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[2024] ZALMPPHC 84
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Mokumo v Ramalepe (HCA 58/2023) [2024] ZALMPPHC 84 (6 August 2024)
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRIC
LIMPOPO
DIVISION, POLOKWANE
CASE
NO: HCA 58/2023
(1)
REPORTABLE: YES/NO
(2)
OF INTEREST TO THE JUDGES: YES/NO
(3)
REVISED
DATE:
6/8/2024
SIGNATURE:
I
n
the matter between
:
SEKEDI
SARAH MOKUMO
Appellant
and
MATOME
PAUL RAMALEPE
Respondent
JUDGEMENT
GAISA
AJ
INTRODUCTION
[1]
This is an appeal against the judgment and
order of the Magistrate's Court for the District of Letaba, held at
Ga-Kgapane ("court
a quo"),
delivered on 12 October 2023. The court
a quo
dismissed
the appellant's application for rescission of an eviction order
granted on 11 July 2023 in favour of the respondent.
[2]
The central issues in this appeal are
whether the eviction order was correctly granted, considering the
appellant's claims of fraud
in the property transfer, and whether the
court
a quo
erred
in dismissing the application for rescission.
BACKGROUND
[3]
The property in question is Erf 1[...],
Ga-Kgapane-A Township, Limpopo Province ("property"). The
appellant was the registered
owner of this property, inherited from
her late husband, Botana Simon Mathye, who passed away on 2 September
2009.
[4]
On 19 December 2019, a deed of sale was
purportedly signed between the appellant as seller and the respondent
as purchaser for R330,000.
The property was transferred to the
respondent's name on 2 September 2021.
[5]
The appellant claims that she never
intended to sell the property and alleges that her son, Thapelo
Innocent Mathye, fraudulently
signed the deed of sale and other
transfer documents without her knowledge or consent.
[6]
When the appellant failed to vacate the
property, the respondent initiated eviction proceedings in the
Magistrate's Court. On 11
July 2023, the Magistrate granted an
eviction order against the appellant.
[7]
The appellant subsequently applied for
rescission of the eviction order, which was dismissed by the court
a
quo
on 12 October 2023.
ISSUES
ON APPEAL
[8]
The appellant's grounds of appeal can be
summarised as follows:
8.1.
The eviction order was erroneously granted
in her absence;
8.2.
Her answering affidavit was not properly
before the court;
8.3.
The deed of sale was fraudulent and should
be declared void;
8.4.
The Magistrate failed to consider the
provisions of the Prevention of Illegal Eviction from and Unlawful
Occupation of Land Act
19 of 1998 (PIE Act);
8.5.
The eviction order was not just and
equitable in the circumstances.
POWERS
OF THIS COURT AS THE APPEAL COURT
[9]
It
is trite law that a court of appeal will not interfere with the trial
court's decision unless it finds that the trial court misdirected
itself as regards its finding or the law. To succeed on appeal, the
appellant needs to convince this court on adequate grounds
that the
trial court misdirected itself in accepting the evidence from the
other side and rejecting his version. There are well-established
principles governing the hearing of appeals against findings of fact.
In the absence of demonstrable and material misdirection
by the trial
court, its findings of fact are presumed to be correct and will only
be disregarded if the recorded evidence shows
them to be clearly
wrong.
[1]
ANALYSIS
[10]
Procedural Irregularities
10.1.
The record shows that the appellant was not
in attendance at court when the eviction order was granted on 11 July
2023. However,
it is clear from the court
a
quo's
reasons that the appellant's-
answering affidavit was before the court and was considered. The
Magistrate noted that the appellant's
answering affidavit did not
disclose a defence.
10.2.
