Ndebele and Another v Smith and Others (Appeal) (A62/2024 ; 34898/2021) [2025] ZAGPPHC 1363 (17 December 2025)

begin wrapper begin container begin header begin slogan-floater end slogan-floater - About SAFLII About SAFLII - Databases Databases - Search Search - Terms of Use Terms of Use - RSS Feeds RSS Feeds end header begin main begin center # South Africa: North Gauteng High Court, Pretoria South Africa: North Gauteng High Court, Pretoria You are here: SAFLII >> Databases >> South Africa: North Gauteng High Court, Pretoria >> 2025 >> [2025] ZAGPPHC 1363 | Noteup | LawCite sino index ## Ndebele and Another v Smith and Others (Appeal) (A62/2024 ; 34898/2021) [2025] ZAGPPHC 1363 (17 December 2025) Ndebele and Another v Smith and Others (Appeal) (A62/2024 ; 34898/2021) [2025] ZAGPPHC 1363 (17 December 2025) Download original files PDF format RTF format make_database: source=/home/saflii//raw/ZAGPPHC/Data/2025_1363.html sino date 17 December 2025 SAFLII Note: Certain personal/private details 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 GAUTENG DIVISION, PRETORIA CASE NO: A62/2024 Court a quo Case NO: 34898/2021 (1) REPORTABLE: NO (2) OF INTEREST TO OTHER JUDGES: NO (3) REVISED. Date: 17 December 2025 Signature: K. La M Manamela In the matter between: PRINCE NDEBELE First Appellant PEEZEE PROPERTY MARKETING (PTY) LTD Second Appellant and JOHANNES PETRUS SMITH First Respondent SKYDANCE TRUST Second Respondent SANDRA ISABELLA WILCOCKS N.O. Third Respondent THE SHERIFF OF THE HIGH COURT OR HIS DEPUTY, PRETORIA EAST Fourth Respondent THE REGISTRAR OF DEEDS OFFICE, PRETORIA Fifth Respondent DATE OF JUDGMENT: This judgment is issued by the Judges whose names are reflected herein and is submitted electronically to the parties/their legal representatives by email. The judgment is further uploaded to the electronic file of this matter on Caselines by the Judge’s secretary. The date of the judgment is deemed to be 17 December 2025. JUDGMENT Khashane Manamela, AJ (Baqwa, J and Ledwaba, AJ concurring) [1]        This is an appeal against the decision or judgment of this Division, as constituted by Baloyi-Mbembele AJ (‘the court a quo ’ ), unfavourable to the first appellant (being the second respondent in the court a quo ), Mr Prince Ndebele (‘Mr Ndebele’) and the second appellant (being the first respondent in the court a quo ), Peezee Property Marketing (‘Peezee’) and favourable to the first respondent. Mr Ndebele is the sole director of Peezee. [2]        Peezee is the registered title holder to the property described as Erf 1[…], Silver Lakes Extension 4 Township, Registration Division JR, Gauteng Province (‘the Property’). The first respondent (being the applicant in the court a quo ), Mr Johannes Petrus Smith (‘Mr Smith’), is entitled to ownership or registration of title in his name of the - still to be divided - portion of the Property, described as Portion 1 of Erf 1[…] Silver Lakes Extension 4 Township, Registration Division JR, Gauteng Province (‘Portion 1’). [3]        Mr Smith launched an application in this Division against Peezee and Mr Ndebele (jointly, ‘the appellants’) for Mr Ndebele to be directed to sign relevant documents for the transfer of title in respect of Portion 1 and registration thereof by the Registrar of Deeds, Pretoria, cited as the fifth respondent. In the event of failure by Mr Ndebele in this regard, the court was requested to direct that the Sheriff: Pretoria East (‘the Sheriff’), the fourth respondent, step in and sign the relevant transfer documents. [4]        The application was opposed by the appellants. Skydance Trust (‘the Trust’), cited as the second respondent, and its trustee, Ms Sandra Isabella Wilcocks (‘Ms Wilcocks’), cited as the third respondent, noted their intention to abide the outcome of the application before the court a quo . With no substantial relief sought directly against the Registrar of Deeds and the Sheriff, they took no part in the proceedings before the court a quo . [5]        On 3 March 2023, the court a quo handed down judgment whose terms were unfavourable to Peezee (‘the Judgment’). [1] Dissatisfied with the outcome, the appellants launched this appeal to this Full Court against the Judgment with leave of the court a quo . [6] The appeal came before us on 10 September 2025. Mr T Mpahlwa appeared for the appellants and Mr ZE Fakude appeared for the first respondent (i.e. Mr Smith). This judgment was reserved following the hearing of submissions by counsel . But following the hearing and when this judgment was about to be handed down, the appellants launched an application for the recusal of the Full Court. Application for recusal [7]        On 3 December 2025, the appellants launched an application in terms of which they sought the ‘[r]ecusal of the presiding judges from further conduct of the appeal’ and for ‘[f]resh hearing of the appeal before different judges’. [2] This was almost after three months from the date on which the matter was heard and this judgment was reserved, on 10 September 2025. [8]        The grounds or premise of the recusal application is derived from what is alleged to have been said by this Full Court or one or more of the judges comprising this Full Court. The essence of the recusal appears to be located in the following paragraphs of the supporting affidavit to the application: 8.       Shortly before the end of the proceedings on the day, I am advised that a suggestion was made by Judge Baqwa to the effect that I may have committed fraud in the process or the first applicant’s acquisition of the property in issue in the appeal proceedings. I am told that the suggestion was followed by questions posed by my and the first applicant’s counsel (“Adv Mpahlwa”) particularly asking whether or not I had indeed committed fraud (“cause of complaint”). 9.       Not long after the above suggestion and line of questioning the appeal proceedings adjourned. [3] … 25.     