SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in
compliance with the law and SAFLII Policy
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
LIMPOPO DIVISION, POLOKWANE
CASE NO: HCAA30/2023
LP CASE NO: 3100/2021
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO THE JUDGES: YES/NO
(3) REVISED.
DATE: 14/05/2025
SIGNATURE
In the matter between:
MONGADI JACOB CHUENE APPELLANT
(ID NO: 5[...])
And
THE FAVOURS CATHEDRAL CHURCH RESPONDENT
In re:
THE FAVOURS CATHEDRAL CHURCH APPLICANT
And
MONGADI JACOB CHUENE RESPONDENT
(ID NO: 5[...])
JUDGMENT
Mangena AJ
[1] The Favours Cathedral Church instituted legal proceedings against Mr
Mongadi Jacob Chuene in which it sought a declarator that Mr. Chuene lawfully sold
the property known as ERF 8[...] Seshego -G to her on 18 August 2017 for the agreed
price of R150 000.00 . There were other ancillary an d consequential orders mentioned in
the notice of motion.
[2] The court a quo, per Mthimkhulu AJ , granted the orders and directed Mr
Chuene to pay the costs of the application. Unhappy with the order, Mr Chuene lodged
an appeal, and the matter came before us with the leave of the court a quo granted on
14 February 2025 .
[3] Prior to the hearing of the appeal, we were informed that the appeal was
previously struck off the roll due to a defect in the order which granted the leave to
appeal. The defect was corrected on 14 February 2025 and we were presented with a
new court orde r which granted leave to the full court of this Division.
[4] On the 25th April 2025 , the Appellants served and filed a notice of removal in
which it is stated “ Be pleased to take notice that the above -mentioned Appellant
hereby removes the application for le ave to Appeal enrolled for hearing on 02
May 2025 ”. There was however no application for leave to appeal which was enrolled
for hearing on 02 May 2025. What was enrolled and scheduled for hearing was a full
court appeal with a notice of set -down served b y the appellant upon the respondent on
11 March 2025 and filed with the registrar on 12 March 2025 . I may as well indicate
that there was no appearance for the appellant despite the fact that the appeal was set -
down and still remained on the roll.
[5] Notwith standing the filing of the notice of the removal of the application for leave
to appeal, counsel urged us to proceed to adjudicate on the appeal as same was
properly before us. In support of his submission, Mr Mabotja relied on the notice of set -
down serve d upon the respondent on 11 March 2025 and filed with the Registrar on 12
March 2025 . He handed to us a copy of the letter he addressed to the appellants on 30
April 2025 wherein he brought it to their attention that: -
(a) No leave to appeal has been enrolle d for hearing on 02 May 2025 .
(b) Their heads of argument are still outstanding.
(c) The respondent is entitled to finality on this matter.
(d) The respondent will attend court on 02 May 2025 to pray for the dismissal
of the appeal.
[6] Mr. Mabotja was correct and there is a plethora of case law to support him on
his contention that the appeal should proceed. No party has unilateral authority to
remove the matter from the roll. Once the matter is enrolled, it can only be removed by
the court in the absence of the agreemen t between the parties. This is so because
everything including litigation must at some point come to an end. When a party sets the
matter down and invites his/her opponent to the hearing, it is no longer open to him/her
to unilaterally withdraw it or remov e it. Van der Schyff J gave an expressed emphasis
on this legal position in Dey Street Properties (Pty) Ltd v Salentias Travel and
Hospitality CC [2021] ZAGPPHC 462 (15 July 2021) when she said:
[5] Rule 41(3) provides for postponement by agreement. By providing for
agreement, it is implied that a party cannot unilaterally postpone a matter. Where
the opposing party's consent cannot be obtained, it is left to the court to decide
whether a matter will, on application, be postponed. The same logic applies to
the removal after a matter has been enrolled for hearing. An applicant as
dominus litis is bound to the date determined by it, in the notice of motion (or set
down if I may add) for the matter to be heard".
[7] Guided by these principles, we proceeded to hear the matter.
[8] The facts are uncontroverted and briefly as follows: -
8 1. The appellant and respondent concluded a verbal lease agreement in
terms of which the ap pellant leased ERF 8[...] Seshego -G to the
respondent. They subsequently concluded a written sale agreement in
terms of which the respondent had to pay an amount of R150 000.00 as
purchase price.
