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[2022] ZAFSHC 167
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Motisima and Another v Trustees of the Van Der Merwe Family Trust and Another (3253/2021) [2022] ZAFSHC 167 (30 June 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE PROVINCIAL DIVISION
Case
no:
3253/2021
Reportable:
YES/NO
Of
interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
In
the matter between:
PHILIP
TSHEPISO MOTSIMA
First
Applicant
THANDIWE
PATIENCE MOTSIMA
Second
Applicant
and
THE
TRUSTEES OF THE VAN DER MERWE
FAMILY
TRUST
[1]
First
Respondent
THE
REGISTRAR OF DEEDS:
FREE
STATE
Second
Respondent
Coram:
Opperman,
J
Date
of hearing:
6
May
2022
Order:
30
June 2022
Reasons
for Judgment:
The
reasons for judgment were handed down electronically by circulation
to the parties’ legal representatives by email and
release to
SAFLII on 30 June 2022. The date and time for hand-down is deemed to
be 30 June 2022 at 15h00.
Summary
:
Application for leave to appeal – Interim interdict
JUDGMENT
[1]
The matter served before De Kock, AJ. She is engaged in Circuit Court
and not available.
The matter is thus entertained in terms of section
17(2)(a) of the Superior Court Act 10 of 2013 read with Rule 49(1)(e)
of the
High Court Rules in that leave to appeal may be granted by the
judge or judges against whose decision an appeal is to be made or,
if
not readily available, by any other judge or judges of the same court
or Division.
[2]
The hearing happened on 7 October 2021 and it was ordered that:
1.
The first and
second applicants’ application is dismissed with costs.
[3]
The applicants applied
a quo
for an interim interdict
prohibiting a property from being transferred to any third party
pending:
1.
the
finalisation of the appeal; and
2.
in the event
that the applicants are successful in the aforesaid appeal the
institution of an action within 30 days from the date
of the appeal
to set aside the transfer of the property from Mr. and Mrs. Kopa to
the first respondent.
[4]
The reasons for the finding
a
quo
to dismiss were the following:
[2]
The
Court is of the view that none of the orders sought in the action can
be affected anymore. The latest transfer did not occur
in conflict
with an operative order of this Court. The fact of the matter is that
the Kopas are no longer the owners of the property.
The appeal has
therefore become a moot appeal. The fact of the matter is that the
Kopas cannot transfer the property to the applicants
anymore as
sought in the action and it will become irrelevant whether the
agreements between the applicants and trust no.1 were
unlawful.
[5]
The Court
a
quo
concluded that:
[3]
With
reference to the matter of
Olympus Passenger services,
the
Court is of the view, that due to the fact that the applicants failed
to establish a
prima facie
right, there is no need to
adjudicate on the further elements required for an interim interdict,
due to the fact that an interim
interdict cannot be granted in the
absence of a
prima facie
right. The Court, however, highlights
the fact that the applicants do have an alternative remedy in that it
is open to them to
establish an action against trust no. 1, the C&D
Trust, should they be of the view that they have reason to do so.
[6]
The test and major factors to consider in an application for leave to
appeal on an
interlocutory or interim order have finally been
established.
The
interest of justice and thus potential for irreparable harm are vital
factors. Guidance of future cases, incorrect statements
of law in the
judgment
a
quo
and
the milieu and perception in which the law must be interpreted may
cause a need for the adjudication of an interlocutory order
on
appeal.
[7]
Each
case must be adjudicated on its own peculiar facts. A fixed maximum
of factors will not suffice
and
must be read with the test as pronounced in
sections
16
[4]
and 17
[5]
of
t
he
Superior
Courts
Act
10
of
2013
(“SC Act”) and the law that evolved around it.
[8]
As was eloquently put in
United
Democratic Movement and another v Lebashe Investment Group (Pty) Ltd
and others
(1032/2019)
[2021] ZASCA 4
(13 January 2021) at paragraph [9] the assessment is
now: “to accord with the equitable and the more
context-sensitive standard
of the interests of justice favored by our
Constitution.”
