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[2015] ZASCA 124
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Desmond Ettienne Doman v Kgabo Gabriel Selomo (20455/2014) [2015] ZASCA 124 (21 September 2015)
THE SUPREME
COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case
No: 20455/2014
Reportable
In
the matter between:
DESMOND
ETTIENNE
DÖMAN
APPELLANT
and
KGABO
GABRIEL
SELOMO
RESPONDENT
Neutral
citation:
Desmond
Ettienne Dӧman v Kgabo Gabriel Selomo (
20455/14)
[2015] ZASCA 124
(21 September 2015)
Coram:
Navsa, Theron, Swain and Mbha JJA and
Baartman AJA
Heard:
1 September 2015
Delivered:
21 September 2015
Summary:
Power of court of appeal – power
in terms of
s 16(2)
(a)
(i)
of the
Superior Courts Act 10 of 2013
to dismiss appeal where
judgment or order sought would have no practical effect or result.
REASONS FOR ORDER GRANTED ON 1 SEPTEMBER 2015
Baartman
AJA (Navsa, Theron, Swain and Mbha JJA concurring):
[1]
On 1 September 2015, this appeal was heard
and dismissed in terms of s 16(2)
(a)
(i)
of the Superior Courts Act 10 of 2013 (the Act). The following order
was made:
(a)
The appeal is dismissed with no order as to
costs.
Reasons were to follow.
These are the reasons.
[2]
Section 16(2)
(a)
(i)
and (ii) of the Act, the successor to s 21A and 21A(3) of the Supreme
Court Act 59 of 1959, provides:
‘…
(i)
When at the hearing of an appeal the issues are of such a nature that
the decision sought will have no practical effect or result,
the
appeal may be dismissed on this ground alone.
(ii) Save under exceptional
circumstances, the question whether the decision would have no
practical effect or result is to be determined
without reference to
any consideration of costs.’
[3]
In
Radio
Pretoria v Chairman, ICASA
,
[1]
this court referred to a number of reported decisions where appeals
had been dismissed on the basis that a judgment would have
no
practical effect stating that this indicated that appeals with no
prospect of being heard on the merits were being persisted
with. This
matter illustrates that the practice is ongoing.
[4]
In this matter, it was necessary to
consider whether this court’s judgment would have any practical
effect. The facts in the
matter are largely common cause. The
appellant, Doctor Desmond Ettienne Dӧman
–
a
prosthodontist (Dr Dӧman)
is the
registered owner of the farm Pennsylvania in Limpopo Province (the
farm). On 23 February 2013, Ms Caroline Celia
Selomo,
the daughter of the respondent, Mr Kgabo Gabriel Selomo (Mr
Selomo), passed away. Mr Selomo approached Dr Dӧman
for permission to bury his daughter on the farm in
an area where other members of his family including his parents were
buried.
Dr Dӧman
refused the request.
On 18 March 2013, Mr Selomo launched an urgent application
in the Land Claims Court, claiming inter
alia that he is
‘entitled in terms of Section
6(2)(dA) of the Extension of the Security of Tenure Act, 1997 [ESTA],
to bury the body of his
late daughter, Caroline Celia Selomo, in the
burial site on the farm Pennsylvania number 326, …on Saturday
23 March 2013'.
[5]
Mr Selomo provided the following details:
He had been resident on the farm from 7 October 1948 until
the date of the urgent
application. Initially, he had lived with his
parents on the farm and later in his own homestead with his wife and
12 children.
Mr Selomo’s brother, sister and some of his
adult children still reside on the farm. He further claimed that the
deceased
had been resident on the farm at the time of her death. Mr
Selomo, a pensioner, alleged that he had been in the employ of the
previous
owner of the farm who had given him grazing rights for his
own stock. He went on to allege that the previous owner had allocated
a fenced-off portion of the farm as a burial site to be used by those
who lived and worked on the farm. In addition to his parents,
his
sister and three of his children are buried on the farm, the last
burial
having
occurred
in
2010. Mr Selomo maintained that his cultural beliefs dictated that
where possible family members be buried at the same grave
site.
