Cebekhulu Probuild JV v City of Ekurhuleni Metropolitan Municipality and Another (37168/21) [2023] ZAGPPHC 1871 (4 September 2023)
The court found that the applicant failed to meet the heightened threshold set by section 17(1) of the Superior Courts Act for leave to appeal. There were no reasonable prospects that another court would come to a different conclusion, nor was there any compelling reason for the appeal to be heard. The reasons for...
Source-derived case information.
- Citation
- [2023] ZAGPPHC 1871
- Parties
- Applicant: Cebekhulu Probuild JV; Respondent: City of Ekurhuleni Metropolitan Municipality; Respondent: JF Pipe N.O.
- Court
- North Gauteng High Court, Pretoria
- Jurisdiction
- South Africa
- Case Number
- 37168/21
- Procedural Posture
- Leave to Appeal / Application for Leave to Appeal
- Outcome
- Leave to appeal is refused. Costs are awarded against the applicant.
- Judges
- Khwinana
- Legal Topics
- Leave to Appeal, Superior Courts Act, Reasonable Prospects of Success
Source-derived case record
Summary, issues, holding and outcome
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Parties
Cebekhulu Probuild JV
Applicant
City of Ekurhuleni Metropolitan Municipality
Respondent
JF Pipe N.O.
Respondent
Procedural Posture
Leave to Appeal / Application for Leave to Appeal
Legal Issues
- 1 Whether the applicant has met the threshold for leave to appeal under section 17(1) of the Superior Courts Act.
- 2 Whether there are reasonable prospects of success that another court would reach a different conclusion.
- 3 Whether there is any compelling reason for the appeal to be heard.
Ratio Decidendi
The court found that the applicant failed to meet the heightened threshold set by section 17(1) of the Superior Courts Act for leave to appeal. There were no reasonable prospects that another court would come to a different conclusion, nor was there any compelling reason for the appeal to be heard. The reasons for the original judgment were adequately set out, and the applicant did not advance sufficient grounds to justify leave to appeal. Accordingly, leave to appeal was refused and costs were awarded against the applicant.
Court Disposition
Leave to appeal is refused. Costs are awarded against the applicant.
Orders
- Leave to appeal is refused.
- The applicant is to pay the costs of this application.
Full Case Text
Judgment text and source record
33 paragraphs
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case Number: 37168/21
In the matter between:
CEBEKHULU PROBUILD JV
APPLICANT
AND
CITY OF EKURHULENI METROPOLITAN
FIRST RESPONDENT
MUNICIPALITY
JF PIPE N.O.
SECOND RESPONDENT
JUDGMENT
KHWINANA AJ
INTRODUCTION
[1] This is an application for leave to appeal to the full bench of the above honourable court or the Supreme Court of Appeal against my judgment granted on this the 07th day of December 2023.
[2] Section 17(1) of the Superior Courts Act, Act 10 of 2013 ("the Superior Courts Act"), regulates applications for leave to appeal and provides:
'(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.'
[3] The test in an application for leave to appeal prior to the Superior Courts Act was whether there were reasonable prospects that another court may come to a different conclusion. Section 17(1)[1] has raised the test, as Bertelsmann J, correctly pointed out in The Mont Chevaux Trust v Tina Goosen & 18 Others
2014 JDR 2325 (LCC) at para :
'It is clear that the threshold for granting leave to appeal against a judgment of a High Court has been raised in the new Act. The former test whether leave to appeal should be granted was a reasonable prospect that another court might come to a different conclusion, see Van Heerden v Cornwright & Others 1985 (2) SA 342 (T) at 343H. The use of the word "would" in the new statute indicates a measure of certainty that another court will differ from the court whose judgment is sought to be appealed against.'
[4] The applicant’s leave to appeal is on my judgment, save to say the reasons have been given in my judgment.
In the result:
1. Leave to appeal is refused.
2. The applicant is to pay the costs of this application.
ENB KHWINANA
ACTING JUDGE OF NORTH
GAUTENG HIGH COURT, PRETORIA
DATE OF HEARING: 24TH JULY 2023 DATE OF JUDGMENT: 04 September 2023
[1] Commissioner of Inland Revenue v Tuck 1989 (4) SA 888 (T) at 890