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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO: A289/25
(1) REPORTABLE: YES / NO
(2) OF INTEREST TO OTHER JUDGES: YES/NO
(3) REVISED: NO
DATE 30 APRIL 2026
SIGNATURE
In the matter between:
THANDO ZANDILE TOKWE
And
LORRAINE FENNEL
ALL UNLAWFUL OCCUPANTS OF ERF 2[...] X[...]
SECTION TEMBISA
EKURHULENI METROPOLITAN MUNICIPALITY OF
TEMBISA
MASTER OF THE HIGH COURT, JOHANNESBURG
Appellant
1ST Respondent
2ND Respondent
3RD Respondent
4TH Respondent
2
Coram: MOOKI J and KEKANA AJ
Heard on: 12 FEBRUARY 2026
This Judgment was handed down electronically and by circulation to the parties’
legal representatives by way of email and shall be uploaded on Caselines. The date
for hand down is deemed to be on 30 April 2026.
JUDGMENT
KEKANA AJ (MOOKI J CONCURRING)
Introduction and background
[1] This is an app eal against the judgment handed down by magistrate at the
Tembisa magistrate court on 15 April 2025 in which the Appellant’s application
for an order for the eviction of the first and second respondents (the
Respondents) was dismissed. Aggrieved by the decision of the court a quo,
the Appellant filed a Notice of Appeal against the judgment of the court a quo
on 30 May 2025. The Respondents only filed a Notice of intention to oppose.
[2] The Appellant’s case is as follows. The Appellant purchased from the
executor of the estate late Regina Fennel an immovable property described
as Erf 2[...] X[...] Section, Tembisa, Gauteng Province. After the conclusion of
the sale agreement between the executor and the Appellant, the executor
notified the first respondent that the property was sold, and that the new
owner will occupy the property after the transfer of the property into her name.
[3] After the property was transferred, the Respondents refused to vacate the
property and the Appellant gave the first respondent a verbal notice of eviction
3
from the property. The Respondents refused to vacate the property , claiming
that they are beneficiaries of the estate late Regina Fennel and that they have
a right to occupy the property . The Appellant alleges that the Respondents
are in unlawful occupation of the property.
Condonation
[4] On 12 January 2026, the Appellant filed an application for condonation of the
late filing of the appeal. In the condonation application the Appellant submits
that after the judgment was handed down further consultations were held with
the client and again a Notice to Request Reasons for judgment had to be filed
terms of Rule 51(1) of the Rules Regulating the Conduct of Proceedings of
Magistrate Court.
[5] A Notice of Appeal was served on the R espondent’s Attorneys of record on 3
June 2025, The Appellant alleges that from July to November 2025 she was
waiting for the Attorneys of the Respondents to oppose the appeal. The
Appellant further alleges that it was mentioned by the magistrate during the
proceedings that the Respondents were indigent persons utilising Legal Aid
services which mandate was later terminated, and that the long wait was to
enable the Respondents to gather funds so they can pay their Attorneys of
record, being Sibuyi Attorneys to proceed to oppose the appeal.
[6] It is trite that condonation cannot be for the mere asking. A party seeking
condonation must make out a case entitling it to the court’s indulgence. It must
show sufficient cause. This requires a party to give a full explanation for the
non-compliance with the rules or court’s directions. Of great significance, the
explanation must be reasonable enough to excuse the default 1. In a
condonation application, what is needed is an objective conspectus of all the
facts. Thus, a slight delay and a good explanation may help to compensate
prospects which are not strong.2
1 Von Abo v President of the Republic of South Africa [2009] ZACC 15; 2009 (5) SA 345 (CC); 2009
(10) BCLR 1052 (CC) at para 20.
(10) BCLR 1052 (CC) at para 20.
2 Melane v Santam Insurance Co Ltd 1962 (4) SA 531 (A).
4
[7] There was a delay by the Appellant and though the explanation provided was
disputed by the first and second Respondents in their opposition of the
condonation, t he court noted that the Respondents failed to allege any
particular prejudice. The standard for considering an application for
condonation is the interests of justice. What follows now is the interests of
justice which is regarded as the standard for considering an application for
condonation.3 Absent any prejudice shown on the part of the Respondent, I am
of the view that it will be in the interests of justice for the condonation to be
granted.
