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[2022] ZAFSHC 366
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Menyatso v Skosana and Others (A89/2021) [2022] ZAFSHC 366 (24 November 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 No.:
A89/2021
Reportable: YES/NO
Of Interest to other
Judges: YES/NO
Circulate to
Magistrates: YES/NO
In the matter between:
MATHOTSE
RUTH MENYATSO
Appellant
and
PRINCE
POGISHO SKOSANA
1
st
Respondent
MASECHABA
ELIZABETH SKOSANA
2
nd
Respondent
MANGAUNG
METROPOLITAN MUNICIPALITY
3
rd
Respondent
CORAM:
MATHEBULA J
et
LOUBSER J
et
VAN RHYN J
HEARD
ON:
14 SEPTEMBER 2022
JUDGMENT
BY:
VAN RHYN J
DELIVERED
ON:
The judgment was handed down
electronically by circulation to the parties’ legal
representatives by email and release to SAFLII
on 24 NOVEMBER 2022.
The date and time for hand-down is deemed to be 24 NOVEMBER 2022 at
14H00.
[1]
The appellant, Mrs Mathotse Ruth Menyatso, was granted leave to
appeal to the Full Bench of this court by
the Supreme Court of Appeal
against the whole of the judgment and order delivered by Daniso J on
20 August 2020.
[2]
The appellant sought leave to appeal,
inter alia
on the
following grounds:
2.1 In
respect of the court
a quo’s
dismissal of the
appellant’s application for condonation for the late filing of
her replying affidavit:
(i)
That the test applied for establishing good cause was incorrectly
applied;
(ii)
The court
a quo
failed to weigh the default committed against
the prospects of success, and should have found that the appellant’s
prospects
of success far outweigh the default;
(iii) The
court
a quo
is silent on crucial issues such as the dishonesty
and untruthfulness displayed by the second respondent in her
answering affidavit
which furthermore contains serious
contradictions;
(iv) The
court
a quo
failed to strike a balance between the prejudice
to be suffered by the appellant, if the application for condonation
is dismissed,
and that of the second respondent, if the application
for condonation is granted.
2.2 The
grounds of appeal relied upon by the appellant in respect of the
court
a quo’s
finding that the point in
limine
raised by the second respondent, namely that the appellant failed to
join the executor appointed to the estate of the first respondent,
who passed away on 18 January 2016, is upheld, are as follows:
(i)
The court
a quo
misdirected itself in not realising that, at
the time when these proceedings where instituted, the property in
question did not
form part of the deceased’s estate. Therefore,
there was no need for the appellant to cite the executor in the
application.
(ii)
The second respondent was the sole owner of the property and the
executor in the deceased’s estate
had no direct and substantial
interest in the relief claimed by the appellant.
[3]
The appellant, as the applicant in the court
a quo
, issued an
application for the following relief:
“
1
That the Respondents be ordered to sign the transfer documents
relating to house number 10141 Mangaung
Location, Bloemfontein within
ten (10) days from date of this order;
2
That in the event of the Respondents refused and/or fail to sign the
transfer documents after the
expiration of ten (10) days, the
Registrar of the honourable court be authorised to sign the transfer
documents relating to house
number 10141 Mangaung Location,
Bloemfontein on behalf of the Respondent (
sic
);
3.
That the Respondents be ordered to pay the costs of this application,
only if opposed”
[4]
The application was issued on 27 November 2019. The founding
affidavit is deposed to by the appellant, an
adult female residing at
number 10141 Phelindaba Location, Bloemfontein (the “property”).
The founding affidavit consists
of 5 pages and the relief prayed for
is based upon the following facts:
4.1 On 10
October 2007 the appellant and the late Prince Pogisho Skosana, cited
as the first respondent (the “deceased”)
as well as the
second respondent, Mrs Masechaba Elizabeth Skosana “concluded a
contract of purchase in terms of which the
deceased sold their
property situated at number 10141 Phelindaba, Bloemfontein to me”.
4.2 The
purchase price of the property was R50 000.00 (Fifty Thousand
Rand). The appellant paid a deposit of R23 000.00
(Twenty-Three
Thousand Rand) and thereafter paid the balance of R27 000
(Twenty- Seven Thousand Rand) in monthly instalments
of R1 000.00
(One Thousand Rand). The last payment was made on the 31
st
day of January 2010.
