Mdi v Mdledle and Another (5100/18) [2018] ZAECMHC 76 (22 November 2018)

Mdi v Mdledle and Another (5100/18) [2018] ZAECMHC 76 (22 November 2018)

The court held that section 17(1)(a) of the Superior Courts Act did not raise the bar for granting leave to appeal beyond the established test. The applicant must still convince the court, on proper grounds, that there is a reasonable prospect or realistic chance of success on appeal. The judge found that the applicant failed to satisfy this requirement, as the grounds for leave to appeal and arguments presented did not demonstrate a reasonable prospect of success. The order for restoration of possession to the first respondent was clarified as not affecting the dispute regarding beneficiaries of the estate, but only possession. Accordingly, the application for leave to appeal was...

Citation
[2018] ZAECMHC 76
Parties
Applicant: Blanche Nomathemba Mdi; Respondent: Monica Lumka Mdledle; Respondent: The Deputy Sheriff, Cala
Court
Eastern Cape High Court, Mthatha
Jurisdiction
South Africa
Judgment Date
22 November 2018
Case Number
5100/18
Procedural Posture
Leave to Appeal / Application for Leave to Appeal
Outcome
Application for leave to appeal dismissed with costs.
Judges
Notshe
Legal Topics
Leave to Appeal, Reasonable Prospect of Success, Superior Courts Act, Restoration of Possession
Civil Procedure Leave to Appeal Reasonable Prospect of Success Superior Courts Act Restoration of Possession

Case Brief

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Parties

Blanche Nomathemba Mdi

Applicant

Monica Lumka Mdledle

Respondent

The Deputy Sheriff, Cala

Respondent

Procedural Posture

Leave to Appeal / Application for Leave to Appeal

Legal Issues

  1. 1 Has section 17(1)(a) of the Superior Courts Act changed the test for granting leave to appeal.
  2. 2 Does the applicant have a reasonable prospect of success on appeal.
  3. 3 Does the order for restoration of possession affect the dispute regarding beneficiaries of the estate.

Ratio Decidendi

The court held that section 17(1)(a) of the Superior Courts Act did not raise the bar for granting leave to appeal beyond the established test. The applicant must still convince the court, on proper grounds, that there is a reasonable prospect or realistic chance of success on appeal. The judge found that the applicant failed to satisfy this requirement, as the grounds for leave to appeal and arguments presented did not demonstrate a reasonable prospect of success. The order for restoration of possession to the first respondent was clarified as not affecting the dispute regarding beneficiaries of the estate, but only possession. Accordingly, the application for leave to appeal was...

Court Disposition

Application for leave to appeal dismissed with costs.

Orders

  • The application for leave to appeal is dismissed.
  • The applicant is ordered to pay the costs of the application.