Hamutenya v Namboer Dordabis Auctioneers CC (SA 21/2023) [2025] NASC 26 (24 July 2025)

# Hamutenya v Namboer Dordabis Auctioneers CC (SA 21/2023) [2025] NASC 26 (24 July 2025) [ __](https://api.whatsapp.com/send?text=https://namiblii.org/akn/na/judgment/nasc/2025/26/eng@2025-07-24) [ __](https://twitter.com/intent/tweet?text=https://namiblii.org/akn/na/judgment/nasc/2025/26/eng@2025-07-24) [ __](https://www.facebook.com/sharer/sharer.php?u=https://namiblii.org/akn/na/judgment/nasc/2025/26/eng@2025-07-24) [ __](https://www.linkedin.com/sharing/share-offsite/?url=https://namiblii.org/akn/na/judgment/nasc/2025/26/eng@2025-07-24) [ __](mailto:?subject=Take a look at this document from NamibLII: Hamutenya v Namboer Dordabis Auctioneers CC \(SA …&body=https://namiblii.org/akn/na/judgment/nasc/2025/26/eng@2025-07-24) [ Download DOCX (94.0 KB) ](/akn/na/judgment/nasc/2025/26/eng@2025-07-24/source) Toggle dropdown * [Download PDF](/akn/na/judgment/nasc/2025/26/eng@2025-07-24/source.pdf) Report a problem __ * Share * [ Download DOCX (94.0 KB) ](/akn/na/judgment/nasc/2025/26/eng@2025-07-24/source) * [Download PDF](/akn/na/judgment/nasc/2025/26/eng@2025-07-24/source.pdf) * * * * * Report a problem __ ##### Hamutenya v Namboer Dordabis Auctioneers CC (SA 21/2023) [2025] NASC 26 (24 July 2025) Copy citation * __Document detail * __Related documents * __Citations 2 / - Citation Hamutenya v Namboer Dordabis Auctioneers CC (SA 21/2023) [2025] NASC 26 (24 July 2025) Copy Media Neutral Citation [2025] NASC 26 Copy Hearing date 17 June 2025 Court [Supreme Court](/judgments/NASC/) Case number SA 21/2023 Judges [Mainga JA](/judgments/all/?judges=Mainga%20JA), [Hoff JA](/judgments/all/?judges=Hoff%20JA), [Makarau AJA](/judgments/all/?judges=Makarau%20AJA) Judgment date 24 July 2025 Language English Summary Read full summary * * * Skip to document content **REPORTABLE** CASE NO: SA 21/2023 **IN THE SUPREME COURT OF NAMIBIA** In the matter between: **LUCIA PANDULENI HAMUTENYA** | **Appellant** ---|--- and | **NAMBOER DORDABIS AUCTIONEERS CC** | **First Respondent** **PIET COETZEE** | **Second Respondent** | **Coram:** MAINGA JA, HOFF JA and MAKARAU AJA **Heard: 17 June 2025** **Delivered: 24 July 2025** **Summary:** The appellant, the registered owner of a piece of land, sought an eviction order against the respondents, who claimed they had lawful rights to occupy the land. Initially, the title deed had an error in the property description, which was later corrected to reflect the land as the ‘Remainder of Portion 26 of Farm Dordabis No. 98’. On 19 February 2013, the appellant entered into a sale agreement with the first respondent, represented by the second respondent (Mr Coetzee) and a second purchaser, for the sale of 10 hectares of the land for N$100 000. The sale agreement was subject to suspensive conditions. Before the 36-months period lapsed in terms of that agreement, the parties allegedly entered into a written addendum to the agreement on 13 May 2013, which was allegedly signed on 17 May 2013. The appellant denied the authenticity and existence of this addendum, claiming she never signed it. However, the court _a quo_ found the evidence of Ms. Van Rensburg (a witness to the signing and testifying on behalf of the first respondent) credible and consistent with other facts, whereas the appellant’s version was found to be inconsistent and improbable—particularly her acceptance of the purchase price despite being a legal practitioner who should have known payment was only due upon registration. The court concluded that the addendum was validly concluded between the parties and dismissed the appellant’s claim for eviction. On appeal _Held that_ , once the court below had found that appellant had signed the addendum that court should have dismissed the action which it only did on application on 7 February 2023. In the circumstances of this case, appellant did not have to seek leave to appeal nor condonation as her case does not fall in the realm of s 18 of the High Court [Act 16 of 1990](/akn/na/act/1990/16). It follows necessarily that respondents’ argument on that point is misplaced. _Held that_ , as regards the question whether appellant signed the addendum to the deed of sale - the question should be answered in the negative. There is no evidence that appellant signed the addendum. The only witness Ms Van Rensburg called by the respondents, a secretary of Diekmann Associates then, testified that during May 2013 the appellant and second respondent instructed her firm to draft an addendum to the agreement but when confronted how she had received the instruction, her answer was that she could not recall. She also testified that the Law Firm was advised that the appellant had requested that the purchase price paid by the respondents and held in the trust account of Diekmann Associates should be paid to the appellant prior to the registration of the transfer. She further testified that she recalls because the reason that was given was that the appellant needed the money as her child was going to the USA. Appellant denied putting pressure on the respondents for the payment of the purchase price and it turned out that she has no child _Held that_ , Ms Van Rensburg did not place any evidence on record that was mutually destructive with appellant’s evidence. The court _a quo’s_ approach was fundamentally wrong. Accordingly, the appeal was upheld with costs. _________________________________________________________________ **APPEAL JUDGMENT** _________________________________________________________________ MAINGA JA (HOFF JA and MAKARAU AJA concurring): _Introduction_ 1. The appellant sought an eviction order against the respondents from a piece of land lawfully owned by her. The respondents resisted the claim and alleged that they are in fact entitled to lawfully occupy the land. _Background_ 2. Appellant is the registered owner of the land. The title deed had initially erroneously described the said land as ‘Portion 27 (a portion of portion 26) of Farm Dordabis No 98’ Khomas Region, Windhoek, Namibia. That error has since been rectified, the correct title description of the land is ‘Remainder of Portion 26 of Farm Dordabis No 98’. 