Baloyi and Others v Lazarus and Others (Leave to Appeal) (11901/2022) [2024] ZALMPPHC 169 (1 November 2024)

REPUBLIC

OF SOUTH AFRICA

IN

THE HIGH COURT OF SOUTH AFRICA

LIMPOPO DIVISION, POLOKWANE

CASE NO: 11901/2022

(1) REPORTABLE: YES/NO

(2) OF INTEREST TO THE JUDGES: YES/NO

(3) REVISED.

DATE: 1 November 2024

SIGNATURE:

In the matter between:

NGWANATAU

JOHANNES BALOYI 1ST

APPLICANT

THUPANA

JOSEPH MAKGOBA 2ND

APPLICANT

SEWELE

LINAH MMOLA 3RD

APPLICANT

MMADINTSHI

MARTHA RAPITSI 4TH

APPLICANT

JANE

MAHASHA 5TH

APPLICANT

JIMMY

KUBJANA 6TH

APPLICANT

ALLY

MAAKE 7TH

APPLICANT

FRANS

KUBJANA 8TH

APPLICANT

DUSTY

MAISHE MALATJIE 9TH

APPLICANNT

CURRY

LETSOALO 10TH

APPLICANT

MARY

NTWAMPE 11TH

APPLICANT

VERONICA

MOTSWI 12TH

APPLICANT

ATHANA

MAFA 13TH

APPLICANT

LLOYIDE

MASHATOLE 14TH

APPLICANT -and-

LEDWABA

LAZARUS 1ST

RESPONDENT

GISELA

STOLS 2ND

RESPONDENT

THE

MASTER OF THE HIGH COURT

GAUTENG DIVISION, PRETORIA 3RD

RESPONDENT

THE

DEPARTMENT OF RURAL

DEVELOPMENT

AND LAND REFORM,

LIMPOPO PROVINCE 4TH

RESPONDENT

MAMPHOKU

MAKGOBA COMMUNITY

TRUST (IT8699/2004) 5TH

RESPONDENT

MASHEBANE

DANIEL MALESA 6TH

RESPONDENT

JOSEPH

KAMELA MODIBA 7TH

RESPONDENT

MOTHOKO

TERRENCE MOSIBIHLA 8TH

RESPONDENT

THETELE

JOSEPH MALATJI 9TH

RESPONDENT

MANKUROANE

SAMUEL MODIBA 10TH

RESPONDENT

MOTLATSO

IVY MAGOELE 11TH

RESPONDENT

MMATISHI

SIMON MAKGOBA 12TH

RESPONDENT

MOGOWE

WINDSOR MADIA 13TH

RESPONDENT

ONICA

MAKGOBOLA 14TH

RESPONDENT

MMAMOKGOTLA

MONICA MATLEBJANE 15TH

RESPONDENT

REFILWE

IRENE LETSOALO 16TH

RESPONDENT

MOTLOKWA

SUZAN MOJAPELO 17TH

RESPONDENT

MATOME

DAVID MODIBA 18TH

RESPONDENT

MOHALE

ELIAS NYAKALA 19TH

RESPONDENT

MATLU

JACQYELINE MAKGOBA 20TH

RESPONDENT

JUDGMENT:

LEAVE TO APPEAL

BRESLER AJ:

Introduction:

[1] The Applicants (Applicants in the main application) apply for leave to appeal to the Supreme Court of Appeal, alternatively the Full Court of this division against the judgment and order of this court delivered on the 11th of March 2024 in terms whereof the Applicants’ application was dismissed with costs.

[2] The Application for leave to appeal is premised on the following grounds:

2.1 The Court erred in respect of the position of the successors being excluded from the voting process.

2.2 The Court erred in respect of the issue of voting by proxy as testimony was led to the effect that Marry Hunadi Tsheola voted on behalf of her mother.

2.3 The Court failed to take the supporting affidavits into consideration.

2.4 It is in the interest of justice to grant leave to appeal.

[3] An application for leave to appeal is governed by section 17(1) of the Superior Courts Act, Act 10 of 2013 which provides:

‘17 Leave to appeal

(1) Leave to appeal may only be given where the judge or judges concerned are of the opinion that –

(a)(i) the appeal would have a reasonable prospect of 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 real issues between the parties.’

