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[2021] ZAGPJHC 431
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Motsumi and Another v Mongoloa and Others (2018/20079) [2021] ZAGPJHC 431 (17 September 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNESBURG
CASE
NO:
2018/20079
Reportable: No
Of interest to other
judges: No
Revised: Yes
17September 2021
In
the matter between:
MOTSUMI
THOMAS ITUMELENG
First Applicant
MOTSUMI
DAVID RAMAREKI
Second Applicant
and
MONGOLOA
PETER
First Respondent
MARIA
MMAMORUAKGOMO SEFAKO
Second Respondent
ABSA
BANK
LIMITED
Third Respondent
E
ZULU PROP INVESTORS (PTY) LTD
Fourth Respondent
LERATO
VIRGINIA GWALA
Fifth Respondent
LAWRENCE
GWALA
Sixth Respondent
KING
GORDON
NKOSI
Seventh Respondent
MERCANTILE
BANK LTD
Eighth Respondent
GREENLIGHT
PROPERTY SERVICES
Ninth Respondent
(PREVIOUSLY
KNOWN AS GAKHULU REAL ESTATE CC)
WILFRED
SEME
Tenth Respondent
PULSE
AFFORDABLE HOUSING
Eleventh Respondent
THE
EXECUTOR IN THE ESTATE OF THE LATE
Twelfth Respondent
KELEBETSE
PATRICIA LEGOLA
STANDARD
BANK LIMITED
Thirteenth Respondent
FIRST
NATIONAL
BANK
Fourteenth Respondent
THE
DIRECTOR-GENERAL: GAUTENG
Fifteenth Respondent
DEPARTMENT
OF HUMAN SETTLEMENTS
THE
MEC OF THE DEPARTMENT OF
Sixteenth Respondent
HUMAN
SETTLEMENTS
THE
CITY OF JOHANNESBURG
Seventeenth Respondent
METROPOLITAN
MUNICIPALITY
REGISTRAR
OF DEEDS (JOHANNESBURG)
Eighteenth Respondent
JUDGMENT
ALLY
AJ
INTRODUCTION
1.
This is an application for leave to appeal
the whole of my judgment dated 26 May 2021.
2.
The application is opposed by the third and
eighth respondents.
3.
The Applicants have repeated their
submissions made during the hearing of this matter.
EVALUATION
AND ANALYSIS
4.
The
law and principles regarding applications for leave to appeal in
terms of Section 16 and 17 of the Superior Courts Act
[1]
have now become settled.
[2]
Essentially, the bar has been raised in considering whether to grant
an application for leave to appeal or not. In this regard
I agree
with the principles as set out in H & A Manufacturing &
Another v Bower & Others:
Section
17 makes provision for leave to appeal to be granted where the
presiding judge is of the opinion that either the appeal
would have a
reasonable prospect of success or there is some other compelling
reason why the appeal should be heard, including
whether or not there
are conflicting judgments on the matter under consideration.
[3]
5.
The test has changed and the threshold is
higher and more stringent as outlined above. Therefore, the
Applicants in this matter
must convince this Court that there is a
reasonable possibility that another Court
would
come to a different conclusion.
6.
When Counsel for the Applicants was
questioned as to why the Applicants did not approach the Master of
the High Court to determine
the Executor or Administrator of the
Estate of his grandparents, Counsel submitted that the Department of
Human Settlements advised
the Applicants to approach the Court. This
is indeed so, however, this does not entitle a litigant to approach
the Court without
establishing its
locus
standi
to launch the proceedings. The
onus continues to rest on an Applicant to establish his/her
locus
standi
to launch proceedings.
7.
Counsel
furthermore raised the issue of costs and relied on in the Biowatch
case
[4]
principle for the
Applicants not being saddled with costs. It is my view that the
Applicants did not raise the issue of constitutionality
in their
founding affidavit but only during argument which in my view presents
as an afterthought. The normal principle of costs
following the
result, accordingly, has not been displaced by any factors raised by
the Applicants. Accordingly there are no reasonable
prospects that
another Court would find differently than this Court and the
application on this ground should also fail.
8.
Without delving into each ground for leave
to appeal for the reason, as stated above, the Applicants have
repeated their submissions
made during the hearing, I remain
unconvinced that another Court on the facts
would
come to a different conclusion and find
that there are reasonable prospects of success in this matter. For
clarity, I also find
no compelling reason why leave to appeal should
be granted.
CONCLUSION
9.
In the circumstances and what has been
stated above, the application for leave to appeal must fail and the
Applicants must pay the
costs of this application.
The following order shall
issue:
a)
The application for leave to appeal is
dismissed with costs.
G ALLY
ACTING JUDGE OF THE
HIGH COURT
GAUTENG DIVISION OF
THE HIGH COURT, JOHANNESBURG
Electronically
submitted therefore unsigned
Delivered: This judgement
was prepared and authored by the Judge whose name is reflected and is
handed down electronically by circulation
to the Parties/their legal
representatives by email and by uploading it to the electronic file
of this matter on CaseLines. The
date for hand-down is deemed to be
20 September 2021.
Date of hearing: 14
September 2021
Date of judgment: 17
September 2021
Appearances:
Applicant
:
Adv. M. Phukubje
Gcwensa
Attorneys
229
Columbine Avenue
Mondeor
rgp@gcwensaattorneys.co.za
Third Respondent
:
Adv. E. Mandowa
Poswa
Inc
1
st
Floor, Block A, Sandton Close
Cnr
5
th
street and Norwich Close
Sandton
shaviv.singh@poswainc.co.za
stephanie.chetty@poswainc.co.za
Eighth Respondent
:
Adv.
E. Kromhout
BVZ
Attorneys
Unit 2
Surrey Square on Republic
Cnr
Surrey Avenue and Republic Road
Ferndale
kulu@bvz.co.za
[1]
Act
10 of 2013
[2]
The
Mont Chevaux Trust v Tina Goosen 3 November 2014 (Unreported
judgment LCC Case No: LCC14R/2014; The Acting National Director
of
Public Prosecution v Democratic Alliance (unreported Case No:
19577/09 dated 24 June 2016); First Reality (Pty) Ltd v Mitchell
&
Others
2021 ZALCC 21
dated 23 August 2021 @ para 2
[3]
H
& A Manufacturing & Another v Bower & Others 2020 KZNDHC
at para 5
[4]
Biowatch
Trust v Registrar Genetic Resources & Others
2009 (6) SA 232
CC