I am advised by Adv Mpahlwa that, in the course of his submissions in reply, whilst dealing with either the issue of non-joinder or the issue of the suspensive condition at issue in the appeal, an accusation came from Judge Baqwa that “ maybe your client committed fraud ” . The suggestion, I am advised, was followed by a direct question from Judge Baqwa to Adv Mpahlwa to the effect that “ did your client commit fraud ” ? [4] [9]        The deponent to the affidavit in support of the recusal application is Mr Ndebele, the first appellant in this appeal. He does not say he was in Court when the matter was heard or that he had access to the recording or transcript of the proceedings of this Court. What he says is that he sourced his information from Mr T Mpahlwa, the appellants’ counsel. Mr T Mpahlwa deposed to a confirmatory affidavit. [5] [10]      We, constituted as the Full Court seized with this appeal, are aware of the test and the legal principles governing recusal applications. And we have considered the relevant authorities, including those cited in the application, and have reflected on the allegations made against this Court. It is our view that the statements attributed to the Court or its judges do not support the notion of this Court’s preconceived or conceived view of fraud or criminality on the part of Mr Ndebele. In fact, what occurred in Court during the hearing of this appeal was nothing more than a quest by the Court to find out the truth on all aspects of the matter. Therefore, the allegations of actual bias by this Court or any of its constituent judges against Mr Ndebele or any apprehension of bias by him is misplaced and without merit. The application for recusal is unmeritorius. Background facts [11]      A brief narration of the facts in the background to this matter is warranted. This would be constituted from the facts which are common cause between the parties. To the extent that a fact may be disputed, I will point this out. The source of the material under this part is significantly the documents before the court a quo and the transcribed record of proceedings before that court. [12]      On 22 August 2013, Mr Smith, as the seller, and the Trust represented by Ms Wilcocks, as the purchaser, concluded a sale and purchase agreement in respect of the Property (‘the 2013 Sale Agreement’). [6] The title to the Property was duly transferred and registered in the name of the Trust on 7 October 2013 under title deed number T[…]. [13]      On 22 January 2016, the City of Tshwane Metropolitan Municipality (‘Tshwane Municipality’) approved the subdivision of the Property into proposed Remainder of Erf 1[…] (comprising 1008 square metres) and proposed Portion 1 of Erf 1[…] (comprising 1009 square metres), subject to specified conditions. It is stated that the Silver Lakes Homeowners Association also approved the proposed subdivision. [14]      On 18 October 2018, the Trust sold Portion 1 back to Mr Smith (‘the Portion 1 Agreement’). [7] Clause 2 of the Portion 1 Agreement reads as follows: The purchase price of the property is R0.00 (ZERO) since this transaction reverse transfer back to the purchaser, Portion 1 of subdivided property as agreed upon by the parties in the addendum to the original purchase agreement dated 22 August 2013 [8] [15]      Evident from clause 2 of the Portion 1 Agreement, quoted above, is the reference to the so-called ‘addendum to the original purchase agreement dated 22 August 2013’ (‘the 2013 Addendum’). The ‘original purchase agreement’ refers to the 2013 Sale Agreement in terms of which Mr Smith sold the Property to the Trust. [9] Mr Smith and the Trust are said to have agreed in terms of the 2013 Addendum the transfer back of Portion 1 to Mr Smith once the Property is subdivided. The existence of the 2013 Addendum was disputed by the appellants before the court a quo and is still a bone of contention in the appeal before us. [16]      On 3 August 2020, an agreement was concluded in terms of which the Trust sold to Peezee the proposed Remainder of Erf 1[…] (‘the 2020 Sale Agreement’). [10] It is vital to point out that what was sold to Peezee was not the entire Property, although the subsequent transfer to Peezee (and the registration in its name) was of the Property in its entirety and undivided. [11] [17]      Peezee, on 20 November 2020, caused a mortgage bond to be registered over the entire Property in favour of Absa Bank Limited (‘Absa’) to secure the repayment of the amount of R4 995 000 lent and advanced by Absa to Peezee and an additional amount of R999 000 for costs and fees (‘the mortgage bond’). The former amount represented part of the purchase price of R5 550 000 for the Property under the 2020 Sale Agreement. [18]      On 29 October 2020, the Trust and Peezee concluded a further agreement (to the 2020 Sale Agreement) in which it was agreed and/or recorded, among others, that: (a) Portion 1 was a subject matter of a subdivision, already approved by Tshwane Municipality; (b) Portion 1 was not the subject matter of the sale to Peezee, and (c) Peezee and the Trust were desirous of transferring the Property to Peezee, but Portion 1 - once formally subdivided - would be transferred back to Mr Smith (‘the 2020 Addendum’). [12] [19]      According to Peezee, it signed the 2020 Addendum on condition that the written consent of Absa , as the bondholder, to the terms there of is obtained (‘the Suspensive Condition’). This was disputed by Mr Smith in the papers before the court a quo . [20] On 20 November 2020, title to the Property (in its entirety, including Portion 1) was registered by the Registrar of Deeds in the name of Peezee under title deed number T[…]. [13] [21]      In June 2021, Mr Smith – through his attorneys – sent documents to Mr Ndebele, as the director of Peezee, for signing in order to effect the transfer of Portion 1 into the name of Mr Smith. The signed documents were not received back by Mr Smith from Mr Ndebele or Peezee. [22]      On 15 July 2021, Mr Smith initiated the application before the court a quo , essentially, for Peezee - through the person of Mr Ndebele as its sole director - to be directed to sign the transfer documents relating to Portion 1. [23]      The court a quo , on 3 March 2023, granted relief in terms favourable to Mr Smith (i.e. the Judgment). [14] Dissatisfied with the Judgment, the appellants launched this appeal with leave of the court a quo . Relief sought, the opposition mounted and the Judgment of the court a quo [24]      The Property in its entirety measures about 2017 square metres in extent. It is currently registered in the name of Peezee. Peezee, as stated above, only purchased from the Trust in terms of the 2020 Sale Agreement, a portion of the Property and not the entire Property, although the Property - in its entirety and undivided – was transferred to