REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG

CASE NO: 2025-013976
DATE: 31 October 2025
In the matter between:
NTSIKELELO KWEZI N O First Applicant
BULELWA JEANIE MKANGISA N O Second Applicant
SIBUSISO PETER-PAUL NGWENYA N O Third Applicant
and
ODWA BONGILE KUPISO Respondent
Neutral Citation: Kwezi N O and Others v Kupiso (2025-013976) [2025]
ZAGPJHC --- (31 October 2025)
Coram: Adams J
Heard on: 30 October 2025 – ‘virtually’ as a videoconference on Microsoft
Teams.
Delivered: 31 October 2025 – This judgment was handed down electronically
by circulation to the par ties' representatives by email , by being
uploaded to CaseLines and by release to SAFLII. The date and
time for hand-down is deemed to be 10:00 on 31 October 2025.

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Summary: Application for leave to appeal – s 17(1)(a)(i) of the Superior
Courts Act 10 of 2013 – an applicant now faces a higher and a more stringent
threshold –
Leave to appeal granted to the Full Court –

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ORDER
(1) The respondent’s application for leave to appeal succeeds.
(2) The respondent is granted leave to appeal to the Full Court of this
Division.
(3) The costs of this application for leave to appeal shall be costs in the
appeal.
JUDGMENT [APPLICATION FOR LEAVE TO APPEAL]
Adams J:
[1]. I shall refer to the parties as referred to in the original Urgent Application
by the applicants for inter alia an order that the respondent be declared to have
been in contempt of an order of this court dated 19 November 2024. The
respondent is the applicant in this application for leave to appeal and the first to
third respondents herein were the applicant s in the urgent application. On
17 February 2025 I granted the applicants ’ application and held that the
respondent was in contempt of the aforesaid order. I also granted a costs order
in favour of the applicants against the respondent.
[2]. The respondent applies for leave to appeal the whole of my judgment
and the aforesaid order of 17 February 2025, as well as the reasons therefor .
And the application for leave to appeal is based on the provisions of sub-section
(i), as well as sub -section (ii), of section 17(1)(a) of the Superior Courts Act 10
of 2013, which reads as follows: -
‘17 Leave to appeal
(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

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(ii) there is some other compelling reason why the appeal should be heard,
including conflicting judgments on the matter under consideration;’
[3]. The application for leave to appeal is against my factual and legal
findings that the applicants have satisfied the requirements to find contempt of
court on the part of the respondent. I erred, so the respondent contends, in
finding that communications supposedly from an entity by the name of
Masintinge Investments CC , were in fact from the respondent. I should have
drawn a distinction between the respondent, as a natural person , and
Masintinge Investments CC . This would have resulted in a finding, so the
contention is concluded, that the respondent was not the one who made himself
guilty of the conduct which clearly offended the 19 November 2024 order.
[4]. The respondent also contend s that I erred in finding that the application
was urgent. Moreover, the respondent submits that the contempt order was in
respect of a court order (dated 19 November 2024), which itself was unclear
and left room for uncertainty. The court a quo and its judgment, so the
respondent contends, failed to provide clarity as to which of impugned letters
were contemptuous. Further anomalies and contradictions in the judgment are
alleged by the respondent in his application for leave to appeal.
[5]. Importantly, it is submitted on behalf of the respondent that I misdirected
myself in inferring wilfulness and mala fides on the part of the respondent. I
erred in fact and in law, so the contention continues, in my finding that the
respondent had disguised his unlawful contemptuous actions as those of
Masintinge Investments and not his own actions.
[6]. Nothing new has been raised by the respondent in this application for
leave to appeal. In my original written judgment, I have dealt with most, if not all
of the issues raised by the respondent in this application for leave to appeal and

of the issues raised by the respondent in this application for leave to appeal and
it is not necessary for me to repeat those in full. Suffice to restate what I say in
the judgment, namely that factually the respondent has wilfully and mala fide
breached the court order, underpinned by an undertaking he gave to the

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applicants, in that he initiated and instigated processes which are detrimental to
the Trust. Moreover, the undisputed fact of the matter is that the respondent
divulged and used information – again to the detriment of the Trust – which
information he had obtained during his term as a trustee of the Trust and as a
director of the investee companies of the Trust
[7]. The traditional test in deciding whether leave to appeal should be
granted was whether there is a reasonable prospect that another court may
come to a different conclusion to that reached by me in my judgment. This
approach has now been codified in s 17(1)(a)(i) of the Superior Courts Act 10 of
2013, which came into operation on the 23 rd of August 2013, and which
provides 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’.
[8]. In Ramakatsa and Others v African National Congress and Another 1, the
SCA held that 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. These
prospects of success must not be remote, but there must exist a reasonable
chance of succeeding. An applicant who applies for leave to appeal must show
that there is a sound and rational basis for the conclusion that there are
prospects of success.
[9]. The ratio in Ramakatsa simply followed S v Smith 2012 (1) SACR 567
(SCA), [2011] ZASCA 15, in which Plasket AJA (Cloete JA and Maya JA
concurring), held as follows at para 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

