the estate of the late Mr Visagie (deceased estate) to bring the
application and the non -joinder of Season Find were argued. The Court of first
instance rejected Jumalo’s argument that the deceased estate had no standing . On
the basis of these decisions: Jadwat and Moola v Seedat 2; Red Stripe Trading 68
CC v Khumal o (Red Stripe 1 )3; and Red Stripe Trading 68 CC v Mahlomola and
Another (Red Stripe 2 )4, the Court found that the vindication of the right to possess
could only be effected by the registered owner of the property, and that the sale
agreement between Mr Visagie and Season Find did not change the position.
Consequently, reasoned the Court, the only party with the necessary locus standi to
Consequently, reasoned the Court, the only party with the necessary locus standi to
prosecute the application was the deceased estate , the registered owner of the
property.5
2 1956 (4) SA 273 (N).
3 (31039/04) [2005] ZAGPHC 31 (23 March 2005); 2005 JDR 0705 (W); [2005] JOL 15486 (W).
4 (2011/06) [2006] ZAGPHC 39 (28 April 2006); 2006 JDR 0351 (W); [2006] JOL 17294 (W).
5 See also section 16 of the Deeds Registries Act 47 of 1937.
5
[8] On the question of the plea of non -joinder of Season Find, the Court of first
instance found the argument contrived because , to begin with , the issue of the
validity of the sale of the business was not an issue before the Court . In fact , it is
clearly not being contested. Furthermore, Mr Visagie had brought the application to
fulfil his obligation to wards Season Find to deliver possession by virtue of the
relevant sale. The joinder of Season Find was not necessary to achieve this object.
Finally, the Court found that at all times material to the application , Season Find had
full knowledge of the application as its representative was intimately involved in the
presentation of the case of the deceased estate.
[9] It is common ground that the ejectment claim is based on the right of an
owner to vindicate or reclaim possession of its property. The requirements for
eviction based on rei vindicatio are trite . The owner, in instituting a rei vindicatio ,
needs to do no more than allege and prove that he is the owner and that the
defendant is holding the res, the onus being on the defendant to allege and establish
any right to continue to hold against the owner. 6 In addition, it must also be
established that the thing which is vindicated is still in existence and clearly
identifiable.7
[10] The thrust of Mr Bester’s argument, for the appellant, on the question of locus
standi, is that Mr Visagie expressly and with every intention to do so, relinquished
every right and obligation an owner could have regarding his property , except that of
being paid the balance of the purchase price and to pass the transfer of ownership to
Season Find. Counsel invoked Chetty v Naidoo 8 (Chetty) as authority for the
proposition that in order for a registered owner to bring a vindicatory application
and/or rely on rei vindicatio, such owner should , at the very least , be entitled to
exclusive possession of the p roperty and not to have alienated and disposed of that
exclusive possession of the p roperty and not to have alienated and disposed of that
right, as in this case. In Chetty, it was held that one of the incidents of ownership:
‘. . . is the right of exclusive possession of the res, with the necessary corollary that the
owner may claim his property wherever found, from whomsoever holding it. It is inherent in
6 Chetty v Naidoo 1974 (3) SA 13 (A) at 20C-D.
7 G Muller, R Brits, JM Pienaar and Z Boggenpoel Silberberg and Schoeman’s: The Law of Property 6
ed (2019) at 270 ; see also Barloworld Equipment Southern Africa a Division of Barloworld South
Africa v Mekgopaze Nkosi Trading Enterprise (Pty) Ltd [2024] 4 All SA 127 (KZP) para 58.
8 1974 (3) SA 13 (A).
6
the nature of ownership that possession of the res should normally be with the owner, and it
follows that no other person may withhold it from the owner unless he is vested with some
right enforceable against the owner (e.g. a right of retention or a contractual right). ’9
(Footnotes omitted.)
Chetty did not address the question of locus standi of the owner of a property to
bring a vindicatory application against the occupier. Far from it.
