Fourways Gardens Homeowners Association v Duggan and Others (2023/067528) [2025] ZAGPJHC 746 (25 July 2025)

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA,

GAUTENG DIVISION, JOHANNESBURG

Case Number: 2023-067528

(1) REPORTABLE: YES / NO

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

(3) REVISED: NO

25 July 2025

In the matter between:

FOURWAYS GARDENS HOMEOWNERS ASSOCIATION Applicant

(Registration No.: 1986/000615/08)

And

GRAHAM RODNEY DUGGAN N.O. & OTHERS

Respondents

JUDGMENT

Noko J

[1] The applicant launched an application for leave to appeal the order and the whole judgment I handed down on 9 June 2025 wherein I, inter alia, granted an order declaring that a valid agreement has been entered into between the parties. Duggan family Trust duly represented is opposing the application.

[2] The factual matrix of the lis is set out comprehensively in the judgment handed down and need not be rehashed in this judgment. The applicant contends that I erred in arriving at conclusion on the legal issues which served before me regarding the legal principles apropos the following subject matters: (1) effect of the without prejudice correspondence, (2) impossibility of performance, (3) retrospective effect of the resolution of the members of the applicant, (4) jurisdiction of the Court versus CSOS Ombudsman.

[3] It is trite that where the application for leave to appeal, the applicant must demonstrate, inter alia, that the appeal has a reasonable prospect of success or that there are other compelling reasons why the appeal should be heard.

[4] It is also trite[1] that the Superior Court Act has introduced a higher threshold to be met in applications for leave to appeal, and the usage of the word ‘would’ require the applicant to demonstrate that another court would certainly come to a different conclusion.

[5] The mere possibility of success, an arguable case, or one that is not hopeless, is not enough.[2] There must be a sound, rational basis to conclude that there is a reasonable prospect of success on appeal.[3]

[6] I have considered the reasons underpinning the grounds for leave to appeal relative to the judgment I delivered and have noted that arguments advanced are, in general, in sync with those advanced on behalf of the applicant before the judgment. I remain impervious that the applicant has met the required threshold that the appeal has reasonable prospects of success, and further that another court would come to a different conclusion, or that there is other compelling reasons to allow the appeal. To this end, the application for leave to appeal is bound to fail.

[7] With regard to the costs, I find no reason to deviate from the legal principle that the costs should follow the results.

[8] In the premises, I grant the following order:

That the application for leave to appeal is dismissed with costs on scale B

including costs for counsel where so employed.

M V Noko

Judge of the High Court

This judgement 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 of the judgment is deemed to be 25 July 2025.

Dates

Date of hearing: 17 July 2025.

Date of judgment: 25 July 2025.

Appearances

For the Applicant: U Ahir, instructed by BDF Attorneys.

For the Respondent: S Meyer, instructed by Harrington Johnson Wands att.

[1] See Mont Chevaux Trust v Tina Goosen & 18 Others 2014 JDR 2325. MEC for Health, Eastern Cape v Mkhitha 2016 ZASCA (25 November 2016), Acting National Director of Public Prosecutions and Others v Democratic Alliance: In Re Democratic Alliance v Acting Director of Public Prosecutions and Others 2016 ZAGPPHC 489.

[2] MEC for Health, Eastern Cape v Mkhitha 2016 ZASCA (25 November 2016) at para 17.

[3] S v Smith 2012 (1) SACR 527.