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[2022] ZAFSHC 191
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De Lange v Ledimo (A145/2020) [2022] ZAFSHC 191 (1 August 2022)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Appeal
number: A145/2020
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
In
the matter between:
KATHRINE
MARY YVONNE DE LANGE (born LEDIMO)
Appellant
and
STANLEY
JOSEPH LUCAS
LEDIMO
Respondent
CORAM
:
MATHEBULA,
J et
DANISO, J
HEARD
ON:
25 APRIL 2022
JUDGMENT
BY
: MATHEBULA, J
DELIVERED
ON
: The judgment was handed down
electronically by circulation to the parties’ legal
representatives
by email and release to SAFLII on 01 AUGUST 2022. The
date and time for hand-down is deemed to be 01 AUGUST 2022 at 15H00.
Introduction
[1]
This appeal is from the decision of the learned acting magistrate S.
Ernest of Bloemfontein
in favour of the respondent. The respondent,
as plaintiff in the court
a quo
, claimed from the appellant,
as the defendant in that court, in an action for the following: -
“
1.
That the defendant be ordered to take all the necessary steps and/or
sign all the necessary documentation,
within fourteen (14) days to
effect the transfer of the property known as Portion [….] of
Erf [….], A[....], district
Bloemfontein also known as [….]
P[....] Street, H[....], Bloemfontein onto the name of the plaintiff.
2.
In the alternative, payment of the sum of R160,000.00.
3.
Interest at the rate of 10.25% a
tempora morae
.
4.
Costs of suit.”
[2]
Before us Mr M.S. Mazibuko appeared on behalf of the appellant. The
respondent who
was legally represented at all times in the court
a
quo
, appeared in person before us. The matter was postponed a
number of times in order to accommodate him to sort out his financial
issues with his erstwhile attorneys. Ultimately, he could not raise
the necessary funds to secure legal representation nor could
he
qualify for assistance from the Legal Aid Board. I am setting out
these facts because they play a role on the consideration
of costs.
Condonation
for late filing of the notice of appeal
[3]
It is common cause that this appeal is late. The notice of appeal was
filed way out
of the prescribed period. To be exact, approximately a
period of one (1) year elapsed before it was served and filed. The
first
hurdle that the appellant must jump before the appeal is
properly placed before us is to be granted condonation for late
filing
of the notice of appeal. Her application for the appropriate
order is supported by two (2) affidavits, one deposed to by her and
the other by her attorney of record.
[4]
The appellant averred that after the court
a quo
ruled against
her on 25 September 2019, she immediately instructed her attorneys to
prosecute this appeal. A notice in terms of
rule 51 of the Rules
Regulating the Conduct of Proceedings in the Magistrates’ Court
dated 30 September 2019 was served and
filed the next day.
Regrettably, her instructions to an erstwhile employee of her
attorneys of record named Ms Vinger, were not
carried out. It was
only a year later that she learned from attorney Thabo Mhlokonya that
nothing has been done on the matter beyond
the filing of the
aforesaid notice. Understandably, she cannot say much about the
internal workings of her law firm of choice as
to why a matter can
remain unattended and undetected for an entire year.
[5]
The paucity of the information in the confirmatory affidavit deposed
to by Mr Mhlokonya
is startling. It is unclear at what level Ms
Vinger was an employee of his firm, when did she leave his employ
and/or what control
measures were in place to ensure that all her
work is accounted for and a proper handover is done. The period from
2 October 2019
to 19 September 2020 remains unaccounted. The only
credible explanation commences from the events that took place from
30 September
2020. The unavoidable conclusion is that the delay was
due to negligence on the part of the attorneys of record.
[6]
The application is not opposed by the respondent. I gained the
impression that he
is supportive of it. Primarily because his wish is
that the matter should not be detained by peripheral issues any
longer. His
response was unequivocal that the matter should be placed
before us and be heard on the merits. It will also be prejudicial to
the appellant that she finds herself on the short end of the stick
through no fault of her own. It is on these bases that despite
holding a view that the application lacks merit, I am inclined to
grant to it. I will deal with the issue of costs in the succeeding
paragraphs.
Facts
[7]
The material facts are either common cause or have not been placed in
dispute. The
dispute has caused a schism in a once close-knit family.
The parties are siblings and both of them are in their sixties. They
are
locked in a bitter battle over the ownership of a piece of land
described as portion [….] of Erf [….], A[....] District
Bloemfontein, in extent 451 square metres alias [….] P[....]
Street, H[....], Bloemfontein.
[8]
The respondent, plaintiff in the court
a quo
, alleges that
they entered into a written agreement over the aforementioned erf.