[11] In amplification of his argument , Mr Bester relied on the following clauses of
the deed of sale between Mr Visagie and Season Find as indicative of cession of
vindicatory action by the deceased estate to Season Find. Clause 7.1, which is to the
effect that possession and occupation of the property subject to the lease would be
given to Season Find on the day of the payment of the two and a half -million-rand
deposit. Clause 8.1, which stipulates that all risk, profit, and loss would, upon the
date of possession and occupation, pass to Season Find. And clause 17.1, which
provides that Season Find assumes liability for any claims by Jumalo regarding
improvements to the property, indemnifies the deceased’s estate, and that Season
Find would consequently be responsible for any compensation that may be payable
to Jumalo for any such claims.
[12] Relevant to the issue under consideration, a s authority for his contention, Mr
Van Niekerk, for the deceased estate, called in a id Red Stripe 1 , but more
importantly in his favour, Red Stripe 2 . In Red Stripe 1 , the applicant, Red Stripe
Trading 68 CC , had applied for the eviction of the occupiers of specific erven in
former townships under the Prevention of Illegal Eviction from an d Unlawful
Occupation of Land Act 19 of 1998 (PIE) as “a person in charge as defined in PIE”.
The occupier of Erf 1[...] (the property) was one of the respondents. He was the
registered owner of the property upon which a bond was registered in favour of
registered owner of the property upon which a bond was registered in favour of
Nedperm. He fell behind with his bond repayments. Nedperm foreclosed against
him, and the property was sold in execution. Peoples Bank Limited bought the
property and took transfer , becoming the registered owner of the property. Despite
the sale and transfer of the property to Peoples Bank, the occupier and his family
remained in occupation of the property . Peoples Bank later sold the property ,
together with a large number of other properties, to Get-a-Home CC.
9 Ibid at 20A-C.
7
[13] Later, Red Stripe executed a written deed of sale with Get -a-Home CC for the
purchase of the property. Clause 2 of the deed of sale provided that:
‘Possession of the property will be given to the Purchaser, who shall be obliged to take
possession thereof, on the date of signature, from which date the property shall be the sole
risk, profit, or loss of the Purchaser.’
Red Stripe’s locus standi to apply for the eviction of the occupier under s 4 of PIE
was questioned because the property had not yet been transferred to it . In
dismissing the application for eviction brought by Red Stripe , due to its lack of
standing, Gildenhuys J said:
‘Because the applicant’s right to obtain vacua possessio of the property is a mere personal
right, it can only be enforced against the person from whom it was acquired. See Nkadia v
Mahlazi and Others 1982 (2) SA 441 (T) at 447G -H. The applicant has no real right to the
property in question. It also has no contractual relationship with the respondent. In the
absence of a real right or contractual relationship, it has no locus standi to evict the
respondent from the property. This is evident from the judgment of Caney J in Jadwat and
Moola v Seedat 1956 (4) SA 273 (N) at 276C/D, where he said:
“Clearly the buyer of a property who has not obtained transfer (nor cession of the owner’s cause of
action) is not entitled to sue for ejectment.”’10
And at paragraph 12, he said:
‘It is evident from the authorities referred to above that, under common law, the applicant has
no standing to institute legal proceedings to evict the respondent. The applicant did not rely
on a cession of Peoples Bank’s vindicatory action. Nor did Mr Booy ens suggest that such a
cession occurred. Although a vindicatory action ( rei vindicatio) is capable of cession, such a
cession will not be presumed unless the intention to m ake it was clear. See Marcus v
Stamper and Zoutendijk 1910 AD 58 at 75 and Vivier v Waterberg Ko -Operatiewe
Stamper and Zoutendijk 1910 AD 58 at 75 and Vivier v Waterberg Ko -Operatiewe
Landboumaatskappy Bpk 1956 (2) SA 665 (T) at 672D-E.’
