2
for the attachment of the property which preferential executability and
issuing of the writ was suspended until 1 August 2025.
[2] The basis for the application is that the court erred in:
2.1 Concluding that the applicant had entered into a second loan
agreement and registered a mortgage bond over the property
declared preferentially executable as security for the loan and
making payments in reducing the bond;
2.2 Finding that the defence raised by the applicant does not amount to
a bona fide defence ;
2.3 Granting summary judgment where there were non -compliance with
the peremptory requirements of Rule 32;
2.4 Disregarding allegations of fraud in the granting of the loan and the
registration of the bond;
2.5 Not realising that the summary judgment application is a thinly veiled
attempt at depriving the applicant of her right of access to justice.
[3] Applicant has brought this application with reference to Section 17 (1) of
the Superior Courts Act, 13 of 2010.
The criteria for leave to appeal
[4] The criteria is found in Section 17(1)(a) of the Superior Courts Act 10 of 2013
(“the Act”) which states that:
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(i) leave to appeal may only be given where the judge or judges
concerned are of the opinion that the appeal would have a
reasonable prospect of success;
(ii) there is some other compelling reason why the appeal should be
heard, including conflicting judgments on the matter under
consideration.
[5] The test to be applied by the court when considering an application for Leave
to Appeal is that the judge must be persuaded that there is a sound rational basis
to conclude that should leave be granted the Appeal would have a reasonable
prospect of success, or there exists some other compelling reason why the appeal
should be heard . The presence of a mere possibility of success, an arguable case
or one that is not hopeless does not meet the threshold.1
[6] The threshold has indeed been raised by the replacing the word “may” with
“would”2
[7] The use of “would” instead of “may” and the inclusion of the word “only” on
the one hand imports a more stringent tes t3 but brings about a higher measure of
certainty.4
[8] In assessing the reasonable prospects if success the court takes a
dispassionate approach based on the facts and the law on whether the court of
appeal could reasonably come to a different conclusion. The prospects should not
1 MEC for Health, Eastern Cape v Ongezwa Mkh itha and The Road Accident Fund (1221/2015) [2016]
ZASCA 176 (25 November 2016). Fusion Properties 233 CC v Stellenbosch Municipality [2021] ZASCA 10
(29 January 2021). Fairtrade Tobacco Association v President of the Republic of South Africa (21686/2020)
[2020] ZAGPPHC 311.
2 Acting National Director of Public Pro secutions and Others v D emocr atic Alliance in Re: Democratic Alliance
v Acting National Director of Public Prosecutions and Others [2016] ZAGPPHC 589 (24 June 2016) Chit hi
and O thers: in R e: Luhlwini Mchunu Community v Hancock and Others [20 21] ZASCA 123 (23 September
2021) Seath lolo v Chemical En ergy Paper Prin ting Wood and Allied Workers Union (2016) 37 ILJ 1485
(LC).
3 Gopaul and Ano ther v Lutcham and Others (13185/2016D) [2019] ZAKZDHC 5 (17 May 2019 ) Notshokovu
v S [201 6] ZASCA 112.
4 The Mont Chevaux Trust (IT2012/28) v Tina Goosen & 18 Others . Matoto v Free State Gambling and Liqu or
Authority and Other s (4629/2015) [2017] ZAFSHC 80 ( 8 June 2017)
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be remote, not a mere possibility and not amount to a case that is arguable on
appeal but have a realistic chance of succeeding.5
[9] Where the court is unpersuaded about the existence of reasonable
prospects of success it must still enquire into whether there is a compelling reason
to entertain the appeal .6
[10] Compelling reason would be the following: a n important question of law or a
discreet issue of public importance that will have an effect on future disputes. The
merits of the case is important in deciding whether there are other compelling
reasons.7
[11] The increased threshold serves to support the integrity and efficiency of the
judicial process and ensures that appellate courts deal with matters of substantial
merit and potential ly different outcome.8
Discussion
[12] During argument the applicant did not persist with all of the grounds for
appeal. She limited her argument to the contention that her denial of entering into
the second loan agreement and the subsequent denial of registering a bond over
the immovable property as security for the loan coupled with her denial of paying
regular amounts over an extended period in reduction of the bond co nstitutes a
triable issue that should have been referred to trial where she would have had the
opportunity to confront the evi dence presented by the respondent to the contrary.
