Charlotte Maxeke Academic Hospital and Another v T and M Canteen CC (38630/2021) [2021] ZAGPJHC 706 (17 November 2021)
The court found that the issues raised by the applicants in their application for leave to appeal were the same as those previously considered and decided in the urgent application. Applying the elevated standard for leave to appeal under section 17 of the Superior Courts Act, the court concluded that there are no...
Source-derived case information.
- Citation
- [2021] ZAGPJHC 706
- Parties
- Applicant: Charlotte Maxeke Academic Hospital; Applicant: Makhosi Nyembe; Respondent: T and M Canteen CC
- Court
- South Gauteng High Court, Johannesburg
- Jurisdiction
- South Africa
- Judgment Date
- 17 November 2021
- Case Number
- 38630/2021
- Procedural Posture
- Leave to Appeal / Application for Leave to Appeal Following Judgment on Urgent Application
- Outcome
- Application for leave to appeal dismissed with costs.
- Judges
- E Molahlehi
- Legal Topics
- Leave to Appeal, Mandament Van Spolie, Prospects of Success, Costs Order
Source-derived case record
Summary, issues, holding and outcome
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Parties
Charlotte Maxeke Academic Hospital
Applicant
Makhosi Nyembe
Applicant
T and M Canteen CC
Respondent
Procedural Posture
Leave to Appeal / Application for Leave to Appeal Following Judgment on Urgent Application
Legal Issues
- 1 Whether the applicants have reasonable prospects of success on appeal against the order restoring possession of the canteen to the respondent.
- 2 Whether there are compelling reasons for granting leave to appeal under section 17 of the Superior Courts Act.
Ratio Decidendi
The court found that the issues raised by the applicants in their application for leave to appeal were the same as those previously considered and decided in the urgent application. Applying the elevated standard for leave to appeal under section 17 of the Superior Courts Act, the court concluded that there are no reasonable prospects that another court would reach a different decision. Accordingly, the application for leave to appeal was dismissed with costs.
Court Disposition
Application for leave to appeal dismissed with costs.
Orders
- The applicants’ application for leave to appeal is dismissed with costs.
Full Case Text
Judgment text and source record
38 paragraphs
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
CASE NO: 38630/2021
REPORTABLE: /NO
OF INTEREST TO OTHER JUDGES: /NO
REVISED
17 November 2021
In the matter between:
CHARLOTTE MAXEKE ACADEMIC HOSPITAL
First Applicant
MAKHOSI NYEMBE
Second Applicant
And
T and M CANTEEN CC
Respondent
This judgment is delivered electronically by circulation to the parties' legal representatives by email, and uploaded on caselines electronic platform. The date of issue is deemed to be 17 November 2021.
LEAVE TO APPEAL: JUDGEMENT
Molahlehi J
[1] This is an application for leave to appeal against the judgement of this court made on 14 September 2021. The court, in that judgment, ordered the applicant to restore the peaceful possession of the canteen, which is in the premises of the first applicant, Charlotte Maxeke Academic Hospital (the first respondent in the urgent application). In other words, the court granted the respondent, T and M Canteen CC (the applicant in the urgent application) mandamente van spolie.
[2] The respondent, T and M Canteen CC, opposed the application.
[3] It is now well established that the standard of reasonable prospects of success on appeal in an application for leave to appeal has been elevated to a higher standard by the provisions of the Superior Courts Act 10 of 2013 (the SC Act). In this respect, section 17 of the SC Act provides that leave to appeal may be granted in circumstances where the court believes that the appeal would have reasonable prospects of success or some other compelling reason why the appeal should be heard.
[4] The applicants have raised several grounds of appeal, which appear in both the notice of leave to appeal and the supplementary grounds of appeal. The grounds of appeal are substantiated further in the oral submission made during the hearing.
[5] I do not deem it necessary for this judgement to repeat every ground for leave to appeal stated in the applicants’ application as the same appears on the record. I need to point out also that the issues raised in this application are the same as those raised in response to the urgent application and the relief sought therein. In my view, those issues were fully ventilated and considered in that judgment.
[6] In considering this application and applying the test for leave to appeal summarised above, I found that there are no prospects of success that the court of appeal would arrive at a decision different to that reached by this court. Thus the application stands to fail.
Order
[7] In the premises, the applicants’ application for leave to appeal is dismissed with costs.
E Molahlehi
Judge of the High Court,
Gauteng Local Division,
Johannesburg
Representation:
For the Applicants: Adv FJ Nalane
Instructed by: Mogaswa and Associates Inc. Attorneys
For the Respondent: Adv B Bhabha
Instructed by: SALI Attorneys
Heard in: 10 November 2021
Delivered: 17 November 2021