IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN
In the matter between:
ANNENE CATHLENE HOUGH
and
ALLAN SMEYATSKY
MAGDALENA SMEYATSKY
THE SHERIFF OF THE HIGH COURT,
CAPE TOWN WEST
REGISTRAR OF DEEDS, CAPE TOWN
Coram: Anderssen AJ
Heard: 27 August 2026
Delivered: Electronically on 10 September 2026
Case No: 2025-091305
NOT REPORTABLE
Applicant
First Respondent
Second Respondent
Third Respondent
Fourth Respondent
Summary : Application for leave to appeal - new matter raised on appeal - affidavit
in motion proceedings both pleadings and evidence - case not made out in
answering affidavit - amounts to trial by ambush - no reasonable prospects of
success - also no compelling reason - no merits on new grounds
ORDER
1. The application for leave to appeal is refused.
2. The first and second respondents are directed to pay, jointly and severally,
the one paying the other being absolved, the applicant's costs on a party
and party scale {Scale C shall apply to counsel's fees).
JUDGMENT
Anderssen AJ:
INTRODUCTION
[1] The first and second respondents ("the respondents") apply for leave to
appeal to the Supreme Court of Appeal ("the SCA"), alternatively, to the Full
Court of this division, against the judgment delivered on 4 June 2026.
[2] The respondents rely on section 17(1)(a)(i) and (ii) of the Superior Courts
Act.1 Leave to appeal may only be granted where the court is of the opinion
that the appeal would have a reasonable prospect of success or there are
compelling reasons which exist as to why the appeal should be heard, such
as the interests of justice. The SCA, in Caratco (Pty) Ltd v Independent
Advisory (Pty) Ltd, 2 pointed out that if the court is unpersuaded that there
are prospects of success, it must still enquire into whether there is a
compelling reason to entertain the appeal. For instance, a 'compelling
reason' would include an important question of law or discreet issue of public
1 No 10of2013.
2 [2020] ZASCA 17; 2020 (5) SA 35 (SCA) at para [2].
2
importance that will influence future disputes. Nonetheless, the merits
remain materially important and often prove decisive.3
[3] As regards the threshold to be met before leave to appeal will be granted,
the SCA, in Ramakatsa and Others v African National Congress and
Another, 4 held as follows:
... I am mindful of the decisions at high court level debating whether the use of the
word 'would' as opposed to 'could' possibly means that the threshold for granting
the appeal has been raised. If a reasonable prospect of success is established,
leave to appeal should be granted. Similarly, if there are some other compelling
reasons why the appeal should be heard, leave to appeal should be granted. The
test of reasonable prospects of success postulates a dispassionate decision based
on the facts and the law that a court of appeal could reasonably arrive at a
conclusion different to that of the trial court. In other words, the appellants in this
matter need to convince this Court on proper grounds that they have prospects of
success on appeal. Those prospects of success must not be remote, but there
must exist a reasonable chance of succeeding. A sound rational basis for the
conclusion that there are prospects of success must be shown to exist. 5
(Footnotes omitted).
[4] It is thus still required of the respondents to demonstrate, on proper grounds,
that they have reasonable prospects of success - based on the facts and
the law, and that a court of appeal could reasonably arrive at a conclusion
different to that of the trial court.
[5] It is immaterial whether an appeal court would agree with the Court a quo's
reasoning on the issue, if the result of the appeal remains the same.6
The grounds of appeal
[6] The respondents aver that another court could come to a different finding
3 Ibid, para [2].
4 (724/2019) (2021] ZASCA 31 (31 March 2021).
5 Ibid para (10].
6 See:
President of the Republic of South Africa and Another v Tembani and Others 2025 (2) SA
371 (CC) at para (73).
371 (CC) at para (73).
IPA Foundation NPC v South African Pharmacy Council 2026 (2) SA 56 (SCA) at para (63].
3
that the sale agreement concluded by the parties is valid and enforceable.
According to the respondents there was no meeting of the minds as clause
3 of the contract makes reference to possession passing to the purchaser
on registration of transfer. The argument is that possession is not a principle
that can be registered in the Deeds Office and there is a difference between
ownership and possession. This is the first ground of appeal.
[7] The second complaint is that the date for transfer in clause 4.1 is
unspecified. The contract is incomplete, in that the date of transfer must be
incorporated in an agreement for the sale of land as it is one of the
essentialia of the contract and the failure to do so leads to voidness. There
has accordingly been non-compliance with the Alienation of Land Act.7 In
this regard, the first and second complaints are the same -that the contract
is void and unenforceable.
[8] The respondents further take issue with the court's decision to enforce
specific performance, as opposed to damages. In this reliance was placed
on clause 14 which permits the innocent party to call upon the guilty party to
rectify any default, failing which the innocent party would have the right to
enforce specific performance or claim damages. Clause 14 is allegedly
contra bonos mores as it permits the guilty party to rectify the default but
leaves the innocent party with a costly, and possibly, unenforceable right of
specific performance.
