THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not Reportable
Case No: 73/2021
In the matter between:

MASHAO JOHN THEPANYEGA N O

FIRST APPELLANT
EPHRAIM SETLABANE RAMOHLALE N O

SECOND APPELLANT
LESOLE JOHANNES TEPANYEKGA N O

THIRD APPELLANT
MADUMETSA SOLOMON MACHETE N O

FOURTH APPELLANT
MOSIMA JEANETA BALOYI N O

FIFTH APPELLANT
KGOBUDI JACKSON MANKGA N O

SIXTH APPELLANT
NGWAKO FRANS MAMARIBE N O

SEVENTH APPELLANT
NGALETJANE CLAAS RAMAPHOKO N O

EIGHTH APPELLANT
PHEEHA FRANS RAMOTLHALE N O

NINTH APPELLANT
CHIPPA DANIEL RAMOHLALE N O

TENTH APPELLANT
REKE PEGGY DIKGALE N O

ELEVENTH APPELLANT
MOSEBJADI ISABEL DIKGALE N O

TWELFTH APPELLANT

and

HERMAN LETSOALO

FIRST RESPONDENT
SEJA LETSOALO

SECOND RESPONDENT
FRANS KWETE RAMOTIHANE

THIRD RESPONDENT

Neutral citation:
Thepanyega N O and Others v Letsoalo and Others (73/2021)
[2022] ZASCA 30 (24 March 2022)

Coram:
SALDULKER, ZONDI and HUGHES JJA, and MUSI and
SMITH AJJA
Heard:
24 February 2022
Delivered: This judgment was handed down electronically by circulation to the
parties' representatives by email, publication on the Supreme Court of Appeal
website and release to SAFLII. The date and time for hand-down is deemed to be at
10h00 on 24 March 2022.
Summary: Civil procedure – contract – whether a person who claims possession by
way of ownership of a property must prove the termination of a contractual right of
another to hold such a property prior to the institution of proceedings – agreement
must be unequivocally cancelled before an application for eviction is launched.

__________________________________________________________________

ORDER
__________________________________________________________________
On appeal from: Limpopo Division of the High Court, Polokwane (Naude AJ and
Phatudi J, sitting as court of appeal):

The appeal is dismissed with costs.
__________________________________________________________________

JUDGMENT
__________________________________________________________________
Saldulker JA (Zondi and Hughes JJA, and Musi and Smith AJJA concurring):

[1] This appeal, brought by the appellants, Mashao John Thepanyega NO and
eleven others, the trustees of the Madibeng Letupi Community Trust (the Trust), is
against the decision of the Limpopo Division of the High Court, Polokwane (the high
court), whereby Naude AJ (Phatudi J concurring) set aside an order on appeal from
the Magistrate's Court for the District of Molemole, held at Morebeng (the
magistrate’s court).

[2] The Trust is the registered owner of Portion 6 of the Farm Kalkfontein 812,
Registration Division L.S, Limpopo Province (the farm) (the trust property). The Trust
had for some time allowed the respondents, Messers Herman Letsoalo, Seja
Letsoalo and Frans Ramotihane, to graze their livestock on the trust property subject
to payment of a grazing fee and other related charges. The appellants, contending
that the respondents had in breach of the grazing agreement failed to pay the
grazing fee and other related charges, launched proceedings in the magistrate’s
court against the respondents for, inter alia, the eviction of the respondents’ livestock
(cattle) from the trust property; authorising the sheriff or the pound master to remove
the livestock from the trust property; and to retain same until the grazing fee and
related costs have been paid. During the hearing of the application, the Trust sought
and obtained an amendment of the notice of motion so as to incorporate a prayer

for an interdict preventing the respondents from grazing their livestock on the trust
property. The magistrate granted the relief as sought by the Trust.1

[3] Aggrieved by the judgment, the respondents approached the high court. The
high court upheld the appeal, and found that the magistrate’s court lacked
jurisdiction, and that the appellants did not make out a case for an interdict.
Importantly, the high court found that it was common cause that there was a verbal
agreement between the parties, which had entitled the respondents to graze their
livestock on the farm belonging to the appellants, and which agreement had not
been unequivocally cancelled by the appellants before they launched the application
for the eviction. This appeal is with the leave of this Court.

[4] The crisp issue in this matter is whether the respondents had established a
right entitling them to graze their livestock on the farm. But first, the facts.

[5] It is common cause that the respondents began to graze their livestock on
the farm since 2012. According to the founding affidavit of the appellants, the
respondents were allowed to graze their livestock on the farm subject to the payment
of fees. However, the respondents paid no fees, and despite many requests by the
appellants to formalise the agreement to establish their contractual grazing rights on
the payment of fees, the respondents refused to comply. It is apparent from the
pleadings that the respondents had a right to graze their livestock on the farm with
the appellants’ consent. Their use of the appellants’ property was therefore not
unlawful. It is not alleged by the appellants that they had terminated the respondents’
right to graze their livestock.

[6] At the hearing counsel for the appellants pointed out that what was being
sought by the appellants was an interdict, not eviction. To succeed in their claim for
a final interdict the appellants had to establish, among other things, the existence of
a clear right and its infringement by the respondents. Thus, at least at the time the

1 The magistrate granted the following order: the eviction of the cattle or livestock from the property;
the sheriff or pound master keep the cattle or livestock in pound until the respondents have paid the
costs of the application; the respondents are interdicted from grazing their cattle or livestock on the
property; and the respondents to pay the party and party costs.

application was launched, there was still a valid oral agreement between the parties
in terms of which the respondents were allowed to graze their livestock on the farm.

