REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
LIMPOPO DIVISION, POLOKWANE
(1)
(2)
(3)
REPORTAB LE: ~NO
OF INTEREST TO THE JUDGES: ~NO
RE V ISED.
::::::::::::::::::::::::: ..
DATE 8 August 2025 SIG NA TU RE ............................. .
In the matter between:
SUNSET GAME LODGE CC
-and-
ARTHUR JOHN DACOSTA
SIMCHA DA COSTA
CASE NUMBER: 9452/2023
APPLICANT / RESPONDENT IN
MAIN APPLICATION
1sT RESPONDENT /
APPLICANT IN MAIN
APPLICATION
2No RESPONDENT /
APPLICANT IN MAIN
APPLICATION
Delivered
D ate heard
Coram
BRESLERAJ:
Introduction:
2
8 Augu st 2025
This judgment w as handed dow n electronically by circulation to
the parties' legal representatives by e-mail. The date and time
for hand dow n of the judgment is deemed to be 8 Augu st 2025
at 10:00 am .
9 June 2025
Bresler AJ
JUDGMENT
(LEAVE TO APPEAL)
[1] The Applicant (Respondent in the Ma in Application) applies for Leave to Appeal
against this Court's judgment and order delivered on the 7th of November 2024.
[2] The Application for Leave to appeal is premised on the follow ing:
2.1 The Court failed to consider the application for referral to trial / oral
evidence. In this regard it is also submitted that a serious dispute of fact
3
ensued, w hich should have been reasonably anticipated by the Respondent
(Applicant in the main application).
2.2 The Court failed to consider, in addition, that the Applicant obtained a
contractual right of possession, and that the Respondent, in addition, had
to show that the there w as a valid termination of the right.
2.3 The Respondent failed to establish the valid cancellation of the agreement.
2.4 An agreement is not rendered void if the seller is not the ow ner.
2.5 The issue of the Kruger-permit is not moot.
2.5 The irregularity of the set dow n warranted a different cost order.
[3] The App lication for Leave to Appeal is opposed.
The Applicable Legal Principles:
[4] An application for leave to appeal is governed by section 17(1) of the Superior
Courts Act, Act 10 of 2013 w hich provides:
'17 Leave to appe al
4
(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.'
[2] In MEC Health, Eastern Cape v Mkhitha1 the Supreme Co urt of Appea l said the
follow ing (reference to other authorities om itted):
'[16] Once again it is necessary to say that leave to appeal, especially to this
court, must not be granted unless there truly is a reasonable prospect of
success. Section 17(1)(a) of the Superior Courts Act 10 of 2013 makes it clear
that leave to appeal may only be given where the judge concerned is of the
opinion that the appeal would have a reasonable prospect of success; or there
is some other compelling reason why it should be heard.
[17] 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
1 MEG H ealth, Eastern Cape v Mkhitha (1221/15) [2016] ZASCA 176 (25 Novembe r 2016)
5
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.'
(own underlining)
[3] Hav ing regard to the Application for Leave to Appea l and the oral arguments
subm itted by the Applicant, it is clear that the App licant requires leave to appeal
only on the premise that there is a reasonable prospect of success on appeal.
[4] I shall ad seriatim address the grounds as summarised herein before.
Referral to trial and I or oral evidence and the existence of a factual dispute:
[5] It is indeed correct that the judgment itself does not make pertinent reference to the
exercise of the Court's discretion not to refer the matter to trial.
[6] This does not presuppose that an appeal w ill succeed. The Court, after all, retains
a discretion to refer a matter to trial in an instance where an application cannot be
properly decided on affidavit. In casu, there was no material factual dispute relevant
to the determination of the matter, but rather a dispute as to the interpretation of the
agreement between the parties and the law applicable thereto.
6
[7] As such, the matter w as capable of being determined on affidavit and there w as no
need to determine if the ma tter should be referred to trial.
[8] This ground therefore yields no prospect of success on appeal.
Valid cancellation and the Respondent's right to remain in possession:
[9] This Court dealt extensively w ith the right to cancel the agreement in paragraphs
[21] to [30] of the judgment read w ith [33] to [38].
[1 O] It is common cause between the parties that the lease agreement was cancelled,
and the Applicant could not show , on a balance of probabilities that it is entitled to
transfer of ow nership of the vehicles. Due notification of the cancellation of the
agreement w as sent, and received, by the Applicant.
[11] This ground thus also does not postulate any prospect of success.
The agreement is not rendered void if the seller is not the owner:
[12] This conclusion has no bearing on the outcome of the matter or the order ultimately
granted. As such, it does not take the matter further and does not substantiate a
possibility of success on appeal.
