1
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
LIMPOPO DIVISION, POLOKWANE
(1)
(2)
(3)
REPORTABLE: NO
OF INTEREST TO THE JUDG
REVISED.
DATE 01 October 2025
In the matter between:
LEDWABA LESIBA JACK
(Registration Number: 1984/080048/06)
and
KONANANIKHOHOMELA
ALL OTHER UNLAWFUL OCCUPIERS HOLDING.
CASE NO: 5703/2024
APPLICANT
1 ST RESPONDANT
2ND RESPONDENT
OCCUPATION AGAINST THE FIRST RESPONDENT
THULAMELA LOCAL MUNICIPALITY 3RD RESPONDENT
MOGALE-MAKINT A, AJ
INTRODUCTION
2
JUDGEMENT
1. This is an opposed application for leave to appeal judgment and order of this
court dated 20 June 2024.
2. The matter was brought in terms of Rule 6(12) of the Uniform Rules of Court,
and the court made a finding that the matter was urgent and that an applicant
would not be afforded substantial redress in due course.
3. The court considered the matter and dismissed the application with costs.
4. The application for leave to appeal was filed on 03 July 2024. This application
is brought in terms of section 17(1)(a) and (ii), of the Superior Court Act 10 of
2013, to wit, that the appeal would have a reasonable prospect of success
and/ or there are some compelling reasons why the appeal should be heard.
5. The applicant raised a preliminary issue as ground for appeal, specifically
asserting that the court committed errors in fact and /or law in the following:
5.1. The court a quo did not apply its discretion judicially.
3
5.2. The court erred in considering the first respondent's arguments on the
question of law from the bar without service of a notice in terms of Rule 6
(5)(d)(iii).
5.3. The court erred in finding that the applicant's relief sought in the notice of
motion is not competent in law and therefore not enforceable.
6. The applicant further argued that there is a reasonable likelihood that the
appeal court will find that the court a quo erred in its finding as follows:
6.1. That the court a quo misdirected itself to facts on the case as the
Elections Tribunal did not hold the elections, and that the outcome of the
objection was not supposed to have been communicated by the fourth
respondent, but the assigned officials to the elections in terms of regulation
14(2).
6.2. The appeal court may find that the court a quo misdirected itself to the
facts of the case, as alluded to in paragraph 10 of the judgment. In contrast,
the application had nothing to do with unlawful occupation and/ or eviction.
7. The respondent opposed the application in the sense that the applicant filed a
comprehensive notice to oppose and participate in the matter, including factual
and legal disputes; therefore, the respondent did not only raise questions of
law as contemplated in Rule 6(5)(d)(iii).
8. The respondent contends that the court was correct in finding that the relief
sought was premature, incompetent, and not enforceable; the application for
review could not be entertained.
4
9. The applicant's failure to bring a proper interim interdict pending a review, and
instead seeking wide-ranging relief, undermines their own case.
10. The erroneous insertion of paragraph 10 in the judgment does not affect the
conclusion reached by the court.
11. The applicant cited the matter of Minister of Water and Environment Affairs
and Kloof Conservation 1, where reference was made to the case of Rail
Commuters Action Group & Others v Transnet Ltd Va Metrorail & Others2
which held that "it is quite clear that before it makes a declaratory order a court
must consider all the relevant circumstances. A declaratory order is a flexible
remedy which can assist in clarifying legal and constitutional obligations in a
manner which promotes the protection and enforcement of our Constitution
and its values. Declaratory order, of course, may be accompanied by other
forms of relief, such as mandatory or prohibitory orders, but they may also
stand on their own. In considering whether it is desirable to order mandatory or
prohibitory relief in addition to the declaratory, a court will consider all the
relevant circumstances"
12. The application for leave to appeal is regulated bys 17(1)(a) (i) and (ii) of the
Act, which states 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
1 106/2025 [2015] ZASCA 177 (27 No vembe r 2015) at para 23
2 2005(2) SA 359 (CC) para 107-108
5
(ii) There are some other compelling reasons why the appeal should be heard,
including conflicting judgments on the matter under consideration.
13. It is apparent that our courts have consistently applied the test on whether
leave to appeal should be granted or not. The liberal approach to granting
leave by courts is discouraged as inconsistent with s17 of the Act. For
instance, in Mothule Inc Attorneys v The Law Society of the Northern
Provinces and Another3, the Supreme Court of Appeal stated as follows
regarding the trial court's liberal approach to granting leave to appeal.
"It is important to mention my dissatisfaction with the court a quo's granting of
leave to appeal to this court. The test is whether there are any reasonable
prospects of success."
14. During this application, I considered the submissions presented by both
counsels, their arguments' primary points, and the rationale in the court
judgment, which constitutes the main contention of the application. I am
persuaded that an appeal would have reasonable prospects of success.
Therefore, I believe that leave to appeal should be granted.
As a result, the following order is made:
a. The applicant is granted leave to appeal to the full bench of the Limpopo
Division of the High Court, Polokwane.
b. The costs of the application for leave to appeal will be costs in the appeal.
3 9213/160 [2017] ZASCA 17 (22 MARCH 2017)
Electronically submitted.
ACTING JUDGE OF THE HIGH COURT,
LIMPOPO DIVISION,
POLOKWANE
Delivered: This judgment was prepared and authored by the judges whose names are
reflected and handed down electronically by circulation to the parties/their legal
representatives by email. The date for hand-down is deemed to be 01 October 2025
DATE OF HEARING : 29 September 2025
DATE OF JUDGMENT: 01 October 2025
APPEARANCES
FOR THE APLICANT : Mr Moitse
INSTRUCTED BY : Moitse and Associates INC
FOR THE DEFENDANT : Advocate Nyathi
INSTRUCTED BY : Moabelo Attorneys
DATE OF HEARING : 29 September 2025
DATE OF JUDGMENT : 30 September 2025
1