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IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Case number: 6673/2023
In the application between:
BARBARA JILL LESLIE Applicant
and
ROGERIO VIANA First Respondent
(together with all other occupiers holding under the first respondent)
ALL OTHER UNLAWFUL OCCUPIERS OF Second Respondent
SECTIONS 5 AND 17 OF THE SECTIONAL
SCHEME MONTE CARLO FLATS (SS NO. 7/1979),
CAMPS BAY
(together with all other occupiers holding under the first respondent)
THE CITY OF CAPE TOWN Third Respondent
Date of hearing: 13 March 2024
JUDGMENT – APPLICATION FOR LEAVE TO APPEAL –
DELIVERED ELECTRONICALLY ON 13 MARCH 2024
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HOLDERNESS AJ
[1] For convenience, the parties will be referred to as in the main
application.
[2] On 31 January 2024 I handed down judgment in terms of which the first
respondent was ordered to make payment of the amount of R97,200 in respect of
arrear rental, and to pay the applicant’s costs, including all reserved costs, on the
scale as between attorney and client.
[3] On 12 February 2024 t he first respondent delivered a notice of appeal ,
supported by an affidavit deposed to by him on the same date.
[4] On 21 February 2024, a further document titled "LEAVE TO APPEAL"
was delivered, dated 12 February 2024.
[5] There is no application for leave to appeal before th e Court, as required
by the provisions of Uniform Rule 49(1)(b).
[6] However, and as the first respondent appears in person , to avoid any
undue delays and the incurrence of unnecessary costs , I will approach this matter
as an application for leave to appeal and , to the extent necessary, the first
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respondent’s failure to comply with the provisions of Rule 49(1)(b) is condoned.
[7] It appears that the first respondent seeks leave to appeal against:
7.1 The interdictory relief granted on 12 May 2023 (‘the May order’) ;
and
7.2 The costs order granted on 31 January 2024 (‘the costs order’).
[8] In terms of Section 17(1)(a)(i) of the Superior Courts Act, 10 of 2013 (‘the
Act’), for the first respondent to successfully pursue leave to appeal, he needs to
show that his appeal would enjoy a reasonable prospect of success.
[9] With the enactment of section 17 of the Act, the threshold for granting leave to
appeal has been raised. The use of the word ‘would’ in the Act imposes a more
stringent threshold in terms thereof, compared to the provisions of the repealed
Supreme Court Act 59 of 1959.
[10] In Mount Chevaux Trust [IT 2012/28] v Tina Goosen and 18
Others,1 Bertelsmann J stated 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
1 2014 JDR 2325 (LCC).
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court may come to a different conclusion, See Van Heerden v Cronwright
and Others 1985 (2) SA 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.'
….In the decision of Dexgroup (Pty) Ltd vs Trustco Group International (Pty)
Ltd and Others 2 Wallis, JA observed that a Court should not grant leave to
appeal and indeed is under a duty not to do so where the threshold which
warrants such leave has not been cleared by an applicant in an application
for leave to appeal. Paragraph 24 of the judgment he held as follows:
"...The need to obtain leave to appeal is a valuable tool in ensuring that
scare judicial resources are not spent on appeals that lack merit. It
should in this case have been deployed by refusing leave to appeal.”
[11] Turning now to the present matte r. T he May order was granted by
agreement between the applicant and the first respondent , and provided inter
alia for:
11.1 Interim interdictory relief, issued by way of a rule nisi and with a
return date on 9 June 2023;
11.2 An order that the first respondent vacate the applicant's property
by 31 July 2023, and an eviction by the sheriff if he failed to do
so; and
2 2013 (6) SA 520 (SCA) at para 24.
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11.3 The relief pertaining to arrear rental and costs stood over for
later determination.
[12] On 9 June 2023, a further agreed order was granted and the rule nisi
was extended to 23 November 2023.
[13] The first respondent vacated the applicant's property on 30 June 2023.
This caused the interdictory relief in the form of the rule nisi issued in terms of the
May order to become
moot before 23 November 2023.
[14] In the circumstances , the applicant did not pursue a confirmation of the
rule nisi on 23 November 2023, and no order was granted pertaining to
interdictory relief in the judgment of 31 January 2024.
[15] The only issues which remained for determination to be determined by
this Court on 23 November 2023 were the applicant’s claim for arrear rental
and costs.
[16] As affirmed in International Trade Administration Commission v SCAW
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South Africa (Pty) Ltd,3 an appeal lies against an order of a Court. As there is
no existing order for interdictory relief, there can be no appeal in respect of the
interim interdict.
[17] Therefore to the extent that the first respondent seeks leave to appeal
against th e May order, such application in my view has no prospect of
succeeding.
[18] Insofar as the appeal against the costs order is concerned, it is trite that a
costs order is the result of an exercise of a judicial discretion by the Court
hearing a case. It is a so -called ‘true discretion,’ as when an award of costs is
made against one of the litigants , it is a decision arising from a number of
equally permissible options.4
[19] A Court of Appeal will not lightly interfere with the exercise of the lower
Court's discretion. The grounds for interfering with the exercise of a discretion
are usually only where the discretion was not exercised judicially; or where the
decision was influenced by wrong principles; or where the decision was
affected by a misdirection on the facts; or where the decision could not
reasonably have been reached by a Court properly directing itself to the
32012 (4) SA 618 (CC), para 71 .
4Trencon Construction (Pty) Ltd v Industrial Development Corporation of South Africa Ltd and Another
2015 (5) SA 245 (CC), para 8 9.
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relevant facts and principles. The law in this regard is trite.5
[20] Based on the aforegoing, the instances in which leave to appeal is granted
against costs orders only are rare.6
[21] The threshold that the first respondent faces does not end here.
Section 16(2)(a) of the Act requires that ‘exceptional circumstances ’ must be
established for the applicant to succeed in an application for leave to appeal on
the issue of costs.
[22] No exceptional circumstances are alleged by the first respondent. I
agree with Mr. van Rensburg , who appeared on behalf of the applicant , that
there is nothing exceptional about this matter.
[23] For these reasons, i n my view there is similarly no prospect of success
on appeal in respect of the costs order.
5 National Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs and Others 2000 (2)
SA 1 (CC), para 11; Trencon, supra, paras 83-89; Public Protector v South African Reserve Bank 2019 (6) SA
253 (CC), paras 144-145; Zuma v Office of the Public Protector and Others [2020] ZASCA 138 (30 October
2020), paras 20-22.
6 Tebeila Institute of Leadership, Education, Governance and Training v Limpopo College of Nursing and
Another 2015 (4) BCLR 396 (CC), para 13.
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[24] Lastly, t hese proceedings flow from the enforcement of the lease
agreement between the applicant and the first respondent, which agreement
provides for costs on an attorney and client scale.
[25] The first respondent is thus contractually liable for costs on the attorney
and client scale, should he be ordered by the court to pay costs in respect of
proceedings arising from such agreement , which include s the present
application.
[26] In the circumstances it is ordered as follows:
(i) The application for leave to appeal is dismissed with costs on the
scale as between attorney and client.
HOLDERNESS AJ
APPEARANCES
For the Applicant: Mr. van Rensburg
Van Rensburg & Co Attorneys
For the Respondent: In person
Mr. Rogerio Viana