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IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG LOCAL DIVISION, JOHANNESBURG

 

CASE NO: 2018/20079

 

Reportable: No

Of interest to other judges: No

Revised: Yes

17September 2021

 

In the matter between:

 

MOTSUMI THOMAS ITUMELENG                                            First Applicant

MOTSUMI DAVID RAMAREKI                                                  Second Applicant

 

and

 

MONGOLOA PETER                                                                 First Respondent

MARIA MMAMORUAKGOMO SEFAKO                                   Second Respondent

ABSA BANK LIMITED                                                               Third Respondent  

E ZULU PROP INVESTORS (PTY) LTD                                    Fourth Respondent

LERATO VIRGINIA GWALA                                                      Fifth Respondent

LAWRENCE GWALA                                                                 Sixth Respondent

KING GORDON NKOSI                                                             Seventh Respondent

MERCANTILE BANK LTD                                                          Eighth Respondent

GREENLIGHT PROPERTY SERVICES                                     Ninth Respondent

(PREVIOUSLY KNOWN AS GAKHULU REAL ESTATE CC)

WILFRED SEME                                                                         Tenth Respondent

PULSE AFFORDABLE HOUSING                                             Eleventh Respondent

THE EXECUTOR IN THE ESTATE OF THE LATE                     Twelfth Respondent

KELEBETSE PATRICIA LEGOLA

STANDARD BANK LIMITED                                                      Thirteenth Respondent

FIRST NATIONAL BANK                                                            Fourteenth Respondent

THE DIRECTOR-GENERAL: GAUTENG                                   Fifteenth Respondent

DEPARTMENT OF HUMAN SETTLEMENTS

THE MEC OF THE DEPARTMENT OF                                     Sixteenth Respondent

HUMAN SETTLEMENTS

THE CITY OF JOHANNESBURG                                              Seventeenth Respondent

METROPOLITAN MUNICIPALITY

REGISTRAR OF DEEDS (JOHANNESBURG)                         Eighteenth Respondent

 

JUDGMENT

 

ALLY AJ

 

INTRODUCTION

 

1.            This is an application for leave to appeal the whole of my judgment dated 26 May 2021.

 

2.            The application is opposed by the third and eighth respondents.

 

3.            The Applicants have repeated their submissions made during the hearing of this matter.

 

EVALUATION AND ANALYSIS

 

4.            The law and principles regarding applications for leave to appeal in terms of Section 16 and 17 of the Superior Courts Act[1] have now become settled.[2] Essentially, the bar has been raised in considering whether to grant an application for leave to appeal or not. In this regard I agree with the principles as set out in H & A Manufacturing & Another v Bower & Others:

 

Section 17 makes provision for leave to appeal to be granted where the presiding judge is of the opinion that either the appeal would have a reasonable prospect of success or there is some other compelling reason why the appeal should be heard, including whether or not there are conflicting judgments on the matter under consideration.[3]

 

5.            The test has changed and the threshold is higher and more stringent as outlined above. Therefore, the Applicants in this matter must convince this Court that there is a reasonable possibility that another Court would come to a different conclusion.

 

6.            When Counsel for the Applicants was questioned as to why the Applicants did not approach the Master of the High Court to determine the Executor or Administrator of the Estate of his grandparents, Counsel submitted that the Department of Human Settlements advised the Applicants to approach the Court. This is indeed so, however, this does not entitle a litigant to approach the Court without establishing its locus standi to launch the proceedings. The onus continues to rest on an Applicant to establish his/her locus standi to launch proceedings.

 

7.            Counsel furthermore raised the issue of costs and relied on in the Biowatch case[4] principle for the Applicants not being saddled with costs. It is my view that the Applicants did not raise the issue of constitutionality in their founding affidavit but only during argument which in my view presents as an afterthought. The normal principle of costs following the result, accordingly, has not been displaced by any factors raised by the Applicants. Accordingly there are no reasonable prospects that another Court would find differently than this Court and the application on this ground should also fail.

 

8.            Without delving into each ground for leave to appeal for the reason, as stated above, the Applicants have repeated their submissions made during the hearing, I remain unconvinced that another Court on the facts would come to a different conclusion and find that there are reasonable prospects of success in this matter. For clarity, I also find no compelling reason why leave to appeal should be granted.

 

 CONCLUSION

 

9.            In the circumstances and what has been stated above, the application for leave to appeal must fail and the Applicants must pay the costs of this application.

 

The following order shall issue:

 

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

 

 

G ALLY

ACTING JUDGE OF THE HIGH COURT

GAUTENG DIVISION OF THE HIGH COURT, JOHANNESBURG

Electronically submitted therefore unsigned

 

Delivered: This judgement was prepared and authored by the Judge whose name is reflected and is handed down electronically by circulation to the Parties/their legal representatives by email and by uploading it to the electronic file of this matter on CaseLines. The date for hand-down is deemed to be 20 September 2021.

 

Date of hearing: 14 September 2021

Date of judgment: 17 September 2021

 

Appearances:

 

Applicant                   :        Adv. M. Phukubje

                                                Gcwensa Attorneys

                                                229 Columbine Avenue

                                                Mondeor

                                                rgp@gcwensaattorneys.co.za

 

 

Third Respondent    :        Adv. E. Mandowa

                                                Poswa Inc

                                                1^st Floor, Block A, Sandton Close

                                                Cnr 5^th street and Norwich Close

                                                Sandton

                                                shaviv.singh@poswainc.co.za

                                                stephanie.chetty@poswainc.co.za

Eighth Respondent :           Adv. E. Kromhout

                                                BVZ Attorneys

                                                Unit 2 Surrey Square on Republic

                                                Cnr Surrey Avenue and Republic Road

                                                Ferndale

                                                kulu@bvz.co.za

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