Happy Valley Holiday Hotel and Pleasure Resort 1972 (Pty) Ltd and Another v Nakoseni Property Developers (Pty) Ltd and Others (9066/2020) [2024] ZAGPJHC 98 (2 February 2024)

IN THE HIGH COURT OF SOUTH AFRICA(GAUTENG DIVISION, JOHANNESBURG)

REPUBLIC OF SOUTH AFRICA

CASE NO: 9066/2020

1. Reportable: Yes/No

2. Of interest to other judges: Yes/No

3. Revised: Yes/No

In the matter between:

HAPPY VALLEY HOLIDAY HOTEL

First Applicant

AND PLEASURE RESORT 1972 (PTY) LTD

VALLEY LODGE (PTY) LTD Second Applicant

and

NAKOSENI PROPERTY DEVELOPERS (PTY) LTD First Respondent

MOGALE CITY METROPOLITAN Second Respondent

MUNICIPALITY

GAUTENG PROVINCIAL DEPARTMENT

OF AGRICULTURE AND RURAL DEVELOPMENT Third Respondent

GAUTENG DEPARTMENT ROADS AND Fourth Respondent

TRANSPORT

JUDGMENT

(Leave to Appeal Application)

SENYATSI J:

[1] This is an application to appeal the order I granted on the 15 September 2023 in terms of which I dismissed the reliefs sought by the applicants.

[2] The grounds for leave to appeal the judgment have been fully set out in the notice of application and will not be repeated in this judgment.

[3] The requirement and the test for granting leave to appeal are regulated by section 17(1)(a) of the Superior Courts Act No. 10 of 2013 which states as follows:

“(1) Leave to appeal may only be given where the judge or judges concerned are 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.”

[4] In Mont Chevaux Trust v Goosen and Others[1] Bertelsman J interpreted the test as follows:

“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…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.”

[5] In Acting National Director of Public Prosecutions and Others v Democratic Alliance: In re: Democratic Alliance v Acting National Director of Public Prosecutions[2] the court acknowledged the test by Bestertsman J.

[6] In Mothule Inc Attorneys v The Law Society of the Northern Provinces and Another[3], the Supreme Court of Appeal stated as follows regarding the trial court’s liberal approach on granting leave to appeal:

“It is important to mention my dissatisfaction with the court a quo’s granting of leave to appeal to this court. The test is simply whether there are any reasonably prospects of success in an appeal. It is not whether a litigant has an arguable case or mere possible of success.”

[7] Having considered the grounds of appeal and the heads of arguments by both counsel, I am not persuaded that the requirements of section 17(1) (a) of the Act have been met. I am also not convinced that there is a compelling reason to grant the application for leave to appeal. There is therefore no prospect that the appeal would succeed.

ORDER

[8]

The following order is issued:

(a) The application for leave to appeal is dismissed with costs

SENYATSI M L

JUDGE OF THE HIGH COURT OF SOUTH AFRICA

GAUTENG LOCAL DIVISION

Delivered: This judgment and order was prepared and authored by the Judge whose name is reflected and is handed down electronically by circulation to Parties / their legal representatives by email and by uploading it to the electronic file of this matter on Case Lines. The date of the order is deemed to be the 2 February 2024.

Appearances:

For the Applicant:

Adv NGD Maritz SC

Instructed by:

Messrs Se Kanyoka Attorneys

For the First

Respondent: Adv JA Venter

Instructed by:

Charles Rossouw Attorneys

For the Second Respondent: Adv SD Mitchell

Instructed by:

MHP Attorneys

Date Judgment Reserved: 29 November 2023

Date of Judgment:

2 February 2024

[1] 2014 2325 (LCC)

[2] (Case no: 19577/09) ZAGPPHC 489 at para 25

[3] (213/16) [2017] ZASCA 17 (22 March 2017)