THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not Reportable
Case no: 1316/23
In the matter between
PHILLIP TSHEPISO MOTSIMA FIRST APPELLANT
THANDIWE PATIENCE MOTSIMA SECOND APPELLANT
and
LIPHAPANG ALBERT KOPA FIRST RESPONDENT
NTHABISENG MOSOEU-KOPA SECOND RESPONDENT
THE TRUSTEES FOR THE TIME BEING THIRD RESPONDENT
FOR THE C&D INVESTMENT TRUST
THE REGISTRAR OF DEEDS, FOURTH RESPONDENT
FREE STATE PROVINCE
THE TRUSTEES FOR THE TIME BEING OF FIFTH RESPONDENT
THE VAN DER MERWE FAMILY TRUST
Neutral citation: Motsima and Another v Kopa and Others (Case no: 1316/23)
[2025] ZASCA 144 (7 October 2025)
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Coram: SCHIPPERS, KATHREE-SETILOANE, SMITH and
KEIGHTLEY JJA and MODIBA AJA
Heard: 18 August 2025
Delivered: This judgment was handed down electronically by circulation to the
parties’ representatives by email, publication on the Supreme Court of Appeal
website and released to SAFLII. The date and time for hand -down of the
judgment is deemed to be 11h00 on 7 October 2025.
Summary: Application for condonation – failure to prosecute appeal –
reinstatement of lapsed appeal – inordinate delay – long periods of delay
unexplained – litigants entitled to finality – no prospects of success – not in
interests of justice to grant condonation.
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________________________________________________________________
ORDER
________________________________________________________________
On appeal from: Free State Division of the High Court, Bloemfontein (Musi JP,
Mbhele DJP and Van Rhyn J, sitting as court of appeal):
The appeal is dismissed with costs.
________________________________________________________________
JUDGMENT
________________________________________________________________
Schippers JA (Kathree-Setiloane, Smith and Keightley JJA concurring)
[1] In 2017 the appellants sold their property in Woodland Hills Wildlife Estate,
Bloemfontein (the property) to the third respondent, C&D Investment Trust (the
C&D Trust) for R1 575 000. In 2018 the C&D Trust sold the property to the first
and second respondents , Mr Liphapang Albert Kopa and Ms Nthabiseng
Mosoeu-Kopa (the Kopas) for R1 830 000. In 2019 the appellants instituted an
action in the Free State Division of the High Court (the High Court ) against,
among others, the C&D Trust and the Kopas for an order declaring both these
sales unlawful, against public policy and void , on the ground that they were
simulated transactions (the action).
[2] The High Court dismissed the appellants’ claim and granted them leave to
appeal to a full court. However, they failed to prosecute the appeal as a result of
which it lapsed. They applied to the Full Court for condonation of their failure to
prosecute the appeal and for its reinstatement. The Full Court dismissed that
application. The issue in this appeal , which is with the leave of this Court , is
whether the Full Court was correct.
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The facts
[3] The basic facts can be briefly stated. In 2010 t he appellants acquired the
property as vacant land and utilising a mortgage bond from a bank, built a house
on it. Subsequently, the first appellant’s contract of employment was terminated
and the appellants could not meet their financial obligations . To avoid a
foreclosure on the property by the bank, the appellants concluded a deed of sale
and lease agreement with the C&D Trust. In terms of the deed of sale (the C&D
agreement), they sold the property to the C&D Trust for R 1 575 000, the amount
then required to settle their debts. The lease agreement commenced on 28 July
2017 and provided for the rental of the property from the C&D Trust for
12 months at R20 475 per month. In that agreement the appellants were given an
option to purchase the property for the sum of R1 830 000 from the C&D Trust,
which had to be exercised during the tenure of the lease.
[4] Before expiry of the lease with the C&D Trust, the appellants realised that
they would not be able to exercise the option to purchase the property. In July
2018 they approached the Kopas and concluded an oral agreement with them.