3. On 19 February 2013, the appellant and the first respondent represented by the second respondent (Mr Piet Coetzee) duly authorised thereto and Messrs Piet Coetzee and Alex McDonald who were jointly referred to as the ‘purchaser’ entered into a sale agreement in terms whereof the appellant sold 10 hectares land with the description above for an amount of N$100 000. The agreement of sale was subject to the following suspensive conditions: ‘**13\. SUSPENSIVE CONDITIONS** The Seller and the Purchaser agree that this agreement of sale is subject to the following suspensive conditions: 13.1 THAT the Ministry of Agriculture, Water and Forestry consents to the subdivision of Portion 27 (a portion of portion 26) of the Farm Dordabis No 98 into the Portion marked “A” on the attached diagram marked “X” and a remainder; and 13.2 THAT the necessary consent is obtained from the Namibia Planning Advisory Board in respect of the subdivision of Portion 27 (a portion of Portion 26) of the Farm Dordabis No 98 into the Portion marked “A” on the attached diagram marked “X” and a remainder as well as a consent by the Namibia Planning Advisory Board and the Ministry of Works, Transport and Communication in terms of which the Purchaser is entitled to have access from Trunk Road 15/1 to the Property; and 13.3 the Surveyor General approves the land surveyor’s diagrams pertaining to the Property; and 13.4 the Ministry of Lands and Resettlement issues a Certificate of Waiver in respect of the Property. 13.5 The Seller and the Purchaser agree that in the event of the suspensive conditions contained in clauses 13.1, 13.2, 13.3 and 13.4 of this agreement not being fulfilled within 36 (thirty six) months as from date of signature of this agreement, then and in such an event, this agreement shall be of no further force and effect and the parties shall have no further claims against each other and in which event the Attorneys shall effect payment of the purchase price to the Purchaser and the interest accrued thereon to the Seller. The Purchaser and the Seller shall, in the event of this agreement not taking effect, enter into negotiations regarding a lease to be concluded in respect of the Property and in the event of the Seller and the Purchaser not reaching agreement in respect of a lease then and in such an event, the Purchaser shall be obliged to remove all improvements effected by the Purchaser on the Property and, at its expense, restore the Property to its original condition as at date of signature of this agreement.’ 4. The respondents pleaded to the appellant’s particulars of claim and filed a conditional counterclaim. Respondents admitted the sale agreement and the purchase price which was payable within ten days as from the date of signature of the agreement, the amount to be invested in an interest bearing account interest to accrue to the appellant until date of registration of transfer of the property into the name of the respondents. The Attorneys, Diekmann Associates in whose Trust account the money was paid would only release the purchase price, including any interest accrued thereon to the appellant on date of registration of transfer of property. They would pay all transfer costs, including all ancillary costs. Respondents would take possession and vacant occupation of the property on date of signature of the agreement of sale and from which date the property would lie at the sole risk, loss or profit of the respondents. 5. The written agreement constituted the entire agreement between the parties. 6. Respondents further pleaded that prior to the lapse of the 36 months period, contained in the suspensive conditions above, the appellant and respondents, the first respondent being represented as in para [3] above, on 13 May 2013 and at Windhoek entered into a written addendum to the agreement. The relevant material terms of the addendum to the agreement between the parties, were, _inter alia_ , the following: ‘WHEREAS the parties entered into a memorandum of agreement dated 13 and 19 February 2013 respectively (hereinafter referred to as “the Agreement”); and WHEREAS the parties wish to effect amendments to the agreement. NOW THEREFORE THE PARTIES AGREE AS FOLLOWS: 1. **AD PARAGRAPHS 2.1 AND 2.2 OF THE AGREEMENT** The Seller and the Purchaser agree that the purchase price in the amount of N$100 000 presently being held in trust by attorneys Diekmann Associates, shall be released by Attorneys Diekmann Associates to the Seller on date of signature of this addendum. The Seller and the Purchaser furthermore agree that the interest accrued on the amount of N$100 000 shall be released by Diekmann Associates to the Seller within 5 days as from date of signature of this addendum. 