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[2023] ZAGPPHC 1871
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Cebekhulu Probuild JV v City of Ekurhuleni Metropolitan Municipality and Another (37168/21) [2023] ZAGPPHC 1871 (4 September 2023)
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
Case
Number: 37168/21
In
the matter between:
CEBEKHULU PROBUILD
JV
APPLICANT
AND
CITY
OF EKURHULENI METROPOLITAN
FIRST RESPONDENT
MUNICIPALITY
JF
PIPE
N.O.
SECOND RESPONDENT
JUDGMENT
KHWINANA
AJ
INTRODUCTION
[1]
This is an application for leave to appeal to the full bench of the
above honourable
court or the Supreme Court of Appeal against my
judgment granted on this the 07
th
day of December 2023.
[2]
Section 17(1) of the Superior Courts Act, Act 10 of 2013 ("the
Superior Courts
Act"), regulates applications for leave to
appeal and provides:
'(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;
(b) the decision sought
on appeal does not fall within the ambit of section 16(2)(a); and (c)
where the decision sought to be appealed
does not dispose of all the
issues in the case, the appeal would lead to a just and prompt
resolution of the real issues between
the parties.'
[3]
The test in an application for leave to appeal prior to the Superior
Courts Act was
whether
there were reasonable prospects that another court may
come to a
different conclusion. Section 17(1)
[1]
has raised the test, as Bertelsmann J, correctly pointed out in The
Mont Chevaux Trust v Tina Goosen & 18 Others
2014 JDR 2325 (LCC) at para :
'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, see Van Heerden v
Cornwright & 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.'
[4]
The applicant’s leave to appeal is on my judgment, save to say
the reasons have
been given in my judgment.
In the result:
1.
Leave to appeal is refused.
2. The applicant is to
pay the costs of this application.
ENB
KHWINANA
ACTING
JUDGE OF NORTH
GAUTENG
HIGH COURT, PRETORIA
DATE
OF HEARING:
24
TH
JULY 2023
DATE
OF JUDGMENT:
04
September 2023
[1]
Commissioner of Inland Revenue v Tuck
1989 (4) SA 888
(T) at 890