Maseko and Another v Khepeng and Another ; In re: Khepeng and Another v Maseko and Another (4751/2022) [2024] ZAFSHC 11 (30 January 2024)

the HIGH COURT OF south africa

FREE STATE PROVINCIAL DIVISION

Reportable: yes/no Circulate to other Judges: yes/no Circulate to Magistrates: yes/no

Case Number: 4751/2022

In the matter between:

BONGA PAUL MASEKO 1^st Applicant

JAPPY JACOBS MASANGANI 2^nd Applicant

and

TEBOHO CLEMENT KHEPENG 1^st Respondent

KHEPENG TRADING (PTY) LTD 2^nd Respondent

In re:

TEBOHO CLEMENT KHEPENG 1^st Applicant

KHEPENG TRADING (PTYD) LTD 2^nd Applicant

and

BONGA PAUL MASEKO 1^st Respondent

JAPPY JACOBS MASANGANI 2^nd Respondent

HEARD ON: 15 MAY 2023

CORAM: BERRY AJ

DELIVERED ON: 30 JANUARY 2024

INTRODUCTION

1. The 1^st and 2^nd Applicants in the main Application are the 1^st and 2^nd Respondents in this Application for leave to appeal an order handed down by this Court on 13 April 2023.

2. The parties agreed that the appeal should be dealt with on Heads of Argument.

3. The Respondents brought an Application that the Applicants should be interdicted from spoliating their undisturbed possession of a business property and its content known as House Phola Restaurant, situated at 1707, Petsana Reitz.

4. This Court ordered that the Respondents must be placed in the undisturbed possession of the premises and its content on 13 April 2023.

5. The matter has a long history where several contracts were concluded between various parties which show that there was some confusion as to who is the actual owner of the property.

6. Several lease agreements were concluded between various parties, each replacing the previous agreement.

7. The 1^st Applicant claims to be the rightful owner of the property and concluded a lease agreement with the 1^st Respondent during March 2020 for a period of three years, commencing on 01 April 2020.

8. The 1^st Applicant’s attorney gave notice to cancel the agreement on 16 November 2020. The exact date when the Respondents had to vacate the premises are not clear, but the Respondents remained in occupation of the premises.

9. A Mr. JM Mokoena approached the 1^st Respondent during April 2021, and indicated that he purchased the property from the 1^st Applicant. The 1^st Respondent then entered into a lease agreement with Mr Mokoena, representing Mokoepa Mokoena Eiendomme (PTY) Ltd on 20 May 2021, for a period of six months with the first option of renewal.

10. During May 2022, Lorraine and Precious Mahamotsa, who claimed to be the lawful owners of the property, as they inherited it from their mother approached the 1^st Respondent.

11. The Mahamotsa’s provided the 1^st Respondent with a Tittle Deed showing that their parents (Ale Petrus Mahamotsa and Anna Mahamotsa) were the owners of the property, copies of their Death Certificates and a copy of the Letter of Authority from the Master, wherein Anna Mokoena is appointed as Executrix of the Estate of Ale Petrus Mokoena on 20 February 2003. Mrs Anna Mokoena was the wife of the then late Ale Petrus Mokoena.

12. Mrs. Anna Mokoena passed away and Lorraine and Precious Mahamotsa were appointed as Executrix’s of the Estate of Mrs Anna Mahamotsa on 10 November 2015.

13. The 1^st Respondent, Mr Mokoena with whom the lease agreement was concluded during April 2021 and Lorraine and Precious Mahamotsa then met, and it was agreed that the lease agreement with Mr Mokoena should be cancelled.

14. Lorraine and Precious Mahamotsa advised the 1^st Respondent that they never sold the property to the 1^st Applicant.

15. The 1^st Respondent then concluded a lease agreement with Lorraine and Precious Mahamotsa on 2 June 2022, which the 1^st Respondent alleges are still valid.

16. The lease agreement was not provided, but the averment is supported by a Confirmatory Affidavit of Mrs. Precious Mahamotsa.

17. The 1^st Respondent received a letter from an Attorney representing the 1^st Applicant on 02 June 2022, wherein it advised the 1^st Respondent that the lease agreement was cancelled and that the 1^st Respondent had to vacate the premises by 08 June 2022.

18. In this letter the 1^st Applicant’s attorney advised that the 1^st Respondent would bring a Spoliation Application against the 1^st Respondent, should the 1^st Respondent fail to vacate the premises by 08 June 2022.

