IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
JUDGMENT
Case no: A216/2025
In the matter between:
THOMAS MARTHINUS JOUBERT
(in his capacity as Trustee of the TOMMY
JOUBERT TRUST)
FIRST APPELLANT
PIERRE JOUBERT
(in his capacity as Trustee of the TOMMY
JOUBERT TRUST)
SECOND APPELLANT
SANDRA ANDERSON
(in his capacity as Trustee of the TOMMY
JOUBERT TRUST)
THIRD APPELLANT
ADRI JOUBERT
(in his capacity as Trustee of the TOMMY
JOUBERT TRUST)
FOURTH APPELLANT
KOBUS WOLMARANS
(in his capacity as Trustee of the TOMMY
JOUBERT TRUST)
FIFTH APPELLANT
AND
ELIAS TUMEBO HASSNE FIRST RESPONDENT
ALL OTHER OCCUPANTS SECOND RESPONDENT
GEORGE LOCAL MUNICIPALITY THIRD RESPONDENT
Coram: Justice J Cloete et Acting Justice Z Mapoma
Heard: 4 September 2026
Delivered electronically: 4 September 2026
ORDER
1 The appellants’ application for condonation is granted.
2 The appeal is upheld.
3 The order of the court a quo is set aside and replaced with the following:
‘The point in limine is dismissed, with costs to be costs in the cause in the
main application’.
4 The matter is remitted to the court a quo for determination of the merits of
the application.
JUDGMENT
Cloete J (Mapoma AJ concurring):
[1] This is an unopposed appeal against the judgment and order of the
Magistrate’s Court at George , in eviction proceedings, upholding a point in
limine raised by the first respondent (Mr Hassne) in respect of the locus standi
of the Tommy Joubert Trust (Trust) of which the first to fifth appellants are co -
trustees. The remaining respondents (those holding occupation through Mr
Hassne and the George Local Municipality respectively) did not participate in
the proceedings before the court a quo.
[2] Before turning to deal with the merits of the appeal , there is an
application for condonation for the late filing of the record along with the
application to the registrar of this court for the a ssignment of a date for the
hearing of the appeal. The delay in doing so was a matter of two days,
occasioned in turn by delay on the part of the transcribers in providing the
record. The appellant s’ attorney has provided a full explanation; there is no
suggestion of prejudice to Mr Hassne; and the prospects of success in the appeal
are such that condonation should be granted.
[3] The eviction application was issued on or about 13 September 2024 (we
were not provided with the sheriff’s returns of service but the notice of motion
reflects that it was served on the local authority on 19 September 2024). The
founding affidavit was deposed to on 12 September 2024 by the second
appellant ( Mr Pierre Joubert, for convenience hereinafter referred to as ‘Mr
Joubert’). He alleged that he was duly authorised to depose to that affidavit ,
and had also been authorised to conclude lease agreement s with Mr Hassne in
respect of two flats owned by the Trust , which Mr Hassne , it was contended ,
had breached by failing to pay rental due and damages caused to the Trust’s
property.
[4] The point in limine raised by Mr Hassne was that the ‘applicants is [sic] a
trust’, but that the appellants had not ‘laid a basis upon which [a] resolution and
in terms of which meeting it was decided by the [Trust’s] legal and legitimate
members to initiate proceedings against myself’. He admitted however that the
Trust owns the flats , and further that the Trust, duly represented by Mr Joubert ,
concluded the lease agreements with him. In short therefore the only issue he
placed in dispute regarding the Trust’s locus standi was that it had failed to
demonstrate t hat it had standing to institute the eviction proceedings against
him.
[5] In the replying affidavit (also deposed to by Mr Joubert) he annexed a
copy of the letters of authority issued by the Master on 23 November 2017
confirming that the appellants are trustees of the Trust. He further annexed a
copy of a resolution signed by the appellants in their capacities as trustees over
the period 10 to 16 January 2025 in which the following was recorded:
‘It is resolved that PIERRE JOUBERT, in his capacity as a Trustee of the Tommy Joubert
Trust, be and is hereby authorised to depose to and sign all affidavits and other documents on
behalf of the Trust and do all things as may be necessary to resolve any legal dispute the
Trust may be a party to.
Insofar as any such action has been taken or any such documents have been signed before the
date of this resolution, to the extent permissible by law, such actions and/or signatures be and
are retrospectively approved and ratified in their entirety.’
[6] Mr Joubert submitted it was thus clear that ‘the [a]pplicants in terms of
the letters of authority and the signed resolution together with the fact that they
are the owners of the subject property, have the necessary locus standi in iudicio
to institute the application for eviction against the first and second
[r]espondents’.
[7] In its judgment the court a quo regrettably made certain errors of law.
Although not a ground of appeal, it referred to the Trust , not as owner, but as
the ‘person in charge’ of the properties for purposes of s 4(1) of PIE 1. This was
clearly wrong.
