SAFLII Note: Certain personal/private det ails 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
Not Reportable
Case no: 2025-044627
In the matter between:
THE TRUSTEES FOR THE TIME BEING APPLICANT
OF THE LAZAREVIC TRUST
and
MARIJKE KARINE CHANTAL HAVENGA RESPONDENT
(Owner of 3[...] O[...] V[...] Road, The Links,
Somerset West)
Coram: COOKE AJ
Heard: 30 JULY 2026
Judgment: 19 AUGUST 2026
Summary: Non-joinder – raised mero motu by court – application of
two-stage test – appropriate procedure – rule nisi granted – formulation
of the rule nisi
ORDER
[1] A rule nisi is issued calling upon interested parties to show cause why the
following orders should, or should not, be made:
a. a declaration that the respondent is in breach of the restrictive
condition contained in clause C(c) of her Title Deed, which states
that no trees shall be grown to a height that interferes with the
reasonable outlook of owners of any other erf in the Estate (‘the
Estate’);
b. an interdict directing the respondent to prune the tree located on
her property at 3[...] O[...] V[...] Road, The Links, Somerset
West, to a height that does not interfere with the reasonable
outlook of the applicant’s property;
c. in the event of the respondent’s failure to comply with (b) above
within 14 days from the date of the order, authorising the
applicant to appoint a qualified tree -felling service to undertake
the pruning at the respondent’s cost; and
d. directing the respondent to pay the costs of this application.
[2] The interested parties who wish to participate in the application (‘the
participating residents’) and the existing parties (‘the parties’) are directed
to comply with the following procedure:
a. by Friday, 4 September 2026, the participating residents shall
send an email to the parties’ attorneys at r[...] and j[...] advising
of their intention to participate in these proceedings;
b. by Friday, 11 September 2026, the applicant’s attorneys shall
provide a full copy of the application papers to the participating
residents;
c. by Friday, 9 October 2026, the participating residents shall
deliver an affidavit setting out (i) their address (ii) their interest
in the relief sought and (ii i) the grounds for opposing or
supporting the relief; and
d. the parties are given leave to reply to any new matter raised in
the participating residents’ affidavits , by Friday, 30 October
2026.
[3] If no notification is received in terms of 2(a) above, or if no affidavits are
delivered in terms of 2(c) above, the parties’ attorneys shall inform the
Court’s registrar accordingly, and the Court will proceed to finalise the
judgment on the papers as they stand.
[4] If any participating resident sends the notification and delivers an affidavit
in terms of 2(a) and (c) above:
a. after the parties have replied to any new matter in terms of 2(d)
above, the parties and the participating residents are directed, in
terms of rule 41A(3)(b), to consider mediating the dispute; and
b. if the dispute remains unresolved, the parties and the
participating residents shall, together with this Court’s registrar,
arrange a date for a further hearing.
[5] The rule nisi shall be served by the applicant’s attorneys arranging for this
judgment to be circulated across all local neighbourhood WhatsApp
groups created for resid ents in the Estate by Friday, 28 August 2026 ,
accompanied by the following message : ‘The Western Cape High Court
handed down the attached judgment on 19 August 2026 . If you wish to
support or oppose the relief described in paragraph 1 of th e order, you
must follow the procedure described in paragraph 2 of the order. If you
are aware of residents of the Estate who are not members of any
neighbourhood WhatsApp group, or for any other reason have not
received this message, please forward this message to them.’
[6] The costs of the postponement shall stand over for later determination.
JUDGMENT
COOKE AJ:
[1] This matter concerns a Norfolk pine tree (‘the tree’) located on the
property of the respondent (‘Ms Havenga’) at 3[...] O[...] V[...] Road, The
Links, Somerset West . T he applicant (‘the Trust’) seeks an order
declaring that Ms Havenga is in breach of a restrictive condition contained
in her title deed . This condition states that no trees shall be grown to a
height that interferes with the reasonable outlook of owners of any other
erf in ‘the Estate’. The Trust also asks for an order directing Ms Havenga
to prune the tree to a height that does not interfere with the reasonable
outlook of the Trust’s property. The question of whether the tree
interfered with the reasonable outlook from the Trust’s property is fiercely
disputed on the papers.