[13] Her contention is based solely on the fact that the respondent did not
produce the original loan agreement or the original bond. It is trite that the
5 S v Smith 20 12 (1) SACR 567 (SCA) para 7. S v Kruger 2014 (1) SACR 647 (SCA) Ramakatsa and Others
v African National Congress and Another (724/2019) [2021] ZASCA 31 (31 Mar ch 2021).
6 Caratco (Pty) Ltd v Independent Advisory (P ty) Ltd [2020] ZASCA 17; 2020 (5) SA 35 (SCA).
7 Caratco (n 6 above).
8 Boerdery v CCMA and Others (Application for Leave to Appeal) (JR2187/2020) [2025] ZALCJHB 198 (20
May 2025)
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respondent can use secondary evidence to prove the existence of a contract for
summary judgment purposes.9
[14] The applicant conceded during argument that the respondent would be
entitled to summary judgment on the strength of the secondary evidence but
submitted that on account of her denial of entering into the second loan agreement
the defence is arguable on app eal. This does not meet the criteria contained in
Sect 17(1)(a)(i).
[15] What her contention furthermore loses sight of is the provisions of the 2006
Mortgage Bond with bond number B 091311/06 which the respondent relied on in
its application for summary judgment .
[16] This Bond was registered in the Deeds Office in Johannesburg on 26
October 2006 . The Bond document evidences that it is based on a Power of
Attorney granted by the applicant on 16 October 2006 to the conveyancer who
appeared before the Registrar of Deeds on the date of the registration of the Bond
and that the Registrar of Deeds inspected the power of attorney.
[17] Any power of attorney required for a registration action in the Deeds Registry
must contain a preparation certificate and signed by and attorney, notary or
conveyancer preparing such power of attorney .10
[18] The Bond document was furthermore prepared by a conveyancer who
signed the preparation certificate on the bond document in his capacity as the
preparer of the document.11
[19] In appending his signature to a preparation certificate the conveyancer
accepts responsibility for the correctness of the information contained in the bond
9 ABSA B ank Limited v Zalvest 20 (P ty) Ltd 2014 (4) SA 119 ( WCC) .
10 Regulation 44(1) of the Regulation s in term s of the Deeds Registries Act 47 of 1937.
11 Section 15 Deeds Registries Act.
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document or power of attorney and that the information has been correctly
transferred from the power of attorney to the bond document.12
[20] The existence of the Bond registered in the Deeds registry constitutes
sufficient evidence of the existence of a loan agreement entered into by the
applicant for summary judgment purposes. The applicant provides no explanation
for the power of attorney tha t she granted to the conveyancer that appeared
before the Registrar of Deeds save to contend that it is part of the fraud
perpetrated against her. This is a wholly unsubstantiated and untenable
contention.
[21] By stating that the mere denial of the applicant is sufficient grounds for the
matter to be referred to trail the applicant does not establish a sound rational basis
that the appeal would have reasonable prospects of success should leave be
granted.
[22] Based on the registered Bond document the prospects are remote. It does
not even rise to the level of an arguable case on appeal.
[23] Save for raising the Constitutional point of denial of access to justice the
applicant did no t advance any other compelling reason why the application for
leave should be granted.
[24] The aspect of summary judgment and access to justice have been
comprehensively dealt with in Joob Joob Investments v Stocks Mavundla Zak
Joint Venture13 and Mkize v Umvoti Municipality.14 None of the mentioned cases
decided that summary judgement deprives a litigant of access to justice.
12 Regulation 44 A(e) of the Regulations in terms of the Deeds Registries Act.
13 2009 (5) SA 1 (SCA)
14 2010 (1) SA 509 KZP
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