Was
the appellant absent, in the legal sense, when the eviction order was
granted on 11 July 2023? Fortunately, this question has
already been
answered by the full court's appeal decision of this division, which
held in
Rainbow
Farms (Pty) Ltd v Crockery Gladstone Farm
[2]
that
"[10]
The Court a quo decided that the judgment was
not
a
judgment taken on default of appearance by the Appellant. It did
so
on the basis that the Appellant
's
Counsel was present
in
Court when the Order was made. The
Court
a
quo
erred in this regard. This matter was an application
and
the presence or absence of a party
can only be determined by whether that party has submitted
affidavits or not. The presence of the actual
party and/
or
Counsel
in Court is irrelevant to that issue. In the absence of any
affidavits (bearing
in
mind
that there is no option available
for
the
party to testify at such a
hearing) it is
logical
to
conclude that that party is in default of appearance when the Order
was
made
notwithstanding
that Counsel may have been in Court.
[11
]
In my view where opposing papers have not been filed there is a
"
default
"
even if the Respondent
in
the matter or his legal
representative is present in Court. See:
Morris
v Autoquip (Pty) Ltd
1985
(4) SA 398
(WLD)
;
First National Bank of SA Ltd
v Myburgh and Another
2002
(4) SA 176
(CPD).
[12]
The question of what is meant by
"
default
"
was considered in
Katritsis
v De Macedo
1966 (1) SA
613
(A).
In
this matter the Appellate Division (as it then was) held that
"
default"
which then as is the case now is not defined in the Rules or the Act
,
meant a default in relation to
filing the necessary documents required by the Rules in opposition to
the claim. In casu the judgment
was granted in the absence of an
opposing affidavit by the Appellant and was therefore a
"
default
judgment
"
even
if it was not a default in the sense of the ab
s
ence
of
t
h
e
party.
"
10.3.
Her
Ladyship Naude-Odendaal J held in
Minister
of Mineral Water and Sanitation and Others v Fourie and Others
[3]
that:
"
[24]
In the present case
,
the
Applicants were only in default in the
s
ense
that legal representation failed to appear on their behalf and
advance oral argument at the hearing of the matter.
It
is common cause that an answering
affidavit was filed in the main application
,
a
s
well as heads of argument and
a
practice note on behalf of the
Appli
c
ants
..
.
.
Having regard to what was stated in
Rainbow Farms (Pty) Ltd v
Crockery Gladstone Farm supra,
it
therefore
c
ann
o
t
be found that the judgment and order by Phatudi J on 15 April 2021
constitutes a default judgment
...
The application fo
r
rescission of judgment therefore
stands to be dismi
s
sed.
"
10.4.
The appellant was absent from the courtroom
when the eviction order was granted on July 11, 2023. The court
record indicates that
she was called in both Court A and Court B but
was not present. The appellant claims she was at the court building
that day but
was in the bathroom when the matter was called as not
credible given her previous appearances.
10.5.
The appellant's answering affidavit was
filed on November 21, 2022, well before the eviction hearing on July
11, 2023. This affidavit
was filed by her previous attorney, Messrs
Hlungwani A Attorneys, within six working days of the court granting
leave to file it.
While the appellant claims in her appeal that this
affidavit was filed out of time and not properly before the court,
the magistrate's
court stated in its reasons that it had considered
the appellant's answering affidavit when making its decision on the
eviction
order.
10.6.
According to the respondent's arguments and
the court's findings, the appellant's answering affidavit contained
only a
"bare denial'
without
presenting a substantive defence.
10.7.
The magistrate's court, in granting the
eviction order, stated that the
"Respondent's
(Appellant herein) opposing affidavit does not disclose
a
defence and Applicant (Respondent
herein) has made out
a
proper
case
."
10.8.
This lack of a substantive defence in the
original answering affidavit is a crucial point of contention in the
appeal.
10.9.
The principles governing rescission
applications are well established. In Chetty v Law Society, Transvaal
1985 (2) SA 756
(A), it was held that for a rescission application to
succeed, the applicant must show good cause, which includes a
reasonable
explanation for the default, bona fides, and a bona fide
defence which prima facie has some prospect of success.
10.10.
In this case, the appellant's explanation
for her absence on 11 July 2023 is not convincing. She had appeared
in court on multiple
occasions and was aware of the proceedings. Her
claim of being in the bathroom when the matter was called is
insufficient to explain
her absence. The magistrate considered her
affidavit.
