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2023
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[2023] ZAFSHC 403
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Lefeta v Lefeta and Another - Appeal (A31/2023) [2023] ZAFSHC 403 (19 October 2023)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable: YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
Case
number: A31/2023
In
the matter between:
THLORISO
ANDRIES LEFETA
Appellant
and
TANKI
NEPHTALLY LEFETA
1
st
Respondent
MAMOKHOBO
JACOBETH LEFETA
2
nd
Respondent
CORAM:
LOUBSER, J
et
OPPERMAN, J
HEARD
ON:
2 OCTOBER 2023
JUDGMENT
BY:
LOUBSER,
J
DELIVERED
ON:
19 OCTOBER 2023
[1]
This is an appeal against an eviction order made by the Magistrate of
Botshabelo against the appellant
in motion proceedings that came
before him towards the end of 2022. In the Notice of Motion the
respondents sought final relief
in the form of the eviction order
against the appellant and any other unlawful occupants of the
residential property situated at
1[…] […] Section,
Botshabelo. The application was made in terms of the provisions of
The Prevention of Illegal Eviction
from and Unlawful Occupation of
Land Act.
[1]
[2]
It appears from the founding papers filed by the respondents in the
court
a
quo
that they are the children of the late Tefo Johannes Lefeta, and they
alleged that he is the registered owner of the property in
question.
In support of this contention, they attached a property enquiry to
this effect. They further alleged that they have the
necessary
locus
standi
to make the application, since they are acting in their capacity as
the Master’s representatives in the estate of their late
father. To this effect the respondents attached a Letter of Authority
issued at the Botshabelo Magistrate’s Court and dated
1
December 2008. The respondents alleged that they are consequently in
charge or in control of the property, but that they are
unable to
deal with the property in terms of Section 18(3) of the
Administration of Estates Act
[2]
while the appellant is still occupying the property.
[3]
The respondents also alleged in their founding papers that the
appellant had moved into the property
immediately after the death of
their father without the consent of the respondents and without any
other right in law to do so.
They alleged that the appellant later
entered into a written agreement with the first respondent on 4 May
2009 to vacate the property
by the end of June 2009, but that he has
since neglected to do so. They attached a copy of the said agreement
to the founding affidavit.
[4]
In his answering affidavit the appellant vehemently opposed the
application. He firstly expressed
the view that the respondents
failed to comply with the provisions of Act 19 of 1998, in that they
had served the application upon
him without the Court’s
approval. He further pointed out that the respondents had made two
previous applications in the Magistrate’s
Court of Botshabelo
to have him and his wife evicted from the property, but that both
those applications were dismissed by the
Court. The matter is
therefore
res iudicata
, he contended.
[5]
The appellant further denied the authenticity of the Letter of
Authority attached by the respondents.
He claimed that his attorney
had made a thorough search for the record of the Letter, but that he
could not find anything in that
respect. If the Letter had in fact
already existed in 2008, he would have expected the respondents to
have finalized the estate
long ago in terms of the instructions of
the Master. The late father of the respondents was his brother, who
had died on 29 September
1996, almost 26 years ago. He cannot imagine
that his brother’s estate had not been finalized by now, he
contended.
[6]
The appellant further denied that his late brother was the owner of
the property at the time of
the issuing of the alleged Letter of
Authority. After his death, the widow of the deceased asked him and
his wife whether they
would reside in the property, which was in a
very bad state at the time. They agreed to move in, and they paid the
rates, taxes
and water levies that were in arears. In addition, they
improved the property over the years at a cost of more than
R120 000.00,
the appellant averred in his answering affidavit.
[7]
The appellant went on to allege that he and his wife later purchased
the property from the Free
State Development Corporation, with the
result that he is actually the rightful owner of the property. He
further denied that he
had ever entered into an agreement to vacate
the property by the end of June 2009. He has been occupying the
property for about
25 years now, he said
[8]
In her response to the appellant’s answering affidavit, the
first respondent then filed
an answering affidavit. In this affidavit
she denied that the matter had become
res iudicata
. She
pointed out that her first attempt to evict the appellant, was made
when she applied for a protection order. At the time,
she did not
realise that she was following the wrong procedure, and her
application for a protection order was consequently dismissed.
Her
second attempt to obtain an eviction order, never came to fruition,
because her legal representative provided by Legal Aid
left the
offices of Legal Aid in Botshabelo before further steps could be
taken.
[9]
As for the remainder of the replying affidavit, the first respondent
merely noted some of the
allegations in the answering affidavit,
while simply denying some of the other allegations made. She mainly
confirmed her version
as contained in her founding affidavit. What is
conspicuous, however, is that the issues of the Letter of Authority
and the
locus standi
of the respondents, as raised in the
answering affidavit, are not responded to in the replying affidavit.
[10]
In its judgement, the court
a quo
regarded the version of the
appellant that he and his wife were given permission by the widow of
the deceased to occupy the property,
as hearsay evidence. The
Magistrate regarded it as such, because there was nothing before him
supporting this version of the appellant.
The denial of the appellant
that he had entered into an agreement to vacate, was also regarded as
without merit by the Magistrate,
since the agreement was signed by
T.A. Lefeta and T.W. Lefeta, he said in the judgement.
[11]
Furthermore, the Magistrate dismissed the appellant’s defence
of
res iudicata
on the basis that no court order has been
attached by the appellant to support a finding of
res iudicata
.
