Khoeta v Lehihi and Another (CIV APP12/2015) [2016] ZANWHC 28 (9 June 2016)

IN THE HIGH COURT OF SOUTH AFRICA

NORTH WEST DIVISION, MAHIKENG

CASE NO: CIV APP12/2015

DATE: 09 JUNE 2016

In the matter between:

EUSTICE KHOETA..........................................................................................................APPELLANT

And

SAMUEL BATHOENG LEHIHI...........................................................................1ST RESPONDENT

BAROLONG BOO RATSHIDI TRADITIONAL COUNCIL............................2ND RESPONDENT

HENDRICKS J; LANDMAN J & KGOELE J

JUDGMENT

Landman J:

[1] Mr Eustice Khoeta, the appellant, appeals against the entire judgment and order delivered by Gura J on 23 July 2015 in effect declaring that the appellant had agreed to vacate the property that he occupied (upon which is built a house) on payment of a certain sum of money by Mr Samuel Bathoeng Lehihi, the first respondent, if and when the Barolong Boo Rashidi Traditional Council, the second respondent, grants the right of occupation to the first respondent. The appeal is with leave of the court a quo.

The reinstatement of the appeal

[2] The appellant did not file the record within the prescribed period. The result is that the appeal lapsed. The appellant has lodged an application for condonation of the late filing of the record and the reinstatement of the appeal. The appellant is obliged to show good cause for the condonation of his failure to file the record timeously. The explanation for the failure is satisfactorily. What remains is to determine whether there are reasonable prospects of success and it is that to which I turn.

Background

[3] The first respondent launched an application in this court for an order compelling the appellant to sign a written deed of sale in the form attached to the application. The notice of motion was subsequently amended. The relief was premised on an oral agreement allegedly entered into between the appellant and the first respondent concerning house number 10165, situated at stand number 251, Setumo Park Village, Mahikeng. The first respondent also wanted the appellant to be ordered to furnish his banking details so that the remaining balance of the purchase price could be deposited within 14 days.

[4] The appellant opposed the application and filed an answering affidavit. The first respondent filed a replying affidavit. The matter was then argued before the court a quo. The court a quo subsequently delivered judgment.

[5] The first respondent’s case is that he had been on the lookout for residential property in the Setumo Park Village. One Mr Sebaetsa informed him that the appellant intended selling his house. A meeting was arranged for 27 April 2014 at the house in question. The first respondent was interested in purchasing the house from the appellant and arranged for a further meeting. They met the following day at Nandos. They concluded an oral agreement for the purchase of the house in the sum of R700 000. An initial deposit of R200 000 was payable. R30 000 was paid to the appellant in cash and the balance of the deposit was to be deposited in the appellant’s FNB account by 30 April 2014. The balance of the purchase price was to be paid after the written agreement was signed, but in any event on or before 30 May 2014. The first respondent says he paid the appellant R30 000 in cash on 30 April 2014. He later paid the balance of the deposit into the appellant’s FNB account.

[6] On 22 May 2014 the first respondent’s attorney sent a letter of demand to the appellant. The appellant’s attorney replied on 26 May 2014 to the first respondent’s attorney stating that no agreement for the sale of the house had been concluded. The attorney also set out the appellant’s version of the events.

[7] The appellant’s version is that he intended selling his house. He was approached by many people including the first respondent. The first respondent informed him that he wished to purchase the house and made an offer of R700 000. The appellant declined this offer as he had previously received an offer of R850 000 for the property from Mr Rammusa that he had rejected. However, the appellant told the first respondent that he would be amenable to an offer of R950 000 or more. The appellant denies selling the property for R700 000. He says that no terms pertaining to payment were agreed upon.