[7] The high court accordingly correctly found that there was some tacit
agreement between the parties and that agreement had not been cancelled.
Furthermore, the appellants do not explain why it took them four years to enforce a
claim for grazing fees. More importantly, when they eventually wrote to the
respondents claiming grazing fees, there was no suggestion that an election had
been made to cancel the agreement.

[8] From the aforegoing, it is clear that there must have been some tacit
agreement between the parties which entitled the respondents to graze their
livestock. This agreement clearly conferred a personal right on the respondents. The
appellants have also not proved that they would suffer any harm or the nature of
such harm. The appellants can also obtain adequate redress through other
remedies, such as a claim for damages, and/or cancellation of the agreement.

[9] It is common cause that the appellants are the owners of the farm. The
respondents are not beneficiaries, nor trustees of the Trust. However, there was an
oral agreement in place whereby the appellants allowed the respondents the right to
graze their livestock on the farm. As mentioned, the high court correctly found that
the agreement between the parties was not unequivocally cancelled before the
application for eviction was launched. Thus, this right has not been terminated. This
is in line with the decision in Morkel v Thornhill (A105/2009) [2010] ZAFSHC 29 (FB),
where it was held that a notice of cancellation must be clear and unequivocal and
only takes effect from the time it is communicated to the relevant party. Furthermore,
in the seminal case of Chetty v Naidoo 1974 (3) SA 13 (A), this Court held that:2
‘[A]lthough a plaintiff who claims possession by virtue of his ownership, must ex facie his
statement of claim prove the termination of any right to hold which he concedes the
defendant would have had but for the termination, the necessity for this proof falls away if
the defendant does not invoke the right conceded by the plaintiff, but denies that it existed.
Then the concession becomes mere surplusage as it no longer bears upon the real issues

2 Chetty v Naidoo [1974] 3 All SA 304 (A) at 310.

then revealed. If, however, the defendant relies on the right conceded by the plaintiff, the
latter must prove its termination. This is so, not only if the concession is made in the
statement of claim, but at any stage.’

[10] In argument before us, the appellants’ counsel conceded that they do not
claim to have cancelled the agreement, but urged us, on the basis of the Plascon-
Evans rule, to ignore the appellants’ version and decide the appeal on the version
proffered by the respondents. The argument being that the respondents claim that
they had obtained the permission to graze their livestock from the beneficiaries of
the Trust, meaning that the contract asserted by them was void ab initio, since they
did not contract with the trustees. This argument, however, conveniently ignores the
fact that it is common cause that the trustees ultimately accepted that there was
such an agreement in place and had in fact attempted to enforce it by claiming
grazing fees from the respondents.

[11] In view of all the aforegoing, the appeal falls to be dismissed. There appears
to be no equitable reason why an order for costs should not follow the result.

[12] In the result, the following order is made:
The appeal is dismissed with costs.

__________________
H K SALDULKER
JUDGE OF APPEAL

APPEARANCES

For appellants:
D Prinsloo (with M Bresler)
Instructed by:
Naude & Britz Attorneys, Polokwane
Symington & De Kok Incorporated, Bloemfontein

For respondents:
M E Phooko
Instructed by:
Moloko Phooko Attorneys, Polokwane
Phatshoane Henney Attorneys, Bloemfontein
THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE SUPREME COURT OF
APPEAL
From:
The Registrar, Supreme Court of Appeal
Date:
24 March 2022
Status:
Immediate
The following summary is for the benefit of the media in the reporting of this case and does
not form part of the judgments of the Supreme Court of Appeal
Thepanyega N O and Others v Letsoalo and Others (73/2021) [2022] ZASCA 30 (24 March
2022)
The Supreme Court of Appeal (SCA) today dismissed, with costs, an appeal brought by the
appellants, Mashao John Thepanyega NO and eleven others, the trustees of the Madibeng
Letupi Community Trust (the Trust), against the decision of the Limpopo Division of the High
Court, Polokwane (the high court), whereby Naude AJ (Phatudi J concurring) set aside an order
on appeal from the Magistrate's Court for the District of Molemole, held at Morebeng (the
magistrate’s court).  The Trust was the registered owner of Portion 6 of the Farm Kalkfontein
812, Registration Division L.S, Limpopo Province (the farm). The respondents, Messers
Herman Letsoalo, Seja Letsoalo and Frans Ramotihane, were neither the trustees nor
beneficiaries of the Trust. The Trust had for some time allowed the respondents to graze their
livestock on the farm subject to payment of a grazing fee and other related charges.

The appellants, contending that the respondents had in breach of the grazing agreement failed
to pay the grazing fee and other related charges, launched proceedings in the magistrate’s court
against the respondents for, inter alia, the eviction of the respondents’ livestock from the farm.
The crisp issue in this matter was whether the respondents had established a right entitling them
to graze their livestock on the farm belonging to the appellants.

The SCA found that it was apparent from the pleadings that the respondents had a right to graze
their livestock on the appellants’ property with the appellants’ consent. It was not alleged by
the appellants that they had terminated the respondents’ right to graze their livestock. Thus, at
least at the time that the application was launched, there was still a valid oral agreement
between the parties in terms of which the respondents were allowed to graze their livestock on
the farm. The SCA held that the agreement was not unequivocally cancelled before the
appellants launched the application for eviction. Thus, this right had not been terminated. In
view of all the aforegoing, the appeal fell to be dismissed, with costs.

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