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2022
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[2022] ZANCHC 24
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Khosa v Sishen Iron Ore Company (Pty) Limited (142/2021) [2022] ZANCHC 24 (22 April 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
NORTHERN
CAPE DIVISION, KIMBERLEY
CASE
NO: 142/2021
Reportable:YES
/ NO
Circulate
to Judges:YES / NO
Circulate
to Magistrates:YES / NO
Circulate
to Regional Magistrates:YES / NO
Heard:
22/03/2022
Delivered:
22/04/2022
In
the matter between:
THEMBANI
CLIFFORD KHOSA
Applicant
and
SISHEN
IRON ORE COMPANY (PTY) LIMITED
Respondent
JUDGMENT:
APPLICATION FOR LEAVE TO APPEAL
Mamosebo
J
[1]
This is an application for leave to appeal to the Full Bench of this
Division, against
my judgment and order handed down on 29 October
2021 in which I granted an eviction order against the applicant, Mr
Thembani Clifford
Khosa, and the occupiers of 4970 Karlien Street
Onderwyserspark, Kathu, and costs. They were to vacate the property
by 31 January
2022. The application is opposed.
[2]
Whereas Mr Khosa enrolled the application for leave to appeal to be
heard on 22 March
2022, on that day, without any substantive
application he applied for a postponement. Mr Khosa was advised by
this Court previously
on 02 February 2022 to approach the Legal Aid
Office for assistance before enrolling the matter, which he did. He
was informed
on or about 23 February 2022 that his application was
unsuccessful. The request for a postponement was refused and the
parties
were invited to proceed with their submissions.
[3]
The application is premised on the grounds that this Court erred in:
3.1
Arriving at a finding that the applicant is no longer an employee of
the respondent whilst
the arbitrator’s decision has been
challenged on review in the Labour Court.
3.2
Rejecting the respondent’s submission that he will be
inconvenienced in his preparation
for the Labour Court when evicted
from the property.
3.3
Its finding that the applicant has failed to disclose his financial
position fully due to
holding directorships in certain companies.
3.4
Not considering the symbiosis with his cousins, namely, the
respondent providing accommodation
while the cousins provide basic
needs.
[4]
The test for applications for leave to appeal is governed by section
17 of the Superior
Courts Act
[1]
,
which stipulates:
“
17(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 a matter under consideration;
(b)
The decision sought on appeal does not fall within the ambit of
section 16(2)(a); and
(c)
…”
[4]
The provisions of section 17(1) raise the threshold of the test for
leave to appeal.
[2]
The
applicant must demonstrate to the Court that there are reasonable
prospects that the appeal would succeed. Nugent
JA made
the following pronouncements in
S
v Mabena
[3]
“
[22]
It is the right of every litigant against whom an appealable order
has been made to seek leave to appeal
against the order. Such an
application should not be approached as if it is an impertinent
challenge to the Judge concerned to
justify his or her decision. A
court from which leave to appeal is sought is called upon
merely to reflect dispassionately
upon its decision, after hearing
argument, and decide whether there is a reasonable prospect that a
higher court may disagree.”
[5]
Determining whether to grant leave to appeal on the basis that the
appeal would have
a reasonable prospect of success is higher and more
stringent. Our courts have already interpreted the phrase
“
would
”, found in section 17(1)(a)(i) of the Act,
as indicative of some form of certainty or realistic chance of
success.
[6]
Mr Khosa simply rehashed the arguments that are dealt with in the
main judgment. His
right to occupy the mine property ended after his
services were terminated. The fact that he is or will be
inconvenienced in his
preparation for the Labour Court hearing if he
was evicted from the property bears no relevance to the prospects of
success. The
same holds true for the purported symbiotic relationship
with his cousins. Mr Khosa has also not shown the existence of some
other
compelling reason why the appeal should be heard.
[7]
In the premises, I am of the
view that there are no reasonable prospects of success on
appeal in
that another court, on appeal, would arrive at a different conclusion
based on the facts, than this Court arrived at.
The application for
leave to appeal to the Full Bench of this Division should therefore
fail.
[8]
On the question of costs. There is no reason why costs should not
follow the result.
[9]
Resultantly, the following order is made:
The
application for leave to appeal is dismissed with costs.
M.C.MAMOSEBO
JUDGE
OF THE HIGH COURT
NORTHERN
CAPE DIVISION
For
the Applicant:
Mr. T.C. Khosa
Instructed
by:
In person
For
the Respondent:
Adv. J.W Kloek
Instructed
by:
Hogan Lovells Inc
c/o
Elliot Maris Wilmans & Hay Inc
[1]
10
of 2013
[2]
The
Mont Chevaux Trust v Tina Goosen & 18 Others 2014 JDR 2325 (LCC)
at para 6; MEC for Health, Eastern Cape v Mkhitha and
Another[2016]
ZASCA 176 (25 November 2016) at paras 16-17 and Notshokovu v S
[2016] ZASCA 112
(7 September 2016) at para 2
[3]
2007
(1) SACR 482
(SCA) at 494 (para 22)