In conclusion, the Magistrate found that, on the papers before him,
the application complied with the provisions of Act 19 of
1998. He
also found that the respondents had the necessary
locus standi
in the proceedings, because the Letter of Authority confirms that
they are the Master’s representatives in the administration
of
the deceased estate. He further dismissed the appellant’s
contention that he is the owner or the lawful occupier of the
property.
[12]
In his Notice of Appeal the appellant relies on the following
grounds:
1.
The Magistrate failed to apply the principles applicable to motion
proceedings where final
relief is sought.
2.
The Magistrate should have upheld the defence of
res iudicata
.
3.
The Magistrate should have found that no order of eviction could be
granted in view of the
appellant’s improvement liens.
4.
The Magistrate should have found that the authenticity of the
documents annexed by the respondents
were all in dispute and not
proven at all. This specially pertains to the Letter of Authority and
the documentation regarding ownership
of the property.
5.
The Magistrate erred in not finding that the applicants (now
respondents) had failed to make
out a case that they are either the
owners or in control of the property and/or the executors of the
estate of the deceased.
6.
The Magistrate should have found that there was at least a serious
dispute between the parties
pertaining to the ownership of the
property.
[13]
Now as far as the first ground of appeal is concerned, it cannot be
denied that the affidavits filed in the
application revealed certain
disputes of fact between the parties. It is also clear that final
relief in the form of an eviction
was sought in the application. The
way in which a court should deal with an opposed application in such
circumstances, has become
trite in our law over many years:
“…
.
where
in proceedings on notice of motion disputes of fact have arisen on
the affidavits, a final order, whether it be an interdict
or some
other form of relief, may be granted if those facts averred in the
applicant's affidavits which have been admitted by the
respondent,
together with the facts alleged by the respondent, justify such an
order.
”
[3]
[14]
This rule has the effect that factual disputes in motion proceedings
should be dealt with on
the basis that the version put up by the
respondent should prevail. Chief Justice Langa, as he then was,
confirmed this rule in
Thint
(Pty) Ltd v National Director of Public Prosecutions and Others; Zuma
vs National Director of Public
Prosecutions
and Others
[4]
in the following words: “It is trite that factual disagreements
in motion proceedings are to be dealt with in accordance
with the
rule in
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
which
stipulates that, subject to certain exceptions, a court should only
rely on evidence given by the deponents for the respondents.”
[5]
[15]
The “certain exceptions” referred to by the Chief Justice
are explained in the Plascon-Evans
case
[6]
to be, for example, where the allegations or denials of the
respondent are so far-fetched or clearly untenable that the court is
justified in rejecting them merely on the papers.
[16]
In the present matter, it is clear from a reading of the judgement in
the court
a quo
that the Magistrate has not referred to the
rule at all and how it should be applied. It follows that this court
is justified in
finding that the Magistrate has erred by not applying
the rule in the adjudication of the factual disputes on the papers
before
him.
[17]
The next question, however, is whether this failure by the Magistrate
had any effect on the final outcome
of the application. This brings
me to the second ground of appeal, namely the issue of
res
iudicata
.
[18]
The appellant’s version was that the respondents made a second
attempt to evict him during 2011 with
the assistance of Legal Aid. At
the time, he was represented by attorney Hennie Stander. Although he
did not have any documentation
in this respect, he could recall that
the Magistrate, mr. Pienaar, dismissed that application as well. All
that he could produce
was a letter from Legal Aid dated 7 June 2011,
demanding that he vacate the property within 30 days.
[19]
In her replying affidavit, the first respondent denied the dismissal
of the second application, and she stood
by her version that the
application was not proceeded with after a new legal representative
was allocated to the case by Legal
Aid.
[20]
Clearly, had the Magistrate applied the rule discussed above, he
would have relied only on the version presented
by the appellant.
Such an approach would have resulted in a finding of
res iudicata
.
[21]
Furthermore, the appellant disputed the authenticity of the
respondents’ Letter of Authority in the
court
a quo
. It
was his version that, notwithstanding a thorough search by his
attorney, no record of the Letter could be found. If the Letter
had
existed in 2018, as it purports to show, he would have expected the
respondents to have finalised the estate long ago. In their
replying
affidavit, the respondents did not deal at all with the appellant’s
version that the Letter was not authentic. Neither
did they annex any
response from the Master or an official of the Botshabelo
Magistrate’s Court in this regard.
[22]
Again, had the Magistrate applied the rule discussed above, he would
have relied only on the version presented
by the appellant, and he
would have found that the respondents failed to show their
locus
standi
to approach the court for the relief sought, as contended
in the fifth ground of appeal.
[23]
The appeal must therefore succeed on the grounds referred to above.
It is therefore not necessary for this
court to consider the
remaining grounds of appeal raised by the appellant.
[24]
In the premises the following order is made:
1.
The appeal succeeds with costs.
2.
The orders made by the court
a quo
are set aside and
substituted with the following:
“
The application
for eviction is dismissed with costs”
P.
J. LOUBSER, J
I
concur:
M.
OPPERMAN, J
On
behalf of applicant:
Adv.
S. J. Reinders
Instructed
by:
Giorgi
and Gerber Attorneys Inc.
Bloemfontein
On
behalf of respondents:
Mr.
B. A. Monyamani
Instructed
by:
Monyamani
Attorneys,
Bloemfontein
/roosthuizen
[1]
Act 19
of 1998
[2]
Act 66
of 1965
[3]
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(AD) at
634 H-I
4
2009 (1) SA 1 (CC)
[5]
At par
8 on page 5 of the judgement in the Constitutional Court
[6]
At C on
page 635 (see citation in footnote 3)