SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not Reportable
Case no: 602/2024
In the matter between:
KHAMUSI SHONISANI MUDAU-MAMODE APPELLANT
and
VHUHWAHO DENGE RESPONDENT
Neutral citation: Khamusi Shonisani Mudau-Mamode v Vhuhwaho Denge
(602/24) [2025] ZASCA 145 (7 October 2025)
Coram: HUGHES and GOOSEN JJA and CHILI AJA
Heard: This appeal was, by consent between parties, disposed of without
an oral hearing in terms of s 19(a) of the Superior Courts Act 10 of 2013.
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: Civil procedure – Magistrates’ Court Rules – rule 55(1) (k) –
whether the regional court and the full bench were correct in dismissing the
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appellant’s application to refer the matter for oral evidence – whether the appeal
is moot.
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ORDER
________________________________________________________________
On appeal: Limpopo Division of the High Court , Thohoyandou (Phatudi J and
Nemutandani AJ) sitting as a court of appeal:
The appeal is struck off the roll with no order as to costs.
________________________________________________________________
JUDGMENT
________________________________________________________________
Chili AJA (Hughes and Goosen JJA concurring)
[1] This appeal serves before us by way of special leave of this Court granted
on 22 May 2024. At counsel’s request, the appeal was decided without hearing
oral argument in accordance with s 19 (a) of the Superior Courts Act 10 of 2013
(Superior Courts Act).
[2] The issue on appeal is very narrow. It encompasses two questions for
determination: (a) whether the Regional Court in the Regional Division of
Limpopo, Sibasa (the regional court) misdirected itself when denying the
appellant, the opportunity to refer the matter for oral evidence and (b) whether
the court of appeal, the full bench of Limpopo Division of the High Court,
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Thohoyandou (the high court) misdirected itself when upholding the decision of
the regional court.
Factual background
[3] On 11 November 2019, Mr Khamusi Shonisani Mudau -Mamode, the
appellant, launched an application before the regional court, seeking the
eviction of Mr Vhuhwavho Denge, the respondent, from the property described
as Erf 7[...] T[...] (also known as Tshisaulu Maternity home) together with costs.
The respondent opposed the eviction application.
[4] On 03 October 2022, the matter served before the regional court as an
opposed motion. At the inception of the hearing, the appellant brought an
application in terms of Magistrates ’ Court rule 55(1)(k), for the referral of the
matter for the hearing o f oral evidence on the basis that there was a dispute of
fact. That application was dismissed with costs. Immediately thereafter the
regional court adjudicated the eviction application on the papers and
subsequently dismissed it with costs. Both judgments were delivered ex
tempore. On 15 March 2023, the appellant appealed the order refusing to refer
the matter for the hearing of oral evidence.
The appeal before the high court
[5] The issue on appeal before the high court was limited to the regional
court’s refusal to refer the matter to oral evidence. It was contended that when
refusing to refer the matter to oral evidence, the regional court failed to exercise
its discretion judiciously. Unpersuaded, the high court rejected that argument
and dismissed the appeal with costs.
The appeal before this Court
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[6] It is contended by the appellant in the heads of argument that the regional
court was wrong in its discretion to refuse to refer the matter for the hearing of
oral evidence and that the high court was wrong in confirming that decision. We
were therefore invited to set aside that decision and remit the matter to the
regional court for the hearing of oral evidence.
[7] In the li ght of the view, I take of this matter, it is not necessary to enter
the merits of the appeal. The scope of issues for determination on appeal is
limited to the decision appealed against. Section 19 (d) of the Superior Courts
Act provides:
‘The Supreme Court of Appeal or a Division exercising appeal jurisdiction may, in addition
to any power as may specifically be provided for in any other law – confirm, amend or set
aside the decision which is the subject of the appeal and render any decision which the
circumstances may require.’
[8] There are two decisions that were made by the regional court. The first
was to dismiss the appellant’s application to refer the matter for the hearing of
oral evidence. The second was to dismiss the application for eviction with costs.
Only the first decision and consequent order was the subject of appeal in the
high court and before this Court. The order dismissing the eviction application,
which is final in effect, is not the subject of appeal. That being so, the question
that confronts us is, would it serve any purpose to set aside the decision of the
regional court and remit the matter for the hearing of oral evidence? The answer
is no. The relief sought by the appellant will not have any practical effect. It is
moot and does not illustrate exceptional circumstance that warrants the granting
of special leave. A course of action can be moot only if its resolution will have
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no practical effect .1 I am not persuaded that granting the relief sought would
serve any practical purpose. Accordingly, this appeal must be struck off the roll.
Costs
[9] The general rule in civil litigation is that costs should follow the result. 2
That decision rests in the court’s discretion to be exercised judicially. 3 Neither
party addressed the mootness of the appeal in their respective heads of
argument. The mootness of the appeal was decided without the benefit of
argument from either side. In the circumstances, the dictates of fairness warrant
that no order as to costs should be made.
[10] The appeal is struck off the roll with no order as to costs.
________________________
N E CHILI
ACTING JUDGE OF APPEAL
1 Mkontwana v Nelson Mandela Metropolitan Municipality 2005 (1) SA 530 (CC); 2005 (2) BCLR 150 (CC)
para 11.
2 Motala v Master of the North Gauteng High Court , Pretoria [2019] ZASCA 60; [2019] 3 All SA 17 (SCA);
2019 (6) SA 68 (SCA) para 97.
3 ST v CT [2018] ZASCA 73; [2018] 3 All SA 408 (SCA); 2018 (5) SA 479 (SCA) para 166.
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Heads of argument prepared by:
For appellant: V R Mathivha
Instructed by: Mathivha Attorneys, Thohoyandou
TP Mudzusi Inc,Bloemfontein
For respondent: M S Sikhwari SC and M Musetha
Instructed by: Netshilema Attorneys, Thohoyandou
Phatshoane Henney Attorneys, Bloemfontein.