Peezee. But, the appellants had agreed (through the 2020 Addendum to the 2020 Sale Agreement) to the transfer of Portion 1 to Mr Smith. And, t he 2020 Addendum also contains a term, added by hand by Mr Ndebele beneath his signature on behalf of Peezee that, it is ‘[s]igned subject to written consent of Bondholder, and applicable terms & conditions & the following of any relevant legal procedures’. [15] This, essentially, is the contractual landscape which predicated the issues before the court a quo . [25]      The appellants consider the above insertion in manuscript to the 2020 Addendum to constitute a suspensive condition in favour of Absa. According to the appellants, ABSA had already approved the loan to Peezee by then in respect of the entire Property. The latter issue gave rise to a point in limine to the effect that the application by Mr Smith ought to be dismissed on the basis of the non-joinder of Absa, despite its direct and substantial interest in the matter before the court a quo . [16] This is disputed by Mr Smith. [26]      The relief which was sought by Mr Smith in the application before the court a quo was essentially that: (a) Mr Ndebele be directed to sign the documents for the transfer of Portion 1 into the name of Mr Smith; (b) in the event that Mr Ndebele failed to do so, the Sheriff be authorised to step in and sign the relevant transfer documents; (c) the Registrar of Deeds be directed to register Portion 1 into the name of Mr Smith, and (d) the appellants be punished with costs order of the application. [27]      As stated above, in the end, the application was only opposed by the appellants. The Trust and Ms Wilcocks, after what appears to be an assurance that no costs order would be sought against them, substituted their notice to abide the outcome for their notice of opposition.  There were  - in addition to what is stated above - other grounds of opposition raised by the appellants before the court a quo . But in the end the court a quo found all of them unmeritorius and made an order along the lines of the relief sought by Mr Smith, but only held the appellants liable to pay only normal costs of the application (i.e. the Judgment). [17] This appeal represents the dissatisfaction of the appellants with the Judgment. Grounds of appeal [28]      Following the delivery of the Judgment, the appellants were granted leave to appeal on 5 July 2023. The notice of appeal, dated 25 July 2023, did not specify any grounds of appeal, but simply sought the reversal of the Judgment or the order made therein. [29]      In the leave to appeal, eight grounds were listed for the intended appeal, as follows: [29.1]   The court a quo characterised the cause of action in the application as being for a declaratory order and for specific performance. The court, erroneously, granted an order in the form of the latter – instead of the former - despite a case not made out for specific performance. For, example, the alleged contract between Peezee and the Trust did not exist, due to the non-fulfilment of the suspensive condition in their contract. These were the first and second grounds of appeal. [29.2]   The court a quo , erroneously, mentioned the 2013 Addendum between Mr Smith and the Trust, which gave rise to the proceedings, as if its existence has been established. Without it being in written form, the purported alienation of land would have been invalid for want of compliance with section 2(1) of the Alienation of Land Act 68 of 1981 . This is the third ground of appeal. [29.3]   The fourth ground of appeal referred to the evasion of tax laws or liability by Smith and/or the Trust in the transactions or agreements relating to the disposal (through sale or donation) of the Property and/or Portion 1. [29.4]   the application was fatally defective due to the failure to join or non-joinder of Absa Bank, a bondholder in respect of the Property with a direct and substantial interest in the subject matter of the application (i.e. the fifth ground of appeal). [29.5]   In terms of the sixth ground of appeal, the court a quo was criticised for its alleged failure to deal with the grounds of opposition raised by the appellants. The court was credited by the appellants for its referral to: (a) Mr Smith’s quest to enforce a non-enforceable conditional obligation, and (b) the wording of clause carrying the suspensive condition in the 2020 Addendum. But the court is said to have erred for not finding that without the suspensive condition being fulfilled, the underlying contract did not come into existence and, thus, had no force or effect. [29.6]   As a seventh ground of appeal, the appellants contended that, Potion 1 as a piece of land or immovable property did not exist as, despite the sub-division of the Property, approved by the Tshwane Municipality in January 2016, the actual subdivision of the Property never took place. Therefore, Portion 1 does not exist as the only immovable property is the Property registered in the name of Peezee in the relevant title deed. [29.7]   The eighth and last ground of appeal was that the court a quo erred in not making factual findings, but deciding the application on the basis of untested factual allegations. [30]      In the heads of argument filed by counsel for the appellants, the following rubrics emerge for discussion by way of grounds of appeal: (a) requirements for a case based on specific performance were not met for the court a quo to grant the relief in the Judgment and Mr Smith had sought declarator; (b) requirements for a declaratory order not met; (c) the suspensive condition in the 2020 Addendum was not fulfilled; (d) incorrect application of the test for non-joinder; (e) non-existence of the 2013 Addendum;  (f) the 2020 Addendum never came into existence; (g) non-existence of Portion 1, and (h) possible tax evasion emanating from the transactions. I will consider the grounds of appeal and the rubrics from appellants’ counsel written argument for purposes of the issues to be determined to dispose of this appeal, next. Issues requiring determination [31]      Before, deducing issues requiring determination for the disposal of the current appeal before this Court, one ought to be reminded of the durable authority in Western Johannesburg Rent Board and Another v Ursula Mansions (Pty) Ltd [18] that an appeal should not be directed against the reasons given for judgment, but