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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

NORTH WEST DIVISION, MAHIKENG

 

CASE NO: M560/2021

Reportable: NO

Circulate to Judges: NO

Circulate to Magistrates: NO

Circulate to Regional Magistrates: NO

In the matter between:

REGINA K F MASILO                                                                Applicant     

 

AND

 

HESTER J A ESTERHUIZEN                                                      First Respondent

(Identity number 5[...])

 

SAREL J M THERON                                                                 Second Respondent

(Identity number 5[...])  

 

Heard: 14 APRIL 2023

 

Delivered:      This judgment is handed down electronically by circulation to the parties through their legal representatives’ email addresses. The date for the hand-down is deemed to be on 21 APRIL 2023

 

ORDER

I make the following order:

 

1.         Application for leave to appeal is dismissed;

 

2.         The applicant is ordered to pay costs.

LEAVE TO APPEAL JUDGMENT 

DJAJE DJP

 

[1]        This is a leave to appeal application against the whole judgment handed down on 18 November 2022 in which the following order was made:

 

“1.  The First and Second Respondents be evicted from the property being House and Stand Number C[...], D[...] Dam, D[...] Village, District Molopo, hereinafter referred to as "the House");

 

2.   Should the First and Second Respondents fail to vacate the House within a period of 90 (Ninety) days of granting of this Court Order, the Sheriff of the above Honourable Court be and is hereby authorised to forthwith enter the premises and evict the First and Second Respondents and all those who occupy the House under and by virtue of her occupancy thereof;

 

3.   The Sheriff and/or his lawful Deputy is hereby authorised to enlist the assistance of any person including the South African Police Service to assist him in such an eviction;

 

4.   Ordering the First Respondent to pay the Costs of this Application.”

 

[2]        The parties agreed that the leave to appeal be decided on paper due to the limited time available for argument on 14 April 2023. Heads of argument were filed by both parties dealing with their arguments.

 

[3]        The test to be applied in an application for leave to appeal is set out in section 17 (1)(a) of the Superior Courts Act 10 of 2013 which provides that:

 

“(1)      Leave to appeal may only be given where the judge or judges concerned are of the opinion that-

 

(a)(i)    the appeal would have a reasonable prospect of success; or

 

         (ii)    there is some other compelling reason why the appeal should be

heard, including conflicting judgments on the matter under consideration;”

 

[4]        The applicants argued that on the facts of the matter another court would come to a different conclusion and raised the following grounds of appeal:

           

“Firstly I believe it's important to respond to the point highlighted by Her Ladyship the Honourable Justice Djaje, with respect, erred in stating that the Appellant indicated that she would proceed despite the explanation of her right to legal representation. There was no explanation of the right to legal representation or postponing the matter due to not having legal representation except a question posed on whether the Appellant would proceed with the hearing pro se as per submitted heads of argument No alternative option was provided on the date of hearing to proceed otherwise It was not clear if her ladyship was providing an option to the Appellant not to proceed without a legal representative. The Appellant made it clear that there was no other alternative given but to proceed pro se after failed attempts to get appropriate legal representation.

 

With Respect:-

1.         Her ladyship erred in basing her judgement on an unlawful cancellation of deed of sale agreement that had not only lapsed but was also void ab initio and an addendum that is fraudulent and unenforceable which makes the cancellation thereof unlawful based on an enforceable agreement.

 

2.         Her Ladyship erred in completely disregarding the Appellant's submissions and therefore ordering the eviction of the Appellant and children is enforcing the unlawful cancellation of an unenforceable agreement with a clause that would allow Respondents the retention of over 50% of the purchase price paid by the Appellant (an amount known by the Applicants that it is still owed by the Appellant to the financier), is contrary to public policy and serves only to benefit the Respondents to unduly enrich themselves from .a fraudulent transaction.

 

2.1       Her Ladyship also erred by completely disregarding the lapsed agreement relied upon was evidently replaced by an oral agreement which could not be denied based on the submissions and transactions that prove valid existence thereof, which also gave rise to deliberate prevention of further performance by the Appellant due to the fact that the Respondents intended to abandon the agreement and rely on the retention of monies paid as per clause in the relied upon agreement instead of agreeing to reduce the oral agreement in writing to validate it as it is required by the Law of Alienation of Land Act.

 

2.2       The Courts held that in this scenario the parties must conclude a new agreement of sale for it to be valid and the cancellation thereof but instead judgment seem to be ignoring the submission that the Defendants knew about the impediments to securing the letter of authority but wilfully concealed that then relied on cancelling the agreement instead.

