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[2022] ZAGPJHC 41
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Unlawful Occupiers of Unit No 202 and Others v Mahlaela and Others (33802 / 2016) [2022] ZAGPJHC 41 (1 February 2022)
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNESBURG
CASE NO: 33802 / 2016
REPORTABLE: NO
OF INTEREST TO OTHER
JUDGES: NO
REVISED.
1.02.2022
IN THE MATTER BETWEEN:
THE UNLAWFUL OCCUPIERS
OF UNIT NO 202
1
ST
APPLICANT
THE UNLAWFUL OCCUPIERS
OF UNIT NO 203
2
ND
APPLICANT
THE UNLAWFUL OCCUPIERS
OF UNIT NO 204
3
RD
APPLICANT
and
SHIMI JAMES MAHLAELA
1
ST
RESPONDENT
PHATOLO WADDY MAHLAELA
2
ND
RESPONDENT
SHERIFF
BOKSBURG
3
RD
RESPONDENT
JUDGMENT
Strijdom A J
1.
In this matter the
Applicants seeks condonation for the late filing of the application
for leave to appeal and leave to appeal against
the whole of my
judgment and order handed down on 22 April 2021 to the Full Court of
the Gauteng Local Division of the High Court.
2.
The condonation
application was not opposed by the Respondents and condonation for
the late filing of the application for leave
to appeal was granted.
THE APPLICATION FOR
LEAVE TO APPEAL
3.
In broad terms the
following are the major grounds of appeal:
3.1.
The Honourable Judges
should have or ought to have concluded that the Second Applicant was
never served with a notice of set down
for the hearing of the main
eviction and therefore, and order for his eviction was granted
erroneously;
3.2.
The Honourable Judges
further erred in finding that the sheriffs’ return of service
was sufficient and constituted a proper
service;
3.3.
The Honourable Judges
also erred in ruling that the Applicants’ case was ought to be
lodged within 20 days after acquiring
knowledge of such judgment;
3.4.
The Honourable Judges
erred in finding that the Applicants did not have a bona fide
defence.
4.
There are now three
requirements for the granting of leave to appeal pursuant to
Section
71
(1) of the
Superior Courts Act 10 of 2013
namely that there are
reasonable prospects of success, that the amount involved is not
trifling and is a matter of substantial
importance to one or both of
the parties concerned and further that a practical effect or results
can be achieved by the appeal.
5.
In order to succeed
therefore, the Applicants must convince this court on proper grounds
that he has prospects of success on appeal
and that those prospects
are not remote, but they have a realistic chance of succeeding. More
is required to establish than that
there is a mere possibility for
success and that the case is arguable on appeal, or that the case
cannot be categorized as hopeless.
There must be a sound, rational
basis for conclusion that there are prospects of success on appeal.
6.
In respect of all the
grounds of appeal raised, my judgment deals extensively with the
facts and law as presented by the parties
and how the court arrived
at its conclusion.
7.
In the present matter
when the facts were examined there were a number of considerations,
which militated against another court
finding in favour of the
Applicants.
8.
On all the issues there
are, in my view, no prospect of another court arriving at a different
conclusion. The matter has no prospect
of success deserving neither
the decision of the Full Court of this division or the Supreme Court
of Appeal. The issues have been
irrefutably and substantially dealt
with in the judgment.
9.
In the result the
following order is made:
9.1.
Condonation for the
late filing of the application for leave to appeal is granted.
9.2.
The application for
leave to appeal is dismissed with costs.
________________________
Strijdom A J
Acting Judge of The
High Court of South Africa
Matter heard on:
27 January 2022
Judgement
delivered: 1
February 2022
Counsel for Applicants:
Adv Dhladhla
Counsel for Respondents:
Adv Dandadzi