Phillip Tshepiso Motsima and Another v Liphapang Albert Kopa and Others

In 2010, the appellants acquired property as vacant land and built a house on it using a mortgage bond. After the first appellant's employment was terminated, they could not meet their financial obligations. To avoid foreclosure, they sold the property to the C&D Investment Trust in 2017 for R1 575 000 with a lease agreement that included an option to repurchase for R1 830 000. Unable to exercise this option, the appellants in July 2018 orally agreed with the Kopas (first and second respondents) that the Kopas would purchase the property from C&D Trust and hold it for the appellants with an option to buy it back. The Kopas bought the property for R1 830 000 and took transfer. The parties later disagreed on the terms of their oral agreement. The Kopas sold the property to the VDM Trust for R2.5 million. In May 2019, the appellants instituted an action declaring both the C&D and Kopas agreements unlawful, void, and simulated. The High Court dismissed the action in February 2021 and granted leave to appeal to the Full Court. The appellants filed the appeal record in November 2021 but failed to prosecute the appeal, which lapsed. The property was transferred to the VDM Trust in May 2021 and subsequently sold to a third-party purchaser. In May 2023, the appellants applied for condonation of their failure to prosecute the appeal and its reinstatement. The Full Court dismissed the application, and the appellants appealed to the Supreme Court of Appeal.

• Whether the Full Court was correct in refusing condonation for the appellants' failure to prosecute their appeal
• Whether the interests of justice favored granting condonation
• Whether the appeal was moot due to the transfer of the property to a third-party purchaser
• Whether the court should exercise its discretion to determine a moot appeal

The appeal was dismissed with costs.

An applicant for condonation of failure to prosecute an appeal must provide a full and reasonable explanation covering the entire period of delay. Where an applicant fails to explain substantial periods of delay, particularly inordinate delays without justification, it is not in the interests of justice to grant condonation. The principle of finality in litigation entitles parties to assume that appeals will not be prosecuted where there has been unreasonable and excessive delay, and this principle would be undermined by granting condonation in such circumstances. Where the relief sought in an appeal has become impossible due to subsequent events (such as transfer of property to third parties), prospects of success are effectively non-existent, and this weighs against granting condonation. An appeal is moot when the decision sought will have no practical effect, and courts will only exercise discretion to determine moot appeals where discrete legal issues of public importance arise that would affect matters in the future.

Modiba AJA observed that the appellants' conduct throughout the proceedings was inconsistent with a genuine intention to prosecute the appeal. They were aware from as early as November 2018 that the Kopas intended to sell the property, yet obtained interdicts to prevent sales while lacking the means to purchase the property themselves. The failure to amend pleadings despite being aware of the sale to a third-party purchaser from July 2021 onwards was particularly telling. The suggestion during oral argument that pleadings could be amended if the appeal succeeded was made without particulars and came too late, given the appellants' awareness of the need for such amendments since July 2021. Schippers JA noted that the Kopas' assistance to the appellants appeared to be an act of kindness, yet the appellants had not paid any rental or other amounts prior to the sale to the VDM Trust, and two years after the C&D agreement still could not raise funds to repurchase the property.

This case reinforces the strict approach South African courts take to condonation applications, particularly where there is inordinate, unexplained delay in prosecuting appeals. It emphasizes the importance of the principle of finality in litigation and parties' entitlement to closure. The judgment illustrates the application of the Van Wyk test for condonation and demonstrates that all periods of delay must be explained, not just selected portions. The case also addresses mootness in the context of property disputes where subsequent transfers to third parties have occurred, and clarifies when courts will exercise discretion to determine moot appeals – only where discrete legal issues of public importance arise. It serves as a cautionary tale regarding the consequences of failing to prosecute appeals timeously and the limited prospects of reviving lapsed appeals where the practical effect of the relief sought has become impossible.