[5]
The written agreement is appended to the founding affidavit as
annexure “RM1”. The agreement reads
as follows:
“
CONTRACT OF
PURCHASE
I am Mr Prince Pogisho
Skosana ID [....]
I sold my house to Ruth
Menyatso ID [....]
House number [....] at
M[....] Location, Bloemfontein.
The deposit of R23 000.00
is already paid to Mr Skosana. The house price is R50 000.00.
The balance is R27 000.00.
The Buyer will pay
R1000.00 every month from the end of November 2007 till the house is
fully paid.
Mr Skosana will change
everything from his name to Mrs Menyatso and the people who is now
staying at the house will be out before
15
th
November
2007.
This house now belongs to
Mathotse Ruth Menyatso from the 05
th
September 2007.
Special
Conditions:
All repairs to be done by
the purchaser.
Agreement signed at
Bloemfontein on this day 10 of October 2007”
The agreement is signed
by the deceased as the seller of the property, the appellant as the
purchaser, a witness and a private investigator.
[6]
The application was opposed by the second respondent, Mrs Skosana.
The second respondent is a major female,
currently almost 68 of age
and residing at Batho Location, Bloemfontein. She and the deceased
were married, in community of property,
on 13 January 1977. During
1995 the deceased left the communal home and the parties were
divorced in 1996. The second respondent
appended the decree of
divorce granted on 15 August 1996 by the Magistrate’s Court for
the district of Bloemfontein in terms
whereof the Deed of Settlement
concluded between the parties was incorporated and made an order of
court.
[7]
No mention is made of any immovable property in the Deed of
Settlement. The second respondent averred that
she and the deceased
were awarded the right of occupation of the property by the Mangaung
Metropolitan Municipality, cited as the
third respondent. The second
respondent was unable to recall the exact date when they obtained the
right to occupy the property.
Later the deceased’s mother, Mrs
Monica Skosana occupied the property until the time of her passing on
4 December 2018.
[8]
After the death of Mrs Monica Skosana the appellant and her mother
(the appellant’s mother) requested
permission to lease the
property from the second respondent. The second respondent appended a
copy of the certificate issued by
the third respondent on 10 May
2010, in terms whereof the second respondent and three of her
children were granted the right of
occupancy of the property. Two
amendments were noted on the re-issued certificate. The first
amendment is the deletion the name
of one of the sons of the second
respondent and the Deceased who had passed away. The second amendment
is a note that the deceased’s
name is deleted as one of the
occupiers of the property due to the fact that the second respondent
and the deceased got divorced.
[9]
The second respondent raised 5 points
in limine
with regards
to the application. In her judgment, Daniso J upheld the 4
th
point
in limine
concerning the non- joinder of the executor
appointed to the estate of the deceased. The basis for the finding
was that the second
and the third respondents were not involved in
the sale of the property and the court cannot make an order against
the deceased
without the involvement of the deceased’s
executor. Thus, the application for an order to compel the
respondents to sign
the transfer documents relating to the property
was dismissed with costs.
[10]
During the hearing of the matter on the 20
th
of August
2020, the court
a quo,
furthermore, heard an application for
condonation for the late filing of the appellant’s replying
affidavit. The second respondent
filed her opposing affidavit on 24
February 2020 with the result that the appellant had to file her
reply on or before 9 March
2020. The appellant filed her replying
affidavit 5 days later, on the 16
th
of March 2020. The
appellant failed to apply for condonation upon serving same. On 24
March 2020 the appellant brought an application
for condonation for
the failure to file her replying affidavit within the prescribed time
period. The application for condonation
was opposed by the second
respondent.