[9]
The
facts of the case are imperative to understand the mootness of the
application for leave to appeal. Mootness can have vast consequences
for a court case.
[6]
[10]
Mootness arises when there is no longer an actual controversy between
the parties to a court
case and any ruling by the court would have no
actual practical impact.
[11]
In other words, a court cannot take on a purely hypothetical debate
in which it would be called
on to decide what might happen if
something were to arise between two parties. “If the court
determines that the conflict
has died and the parties no longer have
any actual, vested interest in what the outcome might be, then the
court will find that
the issue is moot and dismiss the case…”
[7]
[12]
The law that is applicable on the appealability of the issue of
interlocutory orders has been
declared upon in numerous cases since
the Zweni – judgment (
Zweni
v Minister of Law and Order
1993 (1) SA 523 (A)).
[8]
The Cipla – dictum evolved (
Cipla
Agrimed (Pty) Ltd v Merck Sharp Dohme Corporation and others
2018 (6) SA 440
(SCA)).
[13]
The final word was now spoken in
United Democratic Movement and
another v Lebashe Investment Group (Pty) Ltd and others
(1032/2019)
[2021] ZASCA 4
(13 January 2021).
The
majority Judgment: Sutherland AJA (Cachalia and Mbha JJA concurring):
[7]
What is required to render an order appealable is well trodden
judicial turf. It is to the law on appealability in this regard
we
now turn.
[9]
… More recently, in Philani-Ma-Afrika v Mailula, the Supreme
Court of Appeal had to decide whether an order of the high
court
which puts an eviction order into operation pending an appeal was
appealable. In a unanimous judgment by Farlam JA, the Court
held that
the execution order was susceptible to appeal. It reasoned that it is
clear from cases such as S v Western Areas that
“what is of
paramount importance in deciding whether a judgment is appealable is
the interests of justice.” As we have
seen, the Supreme Court
of Appeal has adapted the general principles on the appealability of
interim orders, in my respectful view,
correctly so, to accord with
the equitable and the more context-sensitive standard of the
interests of justice favored by our Constitution.
In any event, the
Zweni requirements on when a decision may be appealed against were
never without qualification. For instance,
it has been correctly held
that in determining whether an interim order may be appealed against
regard must be had to the effect
of the order rather than its mere
appellation or form. In Metlika Trading Ltd and Others v
Commissioner, South African Revenue
Service the Court held, correctly
so, that where an interim order is intended to have an immediate
effect and will not be reconsidered
on the same facts in the main
proceedings it will generally be final in effect. Lastly, when we
decide what is in the interests
of justice, we will have to keep in
mind what this Court said in Machele and Others v Mailula and Others.
In that case, the Court
had to decide whether to grant leave to
appeal against an order of the High Court authorising execution of an
eviction order pending
an appeal. In granting leave to appeal,
Skweyiya J, relying on what this Court held in TAC (1), reaffirmed
the importance of “irreparable
harm” as a factor in
assessing whether to hear an appeal against an interim order, albeit
an order of execution: “
The primary consideration in
determining whether it is in the interests of justice for a litigant
to be granted leave to appeal
against an interim order of execution
is, therefore, whether irreparable harm would result if leave to
appeal is not granted”.’
(Emphasis added)
[14]
Whether irreparable harm will eventuate will depend on the merits of
each case. This
brings the other hurdle to be jumped by
the applicants and that is the leave to appeal itself on the facts of
the case.
[15]
The
right to appeal is, among
others, managed by the application for leave to appeal. It may not be
abused but the hurdle of an application
for leave to appeal may never
become an obstacle to justice in the post-constitutional era. Access
to justice is access to justice.
[16]
Historically the rule was: “In that reasonable prospect exists
that another Court, sitting
as the Court of Appeal, would come to
different findings and conclusions on the facts and the law.”
[9]
[17]
The words “would”
and “only” in the current
legislation caused some to opinion that the bar for granting leave to
appeal has been raised.
[10]
All it in reality articulates is that the matter must be pondered in
depth and with careful judicial introspection. It did not
raise the
bar because as said, access to justice is access to justice. There
must be a sound, rational basis for the conclusion
that there are
prospects of success on appeal and another court would come to
another conclusion.
