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REPUBLIC OF SOUTH AFRICA


IN THE HIGH COURT OF SOUTH AFRICA
(LIMPOPO DIVISION, POLOKWANE)

CASE NO: HCA 44/2023
(Court a quo: 153/20180)
(1) REPORTABLE: YES / NO
(2) OF INTEREST TO THE JUDGES: YES / NO
(3) REVISED.
Signature:
Date: 04/12/2024

In the matter between:

COLLEN MAITJA APPELLANT

And

MANARE ALBERTINA MOLAPO 1ST RESPONDENT

BLOUBERG MUNICIPALITY. 2ND RESPONDENT

________________________________________________________________________

JUDGMENT

MONENE AJ

INTRODUCTION

[1] This appeal has its genesis in a dispute between the appellant and the first respondent
about ownership of a residential property , to wit Stand No 2 [...], Desmond Park, Extension
5, Bochum (“the property”) located within the geographic jurisdiction of the se cond
respondent. Both parties at loggerheads averred before the court a quo , as indeed they did
also before this court of appeal, without submission of any con clusive evidence beyond
their verbal say so , that they had at separate occasions purchased the property from its
erstwhile owner, one Mr Matome Ratjomane. They argued in that manner in an eviction
application before Magistrate Netshiozwi of the Blouberg District Court held at
Senwabarwana. The Learn ed Magistrate had, in the main, gone on to grant an order
evicting the appellant from the property and mak ing no order as to costs. This so the
appellant, aggrieved at being evicted to prosecute this appeal, which beyond being
opposed by the first respondent, saw the latter cross appealing the costs order made by the
Learned Magistrate.

[2] Beyond the smoke and mirrors haplessly raised by both parties before this court the
appeal raised in essence the crisp question of whether the Learned magistrate had er red in
not referring the matter to oral evidence in the light of the stated dispute over ownership of
the property which dispute clearly predicates the eviction application. Indeed, whether the
eviction order is one capable of being interfered with or not depends on who the owner of
the property was proven to be in the court a quo.

[3] In both his notice of appeal and his heads of argument the appellant made stormy
weather of a plethora of points preliminary to the merits of the eviction order sought to b e
appealed, all of which fell by the wayside before us either out of being abandoned by the
appellant or being clearly misadvised or unavailable in law. In that regard the point that the
court a quo did not have jurisdiction to make a declaratory order was unsustainable in the

light of the Learned Magistrate having not ordered any declarator where in fact none was
prayed for in the first place. It was well-advised of the appellant to abandon this point when
the matter was argued before us. Equally well advi sed was the decision by the appellant to
abandon the incongruent point that the Learned Magistrate had, prior to hearing the
application, erred in conducting judicial case management. Thirdly , the point that the filing
of a supplementary affidavit of the f irst respondent, as applicant in the court a quo, was
irregular because it was not filed with leave of the court was an unhelpful and clearly
dismissible self-contradiction point where the record showed that the court a quo had in its
discretion allowed th e supplementary affidavit into record. The latter point had to and is
dismissed by this court.

[4] Not to be outdone by the appellant in the teacup storms contest was the first respondent
who hoisted her own scarecrows arguing that the appeal was not ripe to be heard on
account of absence of a power of attorney in the file and failure of the appella nt to provide
security for costs. These points cried out for dismissal upon proof of the existence of a
power of attorney as well as proof of security for costs having been provided. They were
thus frowned upon by this court and are accordingly dismissed.

BRIEF BACKGROUND INFORMATION

[5] It is common cause that the property at the center of the dispute in casu was at least up
to 2012 when it apparently was put up for sale, belonging to Mr Matome Ratjomane.

[6] The first respondent’s daughter Thelma Mola po(“Thelma”) had a love or romantic
relationship with the appellant and the two at some point started staying together at the
property.

[7] It would appear that when , at some time the two lovers’ relationship hit the rocks in
around 2014 Thelma stopped staying at the property and joined her mother in seeking to
have the appellant removed or evicted from the property.


