Mashigo and Another v Solomon and Others (21436/20) [2021] ZAGPPHC 827 (30 November 2021)

HIGH

COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

(1) REPORTABLE: NO

(2)

OF INTEREST TO OTHER JUDGES: NO

(3) REVISED: yes

CASE NO: 21436/20

Hearing before Rabie J by way of Teams conference.

In the matter between:

D.T.

MASHIGO First Applicant

L.G.

MASHIGO Second Applicant

and

W.

SOLOMON

First Respondent

M.

MAGAOGA Second Respondent

N.

MAGAOGA Third Respondent

REGISTRAR OF DEEDS:

PRETORIA Fourth Respondent

JUDGMENT

1. This is an application for leave to appeal. The applicants based their application on a number of grounds set out in a Notice of Application for Leave to Appeal. The grounds, for all practical purposes, touch upon every issue of the case and every finding made by this court.

2. The test to apply in an application for leave to appeal appears in section 17 (1) of the Superior Courts Act, Act 10 of 2013, which provides as follows:

"Leave to appeal may only be given when the judge or judges concerned are of the opinion that:

(a) (i) the appeal would have a reasonable prospect of success, or

(ii) there is some other compelling reason why the appeal should

be heard, including conflicting judgements on the matter under

consideration."

3. In my view it is not necessary to refer to all the grounds upon which the application is based in minute detail. The stated grounds have been argued during the earlier hearing of this matter and have been dealt with in the judgement of this court. Before referring briefly to the stated grounds of appeal I should mention the first submission made by Advocate Mosala, who appeared for the applicants. He submitted that he relies on the audi alteram partem principle and that as a result of that principle leave to appeal should be granted. In my view that principle cannot be applied in the manner submitted. The principle itself does not allow for leave to appeal to be granted outside the provisions of section 17 (1) of the Superior Courts Act, as quoted above.

4. I shall now briefly refer to the grounds relied upon in the Notice of Application for Leave to Appeal. In the first ground the applicants submitted that all the facts presented by the second and third respondents should be ignored and only the facts presented by the applicants should be accepted, for the reason that the first respondent did not oppose the application and did not file an answering affidavit. There is no merit in this submission. The application was properly opposed by the second and third respondents who were the parties to be affected by the relief claimed by the applicants and the facts placed before the court by them had to be considered by this court. No other court would reasonably find differently in respect of this issue.

5. In the second ground it was submitted that this court failed to appreciate that the application was initially brought in terms of a Part A and a Part B and that this court had to deal with Part B which related to the merits of the application. Consequently, so it was submitted, this court erroneously ignored the merits of the application. This submission fails to appreciate the fact that during the course of the urgent application the parties settled the matter and drafted a draft order which was made an order of court. That order of court overtook the previous disputes between the parties and stipulated the future rights and duties of each of the parties. As mentioned in the previous judgement of this court that order made provision for the drafting of a purchase agreement on certain conditions and the order stipulated that if the applicants failed to comply with their obligations as set out in the court order, the first respondent would be entitled to sell the property to a third party and the applicants would not be entitled to challenge or dispute such sale and transfer of the property to the third party. I consequently agree with the submissions on behalf of the second and third respondents before this court that the only way the applicants can contest the sale and transfer to a third party, is to show that they have complied with the aforesaid court order. There is no merit whatsoever in the submissions relating to this ground and no other court would find differently in regard thereto.

6. In the third ground reference was made to the previous order of court and it was submitted that this court erred in finding that the applicants intended to impose further terms which were not part of the original order. There is no merit in this ground of appeal. The previous order made by the urgent court and the effect thereof were comprehensively dealt with in the judgement by this court and need not be repeated. As mentioned above, during the previous hearing before the urgent court the parties concluded a settlement agreement in order to facilitate the outcome of the matter and that agreement was couched in the form of a draft order which was made an order of court. It was a valid order which determined the rights and obligations of the respective parties. As previously found by this court, the applicants cannot go beyond or ignore the contents of the previous court order. No other court would reasonably find differently in respect of this issue.

7. The fourth ground also deals with the effect of the court order previously made by the court which dealt with the matter on an urgent basis. There is similarly no merit in this ground as the applicants fail to appreciate the effect of the order made by that court. This issue was fully addressed in this court’s previous judgement and need not be repeated. No other court would reasonably come to a different conclusion in respect of this issue.

8. The fifth, sixth and seventh grounds relate to the applicants’ case regarding alleged latent defects in the property and the effect thereof. This issue was fully dealt with in the previous judgement of this court and need not be repeated. Suffice it to say that, firstly, the court order by the court who heard the matter on an urgent basis, overtook these issues and the present submissions pertaining thereto are consequently irrelevant. Secondly, and in any event, the submissions relating to the latent defects fail to appreciate that the alleged defects were at all relevant times known to the applicants and are thus not latent defects, and furthermore that in such circumstances the applicants, as purchasers, had to decide whether to accept the asking price for the property and could not force the first respondent, as seller, to accept a lower price or force him into negotiations in order to arrive at a different price. In my view no other court would reasonably come to a different conclusion in regard to these issues.

9. The eighth ground contains the allegation that no rental agreement existed between the applicants and the second and third respondents. This is a new point but there is in any event no merit therein. The second and third respondents purchased the property from the first respondent and consequently the rights and obligations in terms of the lease agreement were carried over from the first respondent to the second and third respondents. No other court would reasonably come to a different conclusion in regard to this issue.

10. In the ninth and last ground the submission was made that the applicants have all along been legal occupiers of the property and could therefore not be evicted from the property. This issue was also dealt with previously by this court and forms the crux of the counter application which was not opposed by the applicants. There is no prospect of success in respect of this issue. It was submitted on behalf of the second and third respondents that the order made by default in respect of the counter application for eviction is in any event not appealable. Reference was, inter alia, made to the matter of Pitelli vs Everton Gardens Projects [2010] ZASCA 35. Due to the other findings made by me it is not necessary to consider this issue further.

11. Since the applicants have no reasonable prospect of success on appeal and there is no other compelling reason why an appeal should be heard, the application for leave to appeal should be dismissed.

12. As far as costs are concerned, the parties were in agreement that costs should follow the event. There is in my view no reason why costs should not follow the event.

13. In the result, the following order is made:

1. the application for leave to appeal is dismissed with costs.

C.P. RABIE

JUDGE OF THE HIGH COURT

30 November 2021

Attorneys for the applicants: Mokgatle Lesole Attorneys

lesolemokgatle@gmail.com

Attorneys for the Respondent: Delport van den Berg Attorneys

m.pienaar@delberg.co.za

krishnee@delberg.co.za