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REPUBLIC OF SOUTH AF RICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JO HANNESBURG
CASE NO : 2024-019086
In the matter between:
NEW MODEL PROJECTS APPLICANT
and
LEVENBRO CENTRE PTY (LTD) FIRST RESPONDENT
REGISTRAR OF DEEDS SECOND RESPONDENT
JUDGMENT
Manoim J
INTRODUCTION
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: NO
Date: 14 February 2025 Signature:
x
14/2/2025
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[1] This is an application for leave to appeal. The applicant had applied for an
interim interdict before me on 29 February 2024. The application was brought
urgently and was opposed by the respondent. I dismissed the application . This
application for leave to appeal relates to that decision.
[2] Before I consider the merits of the application for leave, I would note the
following. The application was brought late, and its fu rther prosecution was
never pursued thereafter. It was only after enquiries as to its fate from the
respondent’s attorneys that this was brought to the attention of my registrar,
and I instructed him to have the matter set down.
[3] I gave my original decision on 8 March 2024 . I heard the application for leave
only on 10 February 2025. This delay in what was ostensibly a matter of
urgency , is solely attributable to the applicant and no one else. Even when the
leave to appeal was set down , irregularities continued . The notice of appeal
was sent to me by email but was never downloaded on to Case Lines . Counsel
for the applicant said he had prepared heads of argument. I indicated at the
hearing for leave that I had not received them. Counsel undertook to ha ve them
filed that same day, but it was agreed that the application would continue. Since
then, the notice of appeal has now been uploaded to Case Lines , three days
later, on 13 February 2025. The promised heads of argument were not
downloaded at the time of me writing of this decision.
[4] Fortunately for the applicant, the respondent took a constructive approach.
Appreciating that condonation should have been applied for, the respondent
nevertheless did not take this point , and indicated a preference for having the
matter heard on the merits and disposed of. This is what I decided to do, and I
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heard argument from both counsel. Nevertheless, this background is indicative
of the cavalier approach the applicant has taken to this litigation and is relevant
to the issue of costs I discuss below.
Merits of the leave to appeal
[5] In brief , the applicant claims that it entered into a contract with the first
respondent , Levenbro Centre (Pty) Ltd ( Levenbro ) to buy three of four adjacent
properties that Levenbro owns in central Johannesburg in 2018. At that time ,
Levenbro had different shareholders – it was a family company owned by the
investment vehicles of two brothers , hence its eponymous name. The one
brother who allegedly signed the contested contract of sal e in 2018, is now
deceased. Since he had passed way prior to the urgent application , neither
party was able to confirm or deny whether he had signed the contract. The other
family member disavows any knowledge of the sale.
[6] According to the contested c ontract, the sale price was to be paid in instalments
after which the conveyancer, who is named in the contract, was to pass title to
the applicant. This, it is common cause, never happened. The property remains
registered in the name of Levenbro. The appl icant was unable to show that it
had paid all the instalments. It produced some receipts but not all of them. Since
the contract was conditional on full payment being made, the applicant did not
have supporting documentation for this fact.
[7] In Decembe r 2023, the shareholders of Levenbro sold all their shares in the
company to a new shareholder, New Phoenix Investments Pty Ltd. New
Phoenix was able to furnish proof of the sale from the sellers. Levenbro is now
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owned by this new shareholder which has sin ce developed the property which
had fallen into disrepair.
[8] This case does not finally decide who the proper owner of the erfs is. That is
the subject of pending litigation, which was then proceeding, when I heard the
urgent application. I mention it i n my judgment.
[9] Given that this litigation was pending , the applicant had to find some other hook
to make it urgent. So, the applicant made its case over the then ongoing
alterations that Levenbro, now under the new shareholder, was making to a
building that extends over two of the adjoining erfs.
[10] Most unusually, and this is common cause, whilst the building is a single
structure, it extends over two erfs. The one erf is the subject of the dispute
between the applicant and Levenbro. But the applicant does not claim to have
taken ownership of the other erf, which means the building extends to a
property he makes no claim over. How this happened is not clear. But that is a
mystery I do not have to determine.