The terms of that agreement were these. The Kopas would pay the outstanding
rent owed by the appellants to the C&D Trust. The Kopas would buy the property
from the C&D Trust; hold it on behalf of the appellants who would rent it, with
the option to buy it back at the same price that the Kopas paid to the C&D Trust,
plus the interest and expenses incurred by the Kopas. There was no agreement as
to when the appellants would buy back the property from, or the rental payable
to, the Kopas.
[5] Following the oral agreement, the appellants gave the C&D Trust written
approval to sell the property to the Kopas. The Kopas and the C&D Trust
concluded a deed of sale in respect of the property ( the Kopas agreement) at a
purchase price of R1 830 000, in settlement of the appellants’ indebtedness to the
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C&D Trust. After taking transfer of the property, the Kopas sent a lease
agreement to the appellants at a r ental of R20 000 per month. The appellants
refused to sign the agreement; they contended that it was not in accordance with
the oral agreement between the parties. Subsequently, their attorneys wrote to the
Kopas’ attorneys and asked the Kopas to indicate when the loan and interest
should be repaid and to confirm that the Kopas would not sell the property.
[6] In their reply, the Kopas stated that the parties had agreed that they would
buy the property from the C&D Trust and put it on the market to enable the
appellants to obtain funds ; and insisted that there must be a signed lease. The
parties could not reach agreement. Subsequently, the Kopas sold the property to
the VDM Trust for R2.5 million (the VDM agreement).
[7] On 16 May 2019 the appellants instituted the action in which they sought
an order declaring that both the C&D and Kopas agreement s are unlawful and
void, because neither the C&D Trust nor the Kopas had any intention of becoming
owners of the property. The appellants also sought an order that they be directed
to repay the Kopas the sum of R1 830 000, together with all amounts which the
Kopas had expended in the registration of the property into their names . In the
event of them failing to pay these amounts, the appellants asked for an order that
the value of the property be determined by a professional valuer and that the
Kopas be ordered to pay the difference between that value and the sum of
R1 830 000, and the costs of registration of the property incurred by the Kopas.
[8] The respondents defended the action and filed conditional counterclaims.
The Kopas denied that the C&D Trust and Kopas agreements were simulated
transactions. In their conditional counterclaim, filed in the event of the court
finding that the agreement was void, the Kopas sought payment of the purchase
finding that the agreement was void, the Kopas sought payment of the purchase
price of R1 830 000, transfer costs, levies and all amounts paid to the C&D Trust
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on behalf of the appellants. The VDM Trust, in its conditional counterclaim,
sought repayment of the estate agent’s fees and transfer costs. By agreement, the
action proceedings and those relating to the conditional counterclaims were
separated.
[9] While the action was pending, t he appellants discovered that the property
had been sold in terms of the VDM agreement. On 4 July 2019 they obtained an
urgent interim order from the High Court, interdicting the transfer of the property
from the Kopas to the VDM Trust, pending the finalisation of the action.
[10] On 8 February 2021 the High Court dismissed the action with costs.
Consequently, the interdict lapsed. On 15 July 2021 the appellants were granted
leave to appeal to the Full Court. In the interim, on 7 May 2021 the property was
transferred to the VDM Trust.
[11] On 16 July 2021 the appellants applied to the High Court for an urgent
interdict to prevent the VDM Trust from selling the property. The application was
instituted after the appellants became aware that the VDM Trust had advertised
the property for sale. The interdict was sought pending the finalisation of their
appeal to the Full Court. That application was dismissed with costs . An
application for leave to appeal that decision, was refused with costs.
[12] On 8 November 2021 the appellants filed the appeal record but took no
steps to prosecute the appeal . On 15 July 2022 the Registrar of the High Court
notified the parties that the file had been inactive and that if any of them intended
to proceed with the appeal, they had to notify the Registrar in writing within five
days, failing which the file would be archived.
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[13] The appellants did not respond to the Registrar’s notice. On 14 November
2022 the respondents informed them that they had failed to prosecute the appeal
despite the Registrar’s notice of 15 July 2022. The appellants responded on
7 December 2022, stating that they would apply to the High Court for
condonation of their failure to prosecute the appeal , and an order that it be
reinstated.
