Mkhwanazi-Sigege and Another v Mottee and Others; Mkhwanazi obo Mkhwanazi and Another v Mottee and Others (64484/2020;10475/2021) [2021] ZAGPPHC 830 (13 December 2021)

REPUBLIC OF SOUTH

AFRICA

IN THE HIGH

COURT OF SOUTH AFRICA

(GAUTENG DIVISION PRETORIA)

(1) REPORTABLE: NO

(2) OF INTEREST TO OTHER JUDGES: NO

(3)

REVISED

13 DECEMBER 2021

CASE NO:64484/2020

In the matter between:

S N N MKHWANAZI-SIGEGE

FIRST APPLICANT

B

C

MKHWANAZI

SECOND APPLICANT

And

PETER LE MOTTéE

FIRST RESPONDENT

LLOYD

ROBERT

BALL

SECOND RESPONDENT

THE MASTER OF THE HIGH COURT,

PRETORIA

THIRD RESPONDENT

CONSOLIDATED WITH:

CASE NO: 10475/2021

In the matter between:

BONGEKILE

CYNTHIA MKHWANAZI

obo

XOLANI SIVIWE MKHWANAZI

FIRST APPLICANT

obo NHLAKANIPHO OKUHLE MANQELE N.O.

SECOND APPLICANT

MERCIA

KHANYILE NGEMA

FOURTH RESPONDENT

MBALI

NGEMA

FIFTH RESPONDENT

NHLANHLA

NGEMA

SIXTH RESPONDENT

This judgment is issued by the Judge whose name is reflected herein and is submitted electronically to the parties/their legal representatives by email. The judgment is further uploaded to the electronic file of this matter on Caselines by the Judge or his/her secretary. The date of this judgment is deemed to be 13 December 2021.

APPLICATION FOR

LEAVE TO APPEAL JUDGMENT

COLLIS J

INTRODUCTION

[1] This is an application for leave to appeal against the judgment and order I made on 21 September 2021. The full order of the court reads as follows:

1.1 “The applicants namely case no: 64484/2020 and case no: 10475/2021 are consolidated in terms of Rule 11 and shall proceed as one application;

1.2 The application is enrolled as an urgent application in terms of Rule 6(12);

1.3 The application is dismissed;

1.4 The applicants are ordered to pay the costs of the application.”

[2] The application is premised on the grounds as listed in the Application for Leave to Appeal dated 11 October 2021.

LEGAL

PRINCIPLES

[3] Section 17 of the Superior Court’s Act provides as follows:[1]

(1) Leave to appeal may only be given where the judge or judges concerned are of 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;

(b) the decision sought to appeal does not fall within the ambit of section 16(2)(a);

and

(c) where the decision sought to be appealed does not dispose of all the issues in the case, the appeal would lead to a just and prompt resolution of the real issues between the parties.

[4] In the present instance the Applicant applies for leave on the first leg;

i.e. that the “…an appeal would have a reasonable prospect of success”.

[5] As to the test to be applied by a court in considering an application for leave to appeal, Bertelsmann J in The Mont Chevaux Trust v Tina Goosen & 18 Others 2014 JDR 2325 (LCC) at para 6 stated the following:

‘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, see Van Heerden v Cronwright & Others 1985 (2) SA 342 (T) at 343H. 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.’

[6] ‘In order to succeed, therefore, the appellant must convince this Court on proper grounds that he has prospects of success on appeal and that those prospects are not remote, but have a realistic chance of succeeding. More is required to be established than that there is a mere possibility of success, that the case is arguable on appeal or that the case cannot be categorised as hopeless. There must, in other word, be a sound, rational basis for the conclusion that there are prospects of success on appeal.’[2]

[7] In Fair-Trade Independent Tobacco Association v President of the Republic of South Africa and Another[3] the Full Court of this Division observed that:

“As such, in considering the application for leave to appeal it is crucial for this Court to remain cognizant of the higher threshold that needs to be met before leave to appeal may be granted. There must exist more than just a mere possibility that another court, the SCA in this instance, will, not might, find differently on both facts and law. It is against this background that we consider the most pivotal grounds of appeal.”

[8] The applicant and the respondent on request by this court had filed written Heads of Argument in order to facilitate the virtual hearing of the matter.

[9] Having read the papers and having carefully heard counsel I come to the conclusion that there is a reasonable prospect that another court would come to a different conclusion on the order of the court.

ORDER

[10] Consequently I make the following order:

10.1 The application is granted leave to appeal to the Full Court of

this Division, with costs to in the appeal, including costs of

counsel.

COLLIS C

JUDGE OF THE HIGH

COURT

Appearances

Counsel for the Applicants : Adv. C.H.J. Badenhorst SC

& Adv. N. Nortje

Attorney for the Applicants : Aaron Stanger & Associates

Counsel for the 1st & 2nd Respondents : Adv. J.D. Botha

Attorney for the 1st & 2nd Respondents : Kotzé & Roux Attorneys Inc

Date of Hearing

: 01 December 2021

Date of Judgment

: 13 December 2021

Judgment transmitted electronically.

[1] Act 10 of 2013

[2] S v Smith 2012 (1) SACR 567 (SCA) at para 7.

[3] Case no: 21688/2020 [2020] ZAGPPHC 311 (24 July 2020) at [6].