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REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

(SOUTH GAUTENG, JOHANNESBURG)

CASE NO: 21127/2012

DATE: 6 DECEMBER 2013

NOT REPORTABLE

NOT OF INTEREST TO OTHER JUDGES

 

In the matter between

NYANDENI: TOTO CHRISTIAN	First Applicant
NYANDENI: VUYISWA MARJORIE…	Second Applicant
and
HLEZA: DESMOND	First Respondent
HLEZA: BETTY…	Second Respondent

………………………………….

JUDGMENT - Leave to Appeal

MAKGOKA, J:

[1] This is an application for leave to appeal against the order of the judgment of this court handed down on 1 November 2013. It is brought by the unsuccessful defendants, and opposed by the successful plaintiffs.

[2]  The test applicable whether or not to grant leave to appeal, is trite and well settled. It is whether there are reasonable prospects that another court, given the same set of facts, might arrive to a different conclusion. This common law test has now been codified in s 17 of the Superior Courts Act, 10 of 2013.

[3] I have had a dispassionate and detached regard to the applicants’ grounds for leave to appeal. The main complaint seems to be that on the basis of s 2 (1) of the Alienation of Land Act, 1981, the essential terms of the sale must appear ex facie the written document purporting to be the deed of alienation. This argument is misplaced as it ignores the exception which allows for the rectification of the agreement, which the respondents sought relief for.

[4] For the first time in this application, it is contended that the applicants, as joint owners of the property, and not only the first applicant alone, ought to have participated in the negotiations that led to the conclusion of the agreement. I am not certain I understand the import of this argument, if the argument is that because the agreement is invalid because the second applicant did not participate in the negotiations, there is no merit in such argument and it mentioned merely to be summarily dismissed.

[5] Lastly, it is argued that the court erred in accepting the first respondent’s evidence regarding the surrounding circumstances, such as collection of the rental from other tenants. There is similarly no merit in this argument. The first applicant elected not to testify, and in the absence of any evidence to counter this, it had to be accepted as it was not far-fetched or clearly untenable.

[6] The approach to applications for leave to appeal was recently re-stated by the Supreme Court of Appeal in S v Magadla 2010 (2) SACR 316 (E). The foot-note reads:

 

“The chief requirement for the granting of leave to appeal was the existence of a reasonable prospect of success on appeal. The mere possibility that another court might come to a different conclusion was not sufficient, nor was it enough that the case was arguable, nor that it would offer solace to the applicant to know that the final decision would be given by a higher court”

(my emphasis)

[7] The sum total of all the above is that there are no reasonable prospects that another court coming to a different conclusion. The application for leave to appeal therefore fails to fail.

[8] In the result the following order is made:

1. The application for leave to appeal is dismissed with costs, to be paid jointly and severally by the applicants, the one paying the other to be absolved.

TM MAKGOKA

JUDGE OF THE HIGH COURT

DATE OF HEARING: 3 DECEMBER 2013

JUDGMENT DELIVERED: 6 DECEMBER 2013

FOR THE APPLICANTS:

ADV LL MADZAGA

 INSTRUCTED BY :

 MPHAHLELE ATTORNEYS, SOWETO 

AND XOLANIPANGWA ATTORNEYS,

JOHANNESBURG

 

FOR THE RESPONDENTS:

ADV R GOSLETT

INSTRUCTED BY :

CLORINDA SCALCO ATTORNEYS,

JOHANNESBURG

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