19. This resulted in several letters written between the Attorneys representing the parties which resulted in an ultimatum that the Respondents must vacate the premises by 12 July 2022.

20. The 1^st Respondent found the premises to be locked on 15 June 2022. He broke the lock and found that the restaurant’s equipment was removed from the premises.

21. It is undisputed that the 1^st Applicant placed the locks on the business premises.

22. This 1^st Respondent then broke the lock and took possession of the property of the property he rented since 01 April 2020.

23. The 1^st Applicant’s case has always been that he counter spoliated the unlawful possession of the property from the 1^st Respondent and further that there were no proof thar the 1^st Respondent was in undisturbed possession of the property on 15 July 2022.

ANALYSIS

24. The 1^st Respondent acted reasonable when he accepted the evidence presented by Lorraine and Precious Mahamotsa that they were the duly appointed to function as Executrix’s for the estate of their late mother and that the property was still registered in their parents’ names.

25. This resulted in the conclusion of the lease agreement between the 1^st Respondent and Lorraine and Precious Mahamotsa, concluded on 2 June 2022.

26. The letter from the 1^st Applicant’s attorney dated 09 July 2022 advising the 1^st Respondent to remove the equipment from the restaurant before 13 July 2022 and the conduct of the 1^st Applicant to remove the equipment from the premises on 15 July 2022, indicate that the 1st Respondent was in undisturbed occupation, thus possession, of the leased premises on 15 July 2022.

GROUNDS OF APPEAL

27. The main grounds of appeal are that the Court a quo erred in finding that the 1^ST Respondent was not in undisturbed possession of the property on 15 July 2022. The date the 1^st Applicant replaced the locks to the premises.

28. The evidence show that the 1^st Respondent was in undisturbed possession of the property and had no reason to doubt the bona fides of Lorraine and Precious Mahamotsa, when he concluded the lease agreement on 2 June 2022.

29. Section 17(1) of the Superior Court’s Act 10 of 2013 provides that leave to appeal may only be granted if the judge concerned is of the opinion that:

1. The appeal would have a reasonable prospect of success or if there are some compelling reasons why leave should be granted.

2. The decision sought on appeal does not fall within the ambit of s16(2)(a) of the Act.

3. Where the decision sought to be appealed does not dispose of all the issues in the case, the appeal would lead to a just and prompt resolution of the real issues between the parties.

[30] In Matoto v Free State Gambling and Liquor Authority and Others¹ the Court held:

“There can be no doubt that the bar for granting leave to appeal has been raised. Previously, the test was whether there was a reasonable prospect that another court might come to a different conclusion. Now, 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.”

[31] In S v Smith² the Court dealt with the question of what constitutes reasonable prospects of success as follows:

“What the test of reasonable prospects of success postulates is 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. To succeed, therefore, the appellant must convince this court on proper grounds that he has prospects of success on appeal and that those prospects are not remote but have a realistic chance of succeeding. More is required to be established than that there is a mere possibility of success, that the case is arguable on appeal or that the case cannot be categorised as hopeless. There must, in other words, be a sound, rational basis for the conclusion that there are prospects of success on appeal.”

[32] In MEC for Health, Eastern Cape v Mkhitha and Another ³ the Court held:

“[16] Once again it is necessary to say that leave to appeal, especially to this court, must not be granted unless there truly is a reasonable prospect of success. Section 17(1)(a) of the Superior Court Act 10 of 2013 makes it clear that leave to appeal may only be given where the judge concerned is of the opinion that the appeal would have a reasonable prospect of success; or there is some other compelling reason why it should be heard.

[17] An applicant for leave to appeal must convince the court on proper grounds that there is a reasonable prospect or realistic chance of success on appeal. A mere possibility of success, an arguable case or one that is not hopeless, is not enough. There must be sound, rational basis to conclude that there is a reasonable prospect of success on appeal.”

[33] The 1^st Respondent has shown that it was in undisturbed possession of the property on 15 July 2022.

[34] The Appeal does not have reasonable prospects of success.

[35] ORDER

The following order is made:

1. The Application for leave to appeal is dismissed with costs.

__________

AP BERRY, AJ

For the Applicants: Adv Mnguni

Instructed by MC Radebe Attorneys

For the Respondents: BONOLO Wesi Attorneys INC