[8] The appellant says that he borrowed an amount of R30 000 from the first respondent. The money was paid into the appellant’s FNB account. Later, R170 000 was paid into this account. The appellant did not know why R170 000 had been paid into his account. He wanted to refund these monies but the first respondent refused to provide his banking details. He instructed his attorney to convey to the first respondent’s attorney in a letter dated 26 May 2014 that he would be prepared to sell the property to the first respondent for R1 million. The sale would be subject to approval by the relevant ‘tribal authority’. The purchase price should be paid into the appellant’s attorney’s trust account. The appellant would be responsible for the cost of the sale and other costs (expenses).

The judgment of the court a quo

[9] The court a quo rejected the submission that the sale was void as it was not in writing and therefore did not comply with the Alienation of Land Act 68 of 1981. The appellant does not persist with this point.

[10] Turning to the submission that the matter could not be decided on the papers because there were disputes of fact, the court a quo noted that the court is obliged to examine the facts to see whether in truth there is a real dispute of fact which cannot be satisfactorily

determined without the aid of oral evidence. The court noted that the appellant did not deny the two meetings. He denied that he had given Mr Sebaetsa instructions to look for prospective buyers for his property or that he said to him that he would be prepared to sell it for R750 000. The court noted that Mr Sebaetsa had filed an affidavit in support of the first respondent. The court a quo said that the appellant had not disclosed full details of what happened when they met on 28 April 2014.

[11] The court a quo noted that on 30 April 2014 the first respondent deposited R170 000 into the appellant’s bank account and that he said he paid R30 000 in cash on the same date. The court a quo noted that the appellant said that the R30 000 was paid into his bank account, but did not provide any documentary proof to that effect. The court accepted that these amounts, which totaled R200 000, constituted a deposit towards the purchase of the appellant’s

house.

[12] The court a quo, opined that the appellant’s explanation about the reason for the payment of the R200 000 defies logic and common sense and was an outright willful perversion of the truth. The court a quo went on to say:

‘Here are the two men (the applicant and the first respondent) who were strangers to each other. Nonetheless, the applicant agreed to borrow him an amount of R30 000 without in the terms attached to it, e.g. when the R30 000 would be repaid and how. The applicant got no written acknowledgement of debt (of the R 30,000 loan) from the first respondent. The applicant did not even give him his [applicant’s] bank details. They just parted. As if it was not enough, subsequently, the applicant paid R170 000 into this stranger’s bank account for no reason whatsoever. Clearly, even Father Christmas is not as generous as the applicant is alleged to have been. To add salt with the thumb, the owner of the R200 000 [applicant] no longer wanted it to be refunded to him. He cut all communication with the first respondent by not answering his cellphone.’

[13] The court a quo went on to say that the first respondent does not say that he asked the appellant why R170 000 had been deposited into his account. He is silent about his immediate response to finding a windfall of R170 000 in his account.

[14] The court a quo recorded that on 22 May 2014 the first respondent’s attorney directed a letter of demand to the appellant. The first respondent and his attorney said that the appellant phoned the first respondent’s attorney and asked for an indulgence in the form of an extension of time so that he could comply with his undertaking to provide a written agreement of sale. The appellant denied making this call. The court a quo was satisfied that he had done so.

[15] The court a quo said this about the appellant’s rejection of an offer of R850 000 for his property:

‘All I can say about this is that the behaviour of the first respondent, asking Sebaetsa to look for a buyer who would be prepared to pay R750 000 for the same house, strongly suggests that the alleged R850 000 offer is mere window dressing. His agreement with the applicant to accept only R700 000 for this house is yet another indication that there was never an offer of R850 000 prior to 27 April 2014. In my view, this defence is nothing more than a mere after-thought, which is designed to defeat the applicant’s simple claim. It is my view that the first respondent is dishonest and has not been open and frank to this court.’