[2] I begin with a n observation regarding mediation. In Ms Havenga’s
answering affidavit, she state s that she consented to mediation and
contended that the appointment of a mediato r to determine the dispute
would have been a far more appropriate option. In its replying affidavit ,
the Trust states that the appointment of a mediator would be preferable to
burdening the court with what ought to have been a straightforward
compliance matter. Notwithstanding th e apparent concurrence regarding
the suitability of mediation , the parties did not engage in a mediation
process. This Court has previously noted that disputes of this nature
should be resolved by way of mediation rather than litigation. 1 At the
commencement of the hearing I suggested to the parties that they consider
resolving this matter by mediation. After the matter had stood down, I was
advised by counsel that the parties had not been able to agree on
mediation and therefore the matter needed to be determined by the court. I
return to the question of mediation at the end of this judgment.
[3] At the hearing, t here was one preliminary matter that required
determination. Ms Havenga had applied (a) for leave to file a further
affidavit, and (b) to strike out a paragraph, together with two annexures,
from the replying affidavit. At the hearing, counsel for Ms Havenga
advised that her client did not persist with the striking out relief. That left
the request for leave to file a further affidavit. In the replying affidavit the
Trust stated that Ms Havenga had posted a message on Facebook in which
she admitted that the tree needed to be pruned , thereby acknowledging the
validity of the concerns raised and the existence of the servitude. The
Facebook post was not annexed to the affidavit. Ms Havenga sought, in
the further affidavit, to respond to this allegation. Counsel for the Trust
indicated that his client did not oppose that relief, although he did submit
that the further affidavit was irrelevant. In my view it is appropriate that
Ms Havenga be afforded the opportunity to respond to the allegation
arising from her Facebook post, and I accordingly granted leave to file the
further affidavit.
[4] I turn now to the main application. At the outset, it is necessary to
consider whether all interested parties have been joined . An order ought
not ordinarily to be granted where any other person's interests may be
1 Baartman v Stubbs 2015 JDR 0513 (WCC) para 3.
directly affected, without formal judicial notice of the proceedings having
first been given to such other party. This is a matter of fairness . A ll
substantially and directly interested parties should be afforded the
opportunity to be heard before any order is made.2
[5] The title deed restriction, which is the subject of this matter, is common to
the title deeds of all properties in ‘ the Estate’. It is not evident from the
papers before me, precisely what geographical area constitutes ‘the
Estate’. Nonetheless, it appears that each resident in the Estate bears a
similar obligation to all the other residents , namely, to ensure that the
trees on their property do not grow to a height which interferes with the
‘reasonable outlook’ of the other residents.
[6] It seemed to me that all the residents of the Estate have an interest in the
outcome of the application . Notionally, there may be other residents who
share the stance adopted by the Trust and consider Ms Havenga to be in
breach of her dut y. The Trust’s counsel indicated from the bar that there
were other residents who intended launching similar proceedings. On the
other hand , there may also be residents who do not wish the tree to be
pruned. Perhaps, they believe that the symmetrical elegance of the tree
improves their vista . Some may not wish a precedent to be set which
impacts the trees on their own property.
[7] Ms Havenga did not raise a non -joinder objection to the application.
Nonetheless, the courts have an inherent common law power to order a
joinder of parties where it is necessary to do so even where there is no
substantive application for joinder. A court could, of its own accord, raise
2 Philippi Horticultural Area Food and Farming Campaign and Another v MEC for Local Government,
Western Cape and Others 2020 (3) SA 486 (WCC) para 29.
a question of joinder to safeguard the interest of a necessary party and
decline to hear a matter until joinder has been effected. 3 In the case of a
joinder as a matter of necessity, a failure to join precludes determination
of the suit until joinder has occurred. 4 It follows, in my view, that the
question of joinder must be decided before entertaining the merits of the
application.
[8] At the hearing I asked the parties to address me in relation to the issue of
non-joinder. Although counsel for the Trust did not accept that the
application was defective for want of joinder, he agreed that the other
residents would have a direct and substantial interest in the relief sought
in this application. Counsel for Ms Havenga submitted that joinder was
‘neither here nor there’ and the court did not need to decide the point.
[9] After the hearing, the parties were informed that the court was considering
issuing a rule nisi to address the non -joinder of interest ed parties, and
specific information was requested . In response to an enquiry from Ms
Havenga’s attorneys, the parties were invited to file heads of argument in
relation to the question of non-joinder.
[10] In heads of argument filed on behalf of the Trust, counsel submitted that a
rule nisi should be issued. He contended that a rule nisi would allow
access to the court for parties who are interested but lack the financial
resources to participate in the application. He argued further that a rule
nisi would avoid a proliferation of actions.