[9] The fourth, and final, ground of appeal is that the court's order incorporated
an eviction order without there having been compliance with the Prevention
7 No 68 of 1981.
4
of Illegal Eviction from and Unlawful Occupation of Land Act8 ("the PIE Act").
The merits
[1 OJ The validity and enforceability of the sale agreement were not raised as
separate and distinct issues that the court a quo was required to pronounce
on. It was not raised in the answering affidavit and it was not raised in oral
argument. When asked by the Court, the respondents' counsel expressly
disavowed taking issue with the validity and binding nature of the sale
agreement. He did so, quite correctly, as it was evident from numerous
paragraphs in the answering affidavit that the respondents were not placing
the validity or the enforceability of the sale agreement in dispute.
[11] I raised with Mr Welgemoed that these grounds of appeal -the first, second
and third grounds - are new and were not raised before me in the court a
quo . Mr Welgemoed argued that the points were not new as the sale
agreement was annexed to the founding affidavit and formed part of the
pleadings.
[ 12] As the SCA pointed out in Quartermark Investments (Pty) Ltd v Mkhwanazi , 9
the raising of a new point of law on appeal is not precluded, provided the
point is covered by the pleadings and its consideration on appeal involves
no unfairness to the party against whom it is directed.10 In such a situation
. . . the appeal court is bound to deal with it as to ignore it may 'amount to the
confirmation by it of a decision clearly wrong', and not performing its essential
function.
[13) That ignoring a new point of law on appeal would infringe upon the principle
8 No 19 of 1998.
9 2014 (3) SA 96 (SCA).
10 At para [20].
5
of legality was explained as follows by Ngcobo J in CUSA v Tao Ying Metal
Industries 11 as follows:
Where a point of law is apparent on the papers, but the common approach of the
parties proceeds on a wrong perception of what the law is, a court is not only
entitled, but is in fact also obliged, mero motu, to raise the point of law and require
the parties to deal therewith. Otherwise, the result would be a decision premised
on an incorrect application of the law.
[14] I cannot agree with counsel for the respondents that these grounds , now
raised for the first time on appeal, are not new points of law. It is trite that in
motion proceedings affidavits fulfil the dual role of pleadings and evidence.12
They serve to define not only the issues between the parties but also to
place the essential evidence before the court.13 They must therefore contain
the factual averments that are sufficient to support the cause of action or
defence sought to be made out.14 Furthermore, an applicant must raise the
issues as well as the evidence upon which it relies to discharge the onus of
proof resting on it, in the founding affidavit.15
[15] Swissborough Diamond Mines (Pty) Ltd and Others v Government of
the Republic of South Africa and Others16 has been accepted as the
defining authority on the principle that:
Regard being had to the function of affidavits, it is not open to an applicant or a
respondent to merely annexe to its affidavit documentation and to request the Court
to have regard to it. What is required is the identification of the portions thereof on
which reliance is placed and an indication of the case which is sought to be made
out on the strength thereof. If this were not so the essence of our established
11 (2008] l.ACC 15; 2009 (1) BCLR 1; [2009] 1 BLLR 1; (2008) 29 ILJ 2461; 2009 (2) SA204 (CC)
at para [68].
12 Quartermark supra at para (13].
13 Quartermark supra at 323F-G; MEG for Health, Gauteng v 3P Consulting (Pty) Ltd2012 (2) SA
542 (SCA) at para (28].
542 (SCA) at para (28].
14 Quartermark supra at para (13)'Lecuona v Property Emporium CC (2010] JOL 25266 (GSJ) at
para [4].
15 Swissborough supra at 323J - 324A; Quartermark supra at para [13].
16 1999 (2) SA 279 (T}.
6
practice would be destroyed. A party would not know what case must be met.17
[16) It is thus immaterial that the sale agreement was annexed to the founding
affidavit. If the respondents wished to rely on these points of law, they should
have identified the portions of the sale agreement on which reliance was
placed for the argument and explained what case is sought to be made out.
Failing to do so would mean a 'trial by ambush'. In Genesis Medical Aid
Scheme v Registrar, Medical Schemes and Another 18 the Constitutional
Court stated that trial by ambush cannot be permitted and approved the
following passage by the SCA from Minister of Land Affairs and
Agriculture v D & F Weve/1 Trust and Others:19
' ... [T]he case argued before this court was not properly made out in answering
affidavits deposed to by Andreas. The case that was made out, was conclusively
refuted in the replying affidavits as I pointed out in paras [18] to [20] above. It is not
proper for a party in motion proceedings to base an argument on passages in
documents which have been annexed to the papers when the conclusions sought
to be drawn from such passages have not been canvassed in the affidavits. The
reason is manifest - the other party may well be prejudiced because evidence
may have been available to it to refute the new case on the facts. The position is
worse where the arguments are advanced for the first time on appeal. In motion
proceedings, the affidavits constitute both the pleadings and the evidence:
Transnet Ltd v Rubenstein, and the issues and averments in support of the parties'
cases should appear clearly therefrom. A party cannot be expected to trawl through
lengthy annexures to the opponent's affidavit and to speculate on the possible
relevance of facts therein contained. Trial by ambush cannot be permitted.'
