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[2025] ZAMPMBHC 98
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Mountainlands Estate Owners Association and Others v Mpumalanga Tourism and Parks Agency and Others (Leave to Appeal and Cross Appeal) (1975/2024) [2025] ZAMPMBHC 98 (26 September 2025)
IN
THE HIGH COURT OF SOUTH AFRICA, MPUMALANGA DIVISION,
(MBOMBELA MAIN SEAT)
Case No. 1957/2024
(1)
REPORTABLE:
YES/NO
(2)
OF INTEREST TO OTHER JUDGES:
YES/NO
(3)
REVISED
YES/NO
DATE
26 September 2025
SIGNATURE
MOUNTAINLANDS ESTATE
OWNERS
ASSOCIATION
First
Applicant
SAPPI
SOUTHERN AFRICA LIMITED
Second
Applicant
SIMPLY
SEE (PTY) LIMITED
Third
Applicant
BARBERTON
CHAMBER OF BUSINESS
Fourth
Applicant
and
MPUMALANGA TOURISM AND
PARKS
AGENCY
First
Respondent
SIPHELELE
GENERAL TRADING 15 (PTY) LIMITED
Second Respondent
THE MEC OF THE
MPUMALANGA DEPARTMENT:
PUBLIC
WORKS, ROADS AND TRANSPORT
Third Respondent
CITY
OF MBOMBELA LOCAL MUNICIPALITY
Fourth
Respondent
JUDGMENT
APPLICATION FOR LEAVE
TO APPEAL AND CROSS APPEAL
MONTSHO-MOLOISANE AJ
[1.]
This is an
application for leave to appeal to the Supreme Court of Appeal
alternatively
to the Full Court of this Division, lodged by the Applicants against
the whole of the judgment and order granted by this Court
on 26 June
2025, in terms of which their application for a final interdict was
dismissed, with no order made on costs.
[2.]
The First
Respondent (hereinafter referred to as “the
MTPA
”),
opposes the application, and lodged an application for leave to
cross-appeal against the order of not making a costs order
in its
favour, on 31 July 2025.
[3.]
On 18 August
2025, the Applicant then filed a Notice in terms of Rule 7(1) of the
Uniform Rules of Court, disputing the First Respondent’s
attorney’s authority to act on its behalf, and required Adams
and Adams Attorneys, its mentioned attorneys of record,
to
furnish its Power of Attorney to act on its behalf in the
application. The Notice was filed more than 10(ten) days after the
First Respondent had filed its application for leave to cross-appeal
the judgment.
[4.]
On 05
September 2025 Mr Richard Spoor, the Applicants’ attorney of
record, filed an affidavit of good cause in terms of Rule
7(1)
wherein he sought condonation for the late filing of the Rule 7(1)
Notice. He further requested that this Court to order that
the First
Respondent’s attorneys may not be permitted to act on its
behalf unless they satisfy the Court that they are properly
authorised to do so. In the said affidavit, Mr Spoor relied on the
extracts from the Investigation report titled: “
MPUMALANGA
TOURISM AND PARKS AGENCY (MTPA) FORENSIC INVESTIGATION INTO
ALLEGATIONS RELATING TO THE BARBERTON MAKHONJWA MOUNTAINS
WORLD
HERITAGE SITE-14 MAY 2025
”.
[5.]
He argued and
relied on the fact that an investigation into the affairs of the MTPA
had found that the appointment of the Second
Respondent was irregular
as defined in the
Public Finance Management Act, 1 of 1999
, and as
such, the authority of the First Respondent’s attorneys of
record had to be confirmed.
[6.]
The First
Respondent then filed a Notice in terms of Rule 30(A) of the Uniform
Rules based on the Applicants’ non-compliance
with the
timeframes prescribed by Rule 6(5)(d), and the Practice Directive of
this Division regarding the failure to refer the
matter for case
management.
[7.]
This was an
interlocutory application which had to be adjudicated before the
hearing of the main application, and submissions were
made in that
regard.
[8.]
