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[2024] ZAFSHC 13
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Maseko and Another v Khepeng and Another (4751/2022) [2024] ZAFSHC 13 (30 January 2024)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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SAFLII
Policy
THE
HIGH COURT OF SOUTH AFRICA
FREE
STATE PROVINCIAL DIVISION
Case
Number: 4751/2022
In
the matter
between:
BONGA
PAUL MASEKO
1
st
Applicant
JAPPY
JACOBS MASANGANI
2
nd
Applicant
and
TEBOHO
CLEMENT KHEPENG
1
st
Respondent
KHEPENG
TRADING (PTY) LTD
2
nd
Respondent
In
re:
TEBOHO
CLEMENT KHEPENG
1
st
Applicant
KHEPENG
TRADING (PTYD) LTD
2
nd
Applicant
and
BONGA
PAUL MASEKO
1
st
Respondent
JAPPY
JACOBS MASANGANI
2
nd
Respondent
HEARD
ON
:
15 MAY 2023
CORAM
:
BERRY AJ
DELIVERED
ON
:
30 JANUARY 2024
INTRODUCTION
[1]
The 1
st
and 2
nd
Applicants in the main Application are the 1
st
and 2
nd
Respondents in this Application for leave to appeal an order handed
down by this Court on 13 April 2023.
[2]
The parties agreed that the appeal should
be dealt with on Heads of Argument.
[3]
The Respondents brought an Application that
the Applicants should be interdicted from spoliating their
undisturbed possession of
a business property and its content known
as House Phola Restaurant, situated at 1707, Petsana Reitz.
[4]
This Court ordered that the Respondents
must be placed in the undisturbed possession of the premises and its
content on 13 April
2023.
[5]
The matter has a long history where several
contracts were concluded between various parties which show that
there was some confusion
as to who is the actual owner of the
property.
[6]
Several lease agreements were concluded
between various parties, each replacing the previous agreement.
[7]
The 1
st
Applicant claims to be the rightful owner of the property and
concluded a lease agreement with the 1
st
Respondent during March 2020 for a period of three years, commencing
on 01 April 2020.
[8]
The 1
st
Applicant’s attorney gave notice to cancel the agreement on 16
November 2020. The exact date when the Respondents had to
vacate the
premises are not clear, but the Respondents remained in occupation of
the premises.
[9]
A Mr. JM Mokoena approached the 1
st
Respondent during April 2021, and indicated that he purchased the
property from the 1
st
Applicant. The 1
st
Respondent then entered into a lease agreement with Mr Mokoena,
representing Mokoepa Mokoena Eiendomme (PTY) Ltd on 20 May 2021,
for
a period of six months with the first option of renewal.
[10]
During May 2022, Lorraine and Precious
Mahamotsa, who claimed to be the lawful owners of the property, as
they inherited it from
their mother approached the 1
st
Respondent.
[11]
The Mahamotsa’s provided the 1
st
Respondent with a Tittle Deed showing that their parents (Ale Petrus
Mahamotsa and Anna Mahamotsa) were the owners of the property,
copies
of their Death Certificates and a copy of the Letter of Authority
from the Master, wherein Anna Mokoena is appointed as
Executrix of
the Estate of Ale Petrus Mokoena on 20 February 2003. Mrs Anna
Mokoena was the wife of the then late Ale Petrus Mokoena.
[12]
Mrs. Anna Mokoena passed away and Lorraine
and Precious Mahamotsa were appointed as Executrix’s of the
Estate of Mrs Anna
Mahamotsa on 10 November 2015.
[13]
The 1
st
Respondent, Mr Mokoena with whom the lease agreement was concluded
during April 2021 and Lorraine and Precious Mahamotsa then met,
and
it was agreed that the lease agreement with Mr Mokoena should be
cancelled.
[14]
Lorraine and Precious Mahamotsa advised the
1
st
Respondent that they never sold the property to the 1
st
Applicant.
[15]
The 1
st
Respondent then concluded a lease agreement with Lorraine and
Precious Mahamotsa on 2 June 2022, which the 1
st
Respondent alleges are still valid.
[16]
The lease agreement was not provided, but
the averment is supported by a Confirmatory Affidavit of Mrs.
Precious Mahamotsa.
[17]
The 1
st
Respondent received a letter from an Attorney representing the 1
st
Applicant on 02 June 2022, wherein it advised the 1
st
Respondent that the lease agreement was cancelled and that the 1
st
Respondent had to vacate the premises by 08 June 2022.
[18]
In this letter the 1
st
Applicant’s attorney advised that the 1
st
Respondent would bring a Spoliation Application against the 1
st
Respondent, should the 1
st
Respondent fail to vacate the premises by 08 June 2022.
[19]
This resulted in several letters written
between the Attorneys representing the parties which resulted in an
ultimatum that the
Respondents must vacate the premises by 12 July
2022.