[14] In Red Stripe 2 , the applicant ’s locus standi to bring an eviction application
against the occupier also came to the fore. Blieden J agreed with the views
articulated by G ildenhuys J in paragraph 10 of his judgment recited above, but
expressed his dissent that a vindicatory action of an immovable is capable of cession
as set out in paragraph 12 of the judgment by G ildenhuys J. In Red Stripe 2 ,
Nedbank Ltd, the registered owner of the immovable property, had ceded its “ right,
10 Red Stripe Trading 68 CC v Khumalo (31039/04) [2005] ZAGPHC 31 (23 March 2005) para 10.
8
title and interest ” to the property to Ariano 124 CC (Ariano). This cession was
described as “ unconditional, irrevocable, and binding on both parties to the
agreement”.11 Ariano also entered into a deed of sale with Nedbank for the said
property.
[15] Almost a month later, Ariano ceded to Red Stripe its right, title, and interest in
the property, inclusive of the rei vindicatio remedy. Pursuant to this, Red Stripe
brought an application for the eviction of the occupiers as a purported cessionary of
certain rights, rather than as the owner of the property. Blieden J held:
‘The basic principle in Roman -Dutch law is that before delivery takes place , a purchaser or
anyone in a position similar to him is not entitled to institute the rei vindicatio as he is not the
owner of the thing. This view is made plain in Voet 6.1.20 where the following is stated:
“Furthermore, those who never obtained the ownership of property have no power to vindicate it.
Instances are they to whom a thing has not yet been legally delivered after they have bought it and
paid the price; or they to whom a thing has been donated by the making of an agreement or
stipulation without delivery; since such persons have only a personal action for delivery.”’12
[16] Blieden J cited a collection of cases in which the quest ion considered was
whether a party could avail itself of a vindicatory remedy by a cession. He noted that
those cases, which included the cases referred to by G ildenhuys J in para graph 12
of his judgment, 13 dealt with the transfer of rights to movables where ownership
could pass in various ways other than the actual physical handing over of the subject
matter so transferred. He then said:
‘In the instant case, the relevant rights of vindication relate to immovable property. The law in
this regard is clear, such property can only be transferred by registration in the deeds
registry. As is made plain by Sonnekus in Sakereg (1994 at page 402) and the authorities
registry. As is made plain by Sonnekus in Sakereg (1994 at page 402) and the authorities
relied upon by him, “ Eiendomsreg as saaklike reg is ten ene male nie in die Suid-Afrikaanse
reg op ‘n suiwer konsensuele wyse, sonder voldoening aan die betrokke publisiteitsvereistes
(registrasie by onroerende en lewering by roerende goedere) oordraagbaar nie. ” As a rei
vindicatio is an inseparable part of the ownership in land, it cannot be ceded without the
11 Red Stripe Trading 68 CC v Mahlomola and Another (2011/06) [2006] ZAGPHC 39 (28 April 2006)
para 13.
12 Ibid para 15.
13 Marcus v Stamper and Zoutendijk 1910 AD 58 at 75 and Vivier v Waterberg Ko -Operatiewe
Landboumaatskappy Bpk 1956 (2) SA 665 (T) at 672D-E; Stern NO v Standard Trading Co (Pty) Ltd
1955 (3) SA 423 (A) at 429A -B; Smit v Saipem 1974 (4) SA 918 (A); Caledon & Suid -Westelike
Distrikte Eksekuteurskamer Bpk v Wentzel 1972 (1) SA 270 (A) at 274-275; Air-Kel (Edms) Bpk h/a
Merkel Motors v Bodenstein 1980 (3) SA 917 (A).
9
property being transferred in terms of the law, which in the present case is by registration of
transfer in the deeds registry. It must be stressed, as is made plain in the cases quoted
above, that the rei vindicatio is only a remedy and not a right, it cannot be ceded separately
from the right of ownership.’14
[17] The principle laid down in Red Stripe 2 commends itself in this instance and is
decisive on the question now before the Court . I see no conceptual difficulty in
following that approach. To fortify this conclusion, s 16 of the Deeds Registries Act
47 of 1937 provides in part that the ownership of land may be conveyed from one
person to another only by means of a deed of transfer executed or attested by the
registrar, and other real rights in land may be conveyed from one person to another
only by means of a deed of cession attested by a notary public and registered by the
registrar. On the principles and the authorities referred to , Jumalo’s argument that
certain specified clauses of the deed of sale signified a cession of the rei vindicatio
remedy cannot avail it. Stated otherwise , the argument that the deceased estate
divested itself, in the sale agreement, of every right and/or obligation an owner could
possibly have, must falter.