[11]
The reason proffered for the failure to file her replying affidavit
in time, was due to appointments made for the appellant
to attend a
number of medico-legal examinations to be conducted at Johannesburg
during the week starting from 9
March 2020 to the 13
th
of March 2020 as a result of injuries sustained by her in a motor
vehicle accident. The medico-legal examinations were requested
by the
attorneys acting on behalf of the Road Accident Fund. The appellant
indicated that she was in Johannesburg from 5 March
2020 to 13 March
2020. She returned to Bloemfontein on 13 March 2020 and consulted
with her legal representatives on Saturday,
14 March 2020 where after
the replying affidavit was filed on the 16
th
of March
2020. During argument appellant’s counsel indicated that the
wrong dates were mentioned in paragraphs 9 and 6 of
the affidavit
deposed to by the appellant. The correct dates were however mentioned
in the rest of her affidavit.
[12]
In her opposition to the application for condonation, the second
respondent emphasized that the appellant incorrectly
stated in her
condonation application that she had to file her reply by the 9
th
of February 2022 and not the 9
th
of March 2022. The
appellant failed to explain why she was unable to consult and to file
her replying affidavit in the period between
the 26
th
of
February to the 5
th
of March prior to her leaving for
Johannesburg. However, in her judgment, Daniso J, again referred to
the incorrect dates for the
filing of the replying affidavit as being
the 9
th
of February 2020 where it should have been the 9
th
of March 2020.
[13]
Daniso J held that the reasons for the delay and prejudice caused to
the other party are some of the factors that the
court will take into
consideration when deciding whether to apply its discretion in favour
of an applicant to grant the requested
condonation. The prospects of
success on the merits is another factor to be considered. The court
a
quo
held that in opposition to the application, the second
respondent raised several points
in limine
to which the
appellant in her answering affidavit merely contended that the points
in limine
are “baseless, unfounded and lack merits…”.
Daniso J held that the appellant’s failure to challenge or
respond to the second respondent’s points
in limine
casts doubts on the prospects of success on the merits and dismissed
the application for condonation.
[14]
One of the issues which this court is required to determine is
whether the court
a quo
was correct in refusing to grant the
appellant’s application for condonation for the late filing of
her replying affidavit.
Should this court find that the court
a
quo
erred in refusing the appellant’s condonation
application the issue of the second respondent’s application
for condonation
to file her response to the replying affidavit
arises. Lastly the question whether the appellant’s application
should be
granted or dismissed on the merits has to be decided.
[15]
It is trite that an applicant seeking condonation is required to
fully set out the circumstances explaining the causes
for the delay
in order that the court may assess whether blame is to be attached to
the applicant, his/her attorney, or some other
party. It is likewise
well established that condonation is not to be had for the mere
asking and our courts, in the exercise of
its discretion, must
determine whether good cause has been established for the
non-compliance with the rules
[1]
.
The appellant explained that she only learned that the replying
affidavit had to be filed at the time when she had already reached
Johannesburg, on 5 March 2020.
[16]
I am of the view that the explanation by the appellant that her
attorney neglected to inform her of the need to consult
with the view
of drafting her replying affidavit and only contacted her
telephonically when she was already in Johannesburg, constitutes
“good cause”. Her attorney did not take the blame for not
complying with the Rules of Court upon himself and did not
file an
affidavit to explain why he did not contact his client timeously.
Furthermore, the delay in filing the replying affidavit
is not due to
a lack of
bona fides
of the appellant but due to the failure
of her attorney to diligently attend to her case within the time
required by the Rules
of Court.
[17]
The application for condonation was clearly not made with the
intention of delaying the appellant’s own application
or with
the sole purpose of frustrating the second respondent’s
opposition thereof. The replying affidavit was delivered
5 days late.
The degree of lateness, the explanation for the delay and the degree
of non-compliance with the rules are not the
only aspects to be
considered. The importance of this case, the parties’ interest
in the finality of judgment on the merits
and the avoidance of
unnecessary delay in the administration of justice
[2]
are further factors which a court must consider when exercising its
discretion whether to grant condonation for the late filing
of a
replying affidavit or not. The court
a
quo,
in
refusing the appellant’s application for condonation, did not
take into consideration the full spectrum of the factors
mentioned
above. I am of the view that the application for condonation for the
late filing of the replying affidavit should have
been granted by the
court
a
quo
.
[18]
Condoning the late filing of the appellant’s replying affidavit
in return causes the next hurdle in the adjudication
of this matter.