Mr Selomo
alleged, therefore, that as an
occupier in terms of ESTA and in terms of s 6(2)
(dA)
,
he was entitled to bury his daughter on the farm.
[6]
Dr Dӧman, acknowledged Mr Selomo’s
historic link to the farm, but resisted the relief sought on the
basis that he no
longer resided on the farm. According to Dr Dӧman,
Mr Selomo had left the farm in terms of an agreement, concluded on
10 January 2005 with Mr Kobus van Staden, who attended to the
estate of the previous owner,
in terms whereof Mr Selomo had
accepted R8 000 as compensation for leaving his residence and
the farm. Since then, so the allegation
went, Mr Selomo and his
dependent children, including the deceased, lived in an area called
Steilloop, 35 kilometres from the farm.
In response, Mr Selomo denied
that he had entered into an agreement with Mr Kobus van Staden as
alleged. He alleged that he had
been requested to sign the document
as an acknowledgment of receipt of his annual bonus and did not know
that he was in fact signing
the agreement on which Dr Dӧman
relied.
[7]
On Friday 22 March 2013, Spilg J heard the
application and granted the relief sought. On Saturday 23 March 2013,
Mr Selomo buried
his daughter on the farm. That was more than 2½
years ago. On the face of it, this matter is moot; the deceased
already
having been buried on the farm.
[8]
Nonetheless, Dr Dӧman
pursued
the appeal, apparently motivated by the concern that the
judgment and order of the court
below would serve as a precedent on which Mr Selomo and
others could rely to establish more
graves on the farm. Counsel on behalf of Dr Dӧman submitted
further that the reasoning
of the court below resulting in the order
referred to above was clearly wrong.
[9]
It is necessary to consider very briefly
the basis Spilg J provided for the granting of the order.
In
his reasons furnished on 3 April 2014, a year after the
order, the learned judge accepted that Mr Selomo had failed
to prove
he was entitled in terms of s 6(2)
(dA)
of ESTA to bury his daughter on the farm, but went on to find that
the provisions of the Land Reform (Labour Tenants) Act 3 of
1996 (the
LTA) applied and that Mr Selomo was in terms thereof entitled to bury
his daughter on the farm. Mr Selomo, however,
had not relied on
the LTA for any relief. The issue was not dealt with in the papers.
According to counsel for Dr Dӧman,
no submissions were made on
this aspect at the hearing in the court below. We specifically
refrain from endorsing the reasoning
of the court below.
[10]
In an attempt to cross the mootness hurdle,
counsel for Dr Dӧman contended that if he were to succeed on
the merits, the body
of Mr Selomo’s daughter could be
exhumed for burial elsewhere. In oral argument before us, counsel on
behalf of Dr Dӧman
rightly
accepted that an exhumation, particularly given the time lapse, would
be highly offensive, and accepted further that the
matter should
rightly be dismissed on the basis of s 16(2)
(a)
(i).
Mr Selomo was assisted in this litigation by the Minister of Rural
Development and Land Reform. Counsel on behalf of Mr Selomo
informed the court that in the light of Dr Dӧman
’
s
concession that the matter ought to be dismissed in terms of
s 16(2)
(a)
(i),
he would not insist on a costs order in Mr Selomo’s
favour.
[11]
For these reasons the appeal and the
related costs order were dismissed in terms of s 16(2)
(a)
(i)
of the Act.
_________________________
E D BAARTMAN
ACTING JUDGE OF APPEAL
Appearances
For
Appellant:
J J Botha
Instructed by:
Pieter Moolman Attorneys, Randburg
Symington & De Kok, Bloemfontein
For
Respondent:
A T Ncongwane SC
Instructed by:
Noko Maimela Attorneys, Johannesburg
Matsepes, Bloemfontein
[1]
Radio Pretoria v Chairman, Independent
Communications Authority of South Africa & another
2005
(1) SA 47
(SCA) para 3.