[16] The court a quo went on to find that the appellant had prevented the first respondent from paying the balance of R500 000 by failing to provide a written agreement of sale. The court then deals with the deed of sale attached to the papers and finds it to be unsuitable and

made the following order:

‘1. Within sixty days from date hereof, the applicant shall pay the first respondent two hundred and fifty thousand rand (R250 000-00) towards the purchase price of this house;

2. After receipt of the said R250 000-00, the first respondent shall approach the Barolong Boo Ratshidi Traditional Council for the purpose of authorizing the transfer of the house from the first respondent to the applicant;

3. The applicant shall pay all expenses incidental to this transfer at the Traditional Council Office, including, but not limited to, any affiliation fee;

4. Within twenty (20) days after the Traditional Council has authorized the proposed transfer of the ownership over this house, the applicant shall pay the balance being two hundred and fifty thousand rand (R250 000-00) to the first respondent;

5. All payments which the applicant has to make to the first respondent shall be through a bank deposit or electronic funds transfer into the first respondent’s bank account which he (first respondent) will communicate to the applicant’s attorney in writing within thirty (30) days from date hereof;

6. The first respondent shall vacate the said house together with any person who stays there through him within fourteen (14) days after payment of the last R250 000-00 by the applicant;

7. The first respondent shall give the applicant’s attorney at least three days written notice of the date and time when he will vacate the house;

8. When the first respondent vacates the house, but immediately before his departure, the applicant of his attorney (or both) shall, in the presence of the first respondent, inspect the house and the whole premises;

9. The first respondent to pay the costs of this application.’

The appellant’s submissions

[17] Mr Monnahela, who appeared on the half of the appellant, made the following submissions:

(a) The court a quo did not apply the test in Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 620 (A).

(b) In motion proceedings, a court is not called upon to decide factual issues; a court is called upon to decide legal issues on common cause facts.

(c) The Plascon Evans test applies even if there are probabilities in the respondent’s version.

[18] Mr Monnahela submitted that when the judgment is read in context, the court a quo decided the matter on the probabilities and found first respondent’s version more credible. This is borne out, for instance, in its treatment of the payment of the deposit. The finding that the appellant’s version defies logic and common sense and was an outright willful perversion of the truth is a credibility finding. The question whether party’s version is plausible or implausible arises in action proceedings but not in motion proceedings.

[19] It is submitted that the court a quo was wrong in making a finding that the appellant had telephoned the first respondent’s attorney asking for an indulgence to draft a written contract. The appellant had denied making this conversation. No reasons for making this finding were provided.

[20] The court a quo labelled the appellant’s version that he had received an offer of R850 000 from Mr Rammusa as mere window dressing and an afterthought. The court a quo found that the appellant was dishonest and had not been open and frank with the court. The court a quo rejected the appellant’s evidence and the affidavit filed by the Mr Rammusa who confirmed that he made this offer. Mr Monnahela pointed out that the first respondent had not challenged the allegations relating to Mr Rammusa’s offer. There was no countervailing evidence. It was submitted that it is improbable that the appellant having rejected Mr Rammusa’s offer that he would accept first respondent’s inferior offer. The reference to the appellant not having been open and frank with the court is an indication of a credibility finding which should not have been made. The first respondent did not set out in his affidavit, why the appellant would have agreed to reduce the price by R150 000.

[21] Mr Monnahela submitted that the probabilities that might have been raised by the appellant’s denial that he had asked Mr Sebaetsa to look for a buyer as well as his explanation regarding the R200 000, may be improbable but that was immaterial as the court a quo was required to decide the matter without the benefit of the evidence. The court a quo was not required to evaluate competing versions and the appellant’s version was not so far-fetched or clearly untenable as to be rejected merely on the papers. Finally, the submission is made that this court cannot order that the matter be referred to oral evidence. See Law Society Northern Provinces v Mogami 2010 (1) SA 186 (SCA).

Evaluation

Nature of the transaction

[22] The land upon which the house is built is tribal land. The appellant is not the owner of the land. The appellant occupies the land upon which the house is built with the permission of the second respondent, the Barolong Boo Rashidi Traditional Council. The appellant is not able to sell the house or the land upon which it is built. What the appellant may do is vacate his right of occupation in favour of another party for an amount of money. The other party must qualify for occupation (ie must ordinarily be a member of the tribe) and the Traditional Council must grant that person the right of occupation.

