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REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG LOCAL DIVISION, JOHANNESBURG

CASE NO: 01091/2020

In the matter between:

BOTLHOLO KA                                                                                                      Applicant

and

SHAI M L                                                                                                            Respondent

JUDGMENT

(LEAVE TO APPEAL APPLICATION)

[1] This is leave to appeal the order I handed down on the 17 April 2020. The reasons for the order were deferred and only handed down on 29 April 2020. Leave to appeal the order, however, preceded the reasons for my order.

[2] The applicant had raised a number of grounds for leave to appeal the order. The ground are, inter alia, that :-

2.1. The Court erred or misdirected itself in holding that the application was urgent;

2.2. The Court erred or misdirected itself materially in finding that the applicant was directed to exhume the mortal remains of the deceased and to hand over the same to the respondent;

2,3. The Court misdirected itself about the actual question before it which, which was who had the right to bury the deceased;

2.4. The Court misdirected itself by ignoring the existence of a valid will;

2.5. The Court misdirected itself by failing to make a proper factual finding;

2.6. The Court erred and misdirected itself by failing to consider the surrounding circumstances of the case in totality and instead the Court isolated evidence;

2.7. The Court erred and misdirected itself by failing to identify the law applicable and failed to appreciate the existence of a will;

2.8. The Court erred and misdirected itself by incorrectly applying the law to the facts;

2.9. The Court erred and misdirected itself by isolating the question as to why the applicant changed the burial date as the question was irrelevant before the Court;

2.10. The Court erred by applying legal principles on matrimonial laws, than the question who has the right to bury the deceased;

2.11. The Court erred and misdirected itself by ignoring in totality the law (including the case law) relevant for purposes of burial rights;

2.12. The Court erred and misdirected itself in finding that the applicant should pay the costs on a punitive scale of attorney and client.

[3] The applicant for leave is opposed by the respondent. In this application, the applicant bears the onus to show on balance of probabilities that another court would come to a different conclusion. The bar for determination of the application for leave to appeal, in terms of the new section 17 of the Superior Courts Act 2013 (“the Act”), has been raised higher. Unlike the old test which simply required of the applicant to show that another court “would” come to a different conclusion.

[4] The principles governing leave to appeal a judgment are regulated by Section 17 (000000">1) of the Superior Courts Act. Section 17 (1) provides as follows:-

“17(1) leave to appeal may only be given where a Judge or Judges concerned are of the opinion that:-

(a) (i)The appeal would have a reasonable prospective 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 appealed does not dispose of all the issues in the case, the appeal would lead to a just and prompt resolution of the issues between the parties.”

[5] The Court requested both counsel to submit written heads of arguments and that consideration would be given as covid-19 presented challenges on face to face open court hearing. The Court is grateful that counsels duly provided the written heads of argument, the last of which was sent on 7 May 2020.

[6] The only right which the appellant claims to have to bury the deceased is by virtue of the fact that she is mentioned as an heir in the deceased’s Will. It should be borne in mind that the Will was only produced on the day of the hearing of the application. Quite understandably, the respondent had not seen the Will or its contents and could not canvass it. The deceased did not it make a stipulation in his Will about his last resting place. In my view the change of the burial date was vexatious and designed to defeat the legal process, which at the time was clearly looming.

[7] The applicant has failed to show that the appeal would succeed.

 

ORDER

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

(a) The application for leave to appeal is dismissed with

 

 

__________ _______________

                                                                                              SENYATSI ML

                                                                                        Judge of the High Court

                                                                         Gauteng Local Division, Johannesburg

 

 

Date leave to appeal application heard: 7 May 2020

Date of Judgment:  8 May 2020

Applicant Counsel:  Adv. Z. Madikwane

Instructed by:  Mathopo Attorneys

Respondent’s Counsel: Adv. T. Malatji     

Instructed by: Raseasala Attorneys

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