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 have now become settled. 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. 

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 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
				1st Floor, Block A, Sandton Close
				Cnr 5th 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