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IN THE HIGH COURT OF SOUTH AFRICA
{GAUTENG DIVISION: PRETOBJ.~J
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I DELETE WHICHEVER IS NOT APPLICABLE 1
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j (1)
(2)
(3)
REPORTABLE: NO i
OF INTEREST TO OTHER JUDGES: NO
REVISED
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I 14 July 2025
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: DATE TURE
In the rnatter between:
FERESANE MATTHEW SIBEKO
And
MOGALE ANDRIES MOGASHOA
PE & M SOLUTIONS (PTY) LTD
(REGISTRATION NUMBER: 2015/224619/07)
JUDGMENT
MINNAAR AJ.
Date: 14 July 2025
Case number: 064969/2025
APPLICANT
FIRST RESPONDENT
SECOND RESPONDENT
[1] On 19 June 2025, I delivered the following order:

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a. The application is heard as an urgent application and condonation
is granted to the applicant in terms of Rule 6(12) of the Uniform
Rules of Court in respect of the non-compliance with the
prescribed methods of service, time limits and forms.
b. It is declared that the first and second respondents are in
contempt of the order granted on 28 May 2025.
c. The first respondent is committed to serve a term of imprisonment
for a period of 6 (six) months.
d. The operation and execution of the order in paragraph (c) above
is suspended on condition that the respondent comply with the
order of 28 May 2025 within 24 hours from service of this order.
e. A copy of this order must be served personally on the first
respondent by the Sheriff and served via email on the second
respondent.
f. Should the respondents fail to act in accordance with paragraph
(d) above, leave is granted to the applicant to again approach this
court on the same papers, duly supplemented, to have the
suspension of the order in paragraph (d) above lifted and for the
order of imprisonment to become immediately operative.
g. The respondents, jointly and severally, the one paying the other
to be absolved, are ordered to pay the costs of this application on
the scale as between attorney and client.

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[2] On 23 June 2025, an application for leave to appeal was delivered. The
notice reflects the case number as 064696/2025. This case number is
incorrect, as the correct case number is 064969/2025.
[3] In the notice, PE and M Solutions Pty Ltd ('the second respondent') is
recorded as the applicant in the application for leave to appeal. The
notice of application for leave to appeal was signed by Mr Mogaile
Andries Mogashoa ('the first respondent').
[4] When the application for leave to appeal was heard, the first respondent
noted his appearance on behalf of the second respondent and stated
that he is appearing in a representative capacity on behalf of the second
respondent. The first respondent made it clear that he is not appearing
in his personal capacity. Premised on this representation, it is evident
that it is only the second respondent that lodged the application for leave
to appeal, and that the first respondent, despite having signed the notice
of application for leave to appeal, is not a party to the application for
leave to appeal.
[5] Applications for leave to appeal are dealt with in terms of the provisions
of Rule 49 of the Uniform Rules of Court read with sections 16 and 17 of
the Superiors Courts Act 10 of 2013 ("the Superior Courts Act").
[6) It is trite that the grounds of appeal must be clearly and succinctly set
out in clear and unambiguous terms to enable the court and the
respondent to be fully informed of the case the applicant seeks to make

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out and which the respondent is to meet in opposing the application for
leave to appeal. Rule 49(1)(b) is peremptory in this regard.1
[7] It is imperative to repeat the contents of the notice of application for leave
to appeal herein:
'KINDLY TAKE NOTE THAT the Applicant intends to file for an
application for leave to appeal on a date yet to be arranged with the
Registrar of the above court against the entire court order that was
awarded to the Respondent this past Thursday the 19th of June 2025,
to the Supreme Court of Appeal or alternatively a full bench of this very
court.
PLEASE TAKE FURTHER NOTICE THAT the gounds of Appeal are as
follows:
1. The award is riddled with Jurisdiction complications,
2. The Court Order that it seeks to enforce, dated 28 June 2025,
remains forma!ly cha!lenged by the Applicant, the same court is yet
to hear those arguments?
3. A prison term without a trial in South Africa, is totally ludicrous
putting it mildy; this is stuff straight out of Banana Republics,
reeks of Apartheid tactics.
4. The Applicant is a juristic person, what happened to those findings
with an option of a fine, the court order makes total mockery of
the Judicial system, it's laughable and cannot in the context of
1 Songomo v Minister of Law and Order 1996 ( 4) SA 3 84 (E) at 3 85J - 386A

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2025 be taken serious by anyone with a functioning brain.' (my
emphasis in bold)
[8] It is trite that appeals can only be lodged against orders that are final in
effect. The only final order that was granted in the application is the
finding that the first and second respondents are in contempt of the 28
May 2025 court order. It is, however, not stated in the application for
leave to appeal that this court erred in granting this relief.
[9] The remainder of the granted order is suspended pending compliance by
the respondents. As already pointed out, the second respondent is the
party seeking leave to appeal. If regard is had to the order that was
granted, read with the application for leave to appeal, the second
respondent is seeking leave to appeal against an order that is not final in
nature. The prison term referred to in the application for leave to appeal
has no bearing on the second respondent, as it is the first respondent
who might be committed to imprisonment should there be continuous
contempt of the 28 May 2025 court order. No sanction for the contempt
was imposed on the second respondent.
[10] Section 17(1) of the Superior Courts Act provides the test
applicable to applications for leave to appeal. Section 17 ( 1) reads as
follows:
"(1) Leave to appeal may only be given where the judge or judges
concerned are of the opinion that-