2. **AD PARAGRAPH 4 OF THE AGREEMENT** The Seller and the Purchaser agree that the Seller is obliged to sign all transfer documents, for purposes of passing transfer of the property from the Seller to the Purchaser, on presentation of the transfer documents by Attorneys Diekmann Associates to the Seller. The Seller and the Purchaser furthermore agree that, in the event of the Seller refusing and/or neglecting to sign the transfer documents on presentation, then and in such an event, the Deputy Sheriff for the district of Windhoek is herewith authorized by the Seller to sign all transfer documents on her behalf. 3. **AD PARAGRAPH 13.5 OF THE AGREEMENT** The Seller and the Purchaser agree that the period for fulfillment of all suspensive conditions contained in clauses 13.1, 13.2, 13.3 and 13.4 of the Agreement shall no longer be 36 months but shall endure until 1 March 2033. 4. **SUCCESSORS IN TITLE** The Seller and the Purchaser agree that the agreement including this addendum shall be binding on and enforceable by the estates, heirs, executors, administrators, trustees, assigns or liquidators (as the case may be) as fully and effectually as if they had signed this agreement and the addendum in the first instance and reference to any party shall be deemed to include such parties’ estate’s heirs, executors, administrators, trustees, assigns or liquidators, as the case may be.’ 7. The addendum to the agreement was allegedly signed on 17 May 2013. The signatures of the appellant and Mr Coetzee appear to have been allegedly witnessed by the same person and that of the second purchaser by another witness. 8. Respondents instituted a conditional counterclaim in the event the court found that first and second respondents were in unlawful occupation of the property, in that event they claimed useful improvements to the property in order to utilise the property for the purposes it was purchased for in the amount of N$950 000 and the amount of N$38 000 expended in order to obtain the consent of the Ministry of Agriculture, Water and Forestry for the subdivision of the property and to attend to the actual sub-division of the property and interest at the rate of 20 percent per annum calculated from date of judgment until date of final payment. 9. Appellant replicated to the respondents’ plea and pleaded that the agreement entered into on 13 and/or 19 February 2013 and its subsequent purported addendum were both null and void and of no effect in law as they are in direct conflict with s 17(1) and (2) of the Agricultural (Commercial) Land Reform [Act 6 of 1995](/akn/na/act/1995/6) (the Act) as amended in that the concerned land was not first offered for sale to the State and appellant was not furnished with a certificate of waiver in respect of such land as required by s 17(2)(_b_) of the Act. In the alternative, appellant pleaded that the agreement entered into by the parties on 13 and/or 19 February 2013 by operation of law and in terms of its own provision became null and void latest 19 February 2016 upon non-fulfilment of the suspensive conditions in that agreement and thus the respondents’ right to remain on the property expired on 19 February 2016. 10. Appellant further denied the existence and authenticity of the purported addendum. In particular appellant denied that she signed or executed the addendum in question and therefore she was entitled to the eviction order. 11. Regarding the respondents’ counterclaim, appellant pleaded that the improvements respondents made to the property were not useful and necessary and further denied that the parties agreed or contemplated that respondents would be compensated. 12. Subsequent to the pleadings above, appellant sought the amendment of para 5 of the particulars of claim. On 7 July 2020, the court granted the amendment by deleting the words ‘Portion 27 of the Portion 26 of farm Dordabis number 98 and by substituting those words with ‘remainder of Portion 26 of Farm Dordabis number 98’. 13. In view of the court order dated 7 July 2020, the parties amended the pre-trial report on 15 July 2020, important for the purposes of this judgment is that respondents were going to call four witnesses, namely, the second respondent Mr Coetzee (who died before the hearing), Mr Petrus Jurie Scholtz (expert witness), Ms Sharon Tanja Jansen van Rensburg (Van Rensburg); and Mr Willie Schultz. Appellant was going to testify on her own behalf. 14. Appellant filed a witness statement and among other things she denied signing the addendum to the agreement and she testified and repeated her denial. She testified that the addendum was never given to her and that she only learnt of it in the midst of the litigation and that she requested a forensic test of the alleged signature and that, that request was turned down by the respondents. Appellant also denied pressurising respondents for payment because she had a child who needed to go to the United States of America (USA). In cross-examination on the question of the child, she said she has no child. Appellant further testified that she cancelled the agreement because the 36 months in which the respondents were supposed to have registered the property in the name of the first respondent expired on 19 February 2016. Appellant further testified that she did not reimburse the purchase price because she needed them to vacate the property first or negotiate for a lease. In cross-examination she denied owing money to the Ministry of Lands for land taxes as she had paid the arrears for the transfer to take place. On the question why she received payment of the N$100 000 by 17 May 2013 when she was not entitled to receive the money at that stage, she said she did not know because she was called by Ms Van Rensburg who informed her that her cheque was ready and that she could pick it up. 15. Ms Van Rensburg filed a witness statement for the respondents and