[Emphasis added.]
[17] There are thus no reasonable prospects of success for the respondents on
any of the first three grounds. As regards the fourth ground, the respondents
any of the first three grounds. As regards the fourth ground, the respondents
did raise a defence in terms of PIE, which is why the applicant abandoned
her eviction relief. The order simply directed the respondents to comply with
17 Ibid. At 324F - G.
18 2017 (9) BCLR 1164; (2017] ZACC 16; 2017 (6) SA 1 (CC) at para (171].
19 (2007] ZASCA 153; 2008 (2) SA 184 (SCA) at para (43]. The same passage was again approved
by the Constitutional Court, more recently, in Botha v Smuts and Another2025 (1) SA 581 (CC) at
para [329].
7
clause 4.1 of the sale agreement. If the respondents failed to provide the
applicant with vacant occupation, as they undertook to do, the applicant
would be at liberty to institute eviction proceedings and then the machinery
and safeguards of PIE would apply.
[18] I must also consider whether there are any compelling reasons why the
appeal should be heard such as the interests of justice. In this instance, the
question will be linked to the merits of the new issues raised on appeal as
there are no conflicting judgments on the legal matter under consideration,
there is no important question of law that would require adjudication on
appeal and the matter is not one of unique public interest.
[19] In brief, there is no merit, and thus no prospects of success on appeal, in
respect of the new matter raised. The only essentialia of a sale agreement
in South Africa are (a) the parties to the contract (personae), namely a seller
(venditor) and a purchaser (emptor), (b) the thing being sold must be
identified (merx), and (c) there must be an agreement regarding the
purchase price (pretium).20 The date of transfer is not one of the essentialia
of the sale agreement.
[20] Furthermore, it is one of the established canons of interpretation that, if
possible, agreements must be construed so as to render them valid.21 Over
time, our courts have recognised terms that should be implied in contracts,
including agreements of sale of land. The respondents, by failing to raise
their (new) defences in the answering affidavit, deprived the applicant of the
2° Cooper and Another NNO v Curro Heights Properties (Pty) Ltd 2023 (5) SA 402 (SCA) at para
[16].
21 A V Theron and Swanepoel Incorporated and Another v Knott (237/2024) [2025] ZASCA 84 (10
June 2025) at para [30].
8
opportunity of addressing same and providing evidence as to implied terms
and the practices in the Deeds Registries Office. Once parties agree on the
essentialia, the naturalia apply automatically by operation of common law or
statute. The abstract theory of transfer applies to the transfer of ownership
in immovable property. 22 If the point in respect of 'incompleteness ' had been
raised, it would most likely have been met by an answer based on implied
terms and the practices in the Deeds Registries Office.
[21] I therefore do not believe that there are any compelling reasons that would ,
nevertheless, compel me to grant the relief sought.
Costs
[22] Costs must follow the cause. I have been urged to make a cost order de
bonis propriis as the respondents' attorneys were alerted to the fact that the
grounds for appeal largely seek to raise new matter, which had not been
raised previously. I am not prepared to do so. The respondents' attorneys
are new and they act on the instructions of their clients. There is no
indication that they colluded with their clients who have the right to apply for
leave to appeal.
[23] The respondents' attorneys would, however, in light of the correspondence
from the applicant's attorneys, have been obliged to warn their clients of the
risks in pursuing the appeal.
[24] I have some concerns about the respondents' decision to continue to pursue
the application for leave to appeal in these circumstances. I cannot,
22 Legator McKenna Inc and Another v Shea and Others 2010 (1) SA 35 (SCA) at para [21 ].
9
however, find that, in pursuing the application, they were abusing a process
of court. I am therefore not prepared to make a punitive order. I am,
however, willing to grant a party and party order in respect of which Scale C
shall be applicable. The respondents employed a senior junior counsel as
well as junior counsel. The issues are clearly important to the parties and it
is evident from the heads of argument produced by the applicant's counsel
that much thought went into dealing with the issues raised.
[25] In the circumstances, I order that:
[25.1] The application for leave to appeal is refused.
[25.2] The first and second respondents are directed to pay, jointly and
severally, the one paying the other being absolved, the applicant's
costs on a party and party scale (Scale C shall apply to counsel's
fees).
Appearances :
For the applicant: Adv H Beviss-Challinor
Instructed by: Ulrich Roux & Associates
Acting Judge of the High Court
For the first and second respondents: Adv D Welgemoed with adv K Qaba
Instructed by: ENS Africa
10