3 Matjhabeng Local Municipality v Eskom Holdings Ltd and Others 2018 (1) SA 1 (CC) para 91. See also
Prinsloo v Majiedt MO and Another 2025 JDR 2398 (SCA) (‘Prinsloo’) para 4.
4 Khumalo v Wilkins and Another 1972 (4) SA 470 (N) at 475A-B; Snowy Owl Properties 284 (Pty) Ltd and
Others v Mziki Share Block (Pty) Ltd (642/2022) [2024] ZASCA 79 (27 May 2024) ; 2024 JDR 2196 (SCA)
para 25.
[11] Ms Havenga’s counsel, on the other hand, submitted that although other
residents of the Estate may possess the same servitudinal right, their rights
will not be affected by an order that this Court decides to make. In support
of this submission, she argued that the relief in this matter is directed to
the alleged interference with the outlook enjoyed from the Trust’s
property, and an order for or against the trimming of the tree would not
determine or prejudice another resident’s legal rights in terms of the
servitude. According to this argument, the present litigation pertains
specifically to the Trust’s property and does not require an estate -wide
interpretation or height determination. As to the proposed rule nisi, Ms
Havenga’s counsel expressed a concern that the class of persons whose
joinder is said to be necessary has not been identified. She submitted that
the procedure should identify or require a responding individual to
establish the legal interest said to be prejudicially affected and the
capacity in which joinder or intervention is sought. Counsel also
contended that mere publication of an invitation to participate will not
cure the non -joinder if an owner does nothing. She warned that
publication of a rule nisi, inviting unidentified residents of the Estate to
file papers , risks creating procedural uncertainty without resolving the
underlying question of non -joinder. Finally, counsel submitted that the
application should not be transformed after argument into a vehicle for
collecting additional supporting evidence.
[12] The law in relation to joinder has been recently summarised by the
Supreme Court of Appeal in Prinsloo:
‘A person is required to be joined as a party to proceedings if it is
concluded that her joinder is necessary. The joinder of a party is
necessary if she has a material direct or substantial interest in the
relief claimed, unless she has waived that right. A direct and
substantial interest is an interest in the right, which is the subject
matter of the litigation, not merely a financial interest, which is
an indirect interest in such litigation. Where a joint financial or
proprietary interest is implicated joinder should follow. Joinder is
not dependent on the nature of the subject matter of the suit but
on the manner in which, and the extent to which, the court’s
order may affect the interests of third parties. If it is concluded
that a party should be joined, then it is required of a court to
make an order which addresses that conclusion.’5
[13] Prinsloo confirmed that the test to be applied is twofold: The first
question is whether third part ies would have standing (locus standi ) to
claim relief concerning the same subject -matter. The second enquiry is
whether a situation could arise in which, because third part ies had not
been joined, any order the court might make would not be finally decided
(res judicat a) against them, entitl ing them to approach the courts again
concerning the same subject -matter and possibly obtain an order
irreconcilable with the order made in the first instance.6
[14] To my mind both legs of this test fall to be answered affirmatively. F irst,
the other residents of the Estate would have standing to claim the relief
sought by the Trust in these proceedings. They too could ask for an order
5 Para 13.
6 Prinsloo para 14.
declaring that Ms Havenga is in breach of the title deed condition, and
they too could ask for an order directing her to prune the tree . As to the
second leg, if the other residents were not joined to this application, any
order that this Court might make would not be binding on the m, and, if
they were to bring their own application, this could result in a differen t
court making a different order based on the evidence placed before th at
court by those other residents. It follows , in my view, that the other
residents of the Estate have a direct and substantial interest in the relief
sought by the Trust, and they should have been joined.
[15] As to the submissions made on behalf of Ms Havenga, it is necessary to
express provisional findings in relation to the proper interpretation of the
servitude. The findings are provisional because the parties will be entitled
on the return day to advance different submissions and the findings in this
judgment will not be binding on that court.7
[16] In my view the servitude must be construed in accordance with the
modern approach to the interpretation of legal instruments. It thus falls to
be assessed ‘holistically: simultaneously considering the text, context and
purpose’.8 In so far as there may be ambiguity in the wording of the
servitude, the court will lean towards an interpretation that would burden
the servient tenement as lightly as possible.9
[17] The argument presented on behalf of Ms Havenga assumes, wrongly in
my view, that Ms Havenga’s obligation to the Trust is different to her
7 See the discussion in Raubex Building (Pty) Ltd v Bitou Municipality and Another 2025 JDR 3961 (WCC)
paras 13-18.