[14] Five months went by . The application for condonation and reinstatement
was only filed on 11 May 2023. As stated, that application was dismissed by the
Full Court with costs. Further, the VDM Trust has sold the property, and it has
been transferred into the name of the purchaser. This is common ground.
Was the full court correct in refusing condonation?
[15] It is settled that the standard for considering an application for condonation
is the interests of justice. In Van Wyk,1 the Constitutional Court said:
‘Whether it is in the interests of justice to grant condonation depends on the facts and
circumstances of each case. Factors that are relevant to this enquiry include but are not limited
to the nature of the relief sought, the extent and cause of the delay, the ef fect of the delay on
the administration of justice and other litigants, the reasonableness of the explanation for the
delay, the importance of the issue to be raised in the intended appeal and the prospects of
success.’
The Court went on to say:
‘An applicant for condonation must give a full explanation for the delay. In addition, the
explanation must cover the entire period of delay. And, what is more, the explanation given
must be reasonable.’
1 Van Wyk v Unitas Hospital and Another (Open Democratic Advice Centre as Amicus Curiae) [2007] ZACC 24;
2008 (2) SA 472 (CC); 2008 (4) BCLR 442 (CC) (Van Wyk) paras 20 and 22.
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[16] Applied to the present case, the appellants’ failure to prosecute the appeal
can only be ascribed to slackness. They have not given a full explanation for the
delay; neither does their explanation cover the full period of the delay. There is
no explanation for their failure to respond to the Registrar’s letter of 15 July 2022,
nor why they did not then immediately prosecute the appeal.
[17] On 7 December 2022 – nearly five months later – the appellants informed
the respondents that they would bring an application for condonation. Despite
this, t he application for condonation and reinstatement was brought only on
11 May 2023 – more than five months later and nearly a year after the Registrar’s
letter of 15 July 2022. It is trite that an explanation must be given for any delay
in seeking condonation.2 Here there is none. Further, there is no explanation for
the appellants’ inertia between 30 June 2022 and 18 August 2022 – close to two
months – when leave to appeal against the interdict to prevent the VDM Trust
from selling the property was refused and the appeal was enrolled.
[18] Aside from the absence of any explanation by the appellants for the extent
and cause of the inordinate delay, the parties to this appeal, more specifically the
Kopas, are entitled to closure of this litigation. It appears from the evidence that
their assistance to the appellants was purely an act of kindness. Despite this, the
appellants had not paid any amount, whether for rental or otherwise, to the Kopas
prior to the sale of the property to the VDM Trust. What is more, two years after
the C&D agreement the appellants could not raise the funds to repurchase the
property. It is thus not surprising that the Kopas sold the property to the VDM
Trust in April 2019. The Trust, in turn, has sold it to a bona fide third party.
2 Darries v Sheriff, Magistrate’s Court, Wynberg and Another 1998 (3) SA 34 (SCA) at 40J.
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[19] As was reiterated in Van Wyk , the ‘principle of finality in litigation is
intended to allow parties to get on with their lives’. 3 The Kopas are entitled to
assume that the appellants, given their inordinate and unreasonable delay, did not
intend to prosecute the appeal. The principle of finality would be undermined if
condonation is granted for the excessive delay, without explanation, on the part
of the appellants.4
[20] What remains are the appellants’ prospects of success. They seek an order
declaring that the C&D and Kopas agreements are unlawful, against public policy
and void; and that the property be registered into their names . However, these
agreements are a matter of history, and this relief cannot be granted . The same
applies to the VDM agreement . In fact, the appellants have not challenged the
VDM agreement. And the property has been transferred to a bona fide third party,
whose ownership of the property has also not been challenged . In these
circumstances, the appellants prospects of success are remote, if not non-existent.
[21] For all these reasons, the Full Court was correct in refusing condonation
and the reinstatement of the appeal to it. It was not in the interests of justice to
grant condonation. Consequently, the appeal is dismissed with costs.
_____________________
A SCHIPPERS
JUDGE OF APPEAL
3 Van Wyk fn 1 para 31.
4 Ibid.
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Modiba AJA
[22] I have read the first judgment. I agree that the appeal should be dismissed
with costs, but for different reasons which I set out hereunder. The facts are set
out in the first judgment and do not require repetition. In what follows, I refer to
the appellants as the Motsimas.
