SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this
document in compliance with the law and SAFLII Policy
REPUBLIC OF SOUTH AFRICA
IN THE HGH COURT OF SOUTH AFRICA
HELD AT PRETORIA
CASE NO: 27859/2015
DOH: 26 June 2025
DECIDED: 08 July 2025
1) REPORTABLE: NO
2) OF INTEREST TO OTHER JUDGES: NO
3) REVISED.
DATE 08 July 2025
SIGNATUR E
In the matter between:
CELEMUSA CHARLES HLATSHWAYO Applicant
And
FIRST RAND BANK LIMITED First Respondent
ALFRED MOKGOSINYANE Second
Respondent
SHERIFF OF THE COURT N.O. Third Respondent
REGISTRAR OF DEEDS Fourth Respondent
This judgment has been handed down remotely and shall be circulated to the
parties by way of email / uploading on Caselines. The date of hand down shall
be deemed to be 08 July 2025 .
________________________________________________________________
ORDER
________________________________________________________________
1. Leave to appeal is granted to the Full Court of this Division.
2. Costs will be costs in the appeal.
________________________________________________________________
JUDGMENT
________________________________________________________________
Bam J
Introduction
1. This is an application for leave to appeal the order granted by this court on 30
April 2024. That order struck the applicant’s application from the court roll of
urgent motions’ week of 30 April 2024. The application was for an interim
interdict , inter alia, to restrain fourth respondent from registering the transfer of
the immovable property , more fully described later in this judgment , into the
name of second respondent , pending finalization of Part B of the Notice of
Motion . The application is opposed only by first respondent. First respondent
submits that the application has no merit, is an abuse of this court’s process,
and must be dismissed with punitive costs.
Background
2. Applicant brought an urgent motion during the urgent court week of 30 April
2024, inter alia, to restrain the fourth respondent from registering the transfer of
the immovable property described as ERF 5[...] W[...] Township, Registration
Division LR Province of Gauteng, held under Deed of Transfer No: T
18119/2014 , the property , into the name of the second respondent, pending
finalization of Part B of the Notice of Motion. Applicant further sought a
temporary restraining order restraining second respondent from taking
occupation of the property or executing any purported rights acquired by him
pursuant to the sale in execution conducted by third respondent , pending
finalization of Part B of the Notice of Motion .
3. The origins of the sale in execution may be traced back to the order , in terms of
Rule 46A, granted by this court on 2 October 2023. In his founding affidavit
supporting the urgent motion, applicant avers that he was still awaiting reasons
for the 2 October 2023 order when, out of nowhere, he learn t on 10 April 2024
that his property was to be sold in execution the next day, 11 April. The
application was opposed by first respondent . Amongst the points taken by first
respondent was that the application was not urgent. First respondent traced the
timeline and isolated various steps it had covered to bring the sale in execution
to the attention and notice of the applicant.
4. As already indicated, the application was struck off the roll for want of urgency.
Applicant has since brought the present applicatio n seeking leave to appeal. His
grounds of appeal are set out in his notice of application and amplified in his
Heads of Argument.
Applicable legal principles
5. Applications for leave to appeal are governed by Section 17 (1) (a) (i) to (ii)
of the Superior Courts Act1. The provisions read:
‘ (1) (a) Leave to appeal may only be given where the judge or judges
concerned are of the opinion that:
(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;’
1 Act 10 of 2013 .
Our senior courts have on occasion interpreted the provision . I refer in this
regard to Ramakatsa and Others v African National Congress and Another ,
where the court stated , with reference to the provisions of s 17(1)(a)(ii) that ‘if
the court is unpersuaded that there are prospects of success, it must still
enquire into whether there is a compelling reason to entertain the appeal... ’
However, the court cautioned that ‘merits remain vitally important and are often
decisive’2. In MEC for Health, Eastern Cape v Mkhitha and Another , it was said
that, ‘An applicant for leave to appeal must convince the court on proper
grounds that there is a reasonable prospect or realistic chance of success on
appeal. A mere possibility of success, an arguable case or one that is not
hopeless, is not enough. There must be a sound, rational basis to conclude that
there is a reasonable prospect of success on appeal.’3
6. Against the background of these established legal principles, I now turn to
consider applicant’s grounds.
Summary of applicant’s grounds of appeal
7. The essence of applicant’s grounds is canvased in his Heads of Argument. I do
not intend to deal with each and every ground save to underscore the common
thread that permeates the grounds. In summary, applicant submits that the court
erred in striking the application off the roll and in not appreciating the looming
urgency of loss of ownership of his home . The urgency , applicant avers, is
founded on the fact that the sale in execution was held on 11 April. What
remained was the registration of transfer of ownership , which would mark the
end of his ownership of the property .
8. First respondent implored the court to dismiss the application, suggesting that
the bank is entitled to finality. First respondent brought to the attention of the
court that applicant has not serviced the mortgage loan over a lengthy period . It
2 (Case No. 724/2019) [2021] ZASCA 31 (31 March 2021), paragraph 10.
3 (1221/2015) [2016] ZASCA 176 (25 November 2016), paragraph 17.
was further submitted on behalf of first respondent that the grounds of appeal
lack merit and amount to an abuse of this court’s process.
9. I have considered the submission s made by counsel on behalf of both parties .
Although I am of the strong view that striking a matter off the roll does not deal
with the merits and thus does not alter the rights of the parties, I am of the
respectful view that another court would come to a different finding on the issue.
This means that leave to appeal must be granted.
Order
1. Leave to appeal is granted to the Full Court of this Division.
2. Costs will be costs in the appeal.
N.N BAM J (Ms)
JUDGE OF THE HIGH COURT OF SOUTH AFRICA,
GAUTENG DIVISION , PRETORIA
Date of Hearing : 26 June 2025
Date of Judgment : 08 July 2025
Appearances :
Counsel for the Applicant : Adv I Mureriwa
Instructed by: Gary Segal Attorneys
Sydenham, Johannesburg
Counsel for the First Respondent Adv J Minnaar
Instructed by: Hammond Pole Majola Inc.
c/o NVG Attorneys
Menlo Park, Pretoria