[18]
The final word was spoken recently in the Supreme Court of Appeal in
Ramakatsa and others v African National Congress and another
[2021] JOL 49993
(SCA) in March 2021:
[10]
Turning the focus to the relevant provisions of the Superior Courts
Act (the SC Act), leave to appeal may only be granted where
the
judges concerned are of the opinion that the appeal would have a
reasonable prospect of success or there are compelling reasons
which
exist why the appeal should be heard such as the interests of
justice. This Court in Caratco, concerning the provisions of
section
17(1)(a)(ii) of the SC Act pointed out that if the Court is
unpersuaded that there are prospects of success, it must still
enquire into whether there is a compelling reason to entertain the
appeal. Compelling reason would of course include an important
question of law or a discreet issue of public importance that will
have an effect on future disputes. However, this Court correctly
added that "but here too the merits remain vitally important and
are often decisive". I am mindful of the decisions at
High Court
level debating whether the use of the word "would" as
oppose to "could" possibly means that the
threshold for
granting the appeal has been raised.
If a reasonable prospect of
success is established, leave to appeal should be granted. Similarly,
if there are some other compelling
reasons why the appeal should be
heard, leave to appeal should be granted. The test of reasonable
prospects of success postulates
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. In other words, the
appellants in this matter need to convince this Court on proper
grounds that they
have prospects of success on appeal. Those
prospects of success must not be remote, but there must exist a
reasonable chance of
succeeding. A sound rational basis for the
conclusion that there are prospects of success must be shown to
exist.
(Accentuation added)
[19]
The fact remains that
the
judicial character of the task conferred upon a presiding officer in
determining whether to grant leave to appeal is that it
should be
approached on the footing of intellectual humility and integrity,
neither over-zealously endorsing the ineluctable correctness
of the
decision that has been reached, nor over-anxiously referring
decisions that are indubitably correct to an appellate Court.
[11]
[20]
In the instance the words of Binns-Ward, J in the Mannat - case
supra
is eerily applicable to this case:
[9]
The decision to strike the principal application in the current
matter from the roll for lack of urgency was of a purely procedural
character. It did not have any of the three attributes of a ‘judgment
or order’ identified in Zweni. On the basis
of the
authorities just referred to that counts strongly against it being
regarded as appealable. In addition, there are no considerations
that
would make it susceptible to appeal ‘in the interests of
justice’.
On the contrary, it would be inimical to the
interests of justice to permit or encourage the applicants to
continue on their misguided
path in the current litigation. It is
purposeless, and nothing more than an abusive imposition on the
court’s resources and
an unwarranted derogation from the prima
facie rights of those of the respondents who are applicant’s
judgment creditors.
(Accentuation added)
[21]
On signing a contract, the
parties become servants to the terms thereof and they acknowledge and
concede to the Law of Contracts.
(The principle of
pacta
sunt servanda
decrees
agreements, freely and voluntarily concluded, must be honoured.) They
pledge themselves to the Rule of Law and an
open and democratic
society based on human dignity, equality and freedom; constitutional
integrity within the facts and circumstances
of their case.
[22]
Parties to a contract are barred from believing themselves to be
above the law and the contract
they committed to. Integrity is vital
to ensure business efficacy and democratic commercial certainty and
security. Lawlessness
will have punitive repercussions. Anarchistic
parties must accept the legal consequences of non-compliance to
contracts; rogue
arrogance towards law and contract shall not be
tolerated by courts.
[23]
Reading of the facts shows that the application for leave to appeal
cannot succeed. These are
the facts:
1.
The present applicants caused a summons
to be issued in 2019 and the present first respondent was cited as
the fifth defendant in
the aforementioned action. The Kopas, C&D
Investment Trust (“C&D”), the Registrar of Deeds,
Free State and
the Trustees of the Van der Merwe Trust were the
defendants.
2.
The matter went on trial and on 8
February 2021, Molitsoane, J dismissed the applicants’ actions
against all the defendants
with costs.
3.
