SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case No: 35234/2022
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER J UDGES: NO
(3) REVISED: NO
SIGNATURE
DATE: 14/ 04/25
In the matter between:
Sunset Ridge Homeowners Applicant
Association
and
Johannes Hendrik van Deventer N.O 1st Respondent
BIANCA SANDERSON N.O. 2nd
Respondent
CITY OF TSHWANE METROPOLITAN 3rd
Respondent
MUNICIPALITY
MEMBER OF THE EXECUTIVE COUNCIL 4th Respondent
GAUTENG DEPARTMENT OF HUMAN
SETTLEMENTS
THE MINISTER OF HUMAN SETTLEMENTS 5th Respondent
THE OCCUPANTS OF THE JOBICA PROPERTY 6th Respondent
LEAVE TO APPEAL - JUDGMENT
MOGALE AJ
INTRODUCTION
[1] This is an unopposed application for leave to appeal the judgment and order of
this court dated 05 February 2024.
[2] The court made the following order:
2.1. The application declaring that the occupants of the Jobica Property
(collectively cited as the sixth respondent) illegally and unlawfully occupiers
of Portion 25 of Farm 375 Rietfontein held the title deed T35132/2002 and
8.5653 HA is refused.
2.2. The relief sought by the applicant to compel the third respondent to
provide basic services to Jobica Property is refused.
2.3. The first and the second respondents are directed within 90 (ninety)
days from the date of this order to take steps, either directly or indirectly
remediate the nuisance on Jobica Property, Portion 25 of Farm 375
Rietfontein, Gauteng Province , with the title deed T35132/2002 and 8.5653
HA which is interfering with use and enjoyment of Sunset Ridge Estate ("the
Estate") with the registered address at 2[...] D[...] Street, Rietfontein,
Agricultural Holdings, Mooikloof, Pretoria, Gauteng Province.
2.4. The first and the second respondents must furnish a written report to
the applicant within 30 (thirty) days of steps taken to remedy the situation.
2.5. The remediation is directed to reasonable compliance with the
applicable health and safety legislation and to ensure that the use and
occupation of the occupiers of Jobica Property do not pose a threat to the
safety and well -being of the occupiers of Sunset Ridge Estate and their
property.
2.6. The first and the second respondents are directed to take reasonable
steps to prevent the nuisance stated in the notice of motion from reoccurring
in the future .
2.7. The applicant is granted leave to approach this Court on the same
papers, supplemented insofar as it may be necessary, for the orders
declaring the first and the second respondents to be in contempt of the
orders as per paragraphs 3 to 6 of this order.
2.8. The first and the second respondents are to pay the costs of this
application, jointly and severally, the one paying, the other to be absolved.
[3] The application for leave to appeal was filed on 24 February 2024. T his
application is brought in terms of section 17(1)(a) and (ii)1, to wit, that the appeal
would have a reasonable prospect of success and/or there are some compelling
reasons why the appeal should be heard .
[4] The applicant conceded and ac knowledg ed that this court was correct in
determin ing that it could not grant the declaratory relief requested by the applicant,
specifical ly that the sixth respondent be declared as follow s:
4.1. They are illegally and unlawfully occupying the Jobica property.
4.2. That they occupy the Jobica property without the consent of the Jobica
Trust .
4.3. That they occupy the property without the consent of the third
respondent.
[5] They are not entitled to the relief requested in paragraph six of the notice of
motion , where in the applicant seeks a writ of mandamus directed a t the third
1 Superior Court Act 10 of 2013
respondent to in itiate eviction proceedings against the sixth respondent from the
Jobica property.
[6] The applicant raised a preliminary issue as grounds for appeal , specifically
asserting that the court committed errors in fact and/ or law as outlined in paragraphs
55 to 57 of its judgment, which states that the applicant requests the Municipality to
provide services to the Jobica property.
[7] The court made an error by failing to consider the applicant’s request to compel
the third respondent to develop an action plan aimed at addressing the contravention
of its town planning scheme , as delinea ted in prayers 3, 4, and 5 of the notice of
motion, which are as follows:
7.1. Prayer 3 proposes an order that the municipality be ordered to investigate
the unlawful and nuisance - causing activities occurring at the Jobica property.
7.2. Prayer 4 requests that the municipality develop an action plan to prevent
the continuance of illegal conduct and nuisance -causing activities.
7.3. Prayer 5 provides for an order that the municipality reports to this court on
what it has done and intends to do to regularise the affairs at the subject
property.
[8] The applica nt further contended that the sixth respondent’s conduct as occupiers
of the Jobica property, outlin ed in the founding affidavit, contravened the property's
zoning and the third respondent's town planning scheme. The refore, the applicant is
entitled to an order compelling the municipality to enforce its town planning scheme.
[9] The applicant cited the Supreme Court of Appeal ’s decision in JDJ Properties CC
and Another v Umngeni Local Municipality and Another2, which enumera ted specific
prerequisite s for compelling the third respondent to execute its obligation s and
enforce the town planning scheme.
2 2013 (2) SA 396 (SCA)
[10] The application for leave to appeal is regulated by s 17(1)(a) (i) and (ii) of the
Act, which states that:
(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 are some other compelling reasons why the appeal should be heard,
including conflicting judgments on the matter under consideration.
[11] It is apparent that our courts have consistently applied the test on whether leave
to appeal should be granted or not. The liberal approach to granting leave by courts
is discouraged as inconsistent with s17 of the Act. For instance, in Mothule Inc
Attorneys v The Law Society of the Northern Provinces and Another3, the Supreme
Court of Appeal stated as follows regarding the trial court’s liberal approach to
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 whether there are any reasonable
prospects of success in an appeal. It is not whether a litigant has an arguable
case or mere possibility of success .”
[12] After considering the applicant's submission, I am of the opinion that the appeal
has a reasonable prospect of success. For this reason, I am persuaded that leave to
appeal should be grante d.
[13] In the premises, the following order is made:
a. The applicant is granted leave to appeal to the full bench of the Gauteng
High Court Pretoria
b. The costs of the application for leave to appeal will be costs in the appeal
3 9213/160 [2017] ZASCA 17 (22 MARCH 2017)
K MOGALE,
ACTING JUDGE OF THE HIGH COURT
GAUTENG LOCAL DIVISION, PRETORIA
Electronically submitted.
Delivered: This Judgment was prepared and authored by the Judges whose names
are reflected and is handed down electronically by circulation to the parties/their
legal representatives by email and uploading to the electronic file of this matter on
Case Lines. The date for hand -down is deemed to be 14 March 2025
Date of hearing: The matter was heard in an open court . The matter may be
determined accordingly. The matter was set down for a court date on 25 March
2025.
Date of Judgment: 14 April 2025
APPEARANCES
Applicant council : Mr Hadebe
Instructed by: Hadebe Attorneys
Respondent: Advocate S W DAVIES
Instructed by: Loock Du Pisane , Inc