[20]
The 1
st
Respondent found the premises to be locked on 15 June 2022. He broke
the lock and found that the restaurant’s equipment was
removed
from the premises.
[21]
It is undisputed that the 1
st
Applicant placed the locks on the business premises.
[22]
This 1
st
Respondent then broke the lock and took possession of the property of
the property he rented since 01 April 2020.
[23]
The 1
st
Applicant’s case has always been that he counter spoliated the
unlawful possession of the property from the 1
st
Respondent and further that there were no proof thar the 1
st
Respondent was in undisturbed possession of the property on 15 July
2022.
ANALYSIS
[24]
The 1
st
Respondent acted reasonable when he accepted the evidence presented
by Lorraine and Precious Mahamotsa that they were the duly
appointed
to function as Executrix’s for the estate of their late mother
and that the property was still registered in their
parents’
names.
[25]
This resulted in the conclusion of the
lease agreement between the 1
st
Respondent and Lorraine and Precious Mahamotsa, concluded on 2 June
2022.
[26]
The letter from the 1
st
Applicant’s attorney dated 09 July 2022 advising the 1
st
Respondent to remove the equipment from the restaurant before 13 July
2022 and the conduct of the 1
st
Applicant to remove the equipment from the premises on 15 July 2022,
indicate that the 1st Respondent was in undisturbed occupation,
thus
possession, of the leased premises on 15 July 2022.
GROUNDS
OF APPEAL
[27]
The main grounds of appeal are that the
Court
a quo
erred in finding that the 1
ST
Respondent was not in undisturbed possession of the property on 15
July 2022. The date the 1
st
Applicant replaced the locks to the premises.
[28]
The evidence show that the 1
st
Respondent was in undisturbed possession of the property and had no
reason to doubt the
bona fides
of
Lorraine and Precious Mahamotsa, when he concluded the lease
agreement on 2 June 2022.
[29]
Section 17(1) of the Superior Court’s
Act 10 of 2013 provides that leave to appeal may only be granted if
the judge concerned
is of the opinion that:
1.
The appeal would have a reasonable
prospect of success or if there are some compelling reasons why leave
should be granted.
2.
The decision sought on appeal does not
fall within the ambit of s16(2)(a) of the Act.
3.
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.
[30]
In
Matoto
v Free State Gambling and Liquor Authority and Others
[1]
the Court held:
“
There
can be no doubt that the bar for granting leave to appeal has been
raised. Previously, the test was whether there was a reasonable
prospect that another court might come to a different conclusion.
Now, the use of the word ‘would’ indicate a measure
of
certainty that another court will differ from the court whose
judgment is sought to be appealed against.”
[31]
In
S
v Smith
[2]
the Court dealt with the question of what constitutes reasonable
prospects of success as follows:
“
What
the test of reasonable prospects of success postulates is a
dispassionate decision, based on the facts and the law, that a
court
of appeal could reasonably arrive at a conclusion different to that
of the trial Court. To succeed, therefore, the appellant
must
convince this court on proper grounds that he has prospects of
success on appeal and that those prospects are not remote but
have a
realistic chance of succeeding. More is required to be established
than that there is a mere possibility of success, that
the case is
arguable on appeal or that the case cannot be categorised as
hopeless. There must, in other words, be a sound, rational
basis for
the conclusion that there are prospects of success on appeal.”
[32]
In
MEC
for Health, Eastern Cape v Mkhitha and Another
[3]
the Court held:
“
[16]
Once again it is necessary to say that leave to appeal, especially to
this court, must not be granted unless there truly is
a reasonable
prospect of success. Section 17(1)(a) of the Superior Court Act 10 of
2013 makes it clear that leave to appeal may
only be given where the
judge concerned is of the opinion that the appeal would have a
reasonable prospect of success; or there
is some other compelling
reason why it should be heard.
[17]
An applicant for leave to appeal must convince the court on proper
grounds that there is a reasonable prospect or realistic
chance of
success on appeal. A mere possibility of success, an arguable case or
one that is not hopeless, is not enough. There
must be sound,
rational basis to conclude that there is a reasonable prospect of
success on appeal.”
[33]
The 1
st
Respondent has shown that it was in undisturbed
possession of the property on 15 July 2022.
[34]
The Appeal does not have reasonable prospects of success.
[35]
ORDER
The
following order is made:
1.
The Application for leave to appeal is
dismissed with costs.
__________
AP BERRY, AJ
For
the Applicants:
Adv Mnguni
Instructed
by
MC Radebe Attorneys
For
the Respondents:
BONOLO Wesi Attorneys INC
[1]
(4629/2015)
[2017] ZAFSHC 80
(8 June 2017)
[2]
2012(1) SACR 567 (SCA) par [7]
[3]
(1221/2015[2015] ZASCA 176(25 November 2016)