About five years before the trial the
applicants were the registered owners of a property known as 7
Wittels Road, Woodland Hills,
Bloemfontein.
4.
The applicants fell into financial
hardship and could not pay the debts in respect of the property.
5.
It is the case for the applicants that
they entered into a verbal agreement with C&D and ultimately
entered into two (2) written
agreements with the C&D to rescue
their situation.
6.
They entered into a Deed of Sale in
terms whereof they sold the aforementioned property to C&D and at
the same time entered
into an agreement of lease of the same property
which included an option to repurchase from C&D. The option was
not exercised
and lapsed.
7.
The property was transferred into the
name of C&D.
8.
The applicants’ financial pressure
and hardship did not improve and they failed to pay the monthly
rental owed to C&D.
9.
Amazingly so; during July 2018 the Kopas
came into the fray. The applicants, again in a verbal agreement,
convinced the Kopas to
agree that the Kopas would purchase the
property from C&D. The purchase price would be the amount that
C&D had advanced
to the applicants. That is an amount allegedly
paid to Standard Bank.
10.
The Kopas would then lease the property
to the applicants. The lease agreement to be “concluded in the
future and upon such
terms as the parties may agree.”
11.
The lease period bizarrely so, according
to the applicants, would be for such a lease amount as the parties
may agree, “but
after a hiatus on rent payments and in order to
provide the applicants with an opportunity to better their financial
position.”
12.
The applicants would lease the property
from the Kopas until such time as they were able to purchase the
property back from the
Kopas.
13.
The applicants, almost haughtily so, had
to give the Kopas permission before they could sell the property to a
third entity. At
the same time, they did not pay rent and at the same
time the Kopas had to carry all the financial expenditures involved
with the
property.
14.
The applicants did not pay the agreed
rent to C&D and they gave C&D permission to sell to the
Kopas.
15.
The purchase price was paid by the Kopas
and the property transferred into their names.
16.
Again, the applicants remained in
occupation of the property and again they did not pay the rent.
17.
The Kopas, having received transfer of
the property into their name, through their attorney on or about the
24
th
October 2018 send a proposed lease agreement to the applicants,
however, the applicants did not accept it.
18.
Incongruously and with astounding
hubris, the Motsimas allege that the agreement did make provision
therefore that they could, for
an undetermined period, not pay any
rent.
19.
Correspondence at the time were
exchanged between the applicants’ attorneys and the Kopas’
then attorneys. This correspondence
included a letter dated the 5
th
November 2018 wherein the Kopas attorney wrote among others:
…
your
client wants to run up a bill with Mr. and Mrs. Kopa, that is not
going to happen … therefore: if your clients are bona
fide,
and want to buy back the property, please give an indication/proof of
how this is going to be done before the 12
th
November
2018.
20.
The applicants got notice that the
property was sold by the Kopas to the present first respondent.
On the 4
th
July 2019 the Court granted an order in favour of the applicants
interdicting the Kopas to give transfer to the present respondent
and
restraining the Registrar “pending finalization of the main
action, from registering the transfer of the immovable property.”
21.
During the trial (main action) the
applicants in cross-examination conceded that the Kopas at the time
had to bear all the expenses
in respect of the said property for
example, rates and taxes and even penalties imposed by the Woodland
Hills Estate. The
interim order prevented them from dealing
with the property at the time and they could not utilise the property
at all.
22.
The applicants conceded in
cross-examination that according to their discovery affidavits, there
was no indication of any availability
of funds or a bank loan to pay
for the aforementioned property.
23.
It is not in dispute that they properly
signed the Power of Attorney to pass transfer of the property from
themselves to the C&D.
24.
Notwithstanding having entered into a
purchase agreement during 2019, the respondent had to outwait the
Court’s decision on
the trial; which it did. The Court in
the main matter dismissed the applicants’ actions.
25.
The moment that the action was
dismissed by Molitsoane, J; no action was pending and the interim
order on page 84 of the record
lapsed.
26.
The trial court in dismissing the action
found that the transfer from the applicants to the C&D and
thereafter to the Kopas
were not tainted with fraud nor was it
unlawful and against public policy. It is imperative to emphasize
that the contracts were
entered into between all the parties and at
all times freely and voluntary and without any constitutional
impediments.