[8] This saw the first respondent bringing the eviction application in the court a quo which
application was opposed by the applicant.

AD DISPUTE OF FACT

[9] As already alluded to above the key issue in this appeal is the ownership of the
property. In this regard the main ground of appeal worthy of being entertained by this court
is whether the court a quo erred in not referring the matter for oral evidence on the issue of
who the owner of the property is as both appellant and first respondent claimed to own the
property on account of both having purchased it from Matome Ratjomane, the appellant
claiming to have purchased it pursuant to a n oral contract in 2012 and the first respondent
contending to have bought it in 2016 as evidenced by a deed of sale dated 15 April 2016
but not signed by Matome Ratjomane.

[10] In the proceedings before the Learned Magistrate the purported seller of the property,
Matome Ratjomane, deposed to a confirmatory affidavit supporting the appellant’s version.
However, and more curiously, the first respondent as applicant in the court a quo attached
an affidavit of the same Matome Ratjomane to her replying affidav it, in which he confirmed
the first respondent’s version.

[11] It seems to me that, faced with the two mutually destructive versions of Matome
Ratjomane, the Learned merely chose to believe the first respondent’s version and reject
that of the appellant without any reasoned or rational basis. Evidence analysis and
consequent determination of issues in our law is not a mere matter of picking a side
informed merely by the prejudices of human preference. It is a reasoned substantiated and
rational exercise. That correct approach as is trite was not applied by the court a quo on the
question of who had better title over the property.

[12] In Wrightman t/a JW Construction v Headfour (Pty) Ltd and Another 2008 (3) SA
371 (SCA) at para 13 the Supreme Court of Appeal counselled us as follows what
constitutes a dispute of fact:


“A real, genuine and bona fide dispute of fact can exist only where the court is
satisfied that the party who purports to raise the dispute has, in his affidavit,
seriously and unambiguously addressed the fact said to be disputed…”

[13] In my view, the fact that both parties rely, for contradicting propositions, on the same
witness, Matome Ratjomane, posits a real and genuine dispute of fact. Associated to that is
the unsigned deed of sale as well as proofs of purchase on which Matome Ratjomane,
Thelma and both the appellant and the first respondent ought to have been ordered to
testify orally and must be so ordered. There is just no way these dispute points could have
been determined on paper. The correct approach by the court a quo ought then to have
been a referral to oral evidence or trial instead of ordering an eviction.

[14] Accordingly , the appeal must succeed on the point of the court a quo’ s failure to
properly determine the dispute of fact question. That has an impact on the cross appeal too
as the Learned Magistrate’s costs order must suffer the same fate as his orders in toto and
cannot remain standing.

ORDER

[15] In the backdrop of all the foregoing, I make the following order:

[15.1] The appeal succeeds.

[15.2] The judgement and orders made by the Learned Magistrate Netshiozwi on 30
August 20 23 under case number 153/2018 are set aside and replaced with the
following order:

“The matter is remitted back to the Magistrate Court for the District of Bochum
held at Senwabarwana for the leading of oral evidence on the ownership of the
property and hearing denovo of the application before a magistrate other than
the Learned Magistrate Netsiozwi.”


[15.3] The first respondent is ordered to pay the appellants costs.


_________________________
MALOSE S MONENE
ACTING JUDGE OF THE HIGH COURT,
LIMPOPO DIVISION, POLOKWANE

I agree

_________________________

KGANYAGO J
JUDGE OF THE HIGH COURT
LIMPOPO DIVISION, POLOKWANE


APPEARANCES

Heard on : 23 August 2024
Judgment delivered on : 04 December 2024

For the Appellant : Mr K Kgafane of Kutullo Kgafane Attorneys
: Tel: - 015 065 0241
: Email: info@kutullokgafaneattorneys.co.za

For the First Respondent : Mr Moitsi of Moitsi and Associates Inc
: Tel: 076 164 6165
:Email: moitsiassociates@gmail.com