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IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

 

(1)    REPORTABLE: NO.

(2)    OF INTEREST TO OTHER JUDGES: NO.

(3)    REVISED

 

Case Number: 32009/2018

6/5/2020

 

In the matter between

 

FRANK MHLONGO                                                                                    1^st APPLICANT

RIEBS KHOZA                                                                                             2^nd APPLICANT

DOCTOR SIBUYI                                                                                         3^rd APPLICANT

PATRIC JONES                                                                                             4^th APPLICANT

 

And

 

TRYPHINAH MOKOENA N.O.                                                                  1^st DEFENDANT

NOMSA MUHLAWURI MANYIKE N.O                                                   2^nd DEFENDANT

MADODA ISAAC TJIE N.O                                                                        3^rd DEFENDANT

TOBANI MICHAEL KHOZA N.O                                                              4^th DEFENDANT

THEMBA TIBANE N.O                                                                                5^th DEFENDANT

MASTER, GAUTENG PRETORIA                                                             6^th DEFENDANT

ATTORNEY RICHARD SPOOR OF                                                          7^th DEFENDANT

RICHARD SPOOR ATTORNEYS INC.

ATTORNEY WIEKUS DU TIOT OF                                                           8^th DEFENDANT

WdT ATTORNEYS

ATTORNEY ERROL GOSS OF ERROL GOSS                                        9^th DEFENDANT

ATTORNEYS

THEBE CORRIDORS COMPANY (PTY) LTD                                         10^th DEFENDANT

REGINAL LAND CLAIMS COMMISSIONER,                                        11^th DEFENDANT

MPUMALANGA

JUDGMENT

HUGHES J

 

[1]          The applicants as cited above sought leave to appeal prayers 14 (a) and 14 (b) of my judgment dated 5 February 2020, to the Full Court of this division. The wording of the relief sought ls set out below as I will deal with its relevance in my reasons:

'That the Applicants be granted leave to appeal to the Full Court of the Gauteng Provincial Division of the High Court, Pretoria, against the order in paragraphs [14 [a] & [14] [b] of the Judgment ... '

 

[2]          It is trite that an application for leave to appeal must be sought in terms of section 17(1) of the Superior Courts Act 10 of 2013 (the Superior Courts Act). For easy reference I set out section 17 (1) in its entirety:

'Section17(1)

(1)         Leave to appeal may only be given where the judge or judges concerned are of the opinion that-

(a)          (i)    the appeal would have a reasonable prospect of success; or

(ii)    there Is some other compelling reason why the appeal should be heard, including conflicting judgments on the matter under consideration;

(b)          the decision sought on appeal does not fall within the ambit of section 16 (2) (a); and

(c)      where the decision sought to be appeared 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.' [My emphasis]

 

[3]          Previously, the test applied in an application for leave to appeal was whether there were reasonable prospects that another court may come to a different conclusion. To this end I refer to Commissioner of Inland Revenue v Tuck 1989 (4) SA 888 (T) at 890B. It is now only granted in the circumstances set out above, this is gleaned from the word 'only' used in the relevant section 17 (1). Bertelsmann J in The Mont Chevaux Trust v Tina Goosen & 18 Others 2014 JDR 2325 (LCC) at para [6] said the follow:

‘It is clear that the threshold for granting leave to appeal against a judgment of a High Court has been raised in the new Act The former test whether leave to appeal should be granted was a reasonable prospect that another court might come to a different conclusion, see Van Heerden v Cronwright & Others 1985 (2) SA 342 (T) at 343H. The use of the word "would" in the new statute Indicates a measure of certainty that another court will differ from the court whose judgment is sought to be appealed against.' [My emphasis].

 

[4]        As was stated by Plaskett JA in S v Smith 2012 (1) SACR 567 (SCA) at para 7 the test is now more stringent in that:

'In order 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 ls 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.'