[18] From the background already sketched, Mr Visagie’s ownership could never
have been of a “nominal character” as Jumalo sought to suggest with reference to
the remarks in Shimuadi v Shirungu15 where it was said:
‘Should the defendant deny any one of these elements, namely that plaintiff is the owner or
that defendant is in occupation, the onus is on the plaintiff to prove the truth of the element
which is denied. The plaintiff would succeed in discharging the onus of proof in respect of
ownership by proving registered title deeds in his favour. An inference that plaintiff is the
owner would then justifiably be drawn. Should the defendant dispute the validity of the title
owner would then justifiably be drawn. Should the defendant dispute the validity of the title
deeds or that ownership, despite the deeds, is of a “nominal character” (“nominale aard”), as
in the present case, the onus is on the defendant to prove this.’
Mr Visagie may well have parted with his possession, but it is manifest that he did
not part with his ownership.
14 Red Stripe Trading 68 CC v Mahlomola and Another (above fn 11) para 17.
15 1990 (3) SA 344 (SWA) at 347C-D.
10
[19] To further bolster its argument that the deceased estate rid itself of the right to
possession and ceded all its rights and obligation s to Season Find, Jumalo further
relied on s 197 of the Labour Relations Act 66 of 1995 (LRA). In broad outline, s 197
of the LRA provides that where there is transfer of a business by one employer (the
old employer) to another employer (the new employer) as a going concern , the new
employer/purchaser, Season Find in this case, is automatically substituted for the old
employer/seller as the employer in respect of all the existing contracts of
employment. All rights and obligations between the old employer and the employees,
at the time of transfer, continue to be in force as if they had been rights and
obligations between the new employer and the employee s. Jumalo’s argument is
somewhat misplaced. Section 197 of the LRA does not find application in this case.
[20] Jumalo does not challenge the Court of first instance’s rejection of its defence
based on an improvement lien, which was aimed at asserting its continuous physical
control over the property and ward off Mr Visagie’s rei vindicatio remedy because it
was afforded leave to appeal on a restricted basis. In any event, clauses 9.1.2 and
27 of the lease agreement appear to render the defence untenable. They provide:
‘9.1 The tenant shall-
. . .
9.1.2 not make any alterations or additions whatsoever to the premises without the prior
written consent of the landlord. In the event of the landlord agreeing to any such alteration or
addition to the premises, the landlord shall be entitled, on termination of this agreement , to
require the tenant to restore the premises at the tenant’s expense to the same condition it
was in prior to such alteration or addition. On termination of the lease, the tenant shall be
obliged to remove any/all of the alteration s, additions, or improvements at the tenant’s cost
and be obliged to make good any damage incurred by such removal unless otherwise
and be obliged to make good any damage incurred by such removal unless otherwise
agreed in writing with the landlord. If the tenant does not remove all the alterations, additions
or improvements by the expiry date or the date of termination, then the remaining items shall
become the property of the landlord , who shall be entitled to remove and make good the
affected areas at the tenant ’s cost or retain such alteration s, additions , or improvements
without compensating the tenant therefore.
. . .
27 The landlord grants the tenant permission to do improvements on the property at his
own costs prior to exercising his option to purchase . Should the tenant ma ke improvements
to the property and , does not exercise the granted option to purchase , the costs of the
11
alterations will not be refunded by the landlord , and the landlord reserves the right to
demand the property in its original condition, also at the cost of the tenant.’
