Menyatso v Skosana and Others (5498/2019) [2021] ZAFSHC 87 (25 March 2021)

IN THE HIGH COURT OF SOUTH AFRICA,

FREE STATE DIVISION, BLOEMFONTEIN

Case Number: 5498/2019

In the matter between:

MATHOTSE RUTH MENYATSO

Applicant

And

PRINCE POGISHO SKOSANA

First Respondent

MASECHABA ELIZABETH SKOSANA

Second Respondent

MANGAUNG METROPOLITAN MUNICIPALITY Third Respondent

HEARD ON: By agreement this matter was disposed of without the hearing of oral arguments as provided for in s 19(a) of the Superior Courts Act 10 of 2013.

JUDGMENT BY: DANISO, J

DELIVERED ON: 25 MARCH 2021

[1] The applicant seeks leave to appeal against the judgment and the order of this court delivered on 19 November 2020 in which the applicant’s application to compel the respondents to sign transfer documents was dismissed with costs.

[2] The order followed upon the dismissal of the applicant’s condonation for the late filing of the replying affidavit and the upholding of the second’s respondent’s point in limine of non-joinder.

[3] The applicant’s application is based on the provisions of s17(1) (a) (i) or (ii) of the Superior Act[1] which fundamentally enjoins me to grant leave only if I’m of the opinion that the appeal would have a reasonable prospect of success or there is some other compelling reason why the appeal should be heard, including conflicting judgments on the matter under consideration. ‘The use of the word ‘would’ indicate a measure of certainty that another court will differ from the court whose judgment is sought to be appealed against.’ See Acting National Director of Public Prosecutions & others v Democratic Alliance in Re: Democratic Alliance v Acting National Director of Public Prosecutions & others (19577/09) [2016] ZAGPPHC 489 (24 June 2016); [2016] JOL 36123 (GP).

[4] The onus is on the applicant to fulfil this stringent threshold by convincing this court that she has prospects of success on appeal and that based on those facts another court would come to a different conclusion and that conclusion must be sound and rational not a mere possibility of success.[2]

[5] The three-paged and nine paragraphed notice of appeal ostensibly sets out nine grounds of appeal which can be classified under only two grounds are apparent, namely that this court erred in refusing condonation for the late filing of the applicant’s replying affidavit and by upholding the preliminary objection of non-joinder.

[6] The application for leave to appeal was opposed by the second respondent. Written heads of argument were handed in by concurrence of the parties.

[7] The facts germane to this matter are comprehensively illustrated in the main judgment. I don’t deem it necessary to repeat them in this judgment.

[8] The applicant has merely repeated the submissions presented in the application to compel. I am of the view that the judgment has adequately dealt with all the aspects raised in these grounds of appeal. Having upheld the preliminary objection of non-joinder it became unnecessary to decide the merits. The ruling was dispositive of the matter. There are no prospects of another court coming to a different decision.

[9] The second respondent submitted that there are no reasonable prospects of success on appeal and this court did not err in dismissing the applicant’s application. The court erred in not making a distinction and adjudicating “the special plea for prescription in terms of the Prescription Act that the claim of the Applicant had prescribed and in not finding that in terms of the Prescription Act, that the claim of the Applicant has prescribed.”

[10] It was the second respondent’s submission that the court should have also made an order declaring the applicant’s application to have prescribed as it was not instituted within three years as provided for in section 11 (1) (d) of the Prescription Act 68 1969 and, this is despite the fact that the second respondent has inexplicably not filed a notice of cross-appeal for the variation of the order made in the main judgment. The second respondent instead dedicated 7 pages in the heads of argument to an issue which was not raised in its opposition of the application to compel. Reference was merely made to the provisions of section 24 (1) (d) of the Alienation of Land Act 68 of 1981. The second respondent alleged that the application to compel had prescribed as it was not brought within two years from the date of signature of the contract.[3]

[11] The complaint that the second respondent’s objection as contemplated in the Prescription Act is quite disingenuous. It is also apparent that it is an afterthought, clearly a cut and paste job as reference is made to “plaintiff” instead of applicant, and a “special plea” which is unrelated to this matter. No case has been made out for the variation of the order.

[12] Taking into consideration the facts of this matter, I am not persuaded that another court after considering my main judgment would come to another conclusion or that compelling reasons exists why leave to appeal should be granted.

[13] In the result the following order is made:

1. The application for leave to appeal to the full bench of this division against my judgment and order granted on 19 November 2020 is dismissed with costs.

NS DANISO, J

For the applicant: Mr Fixane

FIXANE ATTORNEYS

Bloemfontein

For the 2nd respondent Mr P Peyper

PEYPER AUSTEN INC. ATTORNEYS

[1] Act 10 of 2013.

[2] S v Smith 2012 (1) SACR 567 (SCA) para 7.

[3] Paragraph 8 at 8.1 to 8.13 of the second respondent’s answering affidavit.