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2025
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[2025] ZANCHC 91
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Du Preez v Du Preez (Leave to Appeal) (597/2025) [2025] ZANCHC 91 (5 September 2025)
IN
THE HIGH COURT OF SOUTH AFRICA
NORTHERN CAPE
DIVISION, KIMBERLEY
Case No:
597/2025
Reportable: YES /
NO
Circulate to Judges: YES
/ NO
Circulate to Magistrates:
YES / NO
Circulate to Regional
Magistrates:
YES / NO
In
the matter between:
JACOBUS
THOMAS DU
PREEZ
Applicant
and
FERNANDO
DU
PREEZ
Respondent
Heard:
Determined on the papers
Delivered:
05/09/2025
Summary:
Application for leave to appeal –
s 17(1)(a)(i)
of the
Superior
Courts Act 10 of 2013
, reasonable prospects of success. Applicant’s
lease agreement terminated by the lessor with effect from 30 June
2025. The
question of the water supply from farm Springbokpan to
Pringle has become moot and therefore not justiciable – the
order
would have no practical effect – no existing or live
controversy.
Section 16(2)(a)(i)
of the
Superior Courts Act. Further
, not in the interests of justice to hear
the application.
ORDER
In the result, the
following order is made:
1.
The application for leave to appeal is
dismissed with costs on scale C of
Rule 69(7).
JUDGMENT: APPLICATION
FOR LEAVE TO APPEAL
Mamosebo
J
[1]
On 14 March 2025 the applicant approached this court on an urgent
basis
seeking the following relief: (a) a final interdict prohibiting
the respondent from interfering with the water supply from the farm
Springbokpan to the farms occupied and leased by him; (b) spoliatory
relief restoring the water supply from the farm Springbokpan
to the
farms occupied and leased by him; as well as (c) a punitive cost
order. He now seeks leave to appeal to the Full Court of
the Northern
Cape Division against the whole of my judgment and order I delivered
on 28 March 2025 in which I dismissed the application
with costs on
scale C of
Rule 69(7).
The applicants contend that the appeal would
have a reasonable prospect of success as contemplated in
s
17(1)(a)(i)
of the
Superior Courts Act.
[2
]
The test whether to grant leave to appeal is trite, namely, if the
applicant
has satisfied the court that the appeal would have a
reasonable prospect of success or that there is some compelling
reason why
the appeal should be heard
[1]
.
Leave to appeal may also be granted if it will be in the interests of
justice to do so.
[3]
The respondent submitted that the application is moot and that leave
to
appeal should therefore be denied. I deal with the contention of
mootness as it may be dispositive of the matter. The spoliatory
relief sought by the applicant hinged on the lease agreement which
the respondent maintained would be terminated on 30 June 2025.
The
respondent contends that on this aspect alone the matter has become
moot and the application for leave to appeal should be
dismissed. The
respondent further argued in the heads that, post the date of 30 June
2025, the applicant will not be able to rely
on the lease agreement
for any right to occupy the land from which the use of water from
Springbokpan could form any alleged incidence
of the possession of
such land.
[4]
The parties’ mother is the lessor who had leased the farms to
her
three sons, two of whom are the present litigants. Her attorney,
Dr Hardus Van der Westhuizen, addressed the termination letter
to the
applicant and wrote a confirmatory affidavit to that effect. In his
replying affidavit the applicant only contended that
there was
neither a confirmatory affidavit by his mother as the lessor nor any
reference that he had instructed one Koorts to have
their matter
resolved amicably. This response by the applicant, however, only puts
form over substance and is misplaced.
[5]
Section 16(2)(a)(i)
of the
Superior Courts Act stipulates
:
‘
When
at the hearing of an appeal the issues are of such a nature that the
decision sought will have no practical effect or result,
the appeal
may be dismissed on this ground alone.’
[6]
The Constitutional Court in
Member
of the Executive Council for Cooperative Governance and Traditional
Affairs, Kwazulu-Natal v Nkandla Local Municipality and
Others
[2]
‘
I
will first deal with the respondents’ submissions on mootness
because if this matter is indeed moot, granting leave to appeal
will
serve no purpose.
Mootness
The
principles applicable to mootness are trite. Courts should not decide
matters that are abstract or academic and which do not
have any
practical effect, either on the parties before the court or the
public at large. The question is a positive one, namely
whether a
judgment or order of the court will have a practical effect and not
whether it will be of importance for a hypothetical
future case. A
matter is also moot and not justiciable if it no longer presents an
existing or live controversy. However, where
the interests of justice
so require, a court still has a discretion to determine a matter
despite its mootness. Several factors
are considered in order
to determine whether the interests of justice require that the matter
should be determined nonetheless.
Where there are two conflicting
judgments of different courts, especially where an appeal court’s
outcome has binding implications
for future matters, it weighs in
favour of granting leave to appeal and thereby entertaining a moot
matter. Another factor is the
nature and extent of the practical
effect that any possible order might have.’
See
also
POPCRU v SACOSWU
[2018]
ZACC 24
;
2019 (1) SA 73
(CC);
2018 (11) BCLR 1411
(CC) para 43.
[7]
In my view, this appeal has become moot and no longer presents an
existing
or live controversy. The interests of justice do not require
that it be entertained for the main reason that the lease agreement
between the applicant and his mother was terminated on 30 June 2025.
There is therefore no longer an existing or live controversy
between
the applicant and the respondent. Entertaining this matter further
would just be an academic exercise with no immediate
practical effect
or result. I deem it unnecessary to deal with the remainder of the
issues as the courts exist to determine concrete
legal disputes and
as this application has become moot the issues have become abstract.
There is further no compelling reason why
the appeal should be heard.
[8]
I am not persuaded of any cognisable prospects of success or
compelling
reasons that warrant the attention of the Full Court of
this Division. I am therefore satisfied that there are no reasonable
prospects
of a successful appeal. In the result application for leave
to appeal to the Full Bench of this Division, must fail. There is no
reason why costs should not follow the result.
[9]
In the result, the following order is made:
1.
The application for leave to appeal is
dismissed with costs on scale C of
Rule 69(7).
M.C. MAMOSEBO
JUDGE OF THE HIGH
COURT
NORTHERN CAPE DIVISION
For the Applicant:
Adv. N Jagga
Instructed by:
Kotzé Low &
Swanepoel Attorneys
c/o
Van de Wall Inc
For the Respondent:
Adv. JG Van Niekerk SC
Instructed by:
Dr. Hardus Van der
Westhuizen Inc
c/o
Haarhoffs Inc
[1]
Caratco
(Pty) Ltd v Independent Advisory (Pty) Ltd
2020 (5) SA 35
(SCA);
Mont Chevaux Trust v Goosen 2014 JDR 2325 (LCC); Ramakatsa and
Others v African National Congress and Another (724/2019)
[2021]
ZASCA 31
(31 March 2021).
[2]
2022
(8) BCLR 959
(CC);
[2021] ZACC 46
paras 15 and 16