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[2024] ZAGPJHC 737
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Body Corporate of LOS Alamos Norte v Sebola And Others (30469/2020) [2024] ZAGPJHC 737 (12 August 2024)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
Case
Number:
30469/2020
1.
REPORTABLE: NO
2.
OF INTEREST TO OTHER JUDGES: NO
3.
REVISED: NO
12
August 2024
In
the matter between:
THE
BODY CORPORATE OF LOS ALAMOS NORTE
APPLICANT
And
MASHILO
SHADRACK SEBOLA
FIRST
RESPONDENT
MS
SEBOLA LABOUR LAW PRACTITIONERS
(In Final Deregistration
SECOND
RESPONDENT
LIEBENBERG
DAWID RYK VAN DER MERWE
THIRD
RESPONDENT
ROYNATH
PARBOO N.O.
FOURTH
RESPONDENT
THE
MASTER OF THE HIGH COURT COMPANIES AND INTELLECTUAL
FIFTH
RESPONDENT
PROPERTIES
COMMISSION
SIXTH
RESPONDENT
FIRST
NATIONAL BANK LIMITED
SEVENTH
RESPONDENT
THE
REGISTRAR OF DEEDS
EIGHTH
RESPONDENT
SOUTH
AFRICAN REVENUE SERVICES
NINTH
RESPONDENT
NATIONAL
TREASURY
TENTH
RESPONDENT
DEPARTMENT
OF PUBLIC WORKS
AND
INFRASTRUCTURE
ELEVENTH
RESPONDENT
THE
MINISTER OF RURAL DEVELOPMENT AND LAND REFORM
TWELFTH
RESPONDENT
JUDGMENT
(Leave to Appeal
Application)
SENYATSI,
J
[1] This is an
application for leave to appeal the judgment handed down on 22 June
2023. The applicants, the first and second
Respondents in the main
application, raise several grounds which they contend the Court erred
in finding for the applicants in
the main application. The grounds
are for instance that the declaratory order to the effect that the
Second Respondent is liable
for all levies, electricity, water and
sewerage costs occurring from the date of deregistration. The
respondents contend that the
order is overboard, unjust, inequitable,
constitutionally invalid and incompetent because it is based on
unliquidated claims, for
the period from the date of deregistration
and that the claims have prescribed and that the order has deprived
the re-registered
close corporation a defence of prescription. For
the purposed of this judgment, I will not restate all other grounds.
[2] The application
is opposed on the grounds,
inter alia
, that it is brought in
bad faith to delay the execution of the order. The applicant contends
that since filing the application
for leave to appeal the judgment,
the respondents have not taken any steps to prosecute the appeal.
[3]
The requirement and the test for granting
leave to appeal are regulated by
section 17(1)(a)
of the
Superior
Courts Act No. 10 of 2013
which states as follows:
“
(1)
Leave to appeal may only be given where the judge or judges
concerned are 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.”
[4]
In
Mont
Chevaux Trust v Goosen and Others
[1]
Bertelsman J interpreted the test as follows:
“
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…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.”
[5]
In
Acting
National Director of Public Prosecutions and Others v Democratic
Alliance: In re: Democratic Alliance v Acting National Director
of
Public
Prosecutions
[2]
the court acknowledged the test by Bestertsman J.
[6]
In
Mothule
Inc Attorneys v The Law Society of the Northern Provinces and
Another
[3]
,
the Supreme Court of Appeal stated as follows regarding the trial
court’s liberal approach on granting leave to appeal:
“
It
is important to mention my dissatisfaction with the court a quo’s
granting of leave to appeal to this court. The test is
simply whether
there are any reasonable prospects of success in an appeal. It is not
whether a litigant has an arguable case or
mere possible of success.”
[7] Having
considered the grounds of appeal and the heads of arguments by both
Counsel, I am not persuaded that the requirements
of
section 17(1)
(a) of the Act have been met. The respondents consented to or did not
oppose orders (a) to (c) in the main application. The legal
consequence of order (d) to (f) are inescapable conclusions.
Accordingly, it is my view that there is no prospect that the appeal
would succeed as envisaged by
section 17(1)
(a) of the Act. I am also
not persuaded that there are compelling reasons why the application
for leave to appeal should be granted.
[8] It follows in
my view that the respondents have failed to pass the muster on
showing that the appeal would succeed.
Order
[9]
As a result, the following order is issued:
(a) The application for
leave to appeal is dismissed.
(b) The respondents are
ordered to pay the costs of the application.
ML
SENYATSI
JUDGE
OF THE HIGH COURT
GAUTENG
DIVISION, JOHANNESBURG
Delivered:
This Judgment was handed down electronically by circulation to the
parties/ their legal representatives by email and
by uploading to the
electronic file on Case Lines. The date for hand-down is deemed to be
12 August 2024.
Appearances:
For
the applicant:Adv SJ Mushet
Instructed
by AJ Van Rensberg Incorporated
For the first and Second
respondents: Adv MS Sebola
Instructed
by Sebola Nchupetsang Sebola Inc
Judgment
reserved: 2 August 2024
Date
of Judgment: 12 August 2024
[1]
2014 2325 (LCC)
[2]
(Case no: 19577/09) ZAGPPHC 489 at para 25
[3]
(213/16)
[2017] ZASCA 17
(22 March 2017)