Unlawful Occupiers of 108 Properties situated in Rustenburg v Sibanye Platinum Mines and Others (CIV APP FB 01/18) [2023] ZANWHC 30 (3 March 2023)

IN THE HIGH COURT OF SOUTH AFRICA

NORTH WEST DIVISION, MAHIKENG

CASE NO: CIV APP FB 01/18

Reportable: YES / NO

Circulate to Judges: YES / NO

Circulate to Magistrates: YES / NO

Circulate to Regional Magistrates: YES / NO

In the matter between:

UNLAWFUL OCCUPIERS OF 108 PROPERTIES

APPLICANT

SITUATED IN RUSTENBURG

AND

SIBANYE PLATINUM MINES (PTY) LTD

1ST RESPONDENT

RUSTENBURG LOCAL MUNICIPALITY

2ND RESPONDENT

MINISTER OF POLICE

3RD RESPONDENT

DATE OF HEARING : 24 FEBRUARY 2023

DATE OF JUDGMENT : 3 MARCH 2023

LEAVE TO APPEAL JUDGEMENT

REDDY AJ

[1] This is an application for leave to appeal against the whole judgment and orders granted by Gura J, and handed down on 20 May 2022. The application is opposed.

[2] The enabling legislation which prescribes the circumstances in which leave to appeal may be granted is set out in section 17(1) (a) of the Superior Courts Act 10 of 2013(“the Act”). The section reads as follows:

“Section 17(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) the decision sought on appeal does not fall within the ambit of section 16; and

(b)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

[3] On an ordinary reading of section 17(1), it exhumes that the bar to the granting an applicant leave to appeal has been raised, although it is not insurmountable. In The Mont Chevaux Trust v Tina Goosen and 18 Others 2014 JDR 2325(LCC) at paragraph (6) the following was stated:

“It is clear that the threshold for the 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) A 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.”

[4] The applicants are divided into two groupings, represented by different counsel. The collective grounds of appeal are exhaustive and challenge inter alia the factual findings, the application of the various legal principles and the ultimate orders. In view of the conclusion that I have arrived at, these grounds of appeal do not necessitate regurgitation. The applicants contend that conjunctively, and on the grounds of appeal cited in their respective notices of appeal, their appeal would have a reasonable prospect of success.

[5] In S v Smith 2012 (1) SACR 597 (SCA) at paragraph [7] the concept of reasonable success was posited as follows:

“[7] What the test for reasonable prospects of success postulates is a dispassionate decision, based on facts and the law that a court of appeal could reasonably arrive at a conclusion different to that of the trial court. 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 categorized as hopeless. There must, in other words, be a sound, rational basis for the conclusion that there are prospects of success on appeal.”

Order

(i) The application for leave to appeal is granted in respect of the applicants to the Full Court of this Division.

(ii) The costs of this application for leave to appeal are costs in the appeal.

A REDDY

ACTING JUDGE OF THE HIGH COURT OF

SOUTH AFRICA NORTH WEST DIVISION, MAHIKENG

Appearances:

Date of Hearing:

24 February 2023

Date of Judgment:

3 March 2023

Counsel for the Applicant: Adv Stoop and Adv Moreki

Attorney for Plaintiff:

Kgomo Attorneys

No 56 Shippard Street

Mahikeng

Tell: 018 381 0495/02986

Counsel for Respondent: Adv Inge Oschman

Attorney for Respondent: Malan Scholes In

C/O VRTW Inc

9 Proctor Avenue

Tel: 018 384 0804