THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Not Reportable
Case No: 746/2022

In the matter between:

PERCY SULI MOSUETSA                                                                        APPELLANT
and
DERRICK THABO MOSUETSA                                                   FIRST RESPONDENT
MASTER OF THE HIGH COURT, SOUTH
GAUTENG, JOHANNESBURG
SECOND RESPONDENT
REGISTRAR OF DEEDS, JOHANNESBURG                                  THIRD RESPONDENT
GARY SEFAKO MOSUETSA                                                        FOURTH RESPONDENT
TSHEPO REUBEN MOSUETSA                                                FIFTH RESPONDENT

Neutral citation:
Percy Mosuetsa v Derrick Mosuetsa and Others (746/2022)
[2023] ZASCA 164 (1 December 2023)
Coram:
GORVEN, HUGHES, MATOJANE and WEINER JJA and CHETTY AJA
Heard:
Matter disposed of without oral hearing in terms of s 19(a) of the

Superior Courts Act 10 of 2013
Delivered:
1 December 2023
Summary:
Civil procedure – order of court not appealed or rescinded – application
to stay execution – issue res judicata unless set aside on appeal or by rescission –
application to stay not competent.

___________________________________________________________________
ORDER
___________________________________________________________________
On appeal from: Gauteng Division of the High Court, Johannesburg (Makume J,
Meyer J and Randera AJ concurring, sitting as court of appeal):
The appeal is reinstated.
The appeal is dismissed with no order as to costs.
___________________________________________________________________
JUDGMENT
___________________________________________________________________

Hughes JA (Gorven, Matojane and Weiner JJA and Chetty AJA concurring)

[1] This is an appeal against the decision of the full court of the Gauteng Division
of the High Court, Johannesburg (per Makume J, Meyer J and Randera AJ concurring)
delivered on 28 July 2021. This Court granted special leave to appeal that decision on
29 July 2022, which appeal was allowed to lapse. Before this Court is an application
for reinstatement of that appeal and further prosecution thereof.

[2] As alluded to above, special leave to appeal was granted by this Court. The
record was not filed on 1 November 2022 as was required. The appellant, Percy Suli
Mosuetsa (Percy) submits that he only discovered on 13 February 2023 that the appeal
had lapsed. He attributed this to the withdrawal of his attorney. He sought the
assistance of Legal Aid which was granted. Coupled with the closure period over the
festive season, it was Legal Aid who delayed in prosecuting his appeal.

[3] This Court’s approach in granting condonation has long been settled. In
Dengetenge Holdings (Pty) Ltd v Southern Sphere Mining and Development Company
Ltd and Others, Ponnan JA held that factors relevant to the discretion to grant or refuse
condonation include ‘the degree of non-compliance, the explanation therefor, the
importance of the case, a respondent’s interest in the finality of the judgment of the

court below, the convenience of this court and the avoidance of unnecessary delay in
the administration of justice’.1

[4] The appellant made out a case as set out above. In addition, in the interests of
justice and for the sake of finality, it is appropriate for this Court to reinstate the appeal.

[5] I now turn to deal with the merits of the appeal. Percy, in an application to the
Gauteng Division of the High Court, Johannesburg (the high court), sought that the
second respondent, the Master of the High Court, South Gauteng, Johannesburg, (the
Master) remove his half-brother, Derrick Thabo Mosuetsa (Derrick), the first
respondent, as the Master’s appointed representative of the deceased estates of their
parents, Mrs Sibongile Mosuetsa and Mr Solomon Mosuetsa. Ancillary to the aforesaid
relief, Percy also required that the Registrar of Deeds, Johannesburg (the third
respondent) be ordered to reverse or prevent the transfer of ownership of the property
described as 1369 Kgoposto Street, Molapo, Soweto (the property) into the name of
Derrick. The pertinent relief was that the relevant Sheriff of the court be interdicted from
giving effect to the warrant of ejectment granted against Percy and those who occupied
the property.

[6] Fundamental to this appeal is the fact that a previous order of court was granted
by Kgomo J based on a finding that Derrick is the owner of the property. On that basis,
he obtained an order evicting Percy from the property. It was this order which prompted
the application by Percy which led to the present appeal. I briefly set out the underlying
circumstances hereinafter.

[7] Mrs Sibongile Mosuetsa and Mr Solomon Mosuetsa were married to each other
in community of property in 1968. Mrs Mosuetsa came into the marriage with a child
(Percy) from a previous relationship. Three children were born to Mrs and Mr
Mosuetsa, the eldest being Derrick. Mrs Mosuetsa passed away on 5 July 2003. On
21 February 2008, Derrick received letters of authority from the Master authorising him
to take control of the assets in the estate of his late mother. During Mr Mosuetsa’s

1 Dengetenge Holdings v Southern Sphere Mining and Development Company Ltd and Others [2013]
ZASCA 5; [2013] 2 All SA 251 (SCA) para 11.

lifetime, and by way of a donation affidavit dated 14 October 2007, Mr Mosuetsa
donated the property to Derrick. Percy had been residing on the property since 1995.
Mr Mosuetsa died on 20 December 2011. The Master issued letters of authority in
favour of Derrick on 12 April 2012 authorising him to take control of the assets in the
estate of his late father, Mr Mosuetsa.