[11]
Raising
a
new defence (of fraud in property transfer) after the eviction
application
:
11.1.
The respondent contends that the appellant
only attempted to raise a defence when she launched her application
for rescission of
judgment after the eviction order had already been
granted.
11.2.
The respondent argues that if the court had
entertained the appellant's new defence as contained in her founding
affidavit for the
rescission application, it would have, in effect,
allowed the appellant a "second bite at the cherry," which
would be
irregular and prejudicial.
11.3.
On the other hand, the appellant claims
that her answering affidavit was filed out of time and was not
properly before the court
when the eviction order was granted. She
argues that she could not present her case or apply for condonation
for late filing.
11.4.
The appellant is now seeking to introduce
what she claims is her substantive defence in the appeal, arguing
that the sale of the
property was fraudulent and that she never
intended to sell her home.
11.5.
The respondent argues that parties in
motion proceedings must stand and fall by their papers and that
allowing new defences at the
appeal stage would be improper.
11.6.
I agree with this argument. However, the
appeal court can allow new evidence under limited circumstances,
typically referred to
as "fresh evidence" or "further
evidence" on appeal.
11.7.
In
terms of the provisions of s 19 (b) of the
Superior
Courts Act
1o
of 2013
this court is seized with jurisdiction to adjudicate an
appellant's application to introduce further evidence. In deciding
whether
to allow further evidence on appeal, the appeal court will be
guided by the principles that have evolved in decided cases over many
years, and which are summarised in
Herbstein
and Van Winsen
[4]
as
follows:
"(a)
it is essential that there should be finality to a trial, and
therefore if a suitor elects to stand by the evidence which
he
adduces, he should not (later) be allowed to adduce further evidence,
unless the circumstances are exceptional.
(b)
The party who makes the application
must show that the fact that he has not brought further evidence
forward was not attributable
to any remissness on his part. He must
satisfy the court that he could not have procured the evidence in
question by the exercise
of reasonable diligence.
(c)
The evidence tendered must be
weighty material, and presumably worthy of belief, and must be such
that, if adduced, it will be practically
conclusive.
(d)
If conditions have
so
changed that the fresh evidence would
prejudice the opposite party, the court will not grant the
application, for example if the
witnesses for the opposite party have
been scattered and cannot be brought back to refute the fresh
evidence."
11.8.
The appellant's allegation of fraud in the
property transfer is a serious one. However, this claim is
contradicted by several pieces
of evidence:
11.8.1.
The conveyancer, Elana Goosen, confirmed
under oath that the appellant signed the transfer documents in her
presence on 29 January
2020.
11.8.2.
The appellant's signatures on the deed of
sale and transfer documents match her signatures on court affidavits.
11.8.3.
The appellant admits to receiving funds in
her bank account, claiming it was not the entire purchase price.
11.8.4.
The appellant has not provided expert
evidence to support her forged signature claim.
11.8.5.
It is trite law that fraud vitiates every
transaction known to the law. However, the onus of proving fraud
rests on the party alleging
it. In this case, the appellant has not
discharged this burden of proof.
11.9.
These pieces of evidence work against the
appellant and do not establish exceptional circumstances to entitle
this court to allow
the admission of further evidence in the
appellant's favour.
11.10.
If the allegations of fraud were
established, the appellant would still need to convince this court
that the fact that she has not
brought further evidence forward in
her affidavit at the eviction application was not attributable to any
remissness on her part.
She would need to satisfy this court that she
could not have procured the evidence in question by the exercise of
reasonable diligence.
11.11.
On the available and the other factors
summarized in
Herbstein and Van Winsen,
this court finds that the appellant's
allegation of fraud cannot be sustained.
[12]
Compliance with the PIE Act
12.1.
Section 4(6) of the PIE Act requires a
court to consider all relevant circumstances, including the rights
and needs of vulnerable
persons, before granting an eviction order.
12.2.
While the court
a
quo's
reasons do not explicitly state
that these factors were considered, it is clear from the record that
the Magistrate was aware of
the appellant's circumstances.