The salient terms of the agreement are that he
will purchase it from
the owner identified as the Mangaung Metropolitan Municipality for
five thousand rands (R5,000.00) in the
name of the appellant. The
appellant will accept transfer and re-transfer it to him at the
appropriate time. The appellant shall
be responsible for all the
municipal levies. According to him, he performed as per stipulations
of the agreement. The sticking
point is that the respondent has
reneged from effecting transfer to him.
[9]
The appellant’s response to the action instituted against her
was to file a
plea denying each and every allegation made by the
respondent. It was further pleaded that the purported agreement does
not comply
with the formalities in respect of deeds of alienation.
[1]
The appellant concentrated her attack on the legality and
enforceability of the agreement contending that the respondent has
not
satisfied the requisite element of legality of a contract. The
substance of her contention is that the respondent seeks to benefit
from an unlawful conduct.
[10]
It appears that the issue of illegality of the agreement was not
pleaded and was only argued
by counsel in the heads of argument
submitted at the end of the trial. The learned acting magistrate in
the court
a quo
rejected this argument.
Grounds
of appeal
[11]
The appeal is premised on two (2) key grounds. It is contended that
the learned acting magistrate
erred in finding that there was an
agreement in place between the parties. The crucial contention is
that even if there was an
agreement, it was
contra bonos mores
and
therefore wanting in legality. There is another point that is raised
for the first time as a point of law in the appeal. It
is contended
that the claim against the appellant was instituted after it has
already prescribed.
Point
of law raised for the first time in the appeal
[12]
I consider it appropriate to deal first with the point that the
appellant seeks to raise for
the first time before us. It should be
remembered that the court
a quo
rejected all the arguments
raised in defence by the appellant. The contention is that the claim
has prescribed. On that basis alone,
the argument is that the appeal
should succeed. There are no weighty reasons advanced why this issue
was not placed before the
court
a quo
for consideration. It
can be accepted that this point was an afterthought and only
canvassed as such by counsel.
[13]
The issue of a point being raised for the first time on appeal does
arise from time to time in
our courts. Such a new point may well be
raised by a party on appeal. The appellant relied on
Greathead
v Saccawu
as authority that this court must consider the point of law and that
it will not be unfair to the respondent.
[2]
In that matter the appellant was afforded a fair hearing in the court
a quo
and was
afforded a full opportunity to deal with all her issues.
[14]
The proviso is that such a point does not result in unfairness to the
other party, raise new
factual issues and does not cause
prejudice.
[3]
Once these
requirements are met, the court may exercise its discretion to
consider the point.
[4]
[15]
This brings us to the approach of the appellant for the right to
canvass this point. Plainly
there are no reasons, as already stated,
why this issue is of general public importance. Not only that, we
were not pointed to
any part of the record of appeal where this point
appears or emerges.
[5]
In the
absence of such, then it defeats the entire purpose of an appeal
which is to correct the mistakes of the court
a
quo
.
[16]
The reliance of the appellant on the insistence of raising this point
is ill founded. This is
so because the requirements were clearly
explained in the authorities discussed in the preceding paragraphs.
In order to establish
the issue raised by the appellant, unavoidably
new factual issues will be raised. This issue cannot be adjudicated
in isolation.
Undoubtedly the respondent will suffer prejudice in
that he will not have an opportunity to deal with them. The court
a
quo
could not have adjudicated on this issue simply because it
did not arise in the contentions before it. Any argument that the
appellant
has met requirements set out in the authorities is devoid
of any merit.
Other
grounds of appeal
[17]
The aforegoing point detracts from the main focus of the appeal in
the sense that it introduces
a contradiction to the case. When the
appellant placed her reliance on prescription, it meant that she
acknowledges the existence
of the written agreement. This was not her
case in the pleadings and no evidence was led on this aspect. It
means that the appellant
is uneasily sitting on two chairs unable to
decide on the real grounds of appeal to be pursued.
[18]
I now turn to what apparently is the real issue in this appeal. That
is the contention that there
was no agreement concluded between the
parties. On the contrary, the formidable oral and documentary
evidence tendered on behalf
of the respondent indicate that there was
such an agreement. The version of the respondent relating to the
circumstances leading
to the conclusion of the agreement was
corroborated in material respects by other witnesses. In addition,
there was documentary
proof which showed that there was an agreement
between them. The court
a quo
did not commit any misdirection
or error in accepting their evidence.
[19]
Definitely an agreement crafted by two lay persons will not have the
elegance of the one drafted
for them by a well-trained legal mind.
The agreement upon which the respondent place reliance was reduced to
writing and signed
by both parties in the presence of a witness.
Therefore, there can be no talk of non-compliance with section 2 of
Act 68 of 1981.