[4] In MEC Health, Eastern Cape v Mkhitha[1] the Supreme Court of Appeal said the following (reference to other authorities omitted):

‘[16] Once again it is necessary to say that leave to appeal, especially to this court, must not be granted unless there truly is a reasonable prospect of success. Section 17(1)(a) of the Superior Courts Act 10 of 2013 makes it clear that leave to appeal may only be given where the judge concerned is of the opinion that the appeal would have a reasonable prospect of success; or there is some other compelling reason why it should be heard.

[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 hopeless, is not enough. There must be a sound, rational basis to conclude that there is a reasonable prospect of success on appeal."

[5] Having regard to the Application for Leave to Appeal and the oral arguments submitted by the Applicant, the Applicants require leave to appeal only on the premise that there is a reasonable prospect of success on appeal, alternatively that there is a compelling reason to hear the appeal.

Analysis:

[6] I have reiterated in the judgment delivered on the 11th of March 2024 that what lies at the heart of this judgment, is an interpretation of the order granted by the Supreme Court of Appeal on the 30th of March 2021 under case number 1136/19 (the ‘SCA order’), and the subsequent execution thereof.

[7] As to the issue of the beneficiaries being entitled to vote, I am satisfied that my interpretation of the provisions of the SCA order is correct and that there is no reasonable prospect of succeeding in an Appeal on this aspect.

[8] The terms of the order is clear and was analysed in the judgment.

[9] Regarding the assertions that voting was allowed by proxy, the difficulty with the manner in which the evidence was presented, was dealt with in the judgment and during argument on the application for leave to appeal. Applying the well- known Plascon-Evans rule, this Court was not convinced, on a balance of probabilities, that Ms Tsheola-Mboweni voted on behalf of her mother as opposed to simply assisting her mother on that day. In my view, the evidence was therefore correctly rejected as being inconclusive and the Applicant did not move for an order referring same to oral evidence or trial.

[10] I do not foresee that the Applicants will be successful in their Appeal on this point.

[11] As to the allegations that the confirmatory affidavits were not taken into account in justification of the alleged irregularities in the voting process, this was duly considered by this court with specific reference to paragraph [29] of the judgment where several inconsistencies in the Applicants’ evidence were highlighted.

[12] It stands to be noted that the Court must be persuaded on a balance of probabilities that a case has been made out before any form of final relief can be granted. In this instance, this Court is not convinced that a higher court will come to a different conclusion with regards to the difficulties that the Applicants encountered in their Founding affidavit.

[13] Specific mention should be made as to the questionable locus standi of the First Applicant in as far as the judgment addresses the concern in paragraph [23]. The First Applicant (deponent to the Foundinng affidavit) is evidently not one of the ‘list of 603 beneficiaries’ that were entitled to vote. Although he is a potential successor of a beneficiary, he does not appear on the list of persons that were entitled to vote, yet he specifically noted in the Founding affidavit, incorrectly, that he appears as number 1 on the list.

[14] All of the above contributed to this Court not being satisfied that a case was indeed made out in justification of the relief prayed for, as a consequence whereof the application was dismissed with the appropriate cost order.

[15] As stated in Mkhita supra, this Court does not see any ‘sound, rational basis to conclude that there is a reasonable prospect of success on appeal’ and leave to appeal must consequently be refused.

Costs:

[16] There is no reason why the cost order should not follow the outcome of these proceedings. Having considered the nature of the proceedings, the complexity thereof, the volume of the record and the importance thereof to the parties, costs to counsel are warranted on Scale C.

Order:

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

17.1 Leave to appeal is refused with costs including costs to counsel on Scale C.

M

BRESLER

ACTING JUDGE OF THE HIGH COURT,

APPEARANCES:

FOR THE APPLICANT : Adv. K Mokwena

INSTRUCTED BY :

Matotola Tseleng Attorneys

vinoliamat@gmail.com

FOR

THE FIFTH TO : Adv. APJ Els SC

TWENTIETH

RESPONDENTS

INSTRUCTED BY : Thomas & Swanepoel Attorneys

maryke@tslegal.co.za

DATE

OF HEARING : 14 August 2024

DATE OF JUDGMENT : 1 November 2024

[1] MEC Health, Eastern Cape v Mkhitha (1221/15) [2016] ZASCA 176 (25 November 2016)