[23] In my view, there are two issues in this appeal. The first issue is whether
the order sought in the lapsed appeal, and accordingly, the order sought in the
present appeal, will have no practical effect. If so, then the question arises whether
this Court should exercise a discretion in the interests of justice to determine the
present appeal. Otherwise, the present appeal falls to be dismissed solely on the
question of mootness in terms of s 16(2)(b) of the Superior Courts Act 10 of
2013.5 The second issue, which only arises if the lapsed appeal is not moot, is
whether the Full Court was correct in dismissing the condonation application.
[24] The Constitutional Court, in Minister of Tourism and Others v Afriforum
NPC and Another6 held that:
‘A case is moot when there is no longer a live dispute or controversy between the parties which
would be practically affected in one way or another by a court’s decision or which would be
resolved by a court’s decision. A case is also moot when a court’s d ecision would be of
academic interest only.’
[25] When the Motsimas applied for condonation and reinstatement of the
appeal in May 2023, a series of events had taken place, that are not only indicative
of their intention not to prosecute the appeal but also show that they were aware
5 Section 16(2)(a)(i) provides as follows: [W]hen at the hearing of an appeal the issues are of such a nature that
the decision sought will have no practical effect or result, the appeal may be dismissed on this ground alone. See
also Qoboshiyane NO and Others v Avusa Publishing Eastern Cape (Pty) Ltd and Others [2012] ZASCA 166;
2013 (3) SA 315 (SCA) (Qoboshiyane) para 5.
2013 (3) SA 315 (SCA) (Qoboshiyane) para 5.
6 Minister of Tourism and Others v Afriforum NPC and Another [2023] ZACC 7; 2023 (6) BCLR 752 (CC)
para 23. See also Qoboshiyane fn 5 paras 5 to 6.
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that the appeal would not be of practical effect. They were aware that the Kopas
intended on-selling the property from as far back as November 2018. In an email
the attorneys for the Kopas sent to the attorneys for the Motsimas on 5 November
2018, the Kopas disputed that they agreed to give the Motsimas an option to
purchase the property back as alleged. They stated that they purchased the
property from C&D Trust to sell it on the open market as soon as possible to assist
the Motsimas to obtain money. The M otsimas’ attorneys did not dispute this. In
a response by email on 12 November 2018, they stated that their clients would
attempt to obtain a loan to purchase the property, failing which, prior to 31 May
2019, they would give instructions for the property to be sold. Ultimately, the
Motsimas lacked the means to buy it. This remains the case. Yet, they interdicted
the Kopas from selling the property on the open market, and contrary to their
undertaking, did not give instructions for the property to be sold.
[26] Against this background, the Motsimas instituted the action to impugn the
C&D and Kopas agreements and unravel their implementation and obtained the
first interdict to prevent the sale of the property to the VDM Trust. When the
action was dismissed, there was no impediment to the property being transferred
from the Kopas to the VDM Trust and the Motsimas did nothing to prevent such
transfer. Further, in the action, they did not impeach the VDM agreement and
sought no relief against the VDM Trust. Only when they became aware that the
VDM Trust was in the process of selling the property to a third party, did they
apply for the second interdi ct. When they did not succeed, they pursued an
application for leave to appeal.
[27] Given that they had pursued the second interdict and the application for
leave to appeal against its dismissal and concurrently prosecuted the lapsed
appeal between July and December 2021, their failure to enrol it is illogical. Their
appeal between July and December 2021, their failure to enrol it is illogical. Their
explanation for not enrolling the appeal timeously, being that they had devoted
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their efforts to obtaining the second interdict, is also incongruent with the efforts
they had taken in prosecuting the appeal. Enrolling the appeal for hearing is the
last step in prosecuting it to prevent it from lapsing. It did not require as much
time and costs relative to the other steps they had taken in prosecuting the appeal.
