Motsima and Another v Kopa and Others - Appeal (A90/2021; 2122/2019) [2023] ZAFSHC 260 (30 June 2023)

Motsima and Another v Kopa and Others - Appeal (A90/2021; 2122/2019) [2023] ZAFSHC 260 (30 June 2023)

The court found that the appellants failed to provide an adequate and reasonable explanation for the delay in prosecuting the appeal. Their decision to pursue alternative litigation to interdict the transfer of the property did not justify non-compliance with the rules regarding the prosecution of the appeal. The explanation left substantial periods unaccounted for, and the cumulative effect of the inadequate explanation and the respondents’ interest in finality led the court to dismiss the condonation and reinstatement application. On the merits, the evidence showed that the appellants knowingly sold and transferred the property, renouncing all rights, and there was no basis for the...

Citation
[2023] ZAFSHC 260
Parties
Appellant: Phillip Tshepiso Motsima; Appellant: Thandiwe Patience Motsima; Respondent: Liphapang Albert Kopa; Respondent: Nthabiseng Mosoeu-Kopa; Respondent: The Trustees of the Time Being for the C & D Investment Trust; Respondent: The Registrar of Deeds, Free State Province; Respondent: The Trustees of the Van Der Merwe Family Trust
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
30 June 2023
Case Number
A90/2021; 2122/2019
Procedural Posture
Civil Appeal / Application for Condonation and Reinstatement of Lapsed Appeal; Appeal on Merits
Outcome
Application for condonation and reinstatement of the appeal dismissed with costs.
Judges
Musi, Mbhele, Van Rhyn
Legal Topics
Condonation, Reinstatement of Appeal, Pactum Commissorium, Parate Executie, Sale of Immovable Property, Transfer of Property
Civil Procedure Land and Property Condonation Reinstatement of Appeal Pactum Commissorium Parate Executie Sale of Immovable Property Transfer of Property

Case Brief

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Parties

Phillip Tshepiso Motsima

Appellant

Thandiwe Patience Motsima

Appellant

Liphapang Albert Kopa

Respondent

Nthabiseng Mosoeu-Kopa

Respondent

The Trustees of the Time Being for the C & D Investment Trust

Respondent

The Registrar of Deeds, Free State Province

Respondent

The Trustees of the Van Der Merwe Family Trust

Respondent

Procedural Posture

Civil Appeal / Application for Condonation and Reinstatement of Lapsed Appeal; Appeal on Merits

Legal Issues

  1. 1 Whether the appellants provided an adequate and reasonable explanation for the delay in prosecuting the appeal.
  2. 2 Whether the application for condonation and reinstatement of the appeal should be granted.
  3. 3 Whether the underlying agreements constituted unlawful pactum commissorium or parate executie.

Ratio Decidendi

The court found that the appellants failed to provide an adequate and reasonable explanation for the delay in prosecuting the appeal. Their decision to pursue alternative litigation to interdict the transfer of the property did not justify non-compliance with the rules regarding the prosecution of the appeal. The explanation left substantial periods unaccounted for, and the cumulative effect of the inadequate explanation and the respondents’ interest in finality led the court to dismiss the condonation and reinstatement application. On the merits, the evidence showed that the appellants knowingly sold and transferred the property, renouncing all rights, and there was no basis for the...

Court Disposition

Application for condonation and reinstatement of the appeal dismissed with costs.

Orders

  • The application for condonation and re-instatement of the appeal is dismissed with costs.