Having
considered submissions made on behalf of both parties, I made a
ruling condoning the Applicants’ late filing of the
Rule 7(1)
Notice, and further ruled that the First Respondent’s attorneys
of record and Counsel were not permitted to act
on its behalf, unless
proof of authority to act was furnished by way of a Power of
Attorney, alternatively documentary proof of
such a mandate.
[9.]
It is however
regrettable that after a lengthy period of deliberations, Mr Seape
furnished correspondence from the First Respondent
which his
instructing attorneys had before the date of hearing of this matter
that satisfied the Court that they were duly authorised
and had the
necessary mandate to act on its behalf.
[10.]
The costs of
the interlocutory application are costs in the course of the
applications before this Court. I now turn to deal with
the
applications for leave to appeal and cross-appeal.
APPLICABLE
LAW
[11.]
The
Applicants’ and First Respondent’s applications are
brought in terms of Section 17(1)(a) of the Superior Courts
Act, 10
of 2013 (“the
Superior Courts Act&rdquo
;).
[12.]
It
is now trite that the
Superior Courts Act, is
the applicable
legislation in such applications. It provides for leave to appeal to
be granted only in two circumstances. The first
envisaged
circumstance is where the judge concerned is of the opinion that an
appeal would have a reasonable prospect of success.
The second
circumstance is where there are some compelling reasons why the
appeal should be granted
[1]
.
[13.]
Section
17(1)(a)
of the
Superior Courts Act provides
that-
“
(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”.
[14.]
Prior to the
coming into force of the
Superior Courts Act, the
test in an
application for leave to appeal was whether there were reasonable
prospects that another Court may come to a different
conclusion. It
appears from the wording of
Section 17(1)(a)
quoted
supra
,
that there is more stringent and onerous test before leave to appeal
can be granted.
[15.]
It is now
authoritatively established that the position remains that, if there
is a reasonable prospect of success, leave to appeal
should be
granted.
[16.]
When
considering the judicial precedence, the Supreme Court of Appeal
(“the SCA”) postulated the test for granting leave
to
appeal in the case of
MEC
for Health, Eastern Cape v Mkhitha
and
Another
[2]
as follows:
“
[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)(i)
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 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”.
[17.]
In
a latter of
Ramakatsa
and Others v African National Congress and Another
[3]
to which I was referred to by both Mr Spoor, appearing for the
Applicants and Mr Seape for the MTPA, it was held that:
“
If
a reasonable prospect of success is established, leave to appeal
should be granted. Similarly, if there are some other compelling
reasons why the appeal should be heard, leave to appeal should be
granted. The test of reasonable prospects of success postulates
a
dispassionate decision based on the facts and the law that a Court of
appeal could reasonably arrive at a conclusion different
to that of
the trial Court. In other words, the Appellants in this matter need
to convince this Court on proper grounds that they
have prospects of
success on appeal
”.
[18.]
The
SCA, in the case of
Chithi
and Others: In re: Luhlwini Mchunu Community v Hanock and Others
[4]
,
held that:
“
[10]
The threshold for an application for leave to appeal is set out in
Section 17(1)
of the
Superior Courts Act which
provides that leave to
appeal may only be given if the judge or judges are of the opinion
that the appeal would have a reasonable
prospect of success”.
[19.]
In
the case of
MEC
for Health Eastern Cape v Mkhitha supra
,
the Court emphasised that leave to appeal should not be granted if
the Applicant makes out a case of a “
mere
possibility of success, an arguable case or one that is not
hopeless
”
[5]
.
[20.]
The essence of
the judgments quoted
supra
is that leave will be granted only where there are sound and rational
basis to conclude that there is a reasonable prospect of
success on
appeal, based on the facts and the law.
[21.]
I,
accordingly, consider the Applicants’ application and the
cross-application of the MTPA, on the basis that leave should
be
granted if a reasonable prospect of success is established in respect
of each application, or if there are some other compelling
reasons
why the appeal should be heard.
[22.]
The
Applicants’ grounds of appeal are set out in their application
for leave to appeal and, in summation, are that this Court
erred in
dismissing their application for a final interdict on the ground of
mootness and, alternatively, on the ground that they
failed to
demonstrate the absence of an alternative remedy.