[8] On 14 November 2012, the Master accepted that the donation made to Derrick
of the property during the lifetime of Mr Mosuetsa meant that the property did not fall
into his estate. That decision of the Master has not been reviewed and set aside. Nor
did the present application attempt to do so. On the very same day, ownership of the
property was transferred to Derrick and his wife by the Registrar of Deeds,
Johannesburg. This led to the application in the high court to evict Percy from the
property. On 10 October 2013, Kgomo J granted the following order:
‘1. The First Respondent and all persons who occupy the property known as ERF 1369
MOLAPO TOWNSHIP, SOWETO, GAUTENG, SITUATE[D] AT 1369 KGOPUTSO STREET
MOLAPO, SOWETO (“the property”) under and by virtue of the First Respondent’s occupancy
of the property, is and are hereby evicted from the property by the 30th of November 2013.
2. In the event of the First Respondent and all persons who occupy the property under or by
virtue of the First Respondent’s occupancy of the property failing and/or refusing to vacate the
property within the period stipulated in paragraph 1 above, that the Sheriff is hereby authorised
to forthwith enter upon the property and evict the First Respondent and all those who occupy
the property under and by virtue of the First Respondent’s occupancy of the property.
3. An interdict is hereby issued against the First Respondent and all persons who occupy the
property under and by virtue of the First Respondent’s occupancy, preventing and restraining
them from moving back in to the property after eviction.
4. The First Respondent is to pay the costs of this application.’

[9] Essentially, the Kgomo J order directed that Percy and all persons who occupied
the property were to be evicted and were to vacate the property by no later than 30
November 2013. Further, the order directed that Percy was interdicted from returning
to the property after being evicted. In the full court judgment, the court stated that
Kgomo J granted the order that he did ‘on the basis that the appellant [Derrick] was
the undisputed owner of the property’. This order, by Kgomo J has not been challenged
and remains extant. It is binding until it has either been rescinded or set aside on
appeal.

[10] The Constitutional Court, in Municipal Manager OR Tambo District Municipality
and Another v Ndabeni,2 reaffirmed that a court order is binding until it is set aside by
a competent court, and that this necessitates compliance, regardless of whether or not
the party against whom the order is granted believes it to be a nullity. This principle
gives effect to s 165(5) of the Constitution of the Republic of South Africa:
‘An order or decision issued by a court binds all persons to whom and organs of state to which
it applies.’

[11] This Court, in MEC for the Department of Public Works, Eastern Cape and
Another v Ikamva Architects CC, similarly developed the principle that an order of a
court of law stands until set aside by a court of competent jurisdiction. An order that it
should not be put into effect is not competent without a case being made out that there
are prospects that it will be set aside by rescission or on appeal.3 Until that is done, the
court order must be obeyed even if it may be wrong; there is a presumption that the
judgment is correct.4 As such, the order of Kgomo J, based as it is on the ownership
of Derrick, is decisive of that issue. This applies equally to administrative action, such
as the decision of the Master to recognise the validity of the donation and the
corresponding decision that the property did not fall into the estate of Mr Mosuetsa.5
This also disposes of the relief sought in several other applications brought before the
high court (the interlocutory orders) to reopen the estates of Mr and Mrs Mosuetsa and
to appoint a new representative. The property does not fall into the estates and the
entire motivation for the estates being reopened was based on the contention that the
property had not been appropriately dealt with.

[12] In an earlier decision of this Court, Firestone South Africa (Pty) Ltd v Gentiruco
AG (Firestone), the Appellate Division pronounced on the position above as follows:

2 Municipal Manager OR Tambo District Municipality and Another v Ndabeni [2022] ZACC 3; [2022] 5
BLLR 393 (CC); (2022) 43 ILJ 1019 (CC); 2022 (10) BCLR 1254 (CC); 2023 (4) SA 421 (CC) para 23-
24; Department of Transport v Tasima (Pty) Ltd [2016] ZACC 39; 2017 (1) BCLR 1 (CC); 2017 (2) SA
622 (CC) para 182.
3 MEC for the Department of Public Works, Eastern Cape and Another v Ikamva Architects CC [2022]
ZASCA 184; [2023] 1 All SA 579 (SCA); 2023 (2) SA 514 (SCA) para 34.
4 Ibid.
5 Oudekraal Estates (Pty) Ltd v City of Cape Town and Others [2004] ZASCA 48; [2004] 3 All SA 1
(SCA) para 31.