The second respondent filed a conditional application to file a
supplementary affidavit (triplication) in the event
of the court
condoning the late filing of the appellant’s replying
affidavit. In the alternative, the second respondent prayed
for an
order that the appellant’s replying affidavit be struck in as
far there is new evidence and/or information contained
to which the
second respondent could not respond to.
[19]
In the replying affidavit the appellant contends that on the 8
th
of April 2010 the second respondent, cited as the first applicant and
the appellant, cited as the second applicant brought an urgent
application in the Magistrate’s Court, Bloemfontein (with case
number 24147/2010) for the eviction of the illegal and unlawful
occupiers of the property (the “eviction application”).
It is averred that the second respondent deposed to an affidavit
wherein she acknowledged that both herself and “her husband”
had sold the property to the appellant and that the appellant
“had
fully complied with the terms of the agreement” and was the
lawful owner of the property.
[20]
A copy of the founding affidavit deposed to by the second respondent
in the eviction application is appended to the appellant’s
replying affidavit. It is furthermore contended that the second
respondent’s opposing affidavit is therefore riddled with
untruths and lies and is nothing else but an absurdity filed by the
second respondent to deliberately and consciously mislead this
court.
In the founding affidavit to the eviction application the second
respondent stated the following:
20.1 the
second respondent is the “person in charge of erf [....] ,
Phelindaba, Bloemfontein”;
20.2 the
second respondent is the “transferor of the said erf” to
the second applicant (the appellant in
the matter at hand);
20.3 the
first respondent is Matshidiso Skosana, the sister of the “ex
husband” of the second respondent,
who is residing with unknown
occupiers at the property;
20.4 that the
property forms part of the immovable assets of the joint estate of
the deceased and the second respondent;
20.5 that the
deceased and the second respondent, after the dissolution of their
marriage, “undertook to deal
with our immovable assets at a
later stage”;
20.6 that the
second respondent “learnt” that on the 10
th
of
October 2007 the deceased had entered into a deed of sale in terms
whereof he sold the property to the appellant and that he
subsequently requested her (the second respondent’s) “approval
to proceed with the transfer of the property”
to the appellant;
20.7 that at
the time of the sale “of our communal property my ex husband
did not consult with me at first, but
when I heard it was sold to the
Second Applicant who is well known to me I gave my blessing”;
20.8 that the
deceased had already received more than R30 000.00 (thirty
Thousand Rand) from the appellant. The
second respondent did not
receive her share of the purchase price of their property.
[21]
An applicant is bound by the case made out in his or her founding
affidavit. An applicant must stand or fall by the allegations
contained in its founding affidavit and it is not allowed to make out
its case in the replying affidavit. The replying affidavit
filed by
the appellant contained new material that was not included in her
founding affidavit. The issue is whether the second
respondent should
be granted an opportunity to file a further affidavit to respond to
the new allegations made in the replying
affidavit. The filing of
further affidavits in motion proceedings is permitted only with the
indulgence of the court in the exercise
of its discretion.
[3]
In deciding upon the question whether to permit a party to file a
further affidavit, the court will take into consideration all
the
facts of the matter, including the response to the new evidence and
further consider what is fair to the parties.
[22]
In
Poseidon
Ships Agencies (Pty) Ltd v African Coaling and Exporting Co (Durban)
Pty and Another
[4]
Broome J held as follows:
“
The correct
approach to the problem was enunciated clearly by Caney J in Bayat
and Others v Hansa and another
1955 (3) SA 547
(N) at 553D: “…the
principle which I think can be summarised as follows… that an
applicant for relief must
(save in exceptional circumstances) make
his case and produce all the evidence he desires to use in support of
it, in his affidavits
filed with the notice of motion, whether he is
moving
ex parte
or on notice to the respondent, and is not
permitted to supplement it in his replying affidavits (the purpose of
which is to reply
to averments made by the respondent in his
answering affidavits), still less make a new case in his replying
affidavits.’
[23]
In certain circumstances the introduction of new material may be
introduced despite objection in reply.
