First Reality (Krugersdorp) Pty Ltd v Mitchell and Others (LCC123/2018) [2021] ZALCC 21 (23 August 2021)

IN

THE LAND CLAIMS COURT OF SOUTH AFRICA

HELD

AT RANDBURG

CASE NO: LCC123/2018

FIRST DATE HEARING: 13 NOVEMBER 2020

DELIVERED ON: 13 APRIL 2021

Heard on: 29 JULY 2021

Delivered on: 23 AUGUST 2021

In the matter between:

FIRST REALITY (KRUGERSDORP) PTY LTD

APPLICANT

and

GERTJIE MITCHELL First Respondent

BETTIE MITCHELL Second Respondent

MICHELLE HAARVOOR Third Respondent

GERHARD MITCHELL Fourth Respondent

WILLEM JANUARIE Fifth Respondent

DOLFINA JANUARIE Sixth Respondent

ANNA-MARIE VAN WYK Seventh Respondent

JEREMY JANUARIE Eighth Respondent

NAZEEM LENNERTS Ninth Respondent

MARY LENNERTS Tenth Respondent

KAYLA GOOSEN Eleventh Respondent

HENNIE BAILEY Twelfth Respondent

KATRINA BAILEY Thirteenth Respondent

FAIZA BAILEY Fourteenth Respondent

ABSOLON VAN WYK Fifteenth Respondent

TRUITJIE GOOSEN Sixteenth Respondent

SHIRLEY GOOSEN Seventeenth Respondent

JEROME ARENDSE Eighteenth Respondent

SARA ARENDSE Nineteenth Respondent

LEE-HANO JONATHAN Twentieth Respondent

WILLEM JANUARIE Twenty First Respondent

ANNA JANUARIE Twenty Second Respondent

ALETSEA MITCHELL Twenty Third Respondent

WELMARIE MITCHELL Twenty Fourth Respondent

FRANKLIN MITCHELL Twenty Fifth Respondent

ALL

THOSE HOLDING TITLE THROUGH

FIRST

TO TWENTY SIXTH RESPONDENTS

OR OCCUPYING COTTAGES 1, 3, 5, 7, 8, 9 &10

FARM HAMMANSDANS, PORTION 6 OF FARM

NO 191, DIVISION PAARL, WESTERN CAPE Twenty Sixth Respondent

DRAKENSTEIN MUNICIPALITY Twenty Seventh Respondent

HEAD:

WESTERN CAPE PROVINCIAL

DEPARTMENT

OF RURAL DEVELOPMENT AND LAND AFFAIRS Twenty Eighth Respondent

JUDGMENT

CARELSE J

[1] On 13/4/2021, I granted an order in the following terms:

1. The application for eviction is dismissed.

2. The application to strike out is dismissed.

3. No order for costs is made in line with the usual practice of this Court.

[2] The test for the grant of leave to appeal in terms section 17(1)(a)(i) and (ii) of the Superior Courts Act No 10 of 2013 requires that ‘’ the appeal would have a reasonable prospect of success’’ and if there is any compelling reason why the appeal should be heard. The test does more than encompass the old common law test and a higher threshold is set forth implying that the degree of prospects must be better than being simply arguable.

The application for leave to appeal

[3] The appellant advances a number of grounds which are set out in the notice of appeal. I have no intention of repeating same.

[4] The common thread of appellant’s complaint is that I have not only misdirected myself in fact but also in law. My judgment essentially was premised on the failure by the appellant to comply with S9(2) of ESTA read with S8 and pertinently the non-complaince with S8(1)(e) of ESTA.

[5] The submissions are a repeat of the submissions made during the hearing. There is nothing new that was advanced by the appellant to persuade me that there are reasonable prospects of success on appeal if leave is granted

[6] The appellant conceded that S8(1)(e) and the Judgment in Snydos which is binding on this court finds application.

[7] The attack is largely on my factual findings. I am of the view that the submissions advanced in this application for leave to appeal are essentially the same as those advance during the hearing of the matter. Nothing new has been advanced by the appellant to persuade me that there are reasonable prospects of success on appeal and neither is in the interest of justice to grant leave to appeal.

[8] In so far as costs are concerned the application was set down on 22 July 2021 for hearing but had to be postponed because of non-compliance with the practice directive No 4 as amended dated 2/8/2016 which requires heads of argument to be filed no later than 15 days before the hearing. The applicants filed its heads of argument 5 days later. As a result, the Respondents are not prepared. For this reason, the matter was postponed until 29 July 2021.

In the result:

The application for leave to appeal is dismissed with costs, which costs includes the wasted costs occasioned by the postponement of the matter on the 22 July 2021

_____

CARELSE

Acting Judge: Land Claims Court

APPEARANCES

For the Applicant: Adv G Elliot SC instructed by F J Schoeman Attorneys

For the First to Twenty Sixth Respondent: (Save for the Second and Third Respondents)

Mr A Mahomed, Ashraf Mahomed Attorneys