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[2023] ZAGPJHC 324
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Unlawful Occupiers of Mooderfontein Farm and Another v City of Ekurhuleni Metropolitan Municipality and Others (8433/2020) [2023] ZAGPJHC 324 (14 April 2023)
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)