27.
Notwithstanding the action having been
dismissed, a letter, for purposes of notice (and action if any) was
directed on the 2
nd
of March 2021 to the applicants’ attorney to warn and confirm
that the judgment dismissed the protection afforded the applicants
under the interim order.
28.
The applicants, in their now customary
haughty attitude towards the law and the respondents that endeavoured
to help them; did not
rely on the interim order’s existence or
required of the first respondent to seek other relief.
The
applicants merely replied by indicating that they did not agree with
the legal conclusion.
29.
The Registrar of Deeds was, correctly
so, satisfied, having been appraised of all the documents that
transfer could be effected
and did so.
30.
On the 7
th
of October 2021 the applicants sought an interim order to halt the
transfer of the property but the application was dismissed with
costs. This order is now the subject of the application for
leave to appeal.
31.
The applicants did eventually file an
application for leave to appeal in this matter, but late. In the
affidavit in support of the
application for condonation the
applicants in essence avers that they were aware of the relevant time
limits but do not really
explain why a notice of application for
leave to appeal was not filed.
32.
Apparently, the applicants did not
receive advice from their counsel at the time that there were
prospects of success on appeal.
They sought the advice of
senior counsel later that advised them that there were good prospects
of success on appeal.
33.
This is not correct. It would appear
that senior counsel ostensibly gave the advice without having
considered the
ex-tempore
judgment
dismissing the application. It would appear that the
transcription of the
ex-tempore
judgment was only received on the
1
st
of December 2021.
34.
It was not suggested (or seriously
contended) that the Learned Judge hearing the interim application
against which leave is now
sought, made any factual errors. As
stated by the applicants, the Trial Court having heard the
application and arguments
gave a comprehensive judgment.
35.
The first respondent,
ex
abundante cautela,
had a letter
addressed to the applicants informing them that the transfer would be
proceeded with and the property could not lay
idle without all the
related expenses simply because the applicants had a different view.
The letter was written to appraise the
applicants of the situation
proving the first respondent’s
bona
fides
.
[24]
Once the action was dismissed it was finalised and most definitely
directly after dismissing
the action, there was nothing pending.
In
Mulaudzi v Old Mutual Life Assurance Co (South Africa) Ltd and
others
2017 (6) SA 90
(SCA) page 125 at paragraph [71] the
Supreme Court of Appeal stated the unmistakable
status quo
:
The
bottom line being that where the interim order has lapsed as
in
casu
, it cannot be revived out of its own even by the later
filing of a notice of application for leave to appeal. It
lapsed the
moment that the action was dismissed.
[25]
In the main action, the Court found that the applicants were not
misled and the judgment in
ABSA Bank Limited v Moore
2016 (3)
SA 97
(SCA) at paragraph [7] expressly stated:
Where
a transaction pursuant to which property is to be transferred is
simulated – where all parties intend to disguise the
true
nature of the transaction”, the transferor and transferee may
well intend to transfer ownership and since a valid transaction
is
not required for a transfer to be effected, the transfer itself may
not be impeached.
[26]
The Court in the application for an interim interdict, was aware and
adhered to this principle.
The applicants in allowing the
transfer to take place realised or should have realized that the
appeal that were intended became
academic.
[27]
They knew and should have known that the appeal would constitute an
academical exercise having
regard to the particulars of claim.
A Court will not entertain a moot appeal. The Kopas cannot
transfer the property
to the applicants anymore as sought in the main
action and it would become irrelevant whether the agreements between
the applicants
and C&D were unlawful.
[28]
It was aptly submitted by the first respondent in this the
application for leave to appeal, that
on the applicants’ own
version the balance of convenience simply does not favour them.
On
their own version they could not afford the house.
[29]
The prejudice to the first respondent is clear. To egoistically put a
restraint on the present
respondent pending an appeal, and then
further action to be instituted whilst the respondent has paid the
purchase price, the transfer
costs and all the associated costs
therewith; is prejudicial to first respondent. The prejudice is
caused by the applicants with
their inexplicable conduct to assume
that other people must pay for their financial misfortune. It is
common cause that whilst
the Kopas were the owners of the property,
they had to bear all the expenses and was financially destroyed.
