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[2022] ZAGPPHC 235
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Minister of Agriculture, Land Reform and Rural Development and Another v Johannes N.O and Other (34108/2020) [2022] ZAGPPHC 235 (18 April 2022)
IN THE HIGH COURT
OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
·
REPORTABLE: NO
·
OF INTEREST TO OTHER JUDGES: NO
·
REVISED
18
April 2022
CASE
NO: 34108/2
020
Heard
on: 7 March 2022
Delivered
on: 18 April 2022
In the matter
between:
MINISTER OF AGRICULTURE, LAND
REFORM
First
Applicant
AND RURAL DEVELOPMENT
THE DELEGATE OF THE MINISTER
OF Second
Applicant
AGRICULTURE, LAND REFORM &
RURAL
DEVELOPMENT
and
HEINZ
WERNER OTTO JOHANNES N.O
First
Respondent
SIGRID ROSEMARIE JOHANNES
N.O. Second
Respondent
In re
HEINZ
WERNER OTTO JOHANNES N.O
First
Applicant
SIGRID ROSEMARIE JOHANNES
N.O.
Second
Applicant
and
MINISTER OF AGRICULTURE, LAND
REFORM
First Respondent
AND RURAL DEVELOPMENT
THE DELEGATE OF THE MINISTER
OF Second
Respondent
AGRICULTURE, LAND REFORM &
RURAL
DEVELOPMENT
THE MUNICIPAL MANAGER: MKHONDO
LOCAL MUNICIPALITY Third Respondent
JUDGMENT
VUMA,
AJ
[1]
The first and second applicant seek leave to appeal to the Full bench
of the Gauteng Division, Pretoria,
alternatively
the Supreme
Court against the whole judgment and order, including the costs order
granted by me, as handed down on 19 November 2021,
on the grounds
that I erred both in fact and in law and in one or more of the
respects to appear below-herein.
[2]
It is trite that an application
for
leave to appeal a decision from a single Judge of the High Court is
regulated by Rule 49 of the Uniform Rules of Court. The substantive
law pertaining to application for leave to appeal is dealt with in
section 17
of the
Superior Courts Act 10 of 2013
.
[3]
The
grounds of appeal are found in the applicantâs Application for
Leave to Appeal.
[4]
Of note the applicants argue,
inter
alia
,
the following points:
4.1
That the Judge erred by finding, in paragraph [48] of her judgement
that the Subdivision of Agricultural
Land Act 70 of 1970 (SALA),
prohibits, excising, only good land into small uneconomic
units, allowing excising bad land from
good land;
4.2
That the Judge erred in this regard by not having regard to the case,
approved by the Constitutional Court
(
Wary
Holdings (Pty) Ltd v Stalwo (PTY) Ltd & Another
[2008] ZACC 12
;
2009 (1) SA
337
(CC)) , of
Van
Der Bijl & Others v Louw & Another
1974 (2) SA
493
(CPD) at 499 C â E;
4.3 That
the Judge erred by not finding that the smaller subdivided portion
will remain agricultural land
and that the respondents (or another
party) intends small scale farming on the portion, as evidenced in
the initial application,
submitted by NuPlan;
4.4
The Judge erred by not considering the initial
application submitted by NuPlan;
4.5.
The Judge erred by not considering whether the new unit of 6,49 ha
can survive in its diminished form
and provide a reasonable living
for the new owners.
[5]
The respondents oppose the application, arguing,
inter alia
,
that the applicantsâ leave to appeal should refused as the
application does not comply with the law governing notices of appeal
and notices of application for leave to appeal. The respondents argue
that the application is ill-conceived and devoid of merit as
it has
dim prospects of success in the appeal for the following reasons:
5.1.
The decision sought on appeal does not fall within the ambit of
section 16(2)(a)
of the
Superior Courts Act 10 of 2013
;
5.2
The applicantsâ application for leave to appeal is
pro
non scripto
in
that whereas the grounds of appeal in a notice of application for
leave to appeal must be clearly and succinctly set out in unambiguous
terms so as to enable the Court and the respondents to be fully and
properly informed of the case which the applicant seeks to make
out
and which the respondent is to meet in opposing the application for
leave to appeal, the applicantsâ notice is littered with
arguments;
5.3
The application for leave to appeal is borne out of a material
failure to understand the nature of the judgment,
order and salient
issues before this Court. The effect of the order granted by the
Court is that the Minister will be seized with
a subdivision
application and reconsider all the issues and thereafter take
appropriate decision;
5.4. The
Minister had an obligation to procure expert advice that will
contradict or confirm Dr Gouwsâ findings. With
in-expert advice Dr
Gouwsâ expert advice stands uncontroverted and the Court had to
take heed of his findings.
[6]
The principles governing the question whether leave to appeal should
be granted are well established in
our law. Such principles have
their origin in the common law and they entail a determination as to
whether reasonable prospects of
success exist that another court,
considering the same facts and the law, may arrive to a different
conclusion to that of the court
whose judgment is being impugned. The
principles now find expression in section 17 of the Superior Court
Act 10 of 2013
[7]
It has also been generally accepted that the use of the word "would"
in section 17 of the Superior
Court Act added a further consideration
that the bar for the test had been raised with regards to the merits
of the proposed leave
to appeal before relief can be granted. The
Superior Court Act widened the scope in which leave to appeal may be
granted to include
a determination of whether "there is some
compelling reason why the appeal should be heard."
[8]
In my view, considering both the partiesâ
arguments and the impugned judgment, the applicants have failed to
make out a case for
leave to appeal. Neither have they shown on what
basis there are prospects of success on appeal or that there are any
compelling
reasons why the appeal should be heard. Furthermore, I am
not persuaded that another court would come to a different
conclusion.
[9]
It is for the above reasons that I dismiss the application for leave
to appeal with costs.
Livhuwani Vuma
Acting Judge
Gauteng
Division, Pretoria
ALA Heard on: 7
March 2022
ALA Judgment handed
down on: 18 April 2022
Appearances
For
1
st
and 2
nd
Applicant: Adv. H.C.
Janse van Rensburg
Assisted
by: Adv. P. Nyapholi-Motsie
Instructed
by: The State Attorney
For
1
st
and 2
nd
Respondent: Adv. M. Majozi
Instructed
by: Ivan Pauw & Partners Attorneys