[11] The debate before me then was whether the new owner of Levenbro was
destroying the property – as contended by the applicant, or performing urgent
and vital alterations that were improving the property – as contended for the by
the new owner.
[12] I found that although a weak prima fa cie case for ownership might have been
established by the applicant, none of the other elements of an interim interdict
had been established. In particular the applicant’s case for ongoing harm and
the balance of convenience was demonstrably weak. The new owner was
saving the derelict structure not destroying it. I found that the remaining
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requirements for an interim interdict had not been met. Put differently the
weakness of the evidence of the prima facie right could not pull the applicant
over the thresh old for relief given the weakness of its evidence in respect of the
other elements. (See the approach in Olympic Passenger Service (Pty ) Ltd v
Ramlagan 1957 (2) SA 382. )
[13] But now, a year later, the applicant has had to make out a case for leave to
appeal. It is common cause that a year later , the alterations to the building have
been completed. But when I heard the matter as an urgent application, they
were the focus of the applicant’s case. The building it was alleged was being
destroyed. Apart from t he fact that there was no basis for this contention it is
now academic. So, the applicant’s argument on appeal now changed focus.
The criticism was that I did not focus on other aspects of the relief it sought.
These were an interim interdict to prevent Le venbro from the burdening or
disposing of the property. It also included a concern that Levenbro was
disposing of its items on the property, but this seemed to be related to the
removal of parts of the property in the course of the alteration. It is correc t that
these prayers did not get mentioned in the judgment.
[14] But these were not the focus of the interdict because no case was made out for
them on the papers - only in the prayers. In its heads of argument during the
interdict hearing applicant’s cou nsel made the briefest mention of the two
concerns which he now highlights as the basis for his leave to appeal:
“Unless interdicted, there is nothing stopping the First Respondent from
disposing or burdening the property. They have the propensity to do so given
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their decision to commence demolition of the property they have sold to
another.”
[15] But this is an argument based entirely on inference. The argument is that
because the shares were sold once there could be another sale; that because
the shares were sold the new owner of the shares could burden the property.
But apprehension must be premised on facts, n ot surmise. But no facts were
put up for these two propositions to demonstrate any basis for this
apprehension and hence they did not get consideration in my judgment. There
was no lis between the parties on these aspects which I had to determine.
[16] Nor, even if I have underemphasised them , is any case made out for them being
the subject matter of an appeal. As I observed there is nothing in the papers to
suggest that the new owner of Levenbro is disposing of the property nor
burdening it in some way. T he ownership issue is still to be determined so the
applicant is not without a remedy in future.
[17] This leaves me to ponder why the applicant is prolonging what is futile litigation.
The applicant was using the premises to park its buses on for its tr ansport
company. At the time of the interdict, it was still doing so. The uncontested
evidence of Levenbro’ s security guard was that:
“I have personally witnessed that as at date hereof, Applicant unlawfully retains
possession and control of Erven 1404 an d 1405 Johannesburg in the absence
of First Respondent's [ Levenbro] consent, by using the yard to store damaged
and unused vehicles, and by employing security guards to restrict access to
such erven .
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[18] Without the interdict it could no longer do so. T hat is the real basis of its
complaint, but it must wait till the ownership case is decided.
[19] There is no merit then in the appeal against the dismissal of the interim
interdict. No court would decide otherwise.
[20] The application for leave to app eal is dismissed.
Costs
[21] The respondent has sought attorney client costs. I consider that the request is
justified for the reasons I outlined above about the way this leave to appeal has
been prosecuted by the applicant.
ORDER: -
[22] The application for leave to appeal is dismissed.
[23] The applicant is liable for the first respondent’s costs on an attorney -client
scale, including the costs of counsel on Scale B.
__________ ___________
N. MANOIM
JUDGE OF THE HIGH COURT
GAUTENG DIVISION
JOHNANNESBURG
Date of hearing: 1 0 February 2025
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Date of Reasons: 14 February 2023
Appearances:
Counsel for the Applicant: I Murewiwa
Instructed by: Koena Mpshe Attorneys Inc
Counsel for the First Respondent: C. Gordon
Instructed by: MDT Attorneys Inc.
Counsel for the Second Respondent:
Instructed by:
No appearance