8.2. Respondent effected payment of the total purchase price into the
appellant’s FNB bank account on 10 August 2017 .
[9] The appellant admitted to both the conclusion of the sale agreement and receipt
of payment but challenged the legal validity of the agreement on two (2) main grounds
namely, non -compliance with Alienation of Land Act 68 of 1981 and section 15 of
Matrimonial property Act of 1984.
[10] The court a quo dismissed both points as being without merit. With regard to
section 15 of the Matrimonial Property A ct 88 of 1984, the court a quo correctly found
that the appellant failed to prove the existence of a valid marriage between himself and
Ms Sefole who had since passed away. It was not clear on the papers as to when did
Ms Sefole pass away and the appellant ’s defence of lack of spousal consent was
rejected. This defence was not taken up on appeal.
[11] In the notice of appeal, the appellant persisted with his defence relating to non -
compliance with the provisions of the Alienation of Land Act 68 of 1981, in part icular
sections 2(1), 2(2A) and section 29A(1) and 29(A)(5)(b).
[12] The sections relied upon by the appellant do not advance his case. Section 29A
is headed “Purchaser’s right to revoke or terminate deed of alienation” and prescribe
circumstances under which the purchaser may revoke the offer or terminate the deed of
alienation. The appellant is the owner of the property and the seller in terms of the deed
of alienation concluded with the respondent. The court a quo correctly found that the
appellant cannot re ly on section 29(A) to attack the validity of the agreement for the
simple reason that he is not the purchaser. The purchaser is defined in the Act as “any
person to whom land is alienated under a contract”.
[13] In Section 13 Dolphin Coast Medical Centre v C ower Investments, 2006 (2)
SA 15 (D& CLD) Olsen J correctly held that in enacting section 29A the legislature
intended non - compliance with the statutory provision would render the transaction
voidable at the instance of the party for whose benefit the prov ision was enacted. He
found authority in an old judgment by Innes CJ in the matter of Wilken v Kohler 1913
AD 135 where he said:
“Speaking generally, it is true that statutory provisions introduced simply for the
benefit of an individual or a class may be waived by the person or persons for
whose advantage they were devised. And a right given on those lines to treat a
contract as void may be exercised or not at the pleasure of the party concerned;
the agreement would in effect be voidable at his option. ”
This finding was confirmed by the Supreme Court of Appeal in Gower Investments
(Pty) Ltd v Section 3, Dolphin Coast Medical Centre CC and Another, 2007 (3) SA
100 (SCA) .
[14] Regarding the provisions of sections 2 and 2A of the Alienation Act, the court a
quo found that there has been compliance in that the document was signed by both
parties.
[15] Section 2A required the deed of alienation to contain the right of a purchaser or
prospective purchaser to revoke the offer or terminate the deed of alienation in terms of
section 29A. It is clear that non -compliant with this clause does not invalidate the
agreement concluded between the seller and the purchaser. The document signed by
the parties contained all the essential eleme nts of a deed of alienation, namely merx
(the thing sold), intention of the parties and the purchase price.
[16] The seller signed the deed of alienation and disposed off his rights of ownership
in the property ( ERF 8[...] - Seshego -G) against payment of the agreed purchase price
of R150 000.00 . In my view a valid and binding contract was concluded. The
respondent was within his right to approach the court to have it enforced so that transfer
and registration of the land can take place . There was no error on the part of the court a
quo. It follows therefore that the appeal must fail.
[17] I make the following order:
17.1. The appeal is dismissed.
17.2. The appellant is ordered to pay costs on a party and party scale B of the
High court tariffs.
_______________________
M.I. MANGENA
ACTING JUDGE OF THE HIGH COURT
LIMPOPO DIVISION, POLOKWANE
I agree,
_______________________
G.C. MULLER
JUDGE OF THE HIGH COURT
LIMPOPO DIVISION, POLOKWANE
I agree,
_______________________
M. NAUDE -ODENDAAL
JUDGE OF THE HIGH COURT
LIMPOPO DIVISION, POLOKWANE
It is so ordered.
APPEARANCES
FOR APP ELLANT : No Appearance
Selokela Mashola Attorneys
Polokwane
FOR FIRST RESPONDENTS : Mr. M.L M abotja (Attorney)
Makwela & Mobotja Attorneys
Polokwane
HEARD ON : 02 May 2025
DELIVERED ON : 14/05/2 025