rather the substantive order made by the court. [19] [32]      Contrary to this fundamental principle of appeals, some of what is labelled grounds of  appeal are, effectively, directed at the reasoning of the court a quo in the Judgment rather than the substantive order(s) made by that court. Prominently featuring in this basket is the sixth and eighty grounds of appeal, stated above. [33]      The primary issues that emerge for determination which, significantly comport with what is put forward as grounds of this appeal are the following: (a) t he suspensive condition in the 2020 Addendum was not fulfilled; (b) non-joinder of Absa; (c) non-existence of the 2013 Addendum and the implications of section 2(1) of the Alienation of Land Act 68 of 1981 , and (d) non-existence of Portion 1. The secondary or ancillary issues that will arise from the discussion or serve as support of the identified primary issues are the following: (i) requirements for a claim for specific performance; (ii) requirements for a declaratory order, and (iii) possible tax evasion emanating from the transactions. I have adopted – as self-explanatory subheadings – the issues for determination above albeit in no particular order to facilitate the discussion to follow. Non-existence of the 2013 Addendum [34]      The series of transactions material to this matter started with the sale of the Property by Mr Smith to the Trust in 2013 (i.e. the 2013 Sale Agreement). When Portion 1 of the Property was sold back by the Trust to Mr Smith in 2018 in terms of the Portion 1 Agreement, it was recorded therein that there is no purchase price or consideration payable in the transaction as it was a ‘reverse transfer back to the purchaser … as agreed upon by the parties in the addendum’ to the 2013 Sale Agreement. [20] [35]      It is common cause that no written document containing the 2013 Addendum has been produced. It is the appellants’ case that the 2013 Addendum does not exist, as it was never concluded. Also, this caught the attention of the court a quo when the application was heard and counsel for Mr Smith couldn’t provide proof of its existence or whereabouts upon such enquiry by that court. But, evidently, this did not inhibit the court a quo from reaching the Judgment. This, according to counsel for the appellant, is an appealable error on the part of that court. [36]      It is submitted on behalf of the appellants that the 2013 Addendum is a deed of alienation from which Mr Smith’s right to Portion 1 emanates and the fact that it is not in written form offends the provisions of the Alienation of Land Act 68 of 1981 (‘ALA’). This, it is further submitted, renders the alleged sale and/or transfer of title in respect of Portion 1 from the Trust to Mr Smith in terms of the Portion 1 Agreement void ab initio for want of compliance with the formalities prescribed by the ALA. [21] [37] Section 2(1) of the ALA is pertinent to this part of the determination. It provides one of the formalities applicable to alienation of land as follows: No alienation of land after the commencement of this section shall, subject to the provisions of section 28 , be of any force or effect unless it is contained in a deed of alienation signed by the parties thereto or by their agents acting on their written authority. [38]      The following relevant terms or concepts are defined in section 1 of the ALA: (a) ‘alienate’ means - in relation to land – ‘sell, exchange or donate, irrespective of whether such sale, exchange or donation is subject to a suspensive or resolutive condition, and “alienation” has a corresponding meaning’, and (b) ‘ deed of alienation’ refers to ‘ a document or documents under which land is alienated’. [39]      The appellants say the 2013 Addendum is not a compliant ‘deed of alienation’, if it exists, as it is not in writing. Mr Smith is equivocal about its existence and hasn’t furnished proof. [40]      But, whether the 2013 Addendum exists in verbal form or is a fiction doesn’t matter. It is my view that it did not alienate (i.e. sell, exchange or donate) Portion 1. For if it did, there would have been no need for the Portion 1 Agreement between the same parties. Actually, the reverse transfer of Portion 1 to Mr Smith would have occurred simultaneously with the transfer of title over the remainder of the Property from Mr Smith to the Trust in 2013. For the 2013 Addendum was, exactly that, an addendum to the 2013 Sale Agreement, the actual ‘deed of alienation’. Whatever form it took, the 2013 Addendum was merely an agreement about a future alienation not the alienation itself. The future or actual alienation is in terms of the Portion 1 Agreement. Therefore, there is no merit in this ground. Portion 1 is non-existent [41]      The appeal is also pivoted on the ground that Portion 1 doesn’t exist, despite its description as such in the agreements and other documents relating to this matter. The appellants also point to the fact that Portion 1 is said to be held under both deed of transfer NO: T[…] and deed of transfer NO: T[…], to support its case of a phantom Portion 1. The former title deed number accords with that of the Property when it was sold by Mr Smith to the Trust and the latter when it was sold by the Trust to Peezee. [42]      I find this ground and the submissions made in its support quite abstract or even artificial. From the beginning it was clear to the appellants that apart from the piece of land transferred to Peezee only part of property was sold. It is common cause that Tshwane Municipality approved the subdivision in terms of which the Property would become Remainder  of Erf 1 […] , Silverlakes, Extension 4 Township and Portion 1 would become Portion 1 of Erf 1 […] , Silverlakes, Extension 4 Township. This postulation of land ownership wasn’t consummated due to what led to the proceedings before the court a quo , being the appellants’ failure or refusal to sign the transfer papers for Portion 1 to be formally separated in title from the rest. [43]      Therefore, this ground, also, lacks merit to support the appeal. I have also noted that, it is submitted on behalf of Mr Smith, that this ground of appeal was raised only for the first time in this appeal and was not contained in the opposing papers before the court a quo . There is no explanation in this regard by the appellants. That would add to the reasons for its