'The general principle, now well established in our law, is that, once a court has duly
pronounced a final judgment or order, it has itself no authority to correct, alter, or supplement
it. The reason is that it thereupon becomes functus officio: its jurisdiction in the case having
been fully and finally exercised, its authority over the subject-matter has ceased.'6

[13] As enunciated in the cases above, and in terms of the principles set out in
Oudekraal and Firestone, the order of Kgomo J stands until rescinded or set aside on
appeal. All the interlocutory orders that followed in the high court are a nullity as,
factually, Kgomo J’s order has pronounced a final judgment on the issue. There is
accordingly no basis to interfere with the order granted by the full court.

[14] Consequently, the following order issues:
The appeal is reinstated.
The appeal is dismissed with no order as to costs.

___________________
W HUGHES
JUDGE OF APPEAL

6 Firestone South Africa (Pty) Ltd v Gentiruco AG 1977 (4) SA 298 (A) at 306F-G.

Appearances

For the appellant:
Heads of Argument prepared by NL Skibi
Instructed by:
Legal Aid South Africa, Johannesburg

Legal Aid South Africa, Bloemfontein

For the first respondent:
Heads of Argument prepared by ARG Mundell SC
Instructed by:
Carvalho Incorporated, Johannesburg

Lovius Block Incorporated, 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:

1 December November 2023
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
Percy Mosuetsa v Derrick Mosuetsa and Others  (746/2022) [2023] ZASCA 164 (1 December 2023)
Today the Supreme Court of Appeal (SCA) granted an application for the reinstatement of an appeal.
It further dismissed the appeal which emanated from the full court of the Gauteng Division of the High
Court, Johannesburg (the full court), with no order as to costs.
Percy Mosuetsa (the appellant), in an application to the Gauteng Division of the High Court,
Johannesburg (the high court), sought that the second respondent, the Master of the High Court, South
Gauteng, Johannesburg, (the Master) remove his half-brother, Derrick Thabo Mosuetsa (Derrick), the
first respondent, as the Master’s appointed representative of the deceased estates of their parents, Mrs
Sibongile Mosuetsa and Mr Solomon Mosuetsa. Ancillary to the aforesaid relief, the appellant also
required that the Registrar of Deeds, Johannesburg (the third respondent) be ordered to reverse or
prevent the transfer of ownership of the property described as 1369 Kgoposto Street, Molapo, Soweto
(the property) into the name of Derrick. The pertinent relief was that the relevant Sheriff of the court be
interdicted from giving effect to the warrant of ejectment granted against the appellant and those who
occupied the property.
Mrs Sibongile and Mr Mosuetsa were married to each other in community of property in 1968. Mrs
Mosuetsa came into the marriage with a child (the appellant) from a previous relationship. Three
children were born to Mrs and Mr Mosuetsa, the eldest being Derrick. Mrs Mosuetsa passed away on
5 July 2003. On 21 February 2008, Derrick received letters of authority from the Master authorising him
to take control of the assets in the estate of his late mother. During Mr Mosuetsa’s lifetime, and by way
of a donation affidavit dated 14 October 2007, Mr Mosuetsa donated the property to Derrick. The
appellant had been residing on the property since 1995. Mr Mosuetsa died on 20 December 2011. The
Master issued letters of authority in favour of Derrick on 12 April 2012 authorising him to take control of
the assets in the estate of his late father, Mr Mosuetsa.
On 14 November 2012, the Master accepted that the donation made to Derrick of the property during
the lifetime of Mr Mosuetsa meant that the property did not fall into his estate. On the very same day,
ownership of the property was transferred to Derrick and his wife by the Registrar of Deeds,
Johannesburg. This led to the application in the high court to evict the appellant from the property.
On 10 October 2013, Kgomo J granted an order directing that the appellant and all persons who
occupied the property were to be evicted and were to vacate the property by no later than 30 November

2013. Further, that order directed that the appellant was interdicted from returning to the property after
being evicted.
On appeal, the full court stated that the high court granted the order that it did on the basis that Derrick
was the undisputed owner of the property.
In granting the application for the reinstatement of the appeal, the SCA held that the appellant had made
out a case which merited the granting of condonation according to settled legal precedent. In addition
to this, the SCA held that, for the sake of finality and in the interests of justice, it was appropriate for the
Court to reinstate the appeal.
In addressing the merits of the appeal, the SCA held that what was fundamental to the present appeal
was the fact that an order of court was granted based on a finding that Derrick was the owner of the
property. The SCA then reasoned that this order has not been challenged and remains extant and
binding until it has either been rescinded or set aside on appeal.
The SCA further held that an order of a court of law stands until set aside by a court of competent
jurisdiction, holding that Kgomo J’s order, based as it is on the ownership of Derrick, is decisive of that
issue. The SCA reasoned that this applies equally to administrative action, such as the decision of the
Master to recognise the validity of the donation and the corresponding decision that the property did not
fall into the estate of Mr Mosuetsa.
In the last instance, the SCA held that all the orders that followed in the high court are a nullity as,
factually, Kgomo J’s order had pronounced a final judgment on the issue and there is accordingly no
basis to interfere with the order granted by the full court.
In the result, the SCA made an order reinstating the appeal and further dismissing the appeal with no
order as to costs.
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