[5]
In
Kleynhans
v Van der Westhuizen NO
[6]
the court held that, due to the ramifications of the respondent’s
affairs being extensive and complex, it was impossible
for the
applicant to have had all the facts at his disposal before he
launched the sequestration proceedings and therefore authorised
the
applicant to introduce new material in reply.
[24]
Counsel on behalf of the appellant argued that the appellant could
not have foreseen that the very same person who deposed
to the
founding affidavit in the eviction application would, some 10 years
later, deny any knowledge of the deed of sale concluded
between the
appellant and the deceased. The appellant therefore did not
anticipate the second respondent’s stance and therefore
it
cannot be expected from the appellant to have attached the founding
affidavit deposed to by the second respondent in the eviction
application, to the application in the current matter.
[25]
This argument is unfounded and unsubstantiated. The reason for the
appellant’s application for the transfer of
the property is
solely on the basis that the deceased and the second respondent had
since February 2010 refused to sign the necessary
documents for the
property to be transferred to the appellant. Furthermore, it can
hardly be argued that it was impossible for
the appellant to have
known of the eviction application brought in 2010 by herself, cited
as the second applicant, at the time
when she launched the
application that forms the subject of this appeal.
[26]
In the supplementary affidavit (triplication), the second respondent
denies any knowledge of the alleged affidavit deposed
to by her
during 2010 for an eviction application. During 2010 the second
respondent and the deceased were still struggling with
the aftermath
of their failed marriage and the second respondent encountered
immense difficulties in obtaining maintenance payments
from the
deceased.
[27]
The second respondent has no recollection of deposing to an affidavit
for an eviction application but can recall the
deceased visiting her
to explain that he will be making payments towards her for
maintenance and that she will retain ownership
of another property
located at Batho Location, Bloemfontein. While at the house at Batho
Location, the deceased arrived with documents,
purported to be an
agreement containing his proposal to settle the maintenance issues
and ownership of the property at Batho Location.
She recalls that she
signed the agreement and handed same to the deceased.
[28]
The second respondent contends that she is not able to read English.
Consequently, her attorney was obliged to translate
the founding
affidavit in the eviction application, annexed to the replying
affidavit, to Afrikaans during their consultation subsequent
to
receiving the replying affidavit. A confirmatory affidavit deposed to
by her attorney, Mr Peyper, who also appeared on her behalf
during
the hearing of this appeal, is appended to her supplementary
affidavit. The second respondent does not deny that her signature
appears on the affidavit in the eviction application. She however
denies that she attended the offices of Mr T Hadebe, who is the
attorney who supposedly acted on her behalf and on behalf of the
appellant in the eviction application. She furthermore denies
giving
instructions to the said Mr Hadebe for such an application or an
application of whatsoever nature on her behalf during 2010.
[29]
A certain Mr Andile Charles Mlozana apparently commissioned the
affidavit in the eviction application. He was employed
at Nedbank at
Second Avenue, Bloemfontein during 2010. The second respondent
contends that she has never attended the Nedbank branch
in Second
Avenue for any purpose whatsoever. The same Mr Mlozana, now an
attorney, also now commissioned the replying affidavit
deposed to by
the appellant. The second respondent noticed that the signature of
the said Mr Mlozana seems different to the signature
affixed to the
replying affidavit as commissioner. She however concedes that this
might be due to the lapse of time.
[30]
The appellant furthermore appended the order granted by the
Magistrate’s Court on 13 November 2009 to her replying
affidavit and stated under oath as follows:
“
Subsequently, the
Magistrate Court granted the interdict order as prayed in our notice
of motion. For ease of reference I attach
herein the said founding
affidavit as well as the court order and related annexures marked
herein as
annexure “A”
”
No
case number appears on the court order. The parties to the case as it
appears from the court order are not the second respondent
and the
appellant, as contended by the appellant, but a person with the name
of Masechaba Prince Skosana (the “unknown person”),
cited
as the first applicant and the appellant cited as the second
applicant. The order is an interim order with a return day on
the
10
th
of December 2009 and provides as follows:
30.1 That
Matshidiso Skosana be interdicted and restrained from making contact
with the unknown person and the appellant
as well as with any family
members of the unknown person and the appellant;
30.2 That
Matshidiso Skosana be interdicted and restrained from entering or
being in the proximity of 100 meters from
the unknown person’s
and appellant’s place of residence;
30.3 That
Matshidiso Skosana be interdicted and restrained from threatening,
insulting, assaulting or having the safety
of the unknown person and
the appellant or any family members compromised;
30.4 That
Matshidiso Skosana be interdicted and restrained from spreading
untrue and unfounded rumours about the unknown
person’s and the
appellant’s lives either by word of mouth or publication in any
form;
30.5 That
Matshidiso Skosana be interdicted and restrained from locking the
taps and switching off the electricity supply
of the shared residence
at 10141 at Phelindaba Location, Bloemfontein.
