Unlawful Occupiers of Mooderfontein Farm and Another v City of Ekurhuleni Metropolitan Municipality and Others (8433/2020) [2023] ZAGPJHC 324 (14 April 2023)
The court found that the applicants failed to meet the requirements for leave to appeal as set out in section 17(1)(a) of the Superior Courts Act. Upon consideration of the grounds of appeal and the arguments presented, the judge was not persuaded that there was a reasonable prospect that another court would reach a...
Source-derived case information.
- Citation
- [2023] ZAGPJHC 324
- Parties
- Applicant: Unlawful Individuals Occupying the Property Described as Chief Albert Luthuli, Extension 6 Daveyton also known as Mooderfontein Farm 76 IR 28; Applicant: All those appearing in the list attached to the application for leave to appeal marked as Annexure 'A'; Respondent: City of Ekurhuleni Metropolitan Municipality; Respondent: City of Ekurhuleni Police Metropolitan Department (Daveyton); Respondent: South African Police Services
- Court
- South Gauteng High Court, Johannesburg
- Jurisdiction
- South Africa
- Case Number
- 8433/2020
- Procedural Posture
- Leave to Appeal / Application for Leave to Appeal Following Judgment Delivered on 11 October 2021 and Reasons on 18 October 2022.
- Outcome
- Application for leave to appeal dismissed with costs.
- Judges
- ML Senyatsi
- Legal Topics
- Leave to Appeal, Superior Courts Act Section 17, Prospects of Success
Source-derived case record
Summary, issues, holding and outcome
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Parties
Unlawful Individuals Occupying the Property Described as Chief Albert Luthuli, Extension 6 Daveyton also known as Mooderfontein Farm 76 IR 28
Applicant
All those appearing in the list attached to the application for leave to appeal marked as Annexure 'A'
Applicant
City of Ekurhuleni Metropolitan Municipality
Respondent
City of Ekurhuleni Police Metropolitan Department (Daveyton)
Respondent
South African Police Services
Respondent
Procedural Posture
Leave to Appeal / Application for Leave to Appeal Following Judgment Delivered on 11 October 2021 and Reasons on 18 October 2022.
Legal Issues
- 1 Whether the applicants have met the requirements for leave to appeal under section 17(1)(a) of the Superior Courts Act.
- 2 Whether there is a reasonable prospect that another court would come to a different conclusion.
- 3 Whether there is a compelling reason for the appeal to be heard.
Ratio Decidendi
The court found that the applicants failed to meet the requirements for leave to appeal as set out in section 17(1)(a) of the Superior Courts Act. Upon consideration of the grounds of appeal and the arguments presented, the judge was not persuaded that there was a reasonable prospect that another court would reach a different conclusion or that there was any compelling reason for the appeal to be heard. The application for leave to appeal was therefore dismissed with costs.
Court Disposition
Application for leave to appeal dismissed with costs.
Orders
- The application for leave to appeal is dismissed with costs.
Full Case Text
Judgment text and source record
42 paragraphs
IN THE HIGH COURT OF SOUTH AFRICA(GAUTENG DIVISION, JOHANNESBURG)
REPUBLIC OF SOUTH AFRICA
CASE NO: 8433/2020
NOT REPORTABLE
NOT OF INTEREST TO OTHER JUDGES
NOT REVISED
14.04.23
In the matter between:
UNLAWFUL INDIVIDUALS OCCUPYING THE PROPERTY DESCRIBED AS CHIEF ALBERT LUTHULI, EXTENSION 6 DAVEYTON ALSO KNOWNAS MOODERFONTEIN FARM 76 IR 28 Applicant ALL THOSE APPEARING IN THE LIST ATTACHED TO THE APPLICATION FOR LEAVE TO APPEAL MARKED AS ANNEXURE “A” Second Applicant and CITY OF EKURHULENI METROPOLITAN First Respondent CITY OF EKURHULENI POLICE METROPOLITAN DEPARTMENT (“Daveyton”) Second Respondent SOUTH AFRICAN POLICE SERVICES Third Respondent
Neutral Citation: The Unknown Occupiers of the Immovable Properties at Chief Albert Luthuli Extension 6 Daveyton also known as Mooderfontein Farm 76 IR 28 v City of Ekurhuleni Metropolitan Municipality (Case No: 8433/2020) [2023] ZAGPJHC 324 (14 April 2023)
Delivered: By transmission to the parties via email and uploading onto Case Lines
the Judgment is deemed to be delivered. The date for hand-down is deemed to be
14 April 2023
JUDGMENT
(Leave to Appeal Application)
SENYATSI J:
[1] This is an application for maybe leave to appeal the judgment granted on 11 October 2021 which was followed by reasons provided on 18th October 2022.
[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.
[8] Accordingly, the application for leave to appeal must fail.
ORDER
[9] The following order is issued:
(a) The application for leave to appeal is dismissed with costs.
ML SENYATSI
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
DATE JUDGMENT RESERVED: 17 November 2022
DATE JUDGMENT DELIVERED: 14 April 2023
APPEARANCES
For the Applicants: Seboko Attorneys Instructed by: Lawyers for Black People (NPC) SA Counsel for the First Respondent: Adv E Sithole Instructed by: Majang Inc Attorneys
[1] 2014 2325 (LCC)
[2] (Case no: 19577/09) ZAGPPHC 489 at para 25
[3] (213/16) [2017] ZASCA 17 (22 March 2017)