COMMON
CAUSE FACTS
[23.]
In order to
properly consider the grounds of appeal relied on by the Applicants,
it is important to outline the facts which are
common cause, as set
out in the judgment which is the subject of the two applications,
which are that:
23.1.
The
First to Third Applicants are the registered owners of the properties
on which 9(nine) of the 13(thirteen) Geosites, located
along the
Barberton Makhonjwa Mountains (“BBM”), which were
declared World Heritage Sites (“WHS”) by the
United
Nations Educational, Scientific and Cultural Organization (UNESCO”)
in July 2018;
23.2.
Each of the 13
Geosites infrastructure and facilities constructed thereon at the
time of the UNESCO declaration, is located partly
within and partly
out of the road reserve over which the P77-1 provincial road,
traverses. The land comprising the road reserve
has not been
expropriated.
23.3.
The South
African Government assumed the obligations and responsibilities for
the management and protection of the declared WHS,
which was assigned
to the provincial department, which in turn appointed the First
Respondent, the MTPA, as the entity responsible
for it.
23.4.
On 09 May
2022, the South African Heritage Resources Agency (“SAHRA”),
a statutory organisation established under the
National Heritage
Resources Act, 25 of 1999 (“NHRA”), and that is
responsible for the management, protection and promotion
of heritage
resources in South Africa, entered into a Memorandum of Agreement
with the First Respondent, the MTPA, in terms of
which the latter
assumed the responsibility to take all reasonable measures to protect
all parts of the Geosites from abuse, damage,
obstruction,
unauthorised removal, unauthorised excavation, and to comply with the
conditions of title of the site and the applicable
laws;
23.5.
On 29
September 2023, the MTPA awarded a tender to the Second Respondent
(“the Contractor”), to refurbish and upgrade
the 13
Geosites.
23.6.
The Contractor
accessed and commenced with construction activities on the 13
Geosites, without prior engagement with, or obtaining
the consent of
the landowners, as stipulated in Section 27(21) of the NHRA, which
requires the responsible heritage resources authority
to agree with
the owner of a heritage site prior to engaging in any construction
activities thereon;
23.7.
The First,
Second and Third Applicants did not consent to the construction
activities on their properties;
23.8.
The
construction activities on the 13 Geosites were also carried out in
contravention of Section 27(18) of the NHRA, which stipulates
that
“
no
person may destroy, damage, deface, excavate, alter, remove from its
original position, subdivide or change the planning status
of any
heritage site without a permit issued by the heritage resources
authority responsible for the protection of such site
”.
23.9.
Upon
becoming aware of the construction activities taking place on their
properties without their consent, the Applicants’
representatives approached the workers on site, and subsequent
thereto, had a number of engagements with the MTPA, pursuant to
which
on 17 January 2024, the latter agreed to stay the proposed BMM
Geotrail upgrade pending the outcome of a consultative process
and
agreement with the land owners;
23.10.
On 30 April
2024, the Applicants’ attorney of record Mr Richard Spoor, sent
a Letter of demand to the MTPA and the Contractor,
wherein he
demanded the cessation of all construction activities on the BMM
Geotrail, following the failure to stop as agreed at
the meeting held
on 17 January 2024;
23.11.
On 24 July
2024 the SAHRA wrote a letter to the MTPA titled “
Order
for immediate cessation of all works or actions”
(“Cessation Order”) in respect of all works conducted on
the BMM-WHS Geosites; and
23.12.
The Contractor
ceased all construction activities on the 13 Geosites pursuant to the
issue of the Cessation Order.
23.13.
The
application, which was opposed by the MTPA, was opposed on the basis
that the application was moot, and that the Applicants
had an
alternative remedy of claiming damages from the Respondents for any
damage that may have been caused by the construction
activities
carried out on their properties by the MTPA or the Contractor.
23.14.
This
Court dismissed the application on the ground of mootness of
the issues, and the Applicants’ failure to satisfy
the third
requirement for the granting of a final interdict, which is the
absence of an alternative remedy, or other alternative
remedy which
could offer similar protection. Furthermore, relying on the Biowatch
principle
[6]
, this Court made no
order as to costs.