[30]
Based on the aforesaid, is it clear that the appeal will not succeed
and the administration of
justice is being ridiculed. No sufficient
explanation has been given for the late filing of the application for
leave to appeal
and where there are poor prospects of success on
appeal, condonation should not be granted and must be dismissed with
costs.
[31]
ORDER
The
application for leave to appeal is dismissed with costs.
M
OPPERMAN, J
APPEARANCES
For
the applicants
Advocate R van der Merwe
Chambers
Bloemfontein
Van
Aardt & Van Der Walt Attorneys
Bethlehem
c/o
Maree & Partners Attorneys
GD
Hoffman
46
Donald Murray Avenue
Park
West Bloemfontein
Ref:
GD HOFFMAN/HV0420
gawie@mareeprok.co.za
For
the first respondent
Advocate C Reinders
Chambers,
Bloemfontein
Van
Wyk & Preller Incorporated
67
President Paul Kruger Avenue
Universitas
Bloemfontein
Ref:
AHRENS/RS/RA3460
riana@vwpbfn.co.za
[1]
“
The
trust”. The Registrar of Deeds did not partake in the
litigation.
[2]
P
age
7 of the judgment, line 6 and further.
[3]
At
page 8 line 20 of the judgment.
[4]
Section
16. Appeals generally. —
(1) Subject
to section 15 (1), the Constitution and any other law—
(a)
an appeal against any decision of a
Division as a court of first instance lies, upon leave having been
granted—
(i)
if the court consisted of a single judge,
either to the Supreme Court of Appeal or to a full court of that
Division, depending
on the direction issued in terms of section 17
(6); or
(ii)
if the court consisted of more than one
judge, to the Supreme Court of Appeal;
(b)
an appeal against any decision of a
Division on appeal to it, lies to the Supreme Court of Appeal upon
special leave having been
granted by the Supreme Court of Appeal;
and
(c)
an appeal against any decision of a court
of a status similar to the High Court, lies to the Supreme Court of
Appeal upon leave
having been granted by that court or the Supreme
Court of Appeal, and the provisions of section 17 apply with the
changes required
by the context.
(2) (a) (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.
(b) If, at any
time prior to the hearing of an appeal, the President of the Supreme
Court of Appeal or the Judge President
or the judge presiding, as
the case may be, is prima facie of the view that it would be
appropriate to dismiss the appeal on
the ground set out in paragraph
(a), he or she must call for written representations from the
respective parties as to why the
appeal should not be so dismissed.
[5]
See
Proclamation R. 36 of 2013 dated 22 August 2013 (Government Gazette
36774). Section 17(1) to read:
(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]
Where
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 [S 16(2)(a)(i)]. 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 [S 16(2)(a)(ii)].
John
Walker Pools v Consolidated Aone Trade & Invest 6 (Pty) Ltd (in
liquidation) and another
(245/2017)
[2018] ZASCA 012
(8 March 2018).
[7]
https://study.com/academy/lesson/mootness-legal-definition-doctrine.html
on 27 February 2022.
[8]
Mannatt
and Another v De Kock and others
(18799/2018)
[2020] ZAWCHC 54
(22 June 2020).
[9]
S
v Smith
2012 (1) SACR 567
(SCA) at [7].
[10]
Moloi
and Another v Premier of the Free State Province and others
(5556/2017)
[2021] ZAFSHC 37
(28 January 2021),
Hans
Seuntjie Matoto v Free State Gambling and Liquor Authority
4629/2017[ZAFSHC]
8 June 2017,
K2011148986
(South Africa) (Pty) Ltd v State Information Technology Agency (SOC)
Ltd
2021 JDR 0273 (FB).
[11]
Shinga
v The State and another (Society of Advocates (Pietermaritzburg Bar)
intervening as Amicus Curiae); S v O'Connell and others
2007
(2) SACR 28
(CC
).