[8] It also found that since the Trust’s locus standi did not appear ex facie the
founding affidavit , it did not have the required standing to have instituted the
application. In this regard, the court a quo referred to three decisions as
authority for this proposition. The first was Mars Inc v Candy World (Pty) Ltd
2. However Mars Inc dealt with locus standi in the context of a dispute in terms
2. However Mars Inc dealt with locus standi in the context of a dispute in terms
1 Prevention of Illegal Eviction From and Unlawful Occupation of Land Act 19 of 1998.
2 Mars Inc v Candy World (Pty) Ltd 1991 (1) SA 567 (A) purportedly at 575.
of s 36 (1)(b) of the Trade Marks Act .3 Despite the court a quo purportedly
quoting directly from a passage in that judgment, what in fact was stated was
that:4
‘I am of the opinion that in our law there is really only one issue , viz. whether the applicant
under s 36 is an “aggrieved person”. In accordance with the general rule that it is for the party
instituting proceedings to allege and prove that he has locus standi, the onus of establishing
that issue rests u pon the applicant … [h]owever, if the applicant shows that his s 53(1)
application is being blocked and that he therefore has an interest in having the offending
mark expunged, there arises an inference that such application is bona fide, not vexatious and
not without substance…’
[9] Accordingly Mars Inc is not authority on the issue of locus standi in the
present context. The court a quo further referred to Kommisaris van Binnelands
Inkomste v Van der Heever 5 which, for purposes of this appeal, simply repeated
the trite principle that the onus to allege and prove locus standi rests upon the
litigant approaching the court for relief. It is likewise not authority for the
proposition that, as stated by the court a quo, such locus must appear ex facie
the founding papers , failing which the applicant must fail. Finally, the court a
quo relied on a decision of the Free State Division, namely K2011148986
(South Africa) (Pty) Ltd v State Information Technology Agency SOC Ltd and
Others 6 where it was held, following two earlier decisions of that Division 7,
that the failure to establish locus standi in a founding affidavit cannot be cured
by producing proof in reply.
[10] It would appear that in K2011148986 the learned Judge’s attention was
not drawn to Supreme Court of Appeal authority to the con trary. Nor was the
court a quo in the present matter. As was summarised by the Full Court in this
3 Trade Marks Act 62 of 1963.
4 Mars Inc at 575 H-J.
3 Trade Marks Act 62 of 1963.
4 Mars Inc at 575 H-J.
5 Kommisaris van Binnelandse Inkomste v Van Der Heever 1999 (3) SA 1051 (SCA) para 10.
6 K2011148986 (South Africa) (Pty) Ltd v State Information Technology Agency SOC Ltd and Others
(3996/2019) [2020] ZAFSHC 135 (18 August 2020) para 21.
7 The two earlier decisions are Interboard SA (Pty) Ltd v Van den Bergh 1989 (4) SA 166 (OPD) at 168 A-D and
M & V Tractor & Implement Agencies BK v Vennootskap DSU Cilliers & Seuns en Andere (Kelrn Vervoer
(Edms) BPK (Tussenbetreidend) and two similar cases 2000 (2) SA 571 (NKA) at 579 H-I and 580 D-E.
Division in Hyde Construction CC v Deuchar Family Trust and Another 8 (by
which the court a quo was also bound , but which was similarly not brought to
its attention by the parties’ respective legal representatives, who were not the
same as counsel who appeared before us):
‘There is no doubt that, in general , proceedings which have been institute d in the name of a
particular party, but without the authority of those entitled to decide the matter on behalf of
that party, may be ratified ( see, for example, Moosa and Cassim NNO v Community
Development Board 1990 (3) SA 175 (A) at 180I -181C ; Smith v Kwanon qubela Town
Council 1999 (4) SA 947 (SCA) …para 14). In the nature of things, when such a challenge is
raised and the deficiency emerges, the ratification would need to be proved by way of
supplementary papers, as occurred here [referring to supplementary replying papers]…’.
[11] In Smith 9 the Supreme Court of Appeal , after comprehensively
considering the authorities, put it in the following way:
‘Apart from making perfectly good sense and being practical, it is legally sound. A party to
litigation does not have the right to prevent the other party from rectifying a procedural defect
… the ratification in the present instance did not affect any substantive rights of Smith.’
[12] So too in the present case. By the Trust producing, in reply to Mr
Hassne’s challenge, the resolution which included ratification of prior steps in
the litigation, the procedural defect upon which Mr Has sne relied was cured . It
in no way affected his right to oppose the matter on the merits. It follows that
the appeal must succeed.
[13] It was submitted on behalf of the appellants that the matter should be
remitted for determination of the merits before a different magistrate. However
in my view there is nothing to indicate that the same magistrate will not
impartially adjudicate the merits.
[14] The following order is made:
impartially adjudicate the merits.
[14] The following order is made:
8 Hyde Construction CC and Another v Deuchar Family Trust and Another 2015 (5) SA 388 (WCC) para 29.
9 Smith v Kwanonqubela Town Council para 14.
1 The appellants’ application for condonation is granted.
2 The appeal is upheld.
3 The order of the court a quo is set aside and replaced with the
following:
‘The point in limine is dismissed , with costs to be costs in the cause
in the main application’.
4 The matter is remitted to the court a quo for determination of the
merits of the application.
_____________________________
J I CLOETE
JUDGE OF THE HIGH COURT
I agree.
_____________________________
Z MAPOMA
ACTING JUDGE OF THE HIGH COURT
Appearances
For appellants: Mr V S Bruinders
Instructed by: Goussard Attorneys
For respondents: No appearance (unopposed)