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(a) (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;
(b) the decision sought on appeal does not fall within the ambit of
section 16 (2) (a); and
(c) where the decision sought to be appealed does not dispose of all
the issues in the case, the appeal would lead to a just and prompt
resolution of the real issues between the parties, "
(11] Section 17(1 )(a)(i) of the Superior Courts Act was dealt with in the
decision of the Land Claim Court in The Mont Chevaux Trust v Tina
Goosen & 18 Others 2014 (JDR 2325 (LCC); 2014 JDR 2325 in which
Bertelsmann J held that the use of the word "would" ( as opposed to
could) in the provisions is an indication that the threshold for !eave to
appeal has been raised. It was further held that the word "would"
indicates a measure of certainty that another court will differ from the
judgment appealed against. 2
(12] On the rigidity of the threshold, Plaskett AJA (as he then was) in
which Cloete JA and Maya JA (as she then was) concurred, wrote the
: Mont Chev aux Trust at par 6. See further Acting National D irector of Puh lic Proseclllions and Others
v D em ocratic Alliance ln Re: D emocratic A lliance v Acting Na tional Director of Public Prosecutions
and Others (1957/09) [2016) ZAGPPH C 489 (24 June 2016) par 25

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following S v Smith 2012 (1) SACR 567 (SCA) ([2011] ZASCA 15) at
paragraph 7:
'What the test of reasonable prospects of success postulates is a
dispassionate decision, based on the facts and the law that the Court of
Appeal could reasonably arrive at a conclusion different to that of the trial
court. In order to succeed, therefore, the appellant must convince this
Court on proper grounds that he has prospects of success on appeal and
that those prospects are not remote, but have a realistic chance of
succeeding. More is required to be established than that there is a mere
possibility of success. That the case is arguable on appeal or that the
case cannot be categorised as hopeless. There must, in other words, be
a sound, rational basis for the conclusion that there are prospects of
success on appeal. '
[13] Under section 17(1 )(a)(ii) of the Superior Courts Act the Court
determining an application for leave to appeal ought to enquire whether
there is a compelling reason for the appeal to be heard.3 The enquiry is
factual and, therefore, each application ought to be decided on its own
facts.
[ 14] Other considerations beyond the abovementioned statutory
provisions would include where the material case is of substantial
importance to the appellant and where the decision sought to be
3 Erasmus, Superior Court Practice (2021) A2-56 to 57

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appealed against involves an important question of law4 or where
required by the interests of justice. 5
[15] If regard is had to my judgment, read with the application for leave
to appeal, I conclude that, although subjectively to the second
respondent, the case might be of substantial importance, the application
lacks any semblance of prospect of success, let alone reasonable
prospect of success.
[16] No other compelling reason is advanced as to why the appeal
should be heard, and the interest of justice is not implicated. Neither is a
valid, important question of law raised.
[17) As the provisions of section 17(1 )(a) of the Superior Courts Act
clearly demand , the application must be dismissed, as leave to appeal
may only be given when the court believes that the intended appeal
"would have" a reasonable prospect of success. The second respondent
has failed to make out a case that another court would reach a different
conclusion or outcome from the order in casu.
[18] The tone and language in the application for leave to appeal need
to be addressed. Courts and their members are by no means immune to
public criticism and accountability to those they serve.6 However, that
4 Erasmus. Superior Coun Practice (202 l) A2-56 to 57
' C ity of Tshwane v Aji-i/orum 20 16 (6) SA 279 (CC) par 40
6 S v ivfarnabolo (E TV and Others Intervening) 200 I (3) SA 409 (CC)(200 I (1) SACR 686; 2001 (5)
BCLR 449: [2001] ZACC 17) paras 29 - 30.

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does not mean that it is open to a litigant to level unfounded and
scurrilous attacks against judicial officers to further their own ends.7
[19] For the second respondent, through the first respondent, to state
in the application for leave to appeal that the court's order is ludicrous,
emanating out of a Banana Republic and reeking of Apartheid tactics, is
uncalled for and insulting. The further allegation that the court order
makes a total mockery of the judicial system, that it is laughable and
cannot be taken seriously by anyone with a functioning brain, is equally
uncalled for and insulting.
[20] During his submissions in reply, the first respondent apologised
to the court and the legal representatives of the applicant for the
insensitive and indecent tone of the words used in the application for
leave to appeal. The court accepts this apology but still deems it
necessary to attach a sanction to the language and tone used. The only
appropriate sanction would be to impose a suitable costs order.
[21] Generally speaking, punitive costs orders are not frequently
made , and exceptional circumstances must exist before they are
warranted.8 'The scale of attorney and client is an extraordinary one
which should be reserved for cases where it can be found that a litigant
conducted itself in a clear and indubitably vexatious and reprehensible
, Afkhatshwa and Others 1· Mkha tshwa and Oihers 202 l (5) SA 447 (C C) paras 25 and 26. See also
.\iinister o/'Cooperurii·e G m ·ema nce und li-aditiona! .-Jf/i:irs 1· De Beer unJ A nother (Case no
538/2020) 12021) ZASCA 95 ( l July 202 1) par 118
8 Mkhatshwa at par 21

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manner. Such an award is exceptional and is intended to be very punitive
and indicative of extreme opprobrium. '9
[22] On the approach adopted by the second respondent, as
facilitated by the first respondent, there is no basis why both respondents
should not be liable for punitive costs.
[23] Consequently, I make the following order:
innaar AJ
1. The application for leave to appeal is dismissed with costs
on the scale as between attorney and client.
Acting Judge of the High Court
Gauteng Division, Pretoria
9 Public Protector v South African Reserve Bank 2019 (6) SA 253 (CC) (2019 (9) BCLR 1113; [2019)
ZACC 29) (SAR _B) paras 225

Heard on
For the Applicant
Instructed by
For the Second Respondent
Instructed by
Date of Judgment
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: 11 July 2025 (virtually)
: Adv Z T eperson
: Delberg Attorneys
: Mr M A Mogashoa
: In person
: 14 July 2025