[31]
It was not explained why the appellant appended an order granted in a
different matter, between different parties and
which order was
already granted on 13 November 2009, being a date prior to the
eviction application being instituted during April
2010.The
appellant’s averments made under oath in her replying affidavit
does not correspond with the contents of the interim
order granted on
13 November 2009.
[32]
The appellant deposed to an affidavit on 16 April 2021 in support of
her application for leave to appeal to the Supreme
Court of Appeal.
The following averments are made in her affidavit:
32.1 the
deceased and the second respondent jointly acquired the property;
32.2 since
they were the joint owners of the property they each owned 50% of the
property;
32.3 it is
common cause that on the 10
th
of October 2007 both the
deceased and second respondent concluded a written sale agreement of
the said property with the appellant;
32.4 it is
common cause that on the 8
th
of January 2009, in order to
finalise the division of their joint estate, the second respondent
paid to the deceased his 50% share
of the joint estate in the amount
of R15 000.00 (Fifteen Thousand Rand). The said amount was
derived from the proceeds of
the sale of the property.
[33]
The second respondent opposed the application in the court
a quo
on the basis that she denies the validity of the agreement of sale
relied upon by the appellant. The second respondent contends
that no
valid agreement of sale could have come into existence because she
was not the owner of the property during 2007. She did
not sign the
agreement relied upon by the appellant and was not a party to the
agreement. The second respondent did not receive
any payment in
respect of the property as alleged by the appellant.
[34]
The Mangaung Metropolitan Municipality was the owner of the property
at the time when the ostensible agreement of sale
was concluded
between the deceased and the appellant. The second respondent, the
deceased and their children obtained the right
to occupy the property
in terms of a permit issued by the Mangaung Local Municipality, the
predecessor of the Mangaung Metropolitan
Municipality. In terms of
the Certificate of Occupation dated 10 May 2010 the deceased’s
right to occupy the property was
terminated due to the divorce. The
second respondent appended the Deed of Transfer TE 778/2013 to the
answering affidavit in terms
whereof the property was transferred
from the Mangaung Metropolitan Municipality to the second respondent
on 28 January 2013. Section
2 (1) of the Alienation of Land Act
[7]
provides that:
“
No alienation of
land after the commencement of this section shall… 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.”
[35]
The appellant’s case in the founding affidavit was that the
deceased and the appellant concluded the agreement
of sale of the
property. These facts appear from the deed of sale appended to the
founding affidavit. In
Northview
shopping Centre (Pty) Ltd v Revelas Properties Johannesburg CC and
Another
[8]
the Supreme Court of Appeal held that the object of section 2(1) of
the Alienation of Land Act is to ensure certainty in respect
of
contracts for the sale of land.
[36]
In the appellant’s founding affidavit to her application for
leave to appeal to the Supreme Court of Appeal the
appellant alleges
that it is “common cause” that the deceased and the
second respondent were the joint owners of the
property and both of
them concluded a written agreement of sale in respect of the
property. It has been denied by the second respondent
that she and
the deceased were the joint owners of the property. It was therefore
incorrect to state that it is common cause that
the property belonged
to both the deceased and the second respondent. It is furthermore
evident from the title deed to the property
that the deceased was not
the owner of the property as same was transferred directly from the
Mangaung Metropolitan Municipality
to the second respondent. It was
dishonest to state that it is common cause that the property belonged
to the deceased as a co-owner
of the property. The appellant
furthermore alleged that she fully paid the amount of R50 000.00
to the respondents on the
30
th
of August 2007. This was
not her evidence in the founding affidavit.