Submissions by Appellant
[8] Appellant’s submission can be summarised as follows:
8.1 that the M agistrate erred in accepting the first and second
Respondents’ version that the property was sold fraudulently without
any documentary proof to support this version;
8.2 that the M agistrate erred in finding that the executor of the estate
misrepresented himself at the office of the Master of the High Court in
Johannesburg, when he informed the office of the Master that he is the
only heir of the estate of his grandmother;
8.3 that the learned magistrate misdirected himself by assuming that the
intention of the executor of the estate (Makhina Elias Fennel) was to
make a quick money by selling the house;
8.4 that the magistrate erred by failing to consider that the immovable
property in dispute has passed all the stages of a process for
registration of immovable property at the Deeds Office;
8.5 that if based on the evidence before him, he was of the conclusion that
there was dispute over the house the learned magistrate while not
granting the Applicant an order for eviction of the First and Second
3 Grootboom v National Prosecuting Authority and Another (CCT 08/13) [2013] ZACC 37 at para 22.
5
Respondents, he should have postponed the application of eviction of
the First and Second Respondents sine die, so that the Applicant and
the First and Second Respondents can resolve the issue of ownership
of the estate property by using any legal procedure that is available to
them.
[9] The first and the second Respondents are not oppos ing the appeal but
committed to abide by the decision of the Court.
Legal principle and analysis.
[10] An application for eviction is by its very nature vindicatory and an applicant is
required to prove its ownership of the property from which it seeks to evict the
respondent.4 The onus is on the applicant to prove their ownership with clear
and admissible evidence.
[11] The Appellant presented in the court a quo a title deed and an unsigned deed
of sale to prove ownership. It is concerning that the deed of sale lacks several
essential aspects which are key to facilitate a complete transfer. It does not
have the full details of the property to be sold, the town, the erf number and
street address . No w itnesses signed for an on behalf of the purchaser, and
only one witness sign ed for the seller while two witnesses are required to sign.
Details of Elias Makhina Fennel are completed on the part of the spouse of the
purchaser and again Elias Makhina Fennel’s details are completed as the
seller, nowhere does the purchaser sign the deed of sale.
[12] Since the deed of sale was one of the evidence presented before the court a
quo the magistrate was therefore correct in accepting the invitation to consider
its contents. In Nedbank Ltd v Mendelow and another NNO 5, the SCA held
that it is trite that where registration of a transfer of immovable property is
effected pursuant to fraud or a forged document, ownership of the property
does not pass to the person in whose name the property is registered after the
purported transfer. Under the circumstances I find that the lack of those listed
purported transfer. Under the circumstances I find that the lack of those listed
4 Goudini Chrome (Pty) Ltd v MCC Contracts (Pty) Ltd 1993 (1) SA (A) at para 82.
5 2013 (6) SA 130 (SCA) at para 135.
6
essential aspects on the deed of sale makes the purported transfer
questionable. The submission by the Appellant that the immovable property in
dispute has passed all the stages of a process for registration of immovable
property at the Deeds Office cannot be sustained.
[13] Again, the Appellant attached a letter of executorship as evidence to prove that
Elias Makhina Fennel is the appointed executor of the estate of the late Regina
Fennel, however first Respondent in its answering affidavit contends that
absent any family meeting appointing Elias Makhina Fennel as the executor of
the late Regina Fennel, there must have been some misrepresentation on his
part at the office of the Master of the High Court for him to be regarded as the
only successor of the late Regina Fennel. Faced with this dispute, it was correct
for the court a quo to consider the confirmatory affidavit by the son of the late
Regina Fennel who is Willian Isaac Fennel and the ‘certificate of appointment ’
appointing him to be the representative of the late Regina Fennel’s estate.
[14] Despite the change in the regime on how estates are to be dealt with, it is
common cause that if William Isaac Fennel was appointed as a representative
of the estate of the late Regina Fennel as stated in the certificate of
appointment, the letter of executorship could not be issued years thereafter to
another person by the office of the Master of the High Court, without of William
Isaac Fennel being at least notified ; especially as there has not been reasons
to trigger his removal nor has he resigned from his position as representative of
the estate of the late Regina Fennel.6
[15] Upon discovering that Elias Makhina Fennel has been appointed an executor of
the estate of the late Regina Fennel, the family arranged a meeting with the
office of the Master of the High Court on 13 June 2022 to address the
appointment of Elias Ma khina Fennel. From the evidence before the court a
appointment of Elias Ma khina Fennel. From the evidence before the court a
quo, Elias Makhina Fennel did not avail himself and no excuse was provided for
his non-attendance of the meeting by the office of the Master of the High Court.
