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[2025] ZAGPJHC 36
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Municipal Employees Pension Fund v Ntabankulu Local Municipality (11262/2022) [2025] ZAGPJHC 36 (22 January 2025)
REPUBLIC OF SOUTH
AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, JOHANNESBURG
Case
Number: 11262/2022
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER JUDGES: NO
(3)
REVISED.
In
the matter between:
THE
MUNICIPAL EMPLOYEES PENSION FUND
Applicant
and
NTABANKULU
LOCAL MUNICIPALITY
Respondent
This judgment was
delivered electronically by circulation to the parties’ legal
representatives and uploading on caselines.
JUDGMENT - LEAVE TO
APPEAL
MAHALELO, J
Introduction
[1]
On 7 October 2024 I handed down a judgment in this
matter dismissing the rescission application brought by the
applicant. The rescission
application was launched in terms of Rule
42(1) of the Uniform Rules of Court, alternatively, the common law.
The case is centered
around the default judgment which was granted
against the applicant wherein the applicant was ordered to pay to the
respondent
the following:
(a)
An
amount
of
R 127 149.63
being the
purported
value
of the
pension
contributions allegedly due to the respondent.
(b)
All
investment returns and on the purported pension contributions
paid by
the
respondent
to
the
applicant
from
01 September
2018
to
30
June
2020.
(c)
Interest
on
the
aforesaid
amount
at
the
legally
prescribed
rate from
29 March 2019,
alternatively from the date
of
the order to
the date of payment, and
(d)
the cost
of the application for default judgment
and the main
action.
[2]
This is an application for leave to appeal against the judgment and
order refusing rescission of the default judgment.
The application
was filed timeously.
The applicant and the
respondent filed written submissions and argued the matter in open
court.
[3]
The respondent opposed the application and
submitted that the grounds of appeal raised by the applicant are
meritless and should
be rejected by the court.
The
grounds for leave to appeal
[4]
The applicant submitted that in determining whether to grant
rescission, the court failed to properly consider the scope
and
requirements of rescission applications, both in terms of the common
law and rule 42(1) and as a result, there are reasonable
prospects
that an appeal court would come to a different conclusion. The
applicant also submitted that there are other compelling
factors
justifying leave to appeal being granted in terms of section
17(1)(a)(ii) of the Superior Court Act
[1]
as
there are conflicting judgments in as far as the requirements for
rescission are concerned.
Test for Leave to
Appeal
[5] Section 17 (1)
of the Superior Court Act deals with the relief for leave to appeal.
In terms thereof, leave to appeal
may only be granted (a) where a
judge/s are of an opinion that (a) the appeal “
would”
not “
may”
, have reasonable prospects of success
(b) there are some compelling reasons why the appeal should be heard,
including the existence
of conflicting judgments on the matter under
consideration.
[6] It has been
confirmed that the use of the words “
only”
and
“
would”
implies that the threshold is set too high
to a point where this Court must only give leave in instances where a
definitive prospect
exist that the appeal would succeed.
[7]
The court held in the case of
The
Mont Chevaux Trust v Tina Goosen & 18 Others
[2]
that:
“
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,
see
Van Heerden v Cornwright & Others
1985 (2) SA 342
(T) at 343H.
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.”
[8] I have had
regard to the test for leave to appeal and I note that the
application brought by the applicant raises issues
which necessitate
attention by the Supreme Court of Appeal. I have thus concluded that
there are reasonable prospects of success
on appeal.
[9] In the
premises, the following order is granted:
1. The application for
leave to appeal to the Supreme Court of Appeal is granted.
2. Costs in the appeal
MB
MAHALELO
JUDGE
OF THE HIGH COURT
JOHANNESBURG
Heard: 10 December 2024
Judgment: 22 January 2024
For the applicant: Mr V
Movshovich
Instructed by: Webber
Wenzel
For the respondent: Adv S
Khumalo SC & Adv M Mtshali
Instructed by: T.L
Luzipho Attorney
[1]
10 of 2013
[2]
2014 JDR 2335 (LCC) at para 6