[21] Finally, in Minister of Police and Others v Fidelity Security Services (Pty) Ltd
and Others 16, the Constitutional Court trenchantly restated the distinction between
ownership and possession as follows:
‘Ownership, as the most comprehensive real right a legal subject can have in relation to a
thing, is accorded recognition and protection in terms of art 17 of the Universal Declaration
of Human Rights, and domestically in s 25 of the Constitution. Possession is one of the
entitlements that traditionally flows from ownership, and it is constituted when “a person has
physical control ( detentio) of a thing together with the mental attitude ( animus possidendi )
that includes a consciousness of that control”. Possession in itself, though, is something
entirely different from ownership. Possession is characterised by being in control of an
object, and the right to possession is far more limited than a person’s ownership rights over
an object.’ (My emphasis.)
On the foregoing analysis, the deceased estate had locus standi to bring the eviction
application as the registered owner of the property. Jumalo’s tenancy was lawfully
terminated, and it is therefore not entitled to resist ejectment.
[22] The remaining issue to consider is Jumalo’s argument that Season Find ought
to have been joined in the eviction proceedings. I hasten to say that this is not an
objection of any great weight. A person must be joined as a party to the proceedings
where their joinder is necessary. That would be the case if a party has a material
direct or substantial interest in the relief claimed, unless it has waived that right. A
direct and substantial interest is an interest in the right which is the subject matter of
the litigation. A plain financial interest is an indirect interest and may not require
the litigation. A plain financial interest is an indirect interest and may not require
joinder.17 The mere fact that a party may have an interest in the outcome of litigation
does not warrant a non-joinder plea. The right of a party to validly raise the objection
that other parties should have been joined to the proceedings has accordingly been
held to be limited.18
16 2022 (2) SACR 519 (CC) para 38.
17 Eugene Prinsloo v Donovan Theodore Majiedt N.O and Another (257/2024) [2025] ZASCA 74 (30
May 2025); [2025] JOL 69060 (SCA) para 13.
18 Judicial Service Commission and Another v Cape Bar Council and Another 2013 (1) SA 170 (SCA)
para 12.
12
[23] Season Find is aware of the se proceedings as its sole me mber attested to a
confirmatory affidavit in support of some of the averments made by the deceased
estate which concern ed it. The overall assessment of this case demonstrate s that
the joinder of Season Find in this litigation was unnecessary to achieve the object of
the application as determined by the Court of first instance . The Court , therefore,
correctly rejected the joinder argument as contrived. The upshot of this is that
Jumalo’s appeal must fail.
[24] Jumalo urged, in the event that the appeal is not upheld, that it be afforded
three months to vacate the property , and that the Court of first instance ’s award of
costs on an attorney and client scale be substituted with one on a party and party
scale. Taking into account the interest of the deceased estate , and further
recognising that ownership is a constitutionally protected right, I am of the view that ,
regard being had to the length of the period in which Jumalo remained in occupation
of the property , a period of one month to vacate the property would be just and
equitable in the circumstances of this case. The variation of the Court of first
instance’s order, only to the extent of amending the period within which an order of
ejectment ought to take effect, is therefore necessary.
[25] The Court of first instance’s justification of attorney and client costs is
anchored in clause 22 of the lease agreement . This appeal is not directed at th e
Court’s exercise of discretion regarding the costs . In my view, there would be no
rational basis to upset the finding and to depart from the terms of the agreement . To
hold otherwise would render the agreements lawfully concluded ineffectual. An order
is therefore issued:
Order:
1. The appeal is dismissed with costs on an attorney and client scale.
2. Paragraph 1 of the order of the Court of first instance is varied as follows:
2. Paragraph 1 of the order of the Court of first instance is varied as follows:
‘1. The Respondent, and all others occupying on behalf of or through it, are ordered
to vacate the property being the remaining extent of portion 5 of Farm number
13
187, situated in the Sol Plaatje Municipality, and to do so within 30 days from the
date of this order.’
________________
M V PHATSHOANE
DEPUTY JUDGE PRESIDENT
NORTHERN CAPE DIVISION
Appearances
For the appellant: E Bester
Instructed by: Adrian B Horwitz & Associates, Kimberley
For the respondent: JG Van Niekerk SC
Instructed by: Engelsman Magabane Inc, Kimberley.