8 Huntrex 277 (Pty) Ltd v Berzack and Others 2025 (4) SA 347 (CC) para s 56-57. See also Venter and
Another v Helfer and Others 2025 JDR 5142 (WCC) para 17.
9 Fourie v Marandellas Town Council 1972 (2) SA 698 (R) at 700C; Kruger v Joles Eiendomme (Pty) Ltd
and Another 2009 (3) SA 5 (SCA) para 8.
obligation to other residents in the Estate . To my mind, Ms Havenga’s
duty to ensure that her tree does not grow beyond a certain height is a
single, objective obligation. In other words, she has one obligation
common to all the residents of the Estate . Any other interpretation would
be untenable. She cannot have a distinct obligation to each different
individual resident. She cannot simultaneously be in breach to resident A,
but not in breach to resident B. If Ms Havenga had a discrete obligation to
each resident of the Estate, the effect of this would be that she would be
obliged to cut the tree to the level required to satisfy the reasonable
outlook of the resident most affected by the tree. I do not consider that
such a construction would be consistent with the interpretive approach
described above. To my mind, the servitude requires all owners to ensure
that the trees on their property do not interfere with the reasonable outlook
of all other owners in the Estate, considered as a whole. The obligation
thus falls to be assessed having regard to the impact a tree has on the view
from all parts of the Estate.
[18] In determining Ms Havenga’s obligation to the Trust, the court will thus
also determine her obligation to the other owners in the Estate. It follows
that the present litigation is not property -specific, and it does require an
estate-wide interpretation or height determination.
[19] Having found that interested parties have not been joined , I am obliged to
make an order which addresses that conclusion. The courts have
recognised different methods by which interested parties may be drawn
into litigation. 10 For instance, the court could publish an order and ask
10 See generally Dendy and Loots Herbstein and Van Winsen: The Civil Practice of the Superior Courts of
South Africa 6th ed (2026) pp 7-24-25. See also Mashike NO v Senwesbel Limited 2013 JDR 0662 (SCA)
para 22.
interested parties to advise if they consented to such an order. 11 This
approach may be justified when the issue of joinder arises for the first
time on appeal, or where it is unlikely that the other parties will intervene.
Another route is to issue a rule nisi calling upon parties to show cause
why the relief sought should, or should not, be granted. A rule nisi is a
judicial invitation to join issue and the failure to appear after proper notice
thereof is regarded as a waiver of the right to be joined and a submission
to the order of the court. A rule nisi is suitable where the necessary parties
are numerous, and unknown. 12 In Ex Parte Saiga Properties Leach J (as
he then was) observed that t he practice of issuing a rule nisi developed as
a result of the difficulty of identifying substantial numbers of interested
parties, the probable impossibility of securing the express consent of all
such parties and the high cost of serving the application on all of them,
even if identified. The learned Judge noted that t his would particularly be
the case where, for example, a property is situated in a residential area
where there are numerous lot holders.13
[20] In my view, having regard to the facts of this matter, a rule nisi would be
an appropriate mechanism for addressing the non-joinder problem. This is
preferable to compelling the Trust to start afresh , with the attendant
expenses and delay . This is a case where there are numerous possible
parties, and their identit ies are not known to the court. The rule nisi will
afford them an opportunity to be heard. If they fail to exercise th e
11 See for example Eden Village (Meadowbrook) (Pty) Ltd and Another v Edwards and Another 1995 (4) SA
31 (A) (‘Eden Village’) at 47E-F.
12 See for instance Ex parte Sengol Investments (Pty) Ltd 1982 (3) SA 474 (T) at 478E-F; Ex parte Saiga
Properties (Pty) Ltd 1997 (4) SA 716 (E) at 720 A-B; Insamcor (Pty) Ltd v Dorbyl Light & General
Engineering (Pty) Ltd, Dorbyl Light & General Engineering (Pty) Ltd v Insamcor (Pty) Ltd 2007 (4) SA 467
(SCA) paras 27-29; UMSO Construction (Pty) Limited v City of Johannesburg and Another (2018/17263)
[2018] ZAGPJHC 522; [2018] 4 All SA 507 (GJ) (31 May 2018) paras 77-88; and Member of the Executive
Council for the Department of Health, Eastern Cape v Mbokodi 2022 JDR 3073 (SCA) para 12.
