REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
LIMPOPO DIVISION, POLOKWANE
CASE NO: 11901/2022
(1)
(2)
(3)
REP OR TA BLE: ¥e$/NO
O F INTE R ES T TO T H E JUD GE S: ¥-eS/NO
R EV IS ED .
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DAT E: 1 N ovemb er 2024 S IGNATUR E ........................ ..
In the matter between:
NGWANATAU JOHANNES BALOYI
THUPANAJOSEPHMAKGOBA
SEWELE LINAH MMOLA
MMADINTSHI MARTHA RAPITSI
JANE MAHASHA
JIMMY KUBJANA
ALLY MAAKE
FRANS KUBJANA
DUSTY MAISHE MALAT JIE
CURRY LETSOALO
MARY NTWAMPE
1 sT APPLICANT
2 ND APPLICANT
3RD APPLICANT
4 TH APPLICANT
5 TH APPLICANT
6 TH APPLICANT
7 TH APPLICANT
9 TH APPLICANT
9 TH APPLICANNT
10TH APPLICANT
11 TH APPLICANT
VERONICA MOTSWI
ATHANAMAFA
LLOYIDE MASHATOLE
-and-
LEDWABA LAZARUS
GISELA STOLS
THE MASTER OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
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THE DEPARTMENT OF RURAL DEVELOPMENT AND
LAND REFORM , LIMPOPO PROVINCE
MAMPHOKU MAKGOBA COMMUNITY TRUST
(IT8699/2004)
MASHEBANE DANIEL MALESA
JOSEPH KAMELA MODIBA
MOTHOKO TERRENCE MOSIBIHLA
THETELE JOSEPH MALAT JI
MANKUROANE SAMUEL MODIBA
MOTLATSO IVY MAGOELE
MMATISHI SIMON MAKGOBA
MOGOWE WINDSOR MADIA
ONICA MAKGOBOLA
MMAMOKGOTLA MONICA MATLEBJANE
REFILWE IRENE LETSOALO
12TH APPLICANT
13TH APPLICANT
14TH APPLICANT
1 ST RESPONDENT
2N D RESPONDENT
3 RD RESPONDENT
4 TH RESPONDENT
5TH RESPONDENT
5 TH RESPONDENT
7TH RESPONDENT
srH RESPONDENT
9TH RESPONDENT
1 QT H RESPONDENT
11TH RESPONDENT
12TH RESPONDENT
13TH RESPONDENT
14TH RESPONDENT
15TH RESPONDENT
15TH RESPONDENT
MOTLOKWA SUZAN MOJAPELO
MATOME DAVID MODIBA
MOHALE ELIAS NYAKALA
MATLU JACQYELINE MAKGOBA
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JUDGMENT: LEAVE TO APPEAL
BRESLERAJ:
Introduction:
17TH RESPONDENT
18TH RESPONDENT
19TH RESPONDENT
20TH RESPONDENT
[1] The Applicants (Applicants in the ma in application) apply for leave to appeal to
the Supreme Co urt of Appeal, alternatively the Full Co urt of this division against
the judgme nt and order of this court delivered on the 11th of March 2024 in terms
w hereof the App licants' application w as dism issed w ith costs.
[2] The App lication for leave to appeal is premised on the follow ing grounds:
2.1 The Court erred in respect of the position of the successors being
excluded from the voting process.
2.2 The Co urt erred in respect of the issue of voting by proxy as testimony
w as led to the effect that Marry H unadi Tsheola voted on behalf of her
mo ther.
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2.3 The Court failed to take the supporting affidavits into consideration.
2.4 It is in the interest of justice to grant leave to appeal.
[3] An application for leave to appeal is governed by section 17(1) of the Superior
Courts Act, Ad 10 of 2013 w hich provides:
'17 Leave to appeal
(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 conflictingjudgments 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.'
[4] In MEC Health, Eastern Cape v Mkhitha1 the Supreme Court of Appeal
said the following (reference to other authorities omitted):
1 MEC Health, Eastern Cape v Mkhitha (1221/15) [2016] ZASCA 176 (25 November 2016)
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'[16] Once again it is necessary to say that leave to appeal, especially
to this court, must not be granted unless there truly is a reasonable
prospect of success. Section 17(1)(a) of the Superior Courts Act 10 of
2013 makes it clear that leave to appeal may only be given where the
judge concerned is of the opinion that the appeal would have a
reasonable prospect of success; or there is some other compelling
reason why it should be heard.