 

[5]          This was reinforced by the Supreme Court of Appeal in Notshokovu v S[1] , and ln my view, it emerged that the threshold required for the granting of leave to appeal in terms of section 17(1) has been raised:

'This court has to decide whether or no! the courts below, including the two judges of this Court, ought to have found that reasonable prospects of success existed to grant leave or special leave respectively. (See S v Khoasasa (2002) ZASCA 113; 2003 (1) SACR 12-3(SCA); S v Matshona [2008] ZASCA 58 ; 2013(2)SACR 126 (SCA)). An appellant, on the other hand, faces a higher and stringent threshold. in terms of the Act compared to the provisions of the repealed Supreme Court Act 59 of 1959. (See Van Wyk v S, Galela v S [2014] ZASCA 152; 2015 (1) SACR 584 (SCA) para [14].)'. [My emphasis]

 

[6]          I am informed by counsel for the applicants that this application is premised on the basis that the appeal would have reasonable prospects of success, as is set out in section 17 (1) (a) (i). The applicant seek to appeal a point In limine In respect of jurisdiction. The respondents were successful in raising a preliminary point that this court has no jurisdiction to hear the applicants' case and that the Mpumalanga High Court had jurisdiction instead.

[7]          Critically, the applicants argue that the court applied the correct test in determining whether this court has jurisdiction or not However, the court erred in the application of1he test to the facts. The crux of the application for leave to appeal lies on the assertion that the court failed to ·properly apply legal principle and Section 21 of the Superior Courts Act 10 of 2013' to determine jurisdiction in respect of the sixth, ninth and tenth respondents. Notably, the jurisdiction of two thirds of the respondents were not addressed by the applicants, evidently, their jurisdiction rested in Mpumalanga. Whilst according to the applicants, the sixth, ninth and tenth respondent's jurisdiction was still arguable and another court could come to a different decision. This clearly resonates with the applicant's contention that they have reasonable prospects 9f success.

[8]          On 1 September 2017 and in terms of section 7(1) of the Superior Courts Act 10 of 2013 a Government Gazette notification was issued declaring that the Gauteng Division of-the High Court will cease to have jurisdiction 'in any matters emanating and arising' in Mpumalanga. This was effective from 1 September 2017. The notification was explicated that the coming into effect of the legislation resulted in the Gauteng Division-ceasing to have jurisdiction in matters emanating from the Magisterial Districts set out in Part A and B. These district falling under Mpumalanga.

[9]        It is trite that Jurisdiction in terms of section 21(1) is determined by one's residence and not one's domicilium. I do not intend to rehash the reasons advanced in my judgment. Save to place emphasis on the fact that the relevant Government Gazetted sets out the Jurisdiction of Mpumalanga and all the relevant parties against whom relief was sort where cited as residing or carrying on business in the Mpumalanga. No relief was sought from the Master of Pretoria whose citation was in the Gauteng Province. Further, in the applicant's own papers, the attorney of the tenth respondent who has offices in Johannesburg, merely represented the tenth respondent as his attorney or agent when agreement was reached in respect of the lease contract.

[10]      Turning to my order, simply put, the application of applicants in this court, Gauteng High Court, Pretoria is dismissed for want or lack of jurisdiction In this court.

[11]      I have examined all the grounds of appeal advanced by the applicants and conclude that the application for leave must fail having read the papers and listened to the argument.. Therefore , the application for leave to .appeal has not passed the stringent bar set and I cannot find that there are reasonable prospects of success.

[12]      Consequently, the following order is made:

[a]        The application for leave to appeal is dismissed with costs.

 

 

 

W. Hughes

Judge of the High Court Pretoria, Gauteng

Division

 

 

 

 

 

APPEARANCES

For the-Applicants:                              Adv. J.C Klepper

For the 1^st to 5^th Respondents:             Adv. V Mabuza

Adv. N Mukhari

For the 8^th Respondent:                       Adv. J De Beer

For the 9^th and 10^th Respondents:        Adv . A Duvenhage

 

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