2
Noko J
[1] The applicant launched an application for leave to appeal the order and the whole
judgment I delivered on 21 February 2025 wherein I, inter alia, granted an order for rei
vindicatio in respect of forklifts which were in possession of the applicant and dismissed
an application to strike out certain paragraphs of the respondent’s replying affidavit.
[2] The factual matrix of the lis is set out comprehensively in the judgment handed
down and need not be rehashed in this judgment. The applicant contends that I erred in
arriving at conclusion on the legal issues which served before me regarding the legal
principles apropos the following subject matters : (1) ownership of movables, (2) ius
retentionis, (3) estoppel, (4) disputes of fact and (5) section 359 of the Companies Act.
[3] As a point of departure, the applicant sought an order for the condonation of the
late application for leave to appeal. The grounds upon which the application was
predicated are clearly expounded in the application and require no repetition . The
respondent is not opposing the said application. I had regard to the said application and
am persuaded that a proper case has been made out for the condonation and find the same
sustainable.
[4] It is trite that where the application for leave to appeal , the applicant must
demonstrate, inter alia, that the appeal has a reasonable prospect of success or that there
are other compelling reasons why the appeal should be heard.
[5] It is also trite1 that the Superior Court Act has introduced a higher threshold to be
met in applications for leave to appeal , and the usage of the word ‘ would’ require the
applicant to demonstrate that another court would certainly come to a different conclusion.
1 See Mont Chevaux Trust v Tina Goosen & 18 Others 2014 JDR 2325. MEC for Health, Eastern Cape v
Mkhitha 2016 ZASCA (25 November 2016), Acting National Director of Public Prosecutions and Others
v Democratic Alliance: In Re Democratic All iance v Acting Director of Public Prosecutions and Others
2016 ZAGPPHC 489.
4
Appearances
For the Applicant: MP van der Merwe, instructed by Couzyn Hertzog &
Horak Attorneys.
For the Respondent: N Alli, instructed by Jay Mothibi Attorneys.