[17] An applicant for leave to appeal must convince the court on proper
grounds that there is a reasonable prospect or realistic chance of
success on appeal. A mere possibility of success, an arguable case or
one that is not hopeless, is not enough. There must be a sound, rational
basis to conclude that there is a reasonable prospect of success on
appeal."
[5] Having regard to the Application for Leave to Appeal and the oral arguments
submitted by the Applicant, the Applicants require leave to appeal only on the
premise that there is a reasonable prospect of success on appeal, alternatively
that there is a compelling reason to hear the appeal.
Analysis:
[6] I have reiterated in the judgment delivered on the 11th of March 2024 that w hat
lies at the heart of this judgment, is an interpretation of the order granted by the
Supreme Court of Appeal on the 30th of March 2021 under case number 1136/19
(the 'SCA order'), and the subsequent execution thereof.
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[7] As to the issue of the beneficiaries being entitled to vote, I am satisfied that my
interpretation of the provisions of the SCA order is correct and that there is no
reasonable prospect of succeeding in an Appeal on this aspect.
[8] The terms of the order is clear and w as analysed in the judgment.
[9] Regarding the assertions that voting w as allow ed by proxy, the difficulty w ith the
manne r in w hich the evidence w as presented, w as dealt w ith in the judgment
and during argument on the application for leave to appeal. Applying the w ell
know n Plascon-Evans rule, this Court w as not convinced, on a balance of
probabilities, that Ms Tsheola-Mbow eni voted on behalf of her mother as
opposed to simply assisting her mo ther on that day. In my view , the evidence
w as therefore correctly rejected as being inconclusive and the Ap plicant did not
move for an order referring same to oral evidence or trial.
[1 O] I do not foresee that the App licants w ill be successful in their Appeal on this point.
[11] As to the allegations that the confirmatory affidavits w ere not taken into account
in justification of the alleged irregularities in the voting process, this w as duly
considered by this court w ith specific reference to paragraph [29] of the judgment
w here several inconsistencies in the A pplicants' evidence w ere highlighted.
[12] It stands to be noted that the Court mus t be persuaded on a balance of
probabilities that a case has been made out before any form of final relief can be
granted. In this instance, this Court is not convinced that a higher court w ill come
to a different conclusion w ith regards to the difficulties that the Applicants
encountered in their Founding affidavit.
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[13] Specific mention should be made as to the questionable locus standi of the First
App licant in as far as the judgment addresses the concern in paragraph [23].
The First Applicant (deponent to the Foundinng affidavit) is evidently not one of
the 'list of 603 beneficiaries' that w ere entitled to vote. Although he is a potential
successor of a beneficiary, he does not appear on the list of persons that w ere
entitled to vote, yet he specifically noted in the Founding affidavit, incorrectly,
that he appears as number 1 on the list.
[14] All of the above contributed to this Court not being satisfied that a case w as
indeed made out in justification of the relief prayed for, as a consequence
w hereof the application w as dismissed w ith the appropriate cost order.
[15] As stated in Mkhita supra, this Court does not see any 'sound, rational basis
to conclude that there is a reasonable prospect of success on appeal' and
leave to appeal must consequently be refused.
Costs:
[16] There is no reason w hy the cost order should not follow the outcome of these
proceedings. Having considered the nature of the proceedings, the complexity
thereof, the volume of the record and the importance thereof to the parties, costs
to counsel are w arranted on Scale C.
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Order:
[17] In the result the following order is made:
17.1 Leave to appeal is refused with costs including costs to counsel on
Scale C.
APPEARANCES:
FOR THE APPLICANT
INSTRUCTED BY
FOR THE FIFTH TO
TWENTIETH RESPONDENTS
INSTRUCTED BY
M BRESLER
ACTING JUDGE OF THE HIGH COURT ,
LIMPOPO DIVISION, POLOKWANE
Adv. K Mokwena
Matotola Tseleng Attorneys
vinoliamat@gmail.com
Adv. APJ Eis SC
Thomas & Swanepoel Attorneys
maryke@tslegal.co.za
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DATE OF HEARING 14 August 2024
DATE OF JUDGMENT 1 November 2024