dismissal. S uspensive condition in the 2020 Addendum was not fulfilled [44]      As already stated, Peezee and the Trust concluded the 2020 Sale Agreement for the purchase of a portion of the Property. The Property still had to be subdivided to reflect that Peezee does not have the right of ownership of the entire square metreage of the Property. To this end, the appellants and the Trust augmented the 2020 Sale Agreement through the 2020 Addendum. [45]      The appellants, or in fact, Mr Ndebele, says he signed the 2020 Addendum subject to a written consent being obtained from the bondholder ‘and applicable terms & conditions & the following of any relevant legal procedures’. [22] It is argued that this constitutes a suspensive condition which was never met and, thus, prevented the 2020 Addendum being consummated or fulfilled. The suspensive condition is in favour of Absa, as the bondholder over the Property. Therefore, the terms of the 2020 Addendum were of no force and effect and failed to come into existence, the appellants’ contention concludes. Mr Smith denies that the 2020 Addendum was subject to a suspensive condition, but does not deny the existence of the suspensive condition. [46]      According to the authors of Claassen's Dictionary of Legal Words and Phrases [23] the phrase ‘ suspensive condition’ refers to a condition which has ‘the effect of deferring the commencement of the operation of a juristic act until the determination, in the appropriate sense, of the contingency specified in the condition; correlative to resolutive condition’. [47]      In my view there is no need to determine whether what is claimed to be a suspensive condition is indeed one or even to trawl through case law and other authorities on the constitution and effect of suspensive conditions in contracts. [ 48]      A proper point of departure on this issue is a consideration of the relevant objective facts. The 2020 Addendum containing the suspensive condition in favour of Absa, mooted by the appellants, was concluded on 29 October 2020. It is common cause that the mortgage bond was only passed or registered over the Property on 20 November 2020. Therefore, there was no bondholder as at the date of the 2020 Addendum. But, it is the appellant's case that ABSA had already approved its finance by then in respect of the entire Property. The latter assertion is surprising considering the appellants or Peezee - to their knowledge - never bought the entire Property. [49]      Counsel for Mr Smith’s submissions on the issue include what appears next. The appellants have not alleged being subjected to any form of duress or force to conclude the 2020 Addendum. Further, the appellants do not say that this agreement is invalid, unenforceable in law or both, the submission continues. Also, it is submitted that the appellants’ encumbrance of the entire Property by a mortgage bond in favour of Absa was malicious and solely intended to frustrate his client, Mr Smith.  The 2020 Addendum is valid and enforceable between the parties. Counsel invokes the legal principle of pacta sunt servanda (agreements are to be observed) [24] to support the submission that as a valid and enforceable agreement inter partes (between the parties) [25] the 2020 Addendum ought to be honoured by the parties. [50]      The suspensive condition did not specify who of the two parties (i.e. the Trust, as the seller, or Peezee, as the purchaser) had the obligation to obtain the written consent of the bondholder. Also, no timeframe was suggested for compliance with this obligation. Further, the 2020 Sale Agreement  only referred to an immovable property being purchased by Peezee as comprising approximately 1200 in extent. This, obviously, means that the 2020 Sale Agreement  alone and without more was incapable of the transfer of the entire Property. For it is in the 2020 Addendum that, transfer of the Property, as a whole, is provided for and a reading of the following clauses therefrom would bear this: 4.       In terms of the diagram, the parties intend to sell and transfer to the purchaser the portion identified as the proposed Remainder of Erf 1[…] Silver Lakes Extension 4 Township. 5.       The remainder of the property described as the Portion 1 of Erf 1[…] Silver Lakes Extension 4 Township is the subject matter of the property that is not being sold to the Purchaser. 6.       The parties are desirous to transfer the whole of the undivided property to the purchaser and that once the subdivision is capable of being transferred, Portion 1 of Erf 1[…] Silver Lakes Extension 4 Township will be transferred back to the seller’s nominated party being Johannes Petrus Smith … [26] [51]      Therefore, the transfer of the Property as a whole was only possible through the reading of the 2020 Sale Agreement as incorporating the 2020 Addendum. This is logical, as addenda are nothing more than ‘ additions, supplements ’ . [27] The appellants were or Peezee was instrumental in the transfer of the Property without the fulfilment of the so-called ‘suspensive condition’. It appears that the appellants did not seek the consent of Absa, as a bondholder, in doing this. [52]      Overall, it is submitted on behalf of the appellants that, the non-fulfilment of the suspensive condition in the 2020 Addendum renders this agreement of no force and effect and, thus, unenforceable. The corollary of this is that Mr Smith is precluded from claiming the transfer and registration of Portion 1 in his name. I do not agree. The impugned agreement is binding between the parties as established by the registration of the entire Property in the name of Peezee. As for Absa, in whose favour the condition was purportedly inserted, there is no timeframe in getting their consent. Practically, this may have to be done for purposes of lodging the relevant documents with the Registrar of Deeds. And the existence of a mortgage bond in favour of Absa over the entire Property, takes me to the next ground of appeal. Non-joinder of Absa [53]      Another ground of this appeal concerns what the appellants consider the non-joinder of Absa. As stated above, the appellants used the Property in its entirety to secure financing from Absa. This was done whilst the appellants were not only aware of the terms of the 2020 Addendum, but were (or at least Peezee was) parties to same. [54]      For some reason the appellants