Again, there was a request by the family in terms of Promotion of Administrative
Justice Act, Act 3 of 2000 (PAJA) and Promotion of Access to information Act,
Act 2 of 2000 (PAIA) to the office of the Master of the High Court on 28
6 Wolfaardt NO and Others v Sherriff NO and Others (023949/24) [2025] ZAGPPHC 932.
7
September 2023 seeking reasons on the appointment of Elias Makhina Fennel
as the executor of the late Regina Fennel.
[16] It remains suspicious on how Elias Makhina Fennel was appointed executor of
the late Regina Fennel absent any family meeting involving the first and second
Respondents being aware of his appointment . There was no correspondence
from the office of the Master of the High Court removing William Isaac Fennel
even though he was appointed under a different regime (the old regime). The
court a quo was correct to cast some suspicion on the appointment of Elias
Mkahina Fennel as the executor of the estate of the late Regina Fennel as he is
not the only beneficiary of Regina Fennel.
[17] Having found that there are other beneficiaries of the late Regina Fennel in
existence; namely William Isaac Fennel (the son) and Larraine Fennel (the
granddaughter), it is clear that Elias Makhina Fennel is not the only heir of his
grandmother. I find no error on the part of the magistrate in finding that Elias
Makhina Fennel misrepresented himself at the office of the Master of the High
Court in Johannesburg, when he informed the office of the Master that he is the
only heir of the estate of his grandmother, indeed he is not the only heir of his
grandmother, consequently this amounted to a misrepresentation . The
‘certificate of appointment’ appointing William Isaac Fennel is proof that Elias
Makhina Fennel is not the only heir of the late Regina Fennel.
[18] The submission by the Appellant that the first and second Respondents remain
unlawful occupants of the property is found wanting in that they were lawful
occupants of the property prior to the death of the late Regina Fennel and
remain lawful occupants to the extent that there has not been any lawful
termination of rights previously held. Carelse AJ in the case of Davidan v
Polovin N O and Others 7 held that the jurisdictional requirement to trigger an
Polovin N O and Others 7 held that the jurisdictional requirement to trigger an
eviction under the Prevention of Illegal Eviction from and Unlawful Occupation
of Land Act 19 of 1998 (PIE) is that the person sought to be evicted must be an
unlawful occupier within the meaning of PIE at the time when the eviction
proceedings were launched. It means that if the person was a lawful occupier
7 Davidan v Polovin N O and Others (167/2020) [2021] ZASCA 109 (5 August 2021).
8
with some rights, then the need exists for the lawful termination of that right
first, it is only then that she becomes an unlawful occupier.
[19] The notice to vacate served by the Appellant on the Respondents does not
terminate the right to lawful occupation. Unless preceded by the termination of
lawful occupation or the termination of the right to occupation, the notice to
vacate alone becomes defective as it intends to vacate a lawful occupier and
for that reason PIE Act in inapplicable , especially as the Respondents were
lawful occupiers from de novo.
[20] Regarding the Appellant’s submission that the court a quo should have
postponed the matter sine die so that the Appellant and the first and second
Respondents can resolve the issue of ownership of the estate property by using
any legal procedure that is available to them. I find as regards ownership of the
property the Respondent's version to be plausible, and the lack of essential
aspects referred to in paragraph 11 above to complete the transfer makes the
Appellant's case to be fatally flawed. The onus rests on the Appellant to
establish that it is the rightful owner of the property and is entitled to the order
they seek .8 And having failed to do so the court a quo was correct in not
postponing the proceedings sine die but to dismiss the application.
Conclusion
[21] I find that Elias Makhina Fennel is not the only heir of the late Regina Fennel as
there are other beneficiaries namely, Lorraine Fennel and William Isaac Fennel.
His appointment as an executor without the knowledge of the other
beneficiaries remains suspicious. This can only be achieved if he presented
himself as the only heir of the late Regina Fennel, if so then this would amount
to a misrepresentation on his part. He was given an opportunity to attend the
meeting sanctioned by the office of the Master of the High Court which he did
not honor.
8 Motsile and Another v Motsile and Others (2022/16361) [2025] ZAGPJHC 1245.
9
[22] There were serious issues missing on the deed of sale for the lawful transfer to
be effected making the transfer of the property to be questionable in law. With
those serious defects in the deed of sale there is no clear right to ownership of
the property, the conclusion is strong that ownership of the property did not
pass to the person in whose name the property is registered after the purported
transfer.
[23] There was nothing erroneous in the findings of the court a quo in dismissing the
eviction application.
Order
[24] In the premises, the following order is made:
1. The appeal is accordingly dismissed.
Heard: 12 February 2026
Delivered: 30 April 2026
________________________
KEKANA AJ
Acting Judge of the High
Court
I agree
________________________
MOOKI J
Judge of the High Court