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IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION: PRETORIA)


Date: 18 July 2025
Case number: 081761-2025
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED
DATE 18 July 2025
SIGNATURE

In the matter between:
SABLE PLACE PROPERTIES 106 (PTY) LTD First Applicant

REDEFINE PROPERTIES LTD Second Applicant

TADVEST COMMERCIAL (PTY) LTD Third Applicant

And

VISA SECURITY GROUP (PTY) LTD First Respondent

MINISTER OF POLICE Second Respondent
(REGISTRATION NUMBER: 2015/224619/07)


JUDGMENT
______________________________________________________________

MINNAAR AJ,

[1] On 17 June 2025, in the urgent court, I granted the order as prayed for
by the applicants. The following relief, relevant to the first respondent ,
was granted:
a. That the first respondent, and any other persons, entities or
bodies, and employees, as the case may be, acting through the
first respondent, is hereby ordered to forthwith vacate the
applicants’ property at Hertford Office Park, 9[...] B[...] Road,
Vorna Valley, Sandton, Gauteng.
b. That the first respondent, and any other persons, entities or
bodies, as the case may be, acting through, or under the first
respondent, are hereby restrained, and interdicted, from
attending upon the applicants’ property at Hertford Office Park,
9[...] B[...] Road, Vorna Valley, Sandton, Gauteng, with the aim
and sole, or other purpose of:
i. Demanding that the applicants employ them as security
service providers, at the applicants’ property at Hertford
Office Park, 9[...] B[...] Road, Vorna Valley, Sandton,
Gauteng; and
ii. Frustrating, and interfering with, the applicants’ business
thereat; and
iii. Harassing and intimidating tenants, employees and
security service providers of the applicants; and
iv. Interfering with, harassing or intimidating the applicants’
managers, and/or security service providers; and
v. Without limiting the generality of the aforesaid, prohibited
from doing anything whatsoever related to or in
connection with the harassment, intimidation and assault
of the applicant’s employees, its security or other
contractors, tenants and security service provider and
preventing the applicants’ security and other contractors
from performing their daily duties and functions.
c. That the first respondent be ordered to pay the costs of this
application on scale C in terms of Rule 67, read with Rule 69.

[2] Later that same day, the first respondent submitted an application for
leave to appeal against my order. In the application for leave to appeal,
the first respondent stated that the order was granted by way of an ex
tempore judgment, without reasons. This is not factually correct, as the
order granted was in terms of a draft order that counsel handed up for
the applicants.

[3] Together with the application for leave to appeal, the first respondent
also sought written reasons for the order. These were provided on 24
June 2025. The first respondent’s application for leave to appeal was
not supplemented on receipt of the written reasons.

[4] 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”).

[5] 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
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

[6] In its application for leave to appeal, the first respondent alleges that
the court erred on the following aspects:

a. Entertaining the application on the urgent roll where the
applicants had failed to satisfy the test prescribed under Rule
6(12)(b).
b. Failed to consider that the applicants would be afforded
substantial redress in due course by advancing a claim for
damages in due course.

1 Songomo v Minister of Law and Order 1996 (4) SA 384 (E) at 385J – 386A

c. The existence of the agreement relied on by the first respondent
constituted a material dispute of facts, incapable of resolution on
the affidavit s, alternatively given that the applicants were
seeking final relief, on the application of the Plascon Evans rule.
As such, the first respondent’s version ought to have prevailed
in that the said version was not palpably false, untenable or far -
fetched since the first respondent tendered undisputed evidence
of the agreement concluded with the applicants, through their
agent.
d. The court ought to have found that the first respondent’s version
is presented with admissible evidence and is uncontested on the
affidavit and should have been accepted.
e. The court ought to have found that on application of the legal
test holding that a tacit contract has been established in that the
most probable conclusion from all of the proven facts and
circumstances is that a contract came into existence between
the first respondent and the applicants. In this regard, it is stated
that the first respondent tendered evidence of unequivocal
conduct by the contracting parties (Strive as the agent of the
applicants and the first respondent), giving rise to an inference
of consensus on a balance of probabilities.
f. Based on the proven agreement, which the applicants had not
terminated, the first respondent was entitled to continue
providing security services at the applicants’ property through its
agreement directly with the applicants.
g. Erred in finding that evidence existed and was tendered of
imminent and/or any harm or risk presented by the first
respondent on the applicants’ property and/or the tenants at the
property. The court ought to have found that the lack of
evidence rendered the alleged harm and/or risk to the
applicants’ property and/or tenants as unsubstantiated and fell
to be rejected. The court ought to have found that the first
respondent had raised a valid defence to the order for ejectment

and that the applicants had failed to make out a case for the
final interdict sought.
h. The urgent application ought to have been dismissed with costs,
including the costs of two counsel.
i. Failed to exercise a discretion when awarding costs on Scale C,
in circumstances where the matter was not complex, with the
facts being straightforward, the papers were not voluminous,
and the matter lasted well under an hour.

[7] In concluding the application for leave to appeal, it is the first
respondent’s case that there are reasonable prospects of success on
appeal and that leave to appeal should be granted to the Full Bench of
this court.