appear to hold a view that they are not bound by some or all of the terms of the 2020 Addendum. I agree with the submission made on behalf of Mr Smith that Peezee voluntarily concluded this agreement. Mr Ndebele is on record in stating that he is the one who caused the suspensive condition to be included in the 2020 Addendum, which confirms its binding effect on Peezee or the appellants. One wonders whether he disclosed the existence of its terms to Absa when securing the mortgage loan. The enquiry we made at the hearing of the matter regarding possible fraud concerns this aspect and the possibility that a misrepresentation may have been made to Absa to the effect that Peezee owns the whole Property. As indicated above, we did not hold any particular view and merely sought the situation explained. But instead of an explanation, if there is any, what we highlighted above unfolded and the – post hearing - recusal application being the climax. [28] There was absolutely no need for anything more than an explanation to the Court. [55]      It is the appellants’ case that Absa had a direct and substantial interest in the matter before the court a quo , arising from its rights or interests in terms of the mortgage bond procured by Peezee over the entire Property. This is disputed by Mr Smith. [56]      In the Judgment, the court a quo dealt with the non-joinder of Absa, as quoted verbatim but only in the material respect, in the following paragraphs: [12.]   It is the first and second respondent's aurgument that Absa should be joined, as ABSA has direct and substantial interest in the matter… [13.]   The court in Judicial Service Commission and Another v Cape Bar Council and another held that … [15.]   The applicant in this matter do not have an agreement with ABSA, Peez property secured a bond from ABSA being aware of the condition of the subdivision and knew that Portion 1 belonged to the applicant. ABSA has recourse against Peez property, not the applicant. The issue of non-joinder cannot be used to punish the applicant for the results that was created by Peez property. [29] [quoted verbatim , but without footnotes] [57]      The authority cited in the preceding paragraph captures the correct position of our law, although what is stated in the last paragraph from the Judgment, quoted above – with respect – was not necessary, even if it did not detract from the correct position held by that court. The court a quo merely expanded on its view that Absa lacked a direct and substantial interest in the subject-matter before it. It is precisely for that reason that we should be reminded that an appeal does not lie against the reasons given for judgment, but rather the substantive order made by the court. [30] [58]      The primary vehicle for joinder in the high court is rule 10 of the Uniform Rules. Its provisions are rendered applicable to applications by virtue of the provisions of rule 6(14). It provides, among others, for joinder of persons as respondents in one application where the question arising between the respondents or any of them and the applicant ‘depends upon the determination of substantially the same question of law or fact’, as would arise if the respondents were sued separately. [31] [59]      The learned author of Erasmus: Superior Court Practice [32] provides an immensely aidful commentary on the legal principles pivoting the test for joinder, as follows: [t]he test is whether or not a party has a ‘direct and substantial interest’ in the subject matter of the action, that is, a legal interest in the subject matter of the litigation which may be affected prejudicially by the judgment of the court. A mere financial interest is an indirect interest and may not require joinder of a person having such interest. The mere fact that a party may have an interest in the outcome of the litigation does not warrant a non-joinder plea. The rule is that any person is a necessary party and should be joined if such person has a direct and substantial interest in any order the court might make, or if such an order cannot be sustained or carried into effect without prejudicing that party, unless the court is satisfied that he has waived his right to be joined. [33] [quoted without footnotes] [60]      And, the learned author , further, states that: [a]part from the obligatory joinder of a party who has a direct and substantial interest in the subject matter of the litigation, a defendant may be joined under the common law on grounds of convenience, equity, the saving of costs and the avoidance of multiplicity of actions. [34] [quoted without footnotes] [61]      Counsel for the appellants, further from what is attributed to him above, criticised the dismissal by the court a quo of his clients’ non-joinder objection. His criticism was, primarily, on the basis that that court applied a wrong test for joinder . [62]      To recap: the test for joinder is whether a person to be joined has ‘a direct and substantial interest in the subject-matter of the litigation’ which may lead to the prejudice of such party that has not been joined. [35] [63]      The court a quo , cited the decision in Judicial Service Commission and Another v Cape Bar Council and Another . [36] This, unequivocally, confirms that the court a quo was aware of the correct test for joinder. In Judicial Service Commission the Supreme Court of Appeal (‘the SCA’) agreed with the dismissal of a point in limine raised by the Judicial Service Commission (‘the JSC’) of non-joinder of the candidates for judicial appointment, who were interviewed by the JSC, in an application by the Cape Bar Council. The latter complained about the JSC’s decision to only fill one of three vacancies advertised. The JSC argued that part of the relief sought ‘had a direct bearing on the interests and rights’ of the candidate(s). But, the SCA disagreed and confirmed – as settled law -  the fact that ‘joinder of a party is only required as a matter of necessity – as opposed to a matter of convenience – if that party has a direct and substantial interest which may be affected prejudicially by the judgment of the court in the proceedings concerned’. [37] [64]      I understand the above test to comprise the following components: (a) a direct and substantial interest in the subject matter before a court, and (b) possible prejudice to that party if not joined, due to existence of a ‘direct