12.3.
The appellant had multiple opportunities to
present her case and was granted numerous postponements. The eviction
proceedings spanned
over a year, during which time the appellant was
aware of the potential consequences.
[13]
Just and Equitable Considerations
13.1.
The Constitution of the Republic of South
Africa, 1996, in section 26(3), provides that no one may be evicted
from their home without
an order of court made after considering all
the relevant circumstances. The court must be satisfied that the
eviction is just
and equitable.
13.2.
In this case, several factors weigh in
favour of the eviction order:
13.2.1.
The respondent is the registered owner of
the property, having paid the purchase price and completed the
transfer process.
13.2.2.
The appellant received funds from the sale,
which she has not offered to repay.
13.2.3.
The appellant was given ample opportunity
to present her case and seek legal representation.
13.2.4.
The appellant's conduct throughout the
proceedings suggests an attempt to delay the matter rather than
present a
bona fide
defence.
CONCLUSION
[14]
After carefully considering the evidence
and arguments presented, I find that the court
a
quo
did not err in granting the
eviction order or dismissing the application for rescission.
[15]
The appellant has not demonstrated good
cause for rescission of the eviction order. Her claims of fraud are
not supported by credible
evidence, and she has not provided a
satisfactory explanation for her absence when the order was granted.
[16]
While the court is sympathetic to the
appellant's situation, the law must be applied fairly and
consistently. The respondent has
established his rights as the
registered owner of the property, and the eviction order was granted
after due consideration of the
relevant circumstances.
[17]
The appellant was not able to show that
trial court misdirected itself as regards its finding or the law. The
appellant has not
convinced this court that the court
a
quo
misdirected itself in accepting the
evidence from the other side and rejecting his version. All the
appellant's evidence available
to the magistrate was taken into
consideration. The appellant did not show any misdirection by the
court
a quo,
consequently
the court
a
quo's
findings
of fact are presumed to be correct and will not be disregarded by
this court.
ORDER
[18]
In the result, the following order is made:
1.
The appeal is dismissed.
2.
The eviction order granted by the
Magistrate's Court for the District of Letaba on 11 July 2023 is
upheld.
3.
The appellant is ordered to vacate the
property at Erf or stand 1[...], Ga-Kgapane-A Township, Limpopo
Province, within 30 days
of this order.
4.
Should the appellant fail to vacate the
property as per paragraph 3, the Sheriff is authorised to evict the
appellant and all persons
occupying through her.
5.
The appellant is to pay the costs of this
appeal.
GAISA
AJ
ACTING
JUDGE: HIGH COURT
POLOKWANE:
LIMPOPO DIVISION
I
concur
NAUDE-ODENDAAL
J
JUDGE
OF THE HIGH COURT
POLOKWANE:
LIMPOPO DIVISION
APPEARANCES
FOR
THE APPELLANT:
ADV
PR SESHAI
INSTRUCTED
BY:
F.
SEKGOBELA ATTORNEYS
FOR
THE RESPONDENT:
ADV
C MARAIS
INSTRUCTED
BY:
JOUBERT
& MAY ATTORNEYS
DATE
OF HEARING:
10
MAY 2024
DATE
OF JUDGEMENT:
5
AUGUST 2024
[1]
S
v Hadebe and Others
1997 (2) SACR 641
(SCA) at 645e-f. See also: S v
Monyane and Others 2008 (l) SACR 543 (SCA) at para 15; S v Francis
199 l (l) SACR 198 (A) at 204e.
[2]
(HCA15/2017)
[2017] ZALMPPHC 35 (7 November 2017)
[3]
(6437/2019)
[2023] ZALMPPHC 79 (30 August 2023)
[4]
See:
Herbstein &Van Winsesen: The Civil Practice Of The Supreme Court
Of South Africa, 4th Ed at 909;
Colman
v Dunbar
1933
AD 161
(A);
and
Rail
Commuters Action Group and Others v Transnet Ltd tla Metrorail and
Others
2005
(4) SA 359
at
para 41.