 

2.3       Where a contract is cancelled (whether by unilaterally or by agreement) the general principle is that the parties required to return everything received there under. If this honourable court unlawfully validates this unlawful eviction, the Appellant will have no recourse against the Applicant, to claim the paid amount and damages.

 

2.4       Her ladyship erred in not considering the Appellant's prayer to set aside the cancellation and evection based on the unlawful application before the honourable court and allow the parties to validate the oral agreement and allow the transaction to be concluded given proof that the Appellant and the Financier intended to do so upon provision of the letter of authority which is a requirement to confirming that the Applicant have been granted authority to cede their lease rights and sell the buildings and also as it is required by the Tribal Authority and according to the Respondents lease agreements this was also to ensure that after the transaction has been concluded, then the Appellant's is placed in a lawful position to obtain a letter of authority to occupy the properties including the ceded lease rights from the Tribal Authority.

 

24        Her Ladyship erred in agreeing with the Defendants for relying on performance of in oral agreement but having failed to have cancelled the very same agreement performance is expected from and completely disregarded.

 

3.         Her ladyship erred in disregarding the fact that prior authority had to be obtained from the tribal authority to cede lease right as properties are built on the leased land and authority to sell buildings that are on the land which is the property of the tribal authority not the development company relied upon and regardless of the fact that the company was deregistered long before the sale transactions and whether or not the company was granted authority to sublet. This clause is clearly stated on the lease agreements that were eventually submitted by the Applicants in their replying affidavits.

 

4.         Even though the point of joinder was reserved in the Appellant submission contrary to the interpretation based on Her Ladyship's judgement, it is trite law that the Tribal Authority is in fact a party with rightful title and interest as matter of necessity due to the fact that a sale of properties build on leased land cannot be lawful without authority of the custodian of that land. This was confirmed in the submission by the Appellant that custodian of the land himself refused to acknowledge the sale and occupation of the unlawfully sold properties by Applicants due to the fact that they did not approach him for the authority to cede their rights, fact that was also confirmed by the Appellant's financier.

 

5.         Her Ladyship also erred in citing clause 5 of the resolution, which clearly states that: "The assumption of any development projects will, be subject to the approval of the Tribal CounciI' thereafter totally disregarding it in her judgement.

 

6.         Her Ladyship also completely disregarded the fact that the relied upon reference to the Disang Development company is invalid as the company was not given any right to sublet with the Tribal Authority approval.

 

7.         Based on the resolution cited, Her Ladyship erred in believing that the buildings erected on the land and sale thereof can be separated from the land this is a misjudgement as it was submitted that the agreement ought to have been a tripartite lease agreement that would have required the custodian of the land to have been party to the agreement with the true title and locus standi.

 

8.         Her Ladyship based her judgement on the contradiction that Appellant paid over 50% of the purchase price long after the date of the agreement relied upon without any proof of how that acceptance of payment was reached and accepted by the Respondents and that breach of that notice was served at a chosen domicillium of an address that was confirmed by the sheriff that no one was residing there and ignoring the fact that the Respondent herein were well aware of the fact that the house was purchased as a primary home and fully paid for when occupation was granted to the Appellant after payment and that the Appellant had moved to the house with the minor children as submitted.

 

Just and equitable to evict

9          Her Ladyship erred in concluding that it is just and equitable to render the Appellant and children homeless by basing her judgment on a statement of one of the homeowners the Appellant has several cases opened against for his criminal behaviour and lies and on an unjust reliance that the children do not attend the schools where the house is based as it does not prove that the house is not a primary home.”

 

[5]        The applicant in this application raises the same argument that was argued in the main application. These issues raised now were thoroughly dealt with in the judgment of the court. There are no prospects that another court can come to a different conclusion. As such the application for leave to appeal stands to be dismissed.

 

[6]        It is trite that costs follow the result and I see no reason why the applicant should not pay the costs of this application.

 

Order

 

[7]        Consequently, the following order is made:

 

1.         Application for leave to appeal is dismissed;

 

2.         The applicant is ordered to pay costs.

 

J T DJAJE

DEPUTY JUDGE PRESIDENT

NORTH WEST HIGH COURT, MAHIKENG

 

APPEARANCES

DATE OF HEARING:	14 APRIL 2023
JUDGMENT RESERVED:	14 APRIL 2023
DATE OF JUDGMENT:	21 APRIL 2023
COUNSEL FOR THE APPELLANT:	IN PERSON
COUNSEL FOR THE DEFENDANT	ADV D SMIT

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