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[2024] ZAFSHC 77
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M.M.M v Mhlwkwa N.O. and Others - Application for Leave to Appeal (2092/2022) [2024] ZAFSHC 77 (19 March 2024)
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IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
Number 2092/2022
In
the matter of:
M[…]
M[…] M[…]
Applicant
And
TLALENG
ALINA MHLEKWA N.O.
First
Respondent
THE
MASTER OF THE FREE STATE HIGH
COURT
BLOEMFONTEIN
Second
Respondent
K[…]
C[…] M[…]
Third
Respondent
K[…]
G[…] M[…]
Fourth
Respondent
CORAM:
NAIDOO,
J
HEARD
ON:
30 January 2024 and 6 February
2024
DELIVERED
ON: 19 MARCH 2024
JUDGMENT
- APPLICATION FOR LEAVE TO APPEAL
[1]
This is an application for leave to appeal against the whole of the
judgment in this matter, which
was handed down on 9 October 2023. The
application is opposed by the first, third and fourth respondents.
The parties filed Heads
of Argument, and the application was
considered in Chambers. Adv RJ Nkhahle is on record for the applicant
and Mr C Vosloo for
the first, third and fourth respondents.
[2]
The judgment was assailed on a number of
grounds which, in essence, are that the court:
2.1
erred in finding that material disputes of fact have arisen in this
case which prevented the court from
making a final order;
2.2
misdirected itself in aligning itself with the findings of Molitsoane
J that the applicant ought to
have joined the biological children of
the deceased, as the interest of the children relate to their right
to inherit from the
deceased’s estate;
2.3
made an error in law by relying on the case of Standard Bank of SA
Ltd v Swartland Municipality &
Others 2011(5)SA 257 (SCA);
2.4
erred in awarding costs against the applicant.
[3]
The applicant argues that the respondents’ opposition is based
on unsubstantiated bare denials
in relation to the nature and
duration of the applicant’s relationship with the deceased. The
applicant’s version is
supported by three independent people
who deposed to confirmatory affidavits about the nature of the
applicant’s relationship
with the deceased and the role she
played in the running of his businesses. With regard to the
non-joinder of the biological children
of the deceased, the applicant
argues that the respondents offer no factual substantiation for
joinder other than to aver that
the deceased’s descendants have
a direct and substantial interest in the subject matter.
[4]
With regard to the interests of the applicant’s minor child,
the applicant argues that the
respondents have not pleaded any
untoward conduct on the part of the applicant to warrant the
appointment of a
curator ad litem
for the child. The applicant
similarly argues that the respondents have not raised any material
disputes of fact regarding the
applicant’s case and
particularly her relationship with the deceased. Another court would
therefore find differently to this
court.
[5]
The respondents argue that the order of
Molitsoane J is still of force and Molitsoane J is
functus officio
in respect thereof. The order has the effect of a final order and is
valid until set aside. It has not been set aside or
assailed in
any way. As such it must be complied with. The respondents also argue
that the applicant does not attack the finding
of this court that her
failure to appoint a
curator ad litem
to represent the minor
child was fatal to her application. On that basis alone, the
application for leave to appeal should fail.
The respondents also
attacked the applicant’s reliance on the case of
Bwanya v
the Master of the High Court and Others 2002(3) SA 250 (CC),
on
the basis that the Constitutional Court (CC) suspended the
declarations of invalidity and unconstitutionality relating to the
relevant to the provisions of the Maintenance of Surviving Spouses
Act and the Intestate Succession Act for a period of 18 months
from
31 December 2021.
[6]
The main application was issued on 9 May
2022. The respondents argue that the application was premature
as the
period of suspension ordered by the CC had not lapsed at that date.
No reliance could be placed on Bwanya, as the applicant
was not a
spouse. I mention that the judgment being appealed against contains
full reasons for the order made, and it is not necessary
for this
court to revisit those reasons.
[7]
It is by now trite that
section 17
of the
Superior Courts Act 10 of
2013
regulates the test to be applied in an application for leave to
appeal. The relevant provisions of
section 17(1)
provide as follows:
“
(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) there is some other
compelling reason why the appeal should be heard, including
conflicting judgments on the matter under consideration;”
(my emphasis and
underlining)
[8]
It has been held in a number of cases that
an applicant was, previously, merely required to show that
there is a
reasonable possibility that another court, differently constituted,
would find differently to the court against whose
judgment leave to
appeal is sought. It is clear from
section 17(I)
, set out above, that
the situation is now somewhat different, and an applicant for leave
to appeal is required to convince the
court that there is a
reasonable prospect of success and not merely a possibility of
success.
[See in this regard
The
Mont Chevaux Trust v Tina Goosen + 18 2014 JDR LCC,
which was
cited with approval in a number of cases, such as
Matoto v Free
State Gambling and Liquor Authority (4629/2015)
[2017] ZAFSHC 80
(8
June 2017)
, a decision emanating from this Division, and also a
Full Court decision in
Acting National Director of Public
Prosecutions and Others v Democratic Alliance (19577/2009) [2016]
ZAGPPHC 489 (24 June 2016)
].
[9]
A decision of the Supreme Court of Appeal (SCA) in the case of
Ramakatsa and Others v African National Congress and Another
(724/2019)
[2021] ZASCA 31
(31 March 2021),
recently came to my
attention. The SCA said at para 10 of the judgment that.
“
I am mindful of
the decisions at high court level debating whether the use of the
word ‘would’ as opposed to ‘could’
possibly
means that the threshold for granting the appeal has been raised. If
a reasonable prospect of success is established,
leave to appeal
should be granted. Similarly, if there are some other compelling
reasons why the appeal should be heard, leave
to appeal should be
granted. The test of reasonable prospects of success postulates a
dispassionate decision based on the facts
and the law that a court of
appeal could reasonably arrive at a conclusion different to that of
the trial court. In other words,
the appellants in this matter need
to convince this Court on proper grounds that they have prospects of
success on appeal. Those
prospects of success must not be remote, but
there must exist a reasonable chance of succeeding. A sound rational
basis for the
conclusion that there are prospects of success must be
shown to exist”.
[10]
The salient point in this matter is that the applicant has not
complied with the order of Molitsoane J referred
to above, which has
not been assailed or set aside, and is therefore still valid. The
legal position with regard to the joinder
of parties with a direct
and substantial interest in the outcome of a matter seems to be lost
on the applicant. In my view, the
applicant chooses to ignore the
reality of the factors militating against success of her application
which are fully set out in
the judgment of this court. I am further
of the view that the applicant has not established any sound or
reasonable basis to assert
that she has reasonable prospects of
success on appeal
[11]
In the circumstances I make the following order:
The application for leave
to appeal is dismissed with costs, such costs to be paid by the
applicant.
S
NAIDOO J
On
Behalf of the Applicants:
Adv
RJ Nkhahle
Instructed
by:
NW
Phalatsi & Partners
2
nd
Floor Metroploitan Building
96
Henry Street
Bloemfontein
(Ref:
MBA1/0001)
On
Behalf of the 1
st
, 3
rd
&
4
th
Respondents:
C
Vosloo
Instructed
by:
Vosloo
Attorneys
22
Brandwag Park
82
McHardy Avenue
Brandwag
Bloemfontein
(Ref:
C Vosloo/TLA45/0001)