Then there is a slight issue about the interpretation
of the agreement. In this regard I am reminded of the principles of
interpretation
outlined in
Natal
Joint Municipal Pension Fund v Endumeni Municipality
.
[6]
The surrounding circumstances clearly confirm the evidence of the
respondent. At all times he carried the burden of paying the
local
authority for all rates and taxes. The court
a
quo
was
correct in rejecting a version of the appellant which was nothing but
a bare denial.
[20]
The second ground raised both in the court
a
quo
and
before us, is based on the contention that the agreement between the
parties was against public policy. Therefore, the court
cannot
sanction or encourage illegal activity. It is settled law that the
courts should not shy away from declaring contracts that
are against
public policy void.
[7]
This
special defence which in my opinion should have been pleaded, did not
find its way to be placed before court. Whether this
omission was
deliberate due to, oversight, it defeated the whole purpose of the
pleadings. It did not bring to the attention of
the court and
respondent the issues upon which reliance is placed.
[21]
This contention is premised on the existence of a policy of Mangaung
Local Municipality which
prohibits acquisition and ownership of
multiple properties by the residents. I hasten to add that the local
authority is not a
party to these proceedings. Such allegation of
illegality emanates from appellant and she bears the onus of proving
all its requirements
and that it was contravened.
[22]
Reliance on this ground is fallacious as it will be demonstrated
hereunder. Apart from pleading
illegality, the appellant was duty
bound to adduce evidence of all necessary and relevant facts to
support it.
[8]
None of the
parties, in the court
a
quo
,
led evidence concerning the existence and details of the policy which
prohibited the conclusion of the agreement. As matters stand,
apart
from the mere mentioning of the policy, there is no evidence to the
effect that any specific clause or section of it was
not complied
with thus making the agreement unlawful.
[23]
The appellant simply made broad generalisation on this aspect not
supported by any evidence.
It was also contended that the court must
mero
motu
take
the point of illegality. In
Yannakou
v Apollo Club
the
court explained that a court can only do so “if the illegality
appears
ex
facie
the
transaction or from the evidence before it and, in the latter event,
it is also satisfied that all the necessary and relevant
factors are
before it.”
[9]
In this
matter the case for the appellant does not satisfy the requirements
of this enquiry.
[24]
I come now to the issue of costs. In the application for condonation,
the appellant was seeking
an indulgence from the court. It goes
without saying that she must bear the costs. The costs occasioned by
the postponement on
14 March 2022 were ordered to stand over for
later adjudication. The main reason for the postponement was that the
respondent had
not accumulated enough funds to make copies of the
file. It will be inconsiderate to order the respondent, who appeared
in person,
to pay the wasted costs purely because he is impecunious.
The appropriate order should be that each party pays his or her own
costs.
[25]
As far as the costs of the appeal are concerned, there is no reason
why we should depart from
the general rule. The costs follows the
event.
Order
[26]
I make the following order: -
26.1. Condonation for
late filing of the notice of appeal and reinstatement of the appeal
is granted
26.2. The appellant is to
pay the costs of the application for late filing of the notice of
appeal.
26.3. Each party to pay
his or her own costs occasioned by the postponement on 14 March 2022.
26.4. The appeal is
dismissed.
26.5. The appellant is to
pay the costs of the appeal.
M.A.
MATHEBULA, J
I
concur,
N.S.
DANISO, J
On
behalf of appellant:
Adv. M.S.
Mazibuko
Instructed
by: Mhlokonya
Attorneys
Bloemfontein
On
behalf of respondent:
In person
[1]
Section
2(1) of Act 68 of 1981 reads as follows: -
“
No
alienation of land after the commencement of this section shall,
subject to the provisions of section 28, be of any force or
effect
unless it is contained in a deed of alienation signed by the parties
thereto or by their agents acting on their written
authority.”
[2]
[2000] ZASCA 142
;
2001 (3) SA 464
(SCA) at para 15.
[3]
Alexkor
Ltd v The Richtersveld Community
[2003] ZACC 18
;
2004 (5) SA 460
(CC) at para 44.
[4]
Barkhuizen
v Napier
[2007] ZACC 5
;
2007 (5) SA 323
(CC) at para 39.
[5]
Tiekiedraai
Eiendomme (Pty) Ltd v Shell South Africa Marketing (Pty) Ltd &
Others
2019 (7) BCLR 850
(CC) at para 31.
[6]
2012 (4) SA 593 (SCA).
[7]
Sasfin
(Pty) Ltd v Beukes 1989 (1) SA 1 (A).
[8]
Pratt v First Rand Bank
[2008] ZASCA 92
(12 September 2008).
[9]
Yannakou
v Apollo Club
1974 (1) SA 614
(A) at 623H.