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IN THE HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

 

CASE NO: 10408/2018

27/11/2020

 

LOUIS JOHANNES STRYDOM N.O                                                                1^ST APPLICANT

JOHANNES VAN TONDER N.O                                                                       2^ND APPLICANT

KARIEN ROTHMAN N.O                                                                                 3^RD APPLICANT

AGUSTIN EQUITY MANAGEMENT (PTY) LTD                                         4^TH APPLICANT

NEURO BIZ (PTY) LTD                                                                                    5^TH APPLICANT

JOHANNES VAN TONDER                                                                              6^TH APPLICANT

KARIEN ROTHMAN                                                                                        7^TH APPLICANT

CITY OF TSHWANE                                                                                         8^TH APPLICANT

 

and

 

FULUFHELO CLYDE NDOU N.O                                                                1^ST RESPONDENT

LERATO HILDA NDOU N.O                                                                         2^ND RESPONDENT

THINAWANGA RACHAEL MUVHANGO N.O                                          3^RD RESPONDENT

THE SHERIFF PRETORIA EAST                                                                4^TH  RESPONDENT

 

DATE OF HEARING: The matter was enrolled for hearing on 27 NOVEMBER 2020, dealt with or determined on papers filed of record and written argument filed on behalf of the parties, without appearance and oral argument.

LEAVE TO APPEAL-JUDGMENT

KHUMALO J

Introduction

[1]          Applicants seek leave to appeal to the Full Bench of the above honourable court against the order of this court delivered on 23 January 2020, in terms of which a rule nisi the court was discharged for the reason that no proper Application was before the court.

[2]          The Application was brought on an urgent basis, seeking to stay the execution by the Respondents of a warrant to evict the Applicants from a property, Erf 100 Waterkloof Heights, pending the Applicants' filing at the Supreme Court of Appeal of a petition for leave to appeal Molopa J's Judgment dated 20 May 2019. The Respondents were given +- 2,5 hrs notice to file their Answering Affidavit and to appear in court. Only the 1st Respondent managed to appear. He indicated the Respondents' intention to oppose the Application and the difficulties experienced in obtaining legal representation and assistance with documentation. Although the Application was viewed as urgent, it was postponed for a week to 17 December 2019 for the Respondent to file its Answering Affidavit and the Applicants their Replying Affidavit. Consequently, a rule nisi was granted staying the execution of the eviction warrant and ordering the restoration of possession of the property to the Applicants pending the hearing of the matter on 17 December 2019.

[3]          The matter was then placed before me on 23 January 2020 due to the court that was sitting on 17 December 2019 having postponed the matter back to my court. The Applicants sought an extension of the rule nisi on the basis that the 1st Respondent lacked locus standi to oppose the matter on behalf of all the Respondents (co-trustees), as there was no resolution filed by the 2 other trustees authorising the 1^st  Respondent to oppose the Application and depose to an affidavit on their behalf. The Applicants proposed that a directive be issued for the parties to file their proper documentation, in the meantime the matter proceed as normal, indicating that urgency is no longer there since they have moved back into the property.

[4]        On the other hand the Respondents likewise pointed out that the Applicants are also caught in the same situation as their resolution was not signed by the 1st Applicant who is cited as a co-trustee, therefore their locus standi and or authority to act on behalf of the trust and the other trustees found wanting. The 6th Applicant who had deposed to the Applicants' Founding Affidavit in his capacity as trustee was likewise cited only in that capacity. The 7^th Applicant failed to file a confirmatory Affidavit in her personal capacity. All this being apparent from the record.

[5]        Since the matter was indicated to have lost its urgency, there was no reason why the rule nisi was to be still extended when neither the Application nor the Answering Affidavit was properly before the court.

[6]        s 17 (1) of the Superior Court Act 10 of 2013 as it now stands compels the court to grant leave to appeal only when it is of the believe that there are reasonable prospects that another court would come to a different conclusion. The threshold for granting leave having been raised. In its unreported decision The Mont Chevaux Trust v Goosen 2014 JDR 2325 (LCC), the Land Claims Court's held, albeit obiter, that the wording of the subsection raised the bar of the test that now has to be applied to any application for leave to appeal. In Notshokovu v 5 (157/15) [2016] ZASCA 112 (20 September 2016) at paragraph 2 it was confirmed that an Appellant faces a higher and stringent threshold in terms of the Act.

[7]          The Supreme Court of Appeal, in MEC for Health, Eastern Cape v Mkhitha and Another (1221/2015(2015] ZASCA 176 (25 November 2016) at par [17] held that:

[17]      An applicant for leave to appeal must convince the court on proper grounds that there is a reasonable prospect or realistic chance of success on appeal. A mere possibility of success, an arguable case or one that is not hope less, Is not enough. There must be sound, rational basis to conclude that there is a reasonable prospect of success on appeal."

 

[8]          In Democratic Alliance v President of the Republic of South Africa and Others (2124/ 2020) (2020] ZAGPPHC 326 (29 July 2020) at par [4] - [5] the Full Court borrowing from Mkhitha supra held as follows:

"More is required to be established than that there is a mere possibility of success, that the case is arguable on appeal or that the case cannot be categorised as hope less. There must in other words be a sound, rational basis for the conclusion that there are prospects of success on appeal.'

This dictum serves to emphasise a vital point: Leave to appeal is not simply for the taking. A balance between the rights of the party which was successful before the court a quo and the rights of the losing party seeking leave to appeal need to be established so that the absence of a realistic chance of succeeding on appeal dictates that the balance must be struck in favour of the party which was initially successful.''

 

[9]        The Applicants have failed to prove a locus standi. I do not believe that there are reasonable prospects of another court finding as envisaged ins 17 (1) (a) of the Superior Court Act 10 of 2013.

 

The following order is therefore made:

1.         The Application for leave is refused with Applicants to pay the costs, jointly and severally, the one to pay the others to be absolved.

 

 

 

NV KHUMALO J

JUDGE OF THE HIGH COURT

GAUTENG DIVISION, PRETORIA

 

 

 

On behalf of Applicants:          J VAN TONDER

Instructed by:                           IN PERSON

Email: Johanvt.sa@gmail.com

 

On behalf of Respondent:        ADV C DE VILLIERS

Instructed by:                           DELPORT VAN DER BERG INC

Ref: M PIENAAR/K3 K NAICKERR

Tel: 012 3461 5001

Email: krishnee@delberg.co.za

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