[28] In July 2022, the high court registrar notified them of their inaction in the
appeal and gave them five days to rectify it. By then, the application for leave to
appeal against the dismissal of the application for the second interdict had been
dismissed and nothing stood in the way of the transfer of the property to a third-
party purchaser. Yet, they did not respond to the registrar. When the respondents
informed them on 14 November 2022, that the appeal had lapsed, it took them
three weeks to respond that they would seek condonation, which they only
applied for in May 2023. They were aware of the pending sale and transfer of the
property to a third -party purchaser but still did not amend their particulars of
claim to ensure that the relief they seek in the lapsed appeal remained practical.
[29] In its judgment delivered on 30 June 2023, the Full Court noted the then
pending sale of the property to the third-party purchaser and said:
‘. . . should the property be sold to a bona fide third party, [the Motsimas] will not be able to
recover the property from such third party, even if they were eventually successful on appeal.
The appeal would be rendered moot in the event of the property being transferred from the
current owner, . . . to the bona fide third party.’7
[30] During oral argument, we were informed that the sale and transfer of the
property to the third-party purchaser was common cause between the parties. This
brings the present application in the realm of s 16(2) (a)(i) because if the present
and lapsed appeals were to succeed, the impeachment orders and consequential
and lapsed appeals were to succeed, the impeachment orders and consequential
relief sought in the action would effectively unscramble the parties’ performance
7 Motsima and Another v Kopa and Others [2023] ZAFSHC 260 paras 6-7.
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in terms of the impugned agreements, to restore ownership of the property to the
Motsimas. With the ownership of the property having been transferred to the
third-party purchaser, unscrambling the impugned agreements will have no
practical effect. The Kopas cannot restore ownership of the property to the
Motsimas as they are no longer its registered owners.
[31] When this issue was raised with counsel for the parties at the hearing,
counsel for the Motsimas argued that if successful in the present appeal, the
Motsimas would amend their particulars of claim to seek relief that is practical in
effect. The intention to amend their pleadings was mentioned in response to a
question from the bench without any particulars of the intended amendment. A s
stated, the Motsimas were aware of the sale of the property to the third -party
purchaser since July 2021 but did not amend their pleadings.
[32] This leads to the second question in this appeal, whether the court should
exercise its discretion in the interests of justice to determine the lapsed appeal. It
is trite that the court may exercise the discretion, if it is in the interests of justice
to determine the appeal despite its mootness. This Court, in Qoboshiyane,8 stated
that:
‘The court has a discretion in that regard and there are a number of cases where,
notwithstanding the mootness of the issue as between the parties to the litigation, it has dealt
with the merits of an appeal. With those cases must be contrasted a number where the court has
refused to deal with the merits. The broad distinction between the two classes is that in the
former a discrete legal issue of public importance arose that would affect matters in the future
and on which the adjudication of this court was required, whilst in the latter no such issue
arose.’
[33] The present matter falls in the latter category of cases. From the record
before this Court, there is no discrete legal issue of public importance that would
8 Qoboshiyane fn 5 para 5.
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affect matters in the future and on which the adjudication of this Court is required.
There is therefore no basis for this court to exercise its residual discretion to
traverse the merits.
[34] Even if the Motsimas were to amend their pleadings, they would do so only
to seek practical relief to cure the mootness of the appeal and not to raise a discrete
legal issue of public importance that would affect matters in the future . In any
event, they will need the leave of the court, which could be granted if they meet
certain requirements, including providing a reasonable explanation for the delay
in amending their pleadings. Such an explanation is not apparent from the appeal
record.
[35] For all the above reasons the present appeal fails, because, if it was upheld,
the lapsed appeal will not be of practical effect. Therefore, the appeal falls to be
dismissed with costs. With the present appeal dismissed, the respondents ’
counterclaims remain withdrawn in terms of the order of the High Court.
Therefore, no issue remains for adjudication.
__________________________
L T MODIBA
ACTING JUDGE OF APPEAL
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Appearances:
For appellants: S Grobler SC and R Van Der Merwe
Instructed by: Van Aardt & Van Der Walt Attorneys, Bloemfontein
For respondents: S J Reinders
Instructed by: Van Wyk & Preller Inc, Bloemfontein