Disputes of fact

[23] The decision in Plascon-Evans Paints (TVL) Ltd. v Van Riebeck Paints (Pty) 1984 (3) SA 620 (A) is critical to the resolution of this case. The ratio decidendi is worth repeating in full. Corbett JA (as he then was) said:

‘Before I consider the issues and arguments raised on appeal, it is necessary that I should recount the salient facts, as they appear from the affidavits. In this connection I should mention two points……

Secondly, the affidavits reveal certain disputes of fact. The appellant nevertheless sought a final interdict, together with ancillary relief, on the papers and without resort to oral evidence.

In such a case the general rule was stated by Van Wyk J (with whom DE Villiers JP and Rosenow J concurred) in Stellenbosch Farmers' Winery Ltd v Stellenvale Winery (Pty) Ltd, 1957 (4) SA 234 (C) at p 235 E-G, to be:

".... where there is a dispute as to the facts a final interdict should only be granted in notice of motion proceedings if the facts as stated by the respondents together with the admitted facts in the applicant's affidavits justify such an order.... Where it is clear that facts, though not formally admitted, cannot be denied, they must be regarded as admitted".

This rule has been referred to several times by this Court (see Burnkloof Caterers Ltd v Horseshoe Caterers Ltd., 1976 (2) SA 930 (A), at p 938 A-B; Tamarillo (Pty) Ltd v B N Aitken (Pty) Ltd, 1982 (1) SA 398 (A) at pp 430-1; Associated South African Bakeries (Pty) Ltd v Oryx & Vereinigte Backereien (Pty) Ltd en Andere, 1982 (3) SA 893 (A), at pp 923 G - 924 D). It seems to me, however, that this formulation of the general rule, and particularly the second sentence

thereof, requires some clarification and, perhaps, qualification. It is correct that, where in proceedings on notice of motion disputes of fact have arisen on the affidavits, a final order, whether it be an interdict or some other form of relief, may be granted if those facts averred in the applicant's affidavits which have been admitted by the respondent, together with the facts alleged by the respondent, justify such an order. The power of the court to give such final relief on the papers before it is, however, not confined to such a situation. In certain instances the denial by respondent of a fact alleged by the applicant may not be such as to raise a real, genuine or bona fide dispute of fact (see in this regard Room Hire Co. (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd, 1949 (3) SA 1155 (T), at pp 1163-5; Da Mata v Otto, NO, 1972 (3) SA 585 (A), at p 882 D - H).

If in such a case the respondent has not availed himself of his right to apply for the deponents concerned to be called for cross-examination under Rule 6(5)(g) of the Uniform Rules of Court (cf. Petersen v Cuthbert & Co Ltd, 1945 AD 420, at p 428; Room Hire case, supra, at p 1164) and the court is satisfied as to the inherent credibility of the applicant's factual averment, it may proceed on the basis of the correctness thereof and include this fact among those upon which it determines whether the applicant is entitled to the final relief which he seeks (see eg. Rikhoto v East Rand Administration Board, 1983 (4) SA 278 (W), at p 283 E - H). Moreover, there may be exceptions to this general rule, as, for example, where the allegations or denials of the respondent are so far-fetched or clearly untenable that the Court is justified in rejecting them merely on the papers (see the remarks of BOTHA AJA in the Associated South African Bakeries case, supra, at p 924 A).’

[24] In deciding the issue the court a quo was confronted with the dispute about what occurred when the parties met on 28 April 2014:

(a) The first respondent says that the appellant wanted R750 000 for the house but settled for R700 000 and that the deposit was to be R200 000 payable as follows: R30 000 cash and R170 000 to be paid into appellant’s FNB account. The appellant says he wanted R950 000 and not R700 000 and he explains why he rejected the offer of R700 000.

(b) The first respondent said he paid R30 000 in cash on 30 April 2014. On the other hand the appellant said that the R30 000 was a loan paid into his bank account, but did not provide any documentary proof to that effect.