[8] In the first respondent’s supplementary heads of argument in the
application for leave to appeal, it is recorded that the first respondent
will not persist with the application for leave to appeal against the cost
order. During the argument, the first respondent’s counsel also did not
pursue the leave to appeal on the urgency aspect. All that remained
was the first respondent’s reliance that the court erred concerning the
adjudication of disputes of fact in application proceedings.

[9] 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-
(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.”

[10] 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 leave 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

[11] 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
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.'

[12] Under section 17(1)(a)(ii) of the Superior Courts Act , the Court
determining an application for leave to appeal ought to enquire whether

2 Mont Chevaux Trust at par 6. See further Acting National Director of Public Prosecutions
and Others v Democratic Alliance In Re: Democratic Alliance v Acting National Director of

and Others v Democratic Alliance In Re: Democratic Alliance v Acting National Director of
Public Prosecutions and Others (1957/09) [2016] ZAGPPHC 489 (24 June 2016) par 25

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.

[13] 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
appealed against involves an important question of law 4 or where
required by the interests of justice.5

[14] The first respondent contends that, based on the facts and the
law, and considering a measure of certainty implied by the word
“would”, that a court of appeal could reasonably conclude differently
from the conclusion that this court arrived at.

[15] It is further the contention of the first respondent that I erred in
my approach to considering and adjudicating the evidence in the
application, on the basis that the first respondent failed to prove the
existence of an agreement between the applicants and the first
respondent. It is submitted that I ought to have held that a material
dispute of facts existed and the evidence stood to be considered in
accordance with the trite principles laid down in Plascon-Evans Paints
Limited v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A) at 635 H –
I.

[16] In the first respondent’s supplementary heads of argument, and
during submissions by counsel, reference was made to the judgment
delivered by the Supreme Court of Appeal on 4 July 2025 in Van den
Berg Water (Pty) Ltd t/a Oasis Water Lynnwood and Others v Oasis
Water (Pty) Ltd and Another (Case no 989/2023); Van Schalkwyk
Water CC t/a Oasis Water Kimberley and Another v Oasis Water (Pty)

3 Erasmus, Superior Court Practice (2021) A2-56 to 57
4 Erasmus, Superior Court Practice (2021) A2-56 to 57
5 City of Tshwane v Afriforum 2016 (6) SA 279 (CC) par 40

Ltd (Case no 988/2023); Oasis Water (Pty) Ltd and Another v Wynand
Albertus Bester and Another (Case no 1120/2023) [2025] SASCA 98 (4
July 2025) (‘the Oasis judgment’).

[17] In the Oasis judgment, the Supreme Court of Appeal restated
that, when relief sought that is final in effect, it is required to establish a
clear right, and an issue such as the balance of convenience does not
arise. Schippers JA (writing for the Court) also again confirmed the trite
manner to establish disputes of fact in holding that a further
consequence of the status of orders serving as final interdicts is that the
Plascon-Evans rule applies, and dispute of fact essentially fall to be
determined on the respondents’ version, unless it is farfetched or
untenable. Reference was again made to the oft -quoted passage by
Harms in National Director of Public Prosecutions v Zuma 2009 (2) SA
277 at para 26:

“Motion proceedings, unless concerned with interim relief, are all about
the resolution of legal issues based on common cause facts. Unless the
circumstances are special they cannot be used to resolve factual issues
because they are not designed to determine probabilities. It is well
established under the Plascon -Evans rule that where in motion
proceedings disputes of fact arise on the affidavits, a final order can be
granted only if the facts averred in the applicant's (Mr Zuma's)
affidavits, which have been admitted by the respondent (the NDPP),
together with the facts alleged by the latter, justify such order. It may be
different if the respondent's version consists of bald or uncreditworthy
denials, raises fictitious disputes of fact, is palpably implausible, far -
fetched or so clearly untenable that the court is justified in rejecting
them merely on the papers. The court below did not have regard to
these propositions and instead decided the case on probabilities
without rejecting the NDPP's version.”

[18] Considering the submissions made, the written reasons

[18] Considering the submissions made, the written reasons
provided, and based on the facts and the law, I am not convinced that a

Court of Appeal could reasonably conclude differently from the
conclusion reached by me. I cannot find that the first respondent has
prospects of success and that those prospects are not remote, but have
a realistic chance of succeeding.

[19] If regard is had to my judgment, read with the application for
leave to appeal , I conclude that, although subjectively to the first
respondent the case might be of substantial importance, the application
lacks any semblance of prospect of success, let alone reasonable
prospect of success.

[20] 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.

[21] 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 first respondent
has failed to establish a case that another court would reach a different
conclusion or outcome from the order in this case.

[22] The applicants seek a dismissal of the application for leave to
appeal with costs on the scale as between attorney and client,
alternatively with costs to be ordered on Scale C.

[23] There is no basis for a punitive costs order. Both sides
employed the service of senior counsel, and as such, the costs on
Scale C are justified.

[24] Consequently, I make the following order:
1. The application for leave to appeal is dismissed.
2. The first respondent to pay the costs of the application for
leave to appeal on Scale C.

Minnaar AJ
Acting Judge of the High Court
Gauteng Division, Pretoria


For the applicants: Adv G T Avvakoumides SC
Instructed by Mark Efstratiou Inc
For the first respondent: Adv P G Cilliers SC with Adv T Ngakane
Instructed by Adams & Adams
Heard on: 9 July 2025
Date of judgment: 18 July 2025