Koekemoer and Others v Minister of Defence and Military Veterans and Others (2017/44930) [2018] ZAGPJHC 92 (29 March 2018)

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, JOHANNESBURG

Case number: 2017/44930

not reportable

not of interest to other judges

revised.

29 March 2018

In the matter between:

WILLEM JOHANNES KOEKEMOER First Applicant

CHRISTOPHER KOITSIOE Second Applicant

JOSEPH KUBEKA Third Applicant

RONALD NKUNA Fourth Applicant

JOSEPH NKUNA Fifth Applicant

HILDA MATLISANE Sixth Applicant

ADRI MAREE Seventh Applicant

THAPELE TSHOTETSI Eighth Applicant

WANDA KOEKEMOER Ninth Applicant

ELLIE MSEBE Tenth Applicant

MARIO MTHWANI Eleventh Applicant

ROBERT DUMANYANE Twelfth Applicant

CHANTEL SMOOG Thirteenth Applicant

REVOLUTION NAWANYA Fourteenth Applicant

WITNESS SIHLANGU

AND

MINISTER OF DEFENCE AND MILITARY VETERANS First Respondent

THE SOUTH AFRICAN NATIONAL DEFENCE FORCE Second Respondent

THE SOUTH AFRICAN ARMY Third Respondent

THE OFFICER COMMANDING ARMY Fourth Respondent

SUPPORT BASE JOHANNESBURG (LENASIA) Fifth Respondent

THE OFFICER COMMANDINGMARIEVALE

ENGENEERING REGIMENT Sixth Respondent

THE OFFICER COMMANDING DUNNOTTAR

MILITARY BASE Seventh Respondent

JUDGMENT: LEAVE TO APPEAL

Molahlehi J

[1] This is an application for leave to appeal against the judgment of this court made on 16 February 2018 in terms of which the rule nisi issued by Berger AJ was confirmed.

[2] The applicants have in their notice for leave to appeal raised several grounds for appeal. In brief their contention is that the court erred in:

a. not considering that there were no records indicating that the respondents have lease agreement/s to occupy the premises.

b. in refusing the application for condonation which was made from the bar, they were denied a fair hearing and access to court in terms of s 34 and s 36 of the Constitution.

c. confirming the rule nisi despite their application in terms of rule 35 (12) of the Rules which was handed in court on 29 January 2018.

[3] As concerning the law the applicants have relied on various judgments concerning their challenge of the judgment. The essence of those decisions relate to the principles governing access to the court/s and affording a litigant a fair hearing. The other authorities relate to condonation made from the bar and concern the extension of the time frames as provided for in the rules.

[4] The test to apply in considering leave to appeal is governed by s 17 of the Superior Courts Act 10 of 2013, which requires the applicant to convince the court that the appeal would have reasonable prospects of success or that there were other compelling reasons why the appeal would be heard.

[5] In applying the above test of leave to appeal I considered the submissions made by both parties, the grounds for leave to appeal and all the authorities relied upon by the applicants including my judgment. The authorities relied upon by the applicants do not assist their case in that they are distinguishable from the facts of the present matter and its circumstances. For instance as alluded to earlier the issue in this matter related to non-compliance with the time frames set out in a court order as opposed to that provided for in the rules. There can be no doubt, in my view, that these are two distinct situation to which a different consideration has to apply when considering whether to allow an application for condonation from the bar. In this respect the non-compliance with the order of the court is much more serious than that of the rules. In any case, even if the two situations were to be treated as needing equal consideration, the applicants failed to make out a case as to why no formal application was made for the condonation for non-compliance with the time frame for filing their answering affidavit as set out in the rules.

[6] In as far as all the other issues raised by the applicants, there is no need to delve into them as they are fully addressed in my judgment. It accordingly follows from this discussion that I have not been persuaded that there are prospects that another court is likely to arrive at a decision different to that reached by this court. In the circumstances the applicants’ application for leave to appeal stands to fail.

Order

[7] In the premises the applicants’ application for leave for appeal the decision of this court made on 16 February 2018 is dismissed with costs.

E Molahlehi

Judge of the High Court;

Johannesburg.

Representation:

For the Applicants: Adv. J Van Garderen

Instructed by: Chris Liebenberg Attorneys

For the Respondents: Adv. R Kwinda

Instructed by: The State Attorney

Heard on: 22 March 2018

Delivered on: 29 March 2018