[25] The court a quo was obliged to:

(a) accept appellant’s denial that he called the appellant’s attorney regarding an indulgence to provide a written deed of sale on Sunday 25 May and his explanation that he went to the attorney’s offices on 26 May and requested an extension to file a submission in respect of a letter delivered by the sheriff. The applicant and his attorney do not challenge this in the replying affidavit.

(b) accept the fact that prior to the meeting between the appellant and the first respondent, Mr Rammusa had offered to purchase the house for R850 000 which was not accepted. Both the appellant and Mr Rammusa say so. There is no evidence to the contrary. This evidence could only be rejected by making an unfavourable credibility finding which is impermissible in motion proceedings.

(c) accept the fact that the appellant tried to contact the first respondent concerning an amount of R170 000 deposited in his bank account. This allegation is not denied in the replying affidavit.

[26] The court a quo was entitled to decide the matter on the following:

(a) The appellant met Mr Sebaetsa who said he had instructions from the first respondent to look for prospective buyers to purchase his house for R750 000.

(b) The appellant and Mr Sebaetsa met the first respondent at the house on 27 April 2014. No agreement was reached on that day.

(c) On 30 April the first respondent deposited R170 000 into the appellant’s bank account and R30 000 changed hands.

(d) On 22 May the first respondent’s attorney directed a letter of demand to the appellant setting out the first respondent’s version of events.

(e) The appellant’s attorney replied in a letter dated 26 May 2016 denying the essential averments made by the first respondent.

[27] At this stage it is appropriate to ask whether the court a quo ought to have been satisfied ‘as to the inherent credibility of the applicant's factual averment’ so that the court may proceed on the basis of the correctness of those facts and include them among those upon which to determine whether the applicant is entitled to the final relief which he seeks. In my view this is a borderline decision. The facts regarding the amount and payment of the deposit are not inherently improbable. But the fact that the appellant received an offer for R850 000 that he rejected cannot be brushed aside. It follows that it cannot be found that there was a sale for a purchase price of R700 000.

[28] The court a quo should have found that the dispute of fact relating to the ‘sale’ or monetary amount of the transaction could not be decided without the benefit of oral argument and as there was no requests to refer the issue for oral evidence, the court a quo should have dismissed the application with costs. This court sitting as a court of appeal cannot refer the dispute for the hearing of oral evidence. See the remarks of Harms DP in Law Society of the Northern Provinces v Mogami and Others (supra) at para 23 where he said:

‘There were further complaints levelled against them but these cannot be decided on the papers. The appellant submitted that in these circumstances we should refer those disputed for oral evidence. We cannot comply with the request. An application for the hearing of oral evidence must, as a rule, be made in limine and not once it becomes clear that the applicant is failing to convince the court on the papers or on appeal. The circumstances must be exceptional before a court will permit an applicant to apply in the alternative for the matter to be referred to evidence should the main argument fail (De Reszke v Maras [2005] 4 All SA 440, 2006 1 SA 401 (C) at para 32-33).’

[29] Even if the court a quo was correct on the merits the court a quo erred by formulating, in essence, a contract for the parties in its order. See Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 593 (SCA) at page 604 C where it is stated: “… Judges must…contract for the parties other than the one in fact made…” There is no evidence that the parties agreed on these terms. It follows that the appeal must be upheld.

Order

[30] In the premises I make the following order:

1. The appeal is upheld.

2. The order made in this matter on 23 July 2015 under case number M355/2014 is set aside and replaced with the following:

‘The application is dismissed with costs.’

3. The first respondent is ordered to pay the costs of the appeal.

A A Landman

Judge of the High Court

I agree

R D Hendricks

A M Kgoele

Appearances

Date of hearing: 3 June 2016

Date of Judgment: 9 June 2016

For the Appellant: Adv Monnahela

Instructed by kekana Ramorei Inc

For the Respondent: Adv Chwaro

Instructed by Motshabi & Modiboa Attorneys