testified and confirmed the sale agreement and the purchase price of N$100 000 which was paid into the trust account of Diekmann Associates on 14 March 2013. She further testified that during or about middle May 2013, the appellant and second respondent instructed Diekmann Associates to draft an addendum to the agreement. That the law firm was advised that the appellant had requested the purchase price to be paid to her prior to the registration of transfer. The reason apparently was that the appellant needed the money as her child was going to the USA. 16. The law firm drafted the addendum and as far as she could recall and could gather from a note which she made on the draft addendum was in words as follows: ‘17/5 emailed to Seller and Purchaser’. She emailed the addendum to the appellant and second respondent for their perusal on 17 May 2013 but unfortunately, she had lost all electronic mails from that period and could not provide a copy of the e-mail she sent to the appellant and the second respondent. 17. Diekmann Associates received the original signed addendum on 17 May 2013 but she could not recall who delivered the signed addendum to their offices. She however suspects that it was delivered by the third respondent, Mr Alex McDonald as her signature appears as a witness to his signature on the addendum. After receipt of the addendum the law firm caused the purchase price to be paid to the appellant on 17 May 2013. 18. The witness also testified that Diekman Associates attended to the rectification transfer of appellant’s property but that the rectification could not be finalised due to an outstanding amount owed by appellant to the Ministry of Lands in respect of land taxes, which appellant was unable to pay. When led in her testimony in chief, she refuted the suggestion by appellant that the addendum was drafted later when the purchasers realised that their time was running out in terms of the agreement. She said it was highly unlikely as they would not have paid out the purchase price without a signed addendum in their possession, because that is just common practice. 19. In cross-examination when asked how she received instructions from both appellant and second respondent, she said she could not recall. She further had no idea how they were advised that the appellant required payment. When it was put to her that appellant has no child her reply was that she was absolutely shocked because she recalled that she was convinced appellant told her, her child was going to the USA. When confronted on her evidence that she sent emails to both appellant and second respondent but was shown an email she only sent to the respondents she replied that ‘it could have happened that she sent a separate one to appellant’. When asked whether she identified any of the signatures on the addendum, she did not know. 20. On 21 August 2020, the High Court rendered judgment. 21. The issue for determination in the High Court was whether an addendum to the agreement was concluded between the parties. 22. The High Court was alive to the fact that the respondents clearly bore the onus to prove that the parties concluded the addendum to the agreement. The learned judge found that the two witnesses who testified to an extent presented conflicting versions as to the issue. That court analysed the evidence and stated that whilst the appellant denied any knowledge or signing the addendum, Ms Van Rensburg ‘cannot definitely admit or deny the version of the [appellant] as to her signing or not signing the agreement but the totality of the evidence points to that being the case’. The learned judge found that the two witnesses’ versions were mutually destructive and he adopted the approach as formulated in _Stellenbosch Farmers’ Winery Group Ltd & another v Martel et Cie & others1_. That approach is, ‘a court must make findings on (a) the credibility of the various factual witnesses; (b) their reliability; and (c) the probabilities’2. 23. The court _a quo_ then found that the evidence of Ms Van Rensburg strikes credible, her version is an objective account of what she could recall. While her evidence lacked specific details there are no inherent or external improbabilities in her evidence and her evidence is consistent with the remainder of the facts. Appellant’s evidence on the other hand was in some aspects inconsistent with common cause facts and inherently improbable, so that court found. The main discrepancy in appellant’s version was her conduct around the payment of the purchase price which she accepted. As a qualified legal practitioner she should have been aware that the purchase price would be payable only upon registration of the property on transfer. As a result, the court held that appellant and first respondent concluded the addendum to the agreement and gave the following order. ‘**COURT ORDER** Having heard **UNOMWINJO KATJIPUKA-SIBOLILE** , on behalf of the plaintiff and **FRANCOIS ERASMUS** , on behalf of the Defendants and having read the pleadings for HC-MD-CIV-ACT-OTH-2017/03312 and other documents filed of record: **IT IS HEREBY ORDERED THAT:** 1. The plaintiff and the first defendant concluded the addendum to the Deed of Sale. 2. The plaintiff is ordered to pay the costs, including the costs consequent upon the amendments. 3. The costs consequent upon the amendments are limited to N$20 000. 4. The parties are directed to file a status report on the further conduct of the matter on the remaining issues on or before **9 September 2020**. 