13 Ex Parte Saiga Properties at 720A-B.
opportunity, this will constitute a waiver of the right to be joined and a
submission to the order of the court. The rule nisi will thus resolve the
non-joinder and will be effective in preventing a proliferation of litigation.
[21] As to the terms of the proposed rule nisi, I am satisfied that the residents
seeking to participate should identify their interest. I do not, however,
think it appropriate that they be required to formally intervene or join the
litigation. This would result in unnecessary costs and delays. In my view
the publication of an invitation to participate will cure the non -joinder
even if interested parties decline to participate. The order proposed
provides for the delivery of affidavits by interested residents, and the
parties are given leave to deliver replying affidavits , albeit only to new
matter. This should meet the concern regarding procedural uncertainty.
The possibility of further evidence on the merits being adduced is
inevitable. The very purpose of the rule nisi procedure is to allow other
parties to be heard. However, by limiting the existing parties to reply only
to new matter, the order constrains the additional evidence that may be
adduced by them.
[22] Lastly, in relation to the formulation of the rule, in my view parties
opposing or supporting the relief should be invited to show cause.
Although the conventional formulation of a rule nisi only calls upon
parties to show cause why the order should not be granted, in this
instance, it is preferable that the order also invite parties to show cause
why the order should be granted. 14 To my mind, this is a suitable
formulation where a rule nisi is employed to cure a non -joinder problem,
14 There is some support for this formulation in the minority judgment of Koen JA in Selective Empowerment
Investments Ltd v Companies and Intellectual Property Commission 2025 (6) SA 495 (SCA) para 95.
as compared to a case where a rule nisi is an adjunct to interim relief . In
this case, the court has not yet entered the merits of the application and
has thus not made a provisional finding one way or the other .
Furthermore, the court has been informed that there are residents who
wish to support the relief sought. The invitation issued by this Court
should therefore not be addressed only to those opposing the relief.
[23] This brings me to the question of how the rule nisi is to be published. In
my view this is a case where it is not necessary for there to be personal
service on every interested party. Some form of substituted service would
be fitting. After the hearing I requested the parties to indicate what service
they considered would be appropriate in these circumstances. I raised the
possibility of publication on a neighbourhood WhatsApp group or
Facebook page. The Trust’s attorney advised that he contacted the
administrator of the neighbourhood watch groups, who confirmed that any
order would be distributed to the relevant groups . I infer that the Trust
considers that publication on neighbourhood WhatsApp groups would be
appropriate. Ms Havenga’s legal representatives did not object to this
form of publication. In my view publication on WhatsApp groups is likely
to be far more effective than publication in a newspaper . I appreciate that
some residents may have elected not to join a neighbourhood WhatsApp
group. The order proposed thus includes a message to readers which,
amongst other things, requests that the message be forwarded to residents
who may not have received it.
[24] As regards the costs of the postponement, ordinarily the Trust, as the party
that should have joined the other residents, would be liable for such
costs.15 I have not, however, had the benefit of argument in this regard,
and I think the court hearing the matter on the return day will be in a
better position to determine an appropriate costs order.
[25] Finally, I return to the topic of mediation. If the rule nisi causes interested
parties to indicate their intention to participate, and these persons deliver
affidavits, this will change the complexion of the case. In my view, at that
point all the parties should pause and consider whether the dispute may be
resolved by mediation. I do not have the authority to compel the parties to
mediate, but in terms of rule 41A(3)(b) I may direct the parties to consider
referring the dispute to mediation.16 Such a provision will be made in the
order.
[26] In conclusion, it is my view that fairness requires that the residents of the
Estate be afforded an opportunity to participate in this application before
the court decides whether the tree is too high. I therefore grant the order
set out above.
_____________________________
DJ COOKE
ACTING JUDGE OF THE HIGH COURT
Appearances
15 Eden Village at 48D-E.
16 This rule provides: ‘A Judge, or a Case Management Judge referred to in rule 37A or the court may at any
stage before judgment direct the parties to consider referral of a dispute to mediation, whereupon the parties
may agree to refer the dispute to mediation.’
For applicant: D Welgemoed (main heads of argument drafted by
P Tredoux)
Instructed by: JB Law
For respondent: V Manser
Instructed by: Malan Lourens Viljoen Inc.