The mootness of the issue pertaining to the Kruger-permit:
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[13] As already alluded to in the judgment delivered herein, the Applicant conceded that
the Kruger-permit constituted part of the merx that w as intended in the Sale
Agreement of the vehicles. The Applicant furthermore argued that the issue of the
Kruger-permit w as not moot, should the court have found that the cancellation of
the agreement w as ineffective.
[14] Insofar as the Court made a finding that the sale agreement w as duly cancelled and
the Respondent is entitled to the return of the vehicles, this issue of the Kruger
permit (on the App licant's ow n version) is thus moo t.
[15] As such, this also do not create a possibility that an appeal against the judgment
and order w ill succeed in due course.
Appeal against costs:
[16] The court of appeal w ill interfere w here the exercise of the discretion has not been
proper, or has been based upon a w rong principle or upon a w rong view of the facts,
w here the court has purported to exercise its discretion w ithout sufficient legal
grounds for doing so, or w here the court has w rongly held that it has no discretion
at all, or w here some w ell recognized principle or rule w ith regards to the aw arding
of costs has been violated.2
2 See Herbstein & Van Winsen, Civil Practice in the High Courts and Supreme Courts of Appeal of
South Africa, 5th ed, 2009, eh 36 - p 1010
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[17] In Merber v Merber3 the court held as follows :
'{When) a successful party has been deprived of his costs in the trial court, an
appeal court will enquire whether there were any grounds for this departure
from the general rule, and if there are no such grounds, then ordinarily it will
interfere.'
But if there are grounds upon which a reasonable man could have come to
the conclusion arrived at then the appellate tribunal in its reluctance to
interfere with the discretion of the trial judgment would not set aside the order
as to costs given by him merely on the ground that it might have taken a
different view of the sufficiency of such grounds. '
[18] To justify interference on appeal, there m ust thus have been an improper exercise
of judicial discretion, i.e. a vitiating of the award of costs by irregularity or
misdirection, or the aw ard must have been disquietingly inappropriate.4
[19] It is a fundamen tal principle that, as a general rule, the party w ho succeeds should
be awa rded the costs, and this rule should not be departed from except on good
grounds.5 In Merber v Merber supra reference is made to the case of Fripp v
Gibbon and Company6 w here Lord De Villiers stated at 357:
3 1948 (1) A 448 (A)
4 See Ward v Sulzer 1973 (3) SA 701 (A), Rondalia Assurance Corporation of SA v Page 1975 (1) SA
708 (A) and Beinash v Wix/ey 1997 (3) SA 721 (SCA ).
5 See Pe/ser v Levy 1905 TS 466 at 469; Fripp v Gibbon & Co 1913 354; Sackville West v Nourse 1925
AD 516 and Letsite/e Stores (Pty) Ltd v Roets 1959 (4) SA 579 (T)
6 1913 AD 354
9
'In appeals upon questions of costs two general principles should be observed.
The first is that the Court of first instance has a judicial discretion as to costs,
and the second is that the successful party should, as a general rule, have his
costs. The discretion of such Court, therefore, is not unlimited, and there are
numerous cases in which courts of appeal have set aside judgments as to
costs where such judgments have contravened the general principle that to
the successful party should be awarded his costs.'
[20] In this Court's view , insufficient grounds have been raised to substantiate a
conclusion that this Court, in granting costs to the successful party, exercised its
discretion improperly.
[21] This ground thus also do not yield any prospect of success.
[22] In follow ing the rationale in Mkhita supra, this court is not convinced that there is a
sound, rational basis to conclude that there is a reasonable prospect of success on
appeal.
[23] I am further of the view that there is also no compelling reason w hy the appeal
should be heard and leave to appeal must consequently be refused w ith the
appropriate cost order.
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Order:
[24] In the result the following order is made:
24.1 Leave to Appeal is refused with costs including costs to counsel on
Scale B.
APPEARANCES:
FOR THE APPLICANT
INSTRUCTED BY
M BRESLERAJ
ACTING JUDGE OF THE HIGH COURT ,
LIMPOPO DIVISION, POLOKWANE
Adv. RJ Groenewald SC
Joubert & May Attorneys
Tzaneen
aldo@joubertmay.co.za
c.oberholzer@dbolaw.co.za
FOR THE FIRST AND SECOND
RESPONDENT
INSTRUCTED BY
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Adv. we Carstens
ASKingon Attorneys
Hoedspruit
Andrew@askattorneys.co.za
eh ante I le@ckvz.co.za