THE
APPLICANTS’ GROUNDS OF APPEAL
[24.]
The Applicants
contend that this Court erred in finding that:
24.1.
the
application became moot when the SAHRA issued the Cessation order on
24 July 2024, as a result of which all the construction
activities on
the Geosites were stopped by the MTPA and the Contractor. Mr Spoor
contended that while the construction activities
have stopped, “
the
dispute has not been resolved”
;
24.2.
that
there remains a concrete, live controversy over “
the
Respondents
’
right
to re-enter and build on private land without the landowners’
consent, and a real risk of repetition absent a final
interdict
”;
[7]
and that
24.3.
the Applicants
had no other alternative remedy than to approach this Court for the
final interdict to be granted.
[25.]
On
the issue of costs, Mr Spoor contended that neither of the parties
believe that the Biowatch principle is applicable, and he
further
submitted that “
having
regard to the lawless and reckless conduct of the MTPA
”,
the Applicants are entitled to an award of costs against the MTPA on
an attorney and own client scale.
[26.]
On the above
stated grounds, Mr Spoor contended that the appeal has reasonable
prospects of success.
GROUNDS
OF OPPOSITION OF THE MTPA
[27.]
It was
contended by Mr Seape, on behalf of the MTPA, that leave to appeal
should be refused in that:
27.1.
although
the Applicants did not rely on the contravention of the provisions of
the NHRA in their Founding affidavit to establish
a clear right, but
relied on the principle of accession as they alleged that they
acquired ownership of the 9 Geosites through
accession, and that the
protections afforded by the NHRA to National Heritage sites are not
rights afforded to, or exercisable
by them in their capacity as
owners;
27.2.
that the Court
of appeal would identify ownership of all the Geosites as the right
that the Applicants sought to assert; and
27.3.
accordingly,
the Court of appeal would find that the Applicants failed to
establish the existence of a clear right as they are the
owners of
only nine of the thirteen Geosites.
[28.]
A further
point that would be dispositive of the application, as submitted by
Mr Seape, is that if accession is the basis of ownership
as contended
by the Applicants, it follows that they can only assert ownership
over the Geosites that are situated on land owned
by the First to
Third Applicant, and not on land owned by Third parties.
[29.]
On the second
requirement of the Injury committed, Mr Seape contended that a Court
of appeal would find that the Applicants failed
to establish that
they were injured by the activities of the MTPA as they failed to
establish that they acquired ownership of the
Geosites
infrastructure.
[30.]
On
the third requirement of the absence of an alternative remedy, Mr
Seape submitted that although this Court found that the Applicants
had an alternative remedy by way of laying criminal charges and
securing a criminal prosecution
[8]
,
and that the Cessation Order had provided the Applicants with an
adequate remedy, this Court failed to explore the fact that the
Applicants can still obtain adequate redress by an award of damages.
[31.]
On the above
stated grounds, he contended that the leave sought should be refused.
[32.]
In reply to
contentions made, Mr Spoor contended that the laying of criminal
charges against the contractor by the Second Applicant
yielded no
results as the perpetrators were never arrested.
LEAVE
TO CROSS-APPEAL
[33.]
The MTPA
applies for leave to cross-appeal against the Costs order granted by
this Court, in that neither the Applicants nor the
MTPA asked for the
application of the Biowatch principle as a consideration regarding
costs.
[34.]
Mr Seape
contended that the Biowatch principle finds no application in the
circumstances of the case in that the Applicants, though
having the
constitutionally guaranteed right to access the Court, they are not
seeking to assert a constitutional right, and that
based on the
dismissal of the application, the MTPA should be awarded costs, which
should include the costs of two Counsel at Scale
C in terms of Rule
67A of the Uniform Rules of Court.
[35.]
Mr
Spoor for the Applicants, did not make any submissions regarding the
Biowatch principle, but in his Heads of argument, contends
that
neither of the parties believe that the Biowatch principle is of
application
[9]
.
