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[2020] ZAGPJHC 305
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Manaka and Another v Molefe (2019/18220) [2020] ZAGPJHC 305 (16 September 2020)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO:
2019/18220
In
the matter between:
MANAKA
SEITSHIRO KGOSIMOTHO
First Applicant
MANAKA SEITSHIRO KGOSIMOTHO
N.O
Second Applicant
and
MOLEFE
IRENE
MOKGADI
Respondent
J U D G M E N T
(APPLICATION FOR LEAVE TO APPEAL)
ADAM
AJ:
[1].
This is an application for leave to
appeal against a judgment handed down on 8 November 2019. The
respondent (applicant in the court
a
quo
) was granted an order in her
favour for the termination of joint ownership of the property known
as Erf 15530 Protea Glen Extension
16 Township, Registration Division
I.Q, Gauteng Province (‘the property’).
The
first and second applicants' grounds of appeal
[2].
The Court misdirected itself in finding
that the second applicant could not afford to purchase the
respondent's indivisible half
share of the property.
[3].
The Court misdirected itself in finding
that the first and second applicants refused to agree to the
termination of the joint ownership.
[4].
The Court should not have ordered that
failing agreement between the respondent and the second applicant as
regards the manner of
the disposition of the property or the
reasonable period within which this must be done, the respondent may
within 30 days dispose
of the property by private auction or public
auction, whichever is convenient for her.
The
law
[5].
Section 17
of the
Superior Courts Act 10
of 2013
governs applications for leave to appeal. This section
states:
“
Leave
to appeal
17.
(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;
(b) the
decision sought on appeal does not fall within the ambit
of
section
16(2)(a)
;
and
(c) where
the decision sought to be appealed does not dispose of all the issues
in the case, the appeal would lead
to a just and prompt resolution of
the real issues between the parties.”
[6].
In
Doorewaard
and Another v S
(CC33/2017)
[2019]
ZANWHC 25
, Hendricks J stated that the test to be applied is now
higher than what it used to be. It is no longer whether another court
may
(might) come to a different decision than what the court
a
quo
arrived at. It is now whether
another court, sitting as court of appeal, would come to a different
decision.
[7].
The Appellate Division held in
S
v Ackerman
1973 (1) SA 765
(A) that
if there is a reasonable prospect of success on appeal for the
applicant, leave to appeal ought to be granted without
hesitation or
reluctance.
[8].
More instructive in applications of this
nature, is what was said in
S v
Mabena and Another
2017
(1) SACR 482
(SCA)
at paragraph 22 that:
“
It is the right of every litigant against whom an
appealable order has been
made to seek leave to appeal against the order. Such an
application should
not be approached
as if it is an impertinent challenge to the Judge concerned to
justify his or her
decision. A court from which leave to appeal is sought is called
upon merely to reflect
dispassionately upon its decision, after
hearing argument and decide whether there is a
reasonable prospect that a
higher court may
disagree”.
The
merits
[9].
The application in the court
a
quo
was based on the
actio
communi dividundo.
It was described
in
Robson v Theron
1978
(1) SA 841
(A) as having two purposes, namely, (1) division of joint
property and (2) payment of
praestationes
personales
relating to profits
enjoyed or expenses incurred in connection with the joint property.
The basic underlying notion is that
no co-owner is normally obliged
to remain such against his will. The court
a
quo
found no obstacle to granting
the respondent the relief she sought.
[10].
During argument in the application for
leave to appeal it was submitted on behalf of the applicants that the
joint ownership between
the parties was common cause but that the
parties could not agree on the method of termination of the joint
ownership. It was further
submitted that as affordability was not in
issue, the Court should have used its wide discretion to look at an
alternative, just
and equitable manner of terminating the ownership.
[11].
The applicants did not suggest an
alternative method of termination of joint ownership of the property
in the court
a quo
but merely asked for dismissal of the respondent's claim.
[12].
In the application for leave to appeal I
was referred to the
decision of
Boshoff
t/a Etosha Meubelvervoerders v M Pupkewitz and Sons (Pty) Ltd
1984 (2) SA 24
(SWA) at 30E-G where the Court (sitting in appeal of a
trial from the magistrates’ court), exercised an equitable
discretion
and granted the plaintiff relief not sought in its
pleadings.
[13].
In light of the above, I am persuaded
that another Court may come to a different conclusion on the three
grounds of appeal listed
above and find an alternative manner of
terminating the joint ownership.
Costs
[14].
Notwithstanding the 'Cost Order' listed
as one of the grounds of appeal in the Notice of Application for
Leave to Appeal, it was
submitted on behalf of the applicants that
the cost order in the court
a quo
was not being appealed against as costs were awarded in accordance
with the general rule that the successful party is entitled
to costs.
Order
In the circumstances, I grant the
following order:
1.
The first and second applicants are
granted leave to appeal to the Full Bench of the Gauteng Local
Division.
2.
The costs of the application for leave
to appeal is reserved for decision by the Court hearing the appeal.
_________________________________
N ADAM
Acting Judge of the High Court
Gauteng Local Division, Johannesburg
DATE OF HEARING:
10
th
September 2020
DATE OF JUDGMENT:
16
th
September 2020
FOR THE FIRST AND SECOND APPLICANTS:
Mrs N Morwasehla
INSTRUCTED BY:
Morwasehla Attorneys
FOR THE RESPONDENT:
Adv R Goslett
INSTRUCTED
BY:
R.E
Makgale Attorneys