5. The case is postponed to **14 September 2020** at **14H15** for Status hearing (**Reason: Hearing**). **BY ORDER OF THE COURT** ’ 24. The appellant timeously appealed the order above and the matter was set down for hearing in this Court on 1 November 2022. 25. On 4 September 2020, the parties filed a Joint Status Report which is in this form: ‘**JOINT STATUS REPORT** 1. The honourable Court’s ruling to the effect that the parties did conclude the addendum to the Deed of Sale, resolves the dispute between the parties _with final effect, leaving an appeal to the Supreme Court as the only way for the Plaintiff to challenge the honourable Court’s judgment in this regard_. 2. To this end, the Plaintiff has duly filed a notice of appeal on 25 August 2020. 3. _In the circumstances, there are no further disputes pending between the parties left for this honourable Court to determine at the present moment_. _The matter may therefore be considered as finalized and be removed from the roll_.’(Emphasis added) 26. On 10 September 2020 the court below issued another court order which reads that: ‘**COURT ORDER** Having read the joint status report filed for HC-MD-CIV-ACT-OTH-2017/03312 and other documents filed of record. **IT IS HEREBY ORDERED THAT** : The matter is removed from the roll: case finalized. BY ORDER OF THE COURT’ 27. Notwithstanding the joint status report and order which tend to show that the matter was finalised on 3 October 2022, on advice from counsel, appellant withdrew the appeal filed in this Court during August 2020. Thereafter she reached out to the respondents requesting them to consider signing a joint status report requesting the High Court to re-enroll the matter for purposes of disposing it of properly. In the letter dated 14 October 2022, respondents declined the invitation and said ‘we shall obtain counsel’s opinion’. That refusal prompted appellant on 19 October 2022 to launch an application in the High Court to re-enroll the matter for proper disposal. 28. In her affidavit supporting the application appellant states that while her legal representatives were preparing heads of argument for the appeal set down on 1 November 2022, that neither the judgment of 21 August 2020 nor the order of 10 September 2020 disposed of the action (eviction) and that the appropriate order the High Court should have made was to dismiss the action hence the application. 29. It is not apparent from the record whether respondents opposed the application but on the strength of the order of 7 February 2023 it appears that respondents participated in the hearing of the application. That order reads as follows: ‘**COURT ORDER** Having heard **MR DICKS** assisted by **UNOMWINJO KATJIPUKA-SIBOLILE,** on behalf of the Plaintiff(s) and **FRANCOIS ERASMUS** , on behalf of the Defendant(s) and having read the pleadings for HC-MD-CIV-OTH-2017/03312 and other documents filed of record: **IT IS HEREBY ORDERED THAT:** 1. The plaintiff’s action against the defendants is dismissed with costs. 2. The matter is removed from the roll: Case Finalized. BY ORDER OF THE COURT’ 30. This appeal lies against the order above, read together with the High Court judgment and order of 21 August 2020. _Submissions_ _Appellant_ 31. It is argued that the respondents’ entire defense in the High Court was premised on the conclusion of the addendum by the parties and that the crisp question before court was whether the addendum was concluded between the appellant and the respondents. That in the circumstances the respondents bore the onus to prove their assertion that the addendum was concluded between the parties. It was further argued that after the analysis of Ms Van Rensburg’s evidence, there was no iota of evidence by Ms Van Rensburg that the addendum was completed between the parties and therefore it is meaningless for the court _a quo_ in the circumstances to have found the evidence of Ms Van Rensburg as credible when she could not provide any evidence whatsoever on the issue the court _a quo_ was called upon to determine. The late Mr Coetzee who passed on before the trial would not have, even if he was alive to testify, added value to the evidence to prove that appellant signed the addendum, so it was argued. Appellant questioned why Mr Alex McDonald the co-signatory to the deed of sale and the disputed addendum was not called as a witness and there was no explanation why he was not called to testify, so is the person who witnessed Mr Coetzee’s signature. It is argued that the evidence of the person who witnessed Mr Coetzee’s evidence was crucial for the reason that it is alleged on the hearsay evidence of Ms Van Rensburg that appellant was at the offices of Mr Coetzee. 32. It was further argued that appellant bore no onus to prove that she signed the addendum. That she strenuously denied signing the addendum and that her evidence that she never received the addendum on 17 May 2013 remained unchallenged. In fact that evidence is supported by Ms Van Rensburg’s evidence in the sense that the only emails discovered by the respondents show that Ms Van Rensburg only directed the addendum to Messrs Coetzee and McDonald. It was further argued that appellant would never have agreed to a 20 year delay in the transfer of her property and that her request to have the document subjected to forensic analysis by a handwriting expert during the High Court litigation was met with resistance by respondents. The question is why, so argued appellant. 