and substantial interest’ holding on its part. Although, these components need to be considered jointly, as opposed to individually, it is reasonable to imagine that a person may have substantial interest in a matter, which interest  may not be direct. And, that the indirect nature of such interest, substantial or not, would render the possibility of prejudice remote or even unlikely. In such an instance, joinder wouldn’t be necessary. [65]      The relief sought and granted by the court a quo for the subdivision of the Property to allow Mr Smith to own Portion 1 does not appear to have any prejudice to Absa, as a holder of security or mortgage bond over the entire Property. [38] It has no direct bearing on the mortgage bond and does not deprive Absa of its rights of security borne thereby. This is the very reason why the issues raised for determination before the court a quo and in this appeal did not deal with the terms and conditions of Absa’s security. All that was said is that Absa’s consent ought to be obtained in terms of the suspensive condition in the 2020 Addendum. It was not stated that the agreements between the appellants or Peezee and Absa have similar requirements as to Absa’s consent to those in the 2020 Addendum, including the so-called ‘suspensive condition’. Put differently, no evidence was led before the court a quo or in argument before this Court that Absa advanced the loan secured by the mortgage bond on condition that it would be required to consent to the terms of the 2020 Addendum or even the 2020 Sale Agreement itself. Absa, actually, may have been unaware and, even, not made aware of the proposed subdivision by Peezee or its proprietor and director Mr Ndebele. Therefore, any joinder of Absa would, also, have not directly contributed to the subject matter before the court a quo . Absa’s rights and interests are contained in contractual instruments separate from those which served before that court. [66]      I say this also mindful of what Mr Ndebele said in the answering affidavit regarding his telephone talk with some unnamed ‘representative of ABSA Bank’ who advised (without a confirmatory affidavit) of Absa’s position to require payment from Mr Smith for cancellation of the mortgage bond commensurate with the size of the portion released from the encumbrance. [39] [67]      But, equally, Absa cannot be held to have informally waived joinder to the proceedings, [40] in the event that joinder was necessary. For such extra-judicial notice of waiver or to abide the outcome would suffice if it were unequivocal and preceded by proper information to the waiving or abiding party of the nature and purpose of the proceedings. [41] This, in my view, can only be achieved by joinder or at least service of the complete set of papers through which the proceedings are initiated and not the informal telephone talk alluded to by Mr Ndebele above. None of these was done in respect of Absa in this matter and, thus, no waiver of joinder is imputed to Absa. [68]      Absa may have some form of interest in this matter. But, its interest, substantial as it may possibly be, is not direct and, even if it is direct, does not lead to any prejudice on the part of Absa, due to it not having being a party in proceedings before the court a quo . The  impugned order made by the court a quo for the subdivision of the land or Property over which Absa holds security by way of a mortgage bond does not deprive Absa of its real right of security over the immovable property. [42] [69] It is important to also note that the authorities do not permit of a mechanical, technical or ritualistic application of the joinder rule. [43] I have considered the probable effect of the order granted by the court a quo , once executed. It is true that Absa may have to be consulted regarding its mortgage bond over the Property. But, the assertion of Absa’s security rights can never serve to cancel out (or to expropriate, this being said liberally or loosely) Mr Smith’s rights as to property (i.e. Portion) and vice versa . Therefore, the dismissal of the non-joinder point in limine by the court a quo was proper and was no misdirection on the part of that court. This ground of appeal does not, also, support the appeal. [70]      Before I move to the next point, I should also state my rejection of the appellants’ contention that any order of the court regarding the Property would be unenforceable against Absa as a registered bondholder, due to non-joinder. The order of the court is always enforceable unless and until set aside by another order of the court. [44] Other grounds of appeal [71]      The appellants have also raised other grounds of appeal or aspects critical of the Judgment of the court a quo . These include a thesis developed on the distinguishing factors of declaratory orders and orders for specific performance or their requirements. It is trite that the Court is not limited to the contents of the notice of motion or the nature and extent of such contents, but may grant relief indicated and found established by satisfactory evidence on the papers. [45] Therefore, I do not find the material grounds in this regard meritorious or the criticism earned. [72]      The appellants – in support of the upholding of this appeal – also alleged possible contravention by Mr Smith and/or the Trust of the laws and rules relating to transfer duty, capital gains tax and donations tax concerning the transactions involved in this matter. I do not consider any determination of these within the scope of this appeal. Also, I agree with counsel for Mr Smith that, as with the ground that Portion 1 is non-existent, this too is a novel argument on the part of the appellants not contained in their opposition papers before the court a quo. [73]      I must also add that I find it ironic that the appellants made the effort to make the tax evasion allegations against the respondents, even at this appeal stage, but the appellants, themselves, still found the judicial enquiry of this Court worthy of a recusal application, disposed of above. [46] Be that as it may, the alleged tax evasion may be appropriately pronounced upon by the relevant authorities, but can never serve as a ground for the reversal of the orders made (in the Judgment of the court a quo ) through this appeal. Conclusion and costs [74]      The appeal fails on all bases advanced by the