CONSIDERATION
OF GROUNDS OF APPEAL
[36.]
It
is common cause that both Messrs Spoor and Seape are
ad
idem
that the Applicants relied on the principle of accession to establish
a clear right, and not on the violation of the provisions
of Section
27(21) of the NHRA, which require the MTPA to engage with the
relevant landowners prior to commencement of any construction
activities, as this Court found
[10]
.
I am therefore of the view that the submissions of Messrs Spoor and
Seape regarding the principle of accession, require adjudication
by
the Court of appeal to establish whether the Applicants satisfied the
requirement of the clear right.
[37.]
Regarding the
third requirement of the absence of an alternative remedy, which this
Court found, was negated by the Cessation Order,
Mr Spoor did not
place any reliance thereon, as his contention is that the issue is
still alive, and as such, the Applicants have
no alternative remedy.
Although I am not persuaded by this submission, there is a reasonable
prospect of success that a Court of
appeal may find in the
Applicants’ favour on the interpretation of the provisions of
the NAHRA and the Cessation Order, and
more importantly, whether the
dispute is still alive, as contended by Mr Spoor.
[38.]
I am therefore
of the view that the issue of mootness and the clear right require
adjudication by the Court of appeal.
[39.]
As regards
costs, I stand by my comments in the main judgment regarding the
conduct of the MTPA before the Cessation Order was issued
by the
SAHRA on 24 July 2024, and that of the Applicants after the said
Order was issued, in persisting with litigation in light
of the
cessation of construction activities.
[40.]
This Court
cannot, however be oblivious of the fact that the determination of
the issues by the Court on appeal may have a bearing
on costs.
[41.]
I am therefore
constrained to grant the MTPA leave to cross-appeal this Court’s
judgment on costs in so far as I relied on
the Biowatch principle for
not making an order on costs.
[42.]
I am of the
opinion that both the Applicants and the First Respondent, in their
respective applications, have met the threshold
referred to in
Section 17(1)(a)(i) as fully ventilated in the judgments referred to
supra.
ORDER
[43.]
In
the result, the following order is granted:
43.1.
The Applicants
are granted leave to appeal to the Full Court of this Division;
43.2.
The First
Respondent is granted leave to cross-appeal the order of costs;
43.3.
Costs are to
be costs in the appeal and cross-appeal.
L.M.
MONTSHO-MOLOISANE
ACTING
JUDGE OF THE HIGH COURT
MPUMALANGA
DIVISION, MBOMBELA
Date
heard
: 23 September 2025
Judgment electronically
delivered
by circulation to all
parties
: 26 September 2025
Appearances
Counsel
for the Applicants
:
Mr
Richard Spoor
Instructed
by
:
Richard
Spoor Incorporated
White
River
C/O
Christo Smith Inc, Attorneys
Mbombela
Email:
Richard@rsinc.co.za
Yolanda@csprok.co.za
Counsel
for the First Respondent :
Adv
M Seape
Adv
C. Jones
Instructed
by
:
Adams
& Adams Attorneys
Lynwood
Manor
Pretoria
C/O
Du Toit Smuts &
Partners
Attorneys
Nelspruit
Email:
Thando.Manentsa@adams.africa
mqebhard@dtsmp.co.za
[1]
Section 17 of the Superior Court Act
[2]
MEC
for Health, Eastern Cape v Mkhitha and Another (1221/15)
[2016]
ZASCA 176
at para 17
[3]
Ramakatsa and Others v African National Congress and Another
(724/2019) [2021] ZASCA (31 March 2021) at para 10
[4]
Chithi
and Others: In re: Luhlwini Mchunu Community v Hanock and Others
(423/2020)
[2021] ZASCA 123
(23 September 2021)
[5]
At para 17
[6]
Biowatch Trust v Registrar, Genetic Resources 2009 (6) SA 232 (CC)
[7]
At para 3, Applicants’ Heads of argument
[8]
Vide para 45,54 and 59 of the judgment
[9]
Vide para 40 of the Heads of argument.
[10]
At para 50 to 51 of judgment