33. Finally, appellant submitted that the court below erred when it resolved the matter on the basis of two mutually destructive versions instead of where the onus lies. That to have considered the question of credibility of witnesses and probabilities was a wrong approach as the respondents presented no credible evidence and the only concern regarding appellant’s version was her receiving the purchase price and not questioning why payment was made that early before registration of the property in first respondent’s name. Respondents 34. First respondent’s heads are premised on the phrase ‘actions speak louder than words’ and supports the judgment of the court below that the appellant signed the addendum. First respondent submits that the objective, undisputed facts and the totality of the evidence read with the relevant law supports the first respondent’s defense (ie addendum concluded) and dispels the appellant’s denials that she did not sign the addendum. 35. It is further argued that it is trite that a pre-trial order and issues identified therein constitute an agreement between the parties and that once the parties have agreed on which factual and legal issues are in dispute and which are common cause, they are bound by such agreement and issues so identified in the joint pre-trial report are indeed the issues in dispute between the parties and which are the issues the court below was called upon to determine. 36. Respondents further raise two points _in limine_ , namely, (a) leave to appeal, (b) condonation. It is submitted that the order of the court below dated 7 February 2023 did not and could not convert the interlocutory judgment of August 2020 into a final order ‘where no other issues are left that must still be adjudicated by the court below in the matter’. It is argued that the relief appellant seeks that she did not conclude the addendum to the deed of sale, there remain various other issues of fact and law that remain to be determined by the court below as per the signed amended pre-trial report. It is further argued that the court below’s judgment of 21 August 2020 holding that appellant concluded the addendum and the order of 7 February 2023 dismissing the appellant’s action founded on whether appellant concluded the addendum are appealable but remained interlocutory in nature and therefore leave to appeal was required in terms of s 18(3) of the High Court [Act 16 of 1990](/akn/na/act/1990/16). That appellant did not seek leave to appeal and for that reason alone the appeal should be struck from the roll with costs. 37. It is further argued that appellant cannot purportedly seek to appeal a judgment delivered on 21 August 2020 without seeking condonation on good cause shown for the late noting of the appeal. It is submitted that for that reason alone the appeal should be struck from the roll with costs. _Discussion_ _Leave to appeal and condonation_ 38. It is common cause that once the judgment of 21 August 2020 was issued, appellant timeously appealed the judgment and order but withdrew that appeal on advice from counsel on 3 October 2022. The matter was set down for hearing on 1 November 2022 in this Court. The advice was that the judgment and order of 21 August 2020 did not dispose of appellant’s action and indeed that is correct. Once the court below had found that appellant signed the addendum, the appropriate order should have been to dismiss the action which would have brought the _lis_ between the parties to finality. There would have been nothing in dispute. The period for fulfilment of all suspensive conditions contained in the deed of sale would have endured until 1 March 2033. The counterclaim was conditional in the event the court found that appellant did not sign the addendum. With the finding of the court below the counterclaim became irrelevant or fell by the way side. 39. Appellant attempted to have the respondents sign a joint status report to re-enroll the matter for purposes of disposing of it properly. Respondents declined and wrote to appellant to say they would seek legal advice from counsel, which I reckon they did. Appellant by way of notice re-enrolled the matter. Respondent did not oppose the application but participated in the hearing of the application on 7 February 2023. Appellant’s counsel of record explained in great detail why they were back in that court. Counsel told the court that he did not think appellant’s appeal was a viable one as there was no leave to appeal against the order of 21 August 2020 which he thought fell squarely in the realm of s 18(3) of the High Court Act. Counsel referred to the Joint Status Report of 4 September 2020 which recorded that the ruling of the court below on the addendum resolved the dispute between the parties with final effect, leaving an appeal to this Court as the only way for the appellant to challenge the court below’s judgment and that the matter was finalised and removed from the roll. Counsel also referred to the court order of 10 September 2020 removing the case from the roll and that it was finalized. 