appellants, including those not specifically dealt with above and regarding the costs order made by the court a quo . [75]      Regarding costs, I do not consider anything warranting deviation or departure from the convention that the appellants, as the unsuccessful parties, ought to be held liable for costs of their pursuit of this appeal. Therefore, a term will be included in the order I propose below to the effect that Mr Ndebele and Peezee are liable to pay the costs of this appeal, jointly and severally. Order [76] In the result, I propose that an order be made by the Court in the following terms: 1. the appeal is dismissed, and 2. the first and second appellants are liable, jointly and severally, to pay the costs of the appeal, the one paying the other to be absolved. Khashane Manamela Acting Judge of the High Court I agree LGP Ledwaba Acting Judge of the High Court I agree, and it is so ordered. Selby Baqwa Judge of the High Court Date of Hearing                                            :         10 September 2025 Date of Judgment                                        :         17 December 2025 Appearances : For the First and Second Appellants       :           Mr T Mpahlwa Instructed by                                           :           Pule Inc, Johannesburg c/o John Nkulu Attorneys, Pretoria For the First Respondent                        :           Mr ZE Fakude Instructed by                                           :           Ehlers Fakude Inc, Pretoria [1] Par [56] below for the full terms of the order made in the Judgment. [2] Application for recusal, CaseLines (‘CL’) 068-2. [3] CL 068-7. [4] CL 068-17. [5] CL 068-30 to 31. [6] Founding affidavit (‘FA’) annexure ‘JPS2’, CL 001-21 to 28. [7] FA annexure ‘JPS3’, CL 001-29 to 33. [8] Portion 1 Agreement (i.e. FA annexure ‘JPS3’) clause 2, CL 001-30. [9] Par [12] above. [10] FA annexure ‘JPS4’, CL 001-34 to 45. [11] Par [20] below. [12] FA annexure ‘JPS6’, CL 001-49 to 51. [13] Answering Affidavit (‘AA’) annexure ‘PN2’, CL008-82. [14] Par [56] below for the full terms of the order made in the Judgment. [15] The 2020 Addendum signature page, CL 001-50. [16] Pars [53]-[70] below, on the non-joinder ground of appeal. [17] Judgment of the court a quo dated 3 March 2023, CL 0-1 to 8. [18] Western Johannesburg Rent Board and Another v Ursula Mansions (Pty) Ltd 1948 (3) SA 353 (A). [19] Western Johannesburg Rent Board v Ursula Mansions 1948 (3) SA 353 (A) at 354-355, cited with approval in Cape Empowerment Trust Ltd v Fisher Hoffman Sithole 2013 (5) SA 183 (SCA) [39] . See also President of the Republic of South Africa and Another v Tembani And Others 2025 (2) SA 371 (CC) [73]-[74]. [20] FA annexure ‘JPS3’, CL 001-29 to 33. [21] Section 28(2), read with section 2(1), both of the ALA. See also Rockbreakers and Parts (Pty) Ltd v Rolag Property Trading (Pty) Ltd (498/08) [2009] ZASCA 102 ; 2010 (2) SA 400 (SCA); [2010] 1 All SA 291 (SCA) (18 September 2009) [5]-[7]. [22] The 2020 Addendum signature page, CL 001-50. [23] RC Claassen and M Claassen, Claassen's Dictionary of Legal Words and Phrases (Juta 2025). [24] Hiemstra VG and Gonin HL, Trilingual Legal Dictionary (3rd edn, Juta 1992). [25] Ibid . [26] 2020 Addendum par 001-49. [27] Hiemstra and Gonin, Trilingual Legal Dictionary . [28] Pars [7]-[10] above. [29] Judgment, CL 0-5 to 0-6. [30] See the authorities cited in footnote 19 above. [31] Rule 10(3) of the Uniform Rules. [32] DE van Loggerenberg, Erasmus: Superior Court Practice (Service 26, Jutastat e-publications May 2025) (‘ Erasmus: Superior Court Practice ’ ) RS 27, 2025, D1 Rule 10-3 to 10-5 . [33] Erasmus: Superior Court Practice RS 27, 2025, D1 Rule 10-3 to 10-5 . [34] Erasmus: Superior Court Practice RS 27, 2025, D1 Rule 10-9 . [35] Absa Bank Ltd v Naude NO 2016 (6) SA 540 (SCA) [10]; 115 Electrical Solutions (Pty) Ltd  and Another  v City  of  Johannesburg  Metropolitan Municipality and Another (86870/19) [2021] ZAGPPHC 146 (16 March 2021) [76]; Eugene Prinsloo v Donovan Theodore Majiedt N.O and Another (257/2024) [2025] ZASCA 74 (30 May 2025) [13]-[14]. [36] Judicial Service Commission and Another v Cape Bar Council and Another (818/2011) [2012] ZASCA 115 ; 2012 (11) BCLR 1239 (SCA); 2013 (1) SA 170 (SCA); [2013] 1 All SA 40 (SCA) (14 September 2012) (‘ Judicial Service Commission v Cape Bar Council ’ ). [37] Judicial Service Commission v Cape Bar Council [12]. [38] I consider the facts in Standard Bank of South Africa Ltd v Swartland Municipality And Others 2011 (5) SA 257 (SCA) distinguishable from in this matter. [39] AA par 21, CL 008-51. [40] Fluxmans Incorporated v Lithos Corporation of South Africa (Pty) Ltd (No 2) 2015 (2) SA 322 (GJ) at 328F-G. See also Erasmus: Superior Court Practice RS 27, 2025, D1 Rule 10-8. [41] In Re Boe Trust Ltd And Others NNO 2013 (3) SA 236 (SCA) [20]; Amalgamated Engineering Union v Minister of Labour Amalgamated Engineering Union v Minister of Labour 1949 (3) SA 637 (A) at 659-660 . See also Erasmus: Superior Court Practice RS 27, 2025, D1 Rule 10-8. [42] Lizelle Kilbourn and Maryna Botha, The ABC of Conveyancing (Juta, 2023) par 38.6.2. [43] Wholesale Provision Supplies CC v Exim International CC 1995 (1) SA 150 (T) at 158D-E; Rosebank Mall (Pty) Ltd And Another v Cradock Heights (Pty) Ltd 2004 (2) SA 353 (W) at 368C-E; Bester NO And Others v Mirror Trading International (Pty) Ltd t/a MTI (in Liquidation) And Others 2024 (1) SA 112 (WCC) [24]. See further Erasmus: Superior Court Practice RS 27, 2025, D1 Rule 10-8. [44] Dengetenge Holdings (Pty) Ltd v Southern Sphere Mining and Development Company Ltd and Others (619/12) [2013] ZASCA 5 ; [2013] 2 All SA 251 (SCA) (11 March 2013) [17]; Minister of Home Affairs And others v Somali Association of South Africa And Another 2015 (3) SA 545 (SCA) [34]; Munsamy And Another v Astron Energy (Pty) Ltd And Others 2022 (4) SA 267 (GJ) [46]. See also Oudekraal Estates (Pty) Ltd V City Of Cape Town And Others 2004 (6) SA 222 (SCA) [26] on validity of unlawful administrative actions until set aside. See further Erasmus: Superior Court Practice RS 27, 2025, D1 Rule 42-5. [45] Port Nolloth Municipality v Xhalisa And Others; Luwalala And Others v Port Nolloth Municipality 1991 (3) (C) at 112D-G; Somali Association of South Africa And Others v Refugee Appeal Board And Others 2022 (3) SA 166 (SCA) [97]. [46] Pars [7]-[10] above. sino noindex make_database footer start