[37]
It is evident that the facts upon which the appellant relied in her
initial founding affidavit has changed, obviously
having regard to
the grounds on which the relief was being opposed by the second
respondent. The appellant now alleges that the
agreement of sale was
not only concluded between herself and the deceased but, somehow,
also included the second respondent. I
am unable to conclude that the
agreement of sale on which the appellant rely as the basis for her
claim, constitute a valid deed
of alienation. The reason being that
neither the deceased nor the second respondent was the owner of the
property during 2007.
The second respondent was not even a party to
the agreement of sale upon which the appellant’s cause of
action rests. Furthermore,
the second respondent argued that the
claim for the transfer of the property to the appellant has
prescribed on the basis that
13 years has passed since the alleged
agreement of sale was concluded. I agree.
[38]
The deceased was not entitled in law to transfer more rights to the
appellant than the rights he possessed, which, unfortunately
for the
appellant was none in respect of the property. The deceased was not
the owner of the property as stated in the agreement
of sale. The
deceased was not even the owner of 50% of the property as contended
by the appellant. The second respondent became
the owner of the
property approximately 6 years after the appellant supposedly
purchased the property from the deceased.
[39]
I am of the view that the second respondent’s application for
leave to file her supplementary affidavit be condoned
on the basis
that new information was indeed contained in the replying affidavit
filed by the appellant. The appellant to be responsible
for the costs
associated with the application for condonation for the filing of her
supplementary affidavit. The second respondent
disputed the facts
alleged by the appellant pertaining to the sale of the property. A
court should adjudicate factual disputes
in application proceedings
having regard to the principles laid down in the
Plascon-Evans
Paints
case and approved and considered in more depth in
Wightman
t/a JW Construction v
Headfour
(Pty) Ltd and Another
[9]
. The court held as follows:
“
[12]
Recognising that the truth almost always lies beyond mere linguistic
determination the courts have said that an applicant who
seeks final
relief on motion, must in the event of conflict, accept the version
set up by his opponent unless the latter’s
allegations are, in
the opinion of the court, not such as to raise a real, genuine or
bona fide dispute of fact or are so far-fetched
or clearly untenable
that the court is justified in rejecting them merely on the papers:
Plascon-Evans Paints Ltd v Van Riebeeck
Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA
623
(A) at 634E-635C”
[40]
I am of the view that a factual dispute was indeed foreseeable yet
the appellant persisted with an application for the
transfer of the
property to be ordered by the court. The appellant failed to make out
a case in her founding affidavit and did
not succeed in making out a
case for the relief prayed for in her replying affidavit. In fact,
the applicant brought a totally
defective application.
[41] I would thus make
the following order:
1. The
appeal is dismissed with costs.
I.
VAN RHYN, J
I
concur.
P.J.
LOUBSER, J
I
concur and it is so ordered.
M.A.
MATHEBULA, J
On behalf of the
Appellant: Adv
N D KHOKHO
Instructed by:
FIXANE
ATTORNEYS
BLOEMFONTEIN
On behalf of the Second
Respondent: Mr P PEYPER
Instructed by:
PEYPER
AUSTEN ATTORNEYS
BLOEMFONTEIN
[1]
Uitenhage Transitional Local Council v South African Revenue Service
2004 (1) 292 (SCA) at [6].
[2]
Dengetenge Holdings (Pty) Ltd v Southern Sphere Mining and
Development Company Ltd and Others [2013] 2 All SA 251
(SCA) at [11].
[3]
Hano Trading CC v JR 209 Investments (Pty) Ltd 2013 (1) SA 161
(SCA).
[4]
1980 (1) SA 313
(D & CLD) at 315 E-H and 316 A.
[5]
Titty’s Bar and Bottle Store (Pty) LTD v ABC Garage (Pty) Ltd
and Others
1974 (4) SA 362
(T) at 369A-B.
[6]
1970 (1) SA 565
(O) at 568E.
[7]
Act No 68 of 1981.
[8]
2010 (3) SA 630
(SCA) at [26].
[9]
[2008] ZASCA 6
;
2008 (3) SA 371
(SCA).