40. Counsel then went on to say: ‘Now, to remove the matter from the roll, case finalized. Now, you will understand from what I just said to you these last few steps were known to me, but I submit it does not matter because it is not for the parties to decide that they can now send this interlocutory matter to the Supreme Court because they feel it has final effect. That is a legal issue whether that could be done then or not.’ 41. Further, the proceedings proceeded as follows: ‘ _COURT_ : Yes. _MR DICKS_ : And it, this is a peculiar matter in the sense that the finding that the addendum had been entered into in fact disposed of the matter for all practical purposes. _COURT_ : Yes. _MR DICKS_ : But now we have this order, it is removed from the roll, that say case finalise. I do not think that goes far enough and for that matter to become appealable, there will have to be an order that the action. _COURT_ : Is dismissed. _MR DICKS_ : Is dismissed. _MR DICKS_ : Yes. _MR DICKS_ : And that is what, why we re-enrolled the matter to seek an order that the action is dismissed because then that order of yours on the 21st of October (inaudible), I, found a Judgment of Your Brother Parker where he comments on, he says that it is in (indistinct) that at the end of every matter nowadays, it reads case finalized the matter is removed from the roll. He says, those are the words for e-Justice. _COURT_ : Yes, we are, we are dictated to by the e-Justice. _MR DICKS_ : Yes, it, it seems (intervention). _COURT_ : System, it thinks for us. _MR DICKS_ : It seems My Lord that those are the magic words for the system to pick up (intervention). _COURT_ : That the case is finalised. _MR DICKS_ : Yes, but for, in this instance for the matter to become appealable, the action would have to be disposed of. _COURT_ : Yes. _MR DICKS_ : And I do not think that dispose of the action necessary. _COURT_ : Well, you see ordinarily I would have, in view of the findings that I make or what they are worth, I would have dismissed the action, but because I was asked by the parties during the hearing simply to determine whether the addendum was in fact concluded between the parties, my brief was limited to that finding. _MR DICKS_ : I fully understand My Lord, but because of the peculiar nature of this matter, that effectively actually disposed of (inaudible). _COURT_ : _Yes, it did, it did that is why I was a bit surprised to see that it was back, but anyway_. _MR DICKS_ : Yes. _COURT_ : Are you asking for an order that I dismiss the action? _MR DICKS_ : The action to be dismissed. _COURT_ : Mr Erasmus? _MR ERASMUS_ : My Lord, thank you. I did not on paper formerly oppose this application. _COURT_ : No. _MR ERASMUS_ : Because I will submit that I will leave it in the Court’s hands.’ 42. Counsel for the respondents in the court below continued to say: ‘I agree with my colleague Mr Dicks that, in effect your ruling in August did dispose of the matter, but you were quite entitled to make the ruling as it was requested to you to do. _COURT_ : Yes. _MR ERASMUS_ : So, depended on the outcome of, of any Appeal, it might happen that the Appeal succeeds and then the matter will in most, _in all probability be referred back to this court because there is an issue relating to the conditional counterclaim by my clients which the evidence has not been heard by any court yet_. So, that was, that was simply why I, I asked them to confirm here that the only issue on Appeal will be your ruling that there was an addendum. Otherwise, we would, could be disadvantaged having not had any opportunity to lead evidence. _MR ERASMUS_ : Yes, so, so My Lord I think we are in agreement that should the Appeal if it is heard in the Supreme Court be successful, then it inevitably, the matter is not finished. So, that was my, the sticky point for me and I, and I was, I was not here to oppose the fact that you gave the correct ruling at the stage because that was what the parties agreed, and it was still our agreement until today My Lord. So, I am happy to leave it in your hands as to what you believe you give the Applicant today My Lord. I am simply concerned, in the sense that there might be a come back to your court at some stage and you are being seized with the matter will then hear the further evidence. _Because quite rightly I think we are also in agreement with that, that all the evidence on the merits were led and finished and you made a ruling_. The evidence which will be outstanding is the, because the effect will be if, if the Supreme Court finds that there was no addendum then my client will in all probability be evicted and the conditional counterclaim becomes applicable My Lord. Those are my only submissions, thank you My Lord.’ 43. The proceedings of 7 February 2023 are not part of the record but I requested for them to gauge how the respondents responded to the application re-enrolling the matter. Respondents did not oppose the application. In fact, from the proceedings it is clear that appellant’s action of eviction against respondents was finalised/dismissed on 10 September 2020. The learned judge was in fact surprised when the matter returned before him. Respondent’s argument that the order of 21 August and 10 September 2020 are interlocutory is meritless. 44. In _Prime Paradise International Ltd v Wilmington Savings Fund Society FSB & others3_ which counsel for respondents refers to, the following was said: ‘[100] The term interlocutory in s 18(3) was employed in the wide and general sense of the term usefully explained by Corbett JA in _South Cape Corporation (Pty) Ltd v Engineering Management Services (Pty) Ltd_ , as opposed to simple or purely interlocutory orders: “(a) In a wide and general sense the term ‘interlocutory’ refers to all orders pronounced by the Court, upon matters incidental to the main dispute, preparatory to, or during the progress of, the litigation. But orders of this kind are divided into two classes: (i) those which have a final and definitive effect on the main action; and (ii) those, known as ‘simple (or purely) interlocutory orders’ or ‘interlocutory orders proper’, which do not.’ [101] Interlocutory orders for the purpose of s 18(3) would thus refer to all orders incidental to the main dispute, preparatory to or during the progress of litigation and include those which have a final and definite effect upon the main action but which do not finally dispose of the main action.’ 45. As I have already stated, once the court below had found that appellant had signed the addendum, that court should have dismissed the action which it only did on 7 February 2023. In the circumstances of this case, appellant did not have to seek leave to appeal nor condonation as her case does not fall in the realm of s 18 (3). It follows necessarily that respondent’s argument on that point is misplaced. 46. I turn to consider the real issue between the parties, that is, whether appellant signed the addendum to the deed of sale. The question should be answered in the negative. There is no evidence that appellant signed the addendum. The only witness Ms Van Rensburg called by the respondents, a secretary of Diekmann Associates then, testified that during May 2013 the appellant and second respondent instructed her firm to draft an addendum to the agreement but when confronted on how she had received the instruction, her answer was that she could not recall. She also testified that the law firm was advised that the appellant had requested that the purchase price paid by the respondents and held in the trust account of Diekmann Associates should be paid to the appellant prior to the registration of transfer. She further testified that she recalls because the reason that was given was that the appellant needed the money as her child was going to the USA. Appellant denied putting pressure on the respondents for the payment of the purchase price and it turned out that she has no child. 47. As already stated, the evidence of Ms Van Rensburg which tends to support appellant’s case is where she said, she had drafted the addendum and emailed it to the appellant and the second respondent for their perusal on 17 May 2013. But the emails discovered by respondents reveal that Ms Van Rensburg only forwarded the addendum to Messrs Piet Coetzee and Alex McDonald on 17 May 2013. She testified that she made a note on a draft of the addendum, which reads ‘emailed to seller and purchaser on 17 May 2013’. When confronted as to the lack of proof of any email to the appellant, she conveniently claimed that unfortunately she lost all electronic emails from that period. She could not explain why only emails sent to Messrs Coetzee and McDonald exist. When pressed further on the issue, her explanation was that she probably sent a separate email to the appellant. 48. She further cannot recall who delivered the original signed addendum to the offices of Diekmann Associates on 17 May 2013. She reckons it must have been Mr McDonald, because she witnessed Mr McDonald’s signature on the addendum. Ms Van Rensburg did not know whether any interest was paid to appellant. She also could not explain how appellant’s signature on the addendum came about. 49. When Ms Van Rensburg was confronted with her testimony that appellant and second respondent gave instructions to draft the addendum when the books of Diekmann Associates showed that only respondents paid the legal fees, she conceded she did not know who gave the instructions. 50. It was not explained why Mr McDonald, the signatory to the agreement was not called to testify. The person who witnessed the signature of Mr Coetzee on the addendum appears to be the same person who allegedly witnessed appellant’s signature, why he was not called is not explained. There is no reason why at the request of the appellant, the signatures on the agreement and the addendum were not subjected to a handwriting expert; the request was met with resistance. An expert would possibly have identified similarities. 51. Appellant persisted in her denial to the extent where she requested expert evidence of her signature. The only criticism of her evidence was her receiving the purchase price before the registration of transfer and was the only reason why she was found not to be a credible witness. She further testified she would not have agreed to grant a 20 year period to satisfy the suspensive conditions in the agreement and in my view no one would. 52. Story short, Ms Van Rensburg did not place any evidence on record that was mutually destructive with appellant’s evidence. The court _a quo’s_ approach was fundamentally wrong. The appeal stands to succeed with costs which should follow the event. 53. In the result, I make the following order: 1. The appeal succeeds. 2. The order of the court below of 21 August 2020 that the appellant concluded the addendum to the deed of sale and the order of 7 February 2023 dismissing appellant’s eviction claim are set aside and substituted with the following order: ‘The plaintiff did not conclude the addendum to the deed of sale.’ 3. The respondents are ordered to pay the costs of the appellant in the court below. 4. The respondents are further ordered to pay the costs of this appeal, such costs to include the costs of one instructing and one instructed legal practitioner. 5. The matter is remitted to the High Court for the possible hearing of any outstanding issues between the parties. ___________________ **MAINGA JA** ___________________ **HOFF JA** ___________________ **MAKARAU AJA** APPEARANCES: Appellant: | G Dicks ---|--- | Instructed by Nixon Marcus Public Law Office First Respondent: | C J Van Zyl | Instructed by Francois Erasmus & Partners 1 Stellenbosch _Farmers’ Winery Group Ltd & another v Martel et Cie & others_ 2003 (1) SA 11 (SCA). 2 Ibid para 5. 3 _Prime Paradise International Ltd v Wilmington Savings Fund Society FSB & others _2022 (2) NR 359 (SC) at 380A-C. #### __Related documents ▲ To the top >