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

1 Ramakatsa and Others v African National Congress and Another (724/2019) [2021] ZASCA 31 (31
March 2021);

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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.’
[10]. In Mont Chevaux Trust v Tina Goosen 2, the Land Claims Court held (in
an obiter dictum) that the wording of this subsection raised the bar of the test
that now has to be applied to the merits of the proposed appeal before leave
should be granted. I agree with that view, which has also now been endorsed
by the SCA in an unreported judgment in Notshokovu v S 3. In that matter the
SCA remarked that an appellant now faces a higher and a more stringent
threshold, in terms of the Superior Court Act 10 of 2013 compared to that under
the provisions of the repealed Supreme Court Act 59 of 1959. The applicable
legal principle as enunciated in Mont Chevaux has also now been endorsed by
the Full Court of the Gauteng Division of the High Court in Pretoria in Acting
National Director of Public Prosecutions and Others v Democratic Alliance In
Re: Democratic Alliance v Acting National Director of Public Prosecutions and
Others4.
[11]. I am persuaded that the issues raised by the respondent in his
application for leave to appeal are issues in respect of which another court is
likely to reach conclusions different to those reached by me. I am therefore of
the view that there are reasonable prospects of another court making factual
findings and coming to legal conclusions at variance with my factual findings
and legal conclusions. The appeal, therefore, in my view, does have a
reasonable prospect of success.
[12]. Leave to appeal should therefore be granted.
[13]. There is one last issue which I believe I need to deal with and that relates
to a legal point in limine which was raised on behalf of the respondent at the

2 Mont Chevaux Trust v Tina Goosen, LCC 14R/2014 (unreported).
3 Notshokovu v S, case no: 157/2015 [2016] ZASCA 112 (7 September 2016).

3 Notshokovu v S, case no: 157/2015 [2016] ZASCA 112 (7 September 2016).
4 Acting National Director of Public Prosecutions and Others v Democratic Alliance In Re: Democratic
Alliance v Acting National Director of Public Prosecutions and Others (19577/09) [2016] ZAGPPHC
489 (24 June 2016).

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hearing of the application for leave to appeal. The legal point relates to Uniform
Rule of Court 7(1), the respondent alleging that the first to the third respondents
are at present not empowered to instruct, in their capacities as Trustees for the
time being of a Trust, the legal representatives of the Trust. The applicants were
suspended by an order of this court dated 22 April 2025.
[14]. That interim order provides in the relevant part as follows: -
‘Insofar as may be necessary, the first, second and third [applicants’] powers of
trusteeship are hereby suspended forthwith and with immediate effect, with the first,
second, and third [applicants] being interdicted and restrained forthwith from taking any
steps to encumber, alienate, and/or dispose assets of the Peaker trust assets
(including the assets of fifth respondent and the sixth respondent) and from taking any
administrative action in any way whatsoever, including but not limited to the calling of
trustees meetings and the taking of any steps in the furtherance of terminating the
Peaker trust, and they are directed to return their letters of executorship;’
[15]. In view of this suspension order, the respondent contends that the
applicants’ legal representatives lack the necessary authority to continue acting
herein on behalf of the applicants. The application for leave to appeal should
therefore be stayed, so the respondent argues.
[16]. There are two difficulties with this contention on behalf of the respondent.
The first one is that, even in the event of the applicants being absent from the
hearing of the application for leave to appeal, this court would still be required to
adjudicate the application. There would therefore be no need to stay the
application for leave to appeal.
[17]. Secondly, and importantly, the applicants, although their powers have
been suspended, retain a residual capacity to continue dealing with this matter
in view of the fact that it is in the middle of litigation processes. I come to this

in view of the fact that it is in the middle of litigation processes. I come to this
conclusion on the basis of the authority in Absa Bank Ltd v Rhebokskloof (Pty)
Ltd and Others5, in which it was held as follows: -

5 Absa Bank Ltd v Rhebokskloof (Pty) Ltd and Others 1993 (4) SA 436 (C); 1993 (2) All SA 534 (C) p537.

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‘To hold that after the granting of a provisional liquidation order the directors of the
company which has been provisionally liquidated, by virtue of such order, have lost
their locus standi in iudicio to oppose the granting of a final order would fly in the face
of the very object and purpose of the rule nisi and it would, therefore, be quite wrong to
emasculate such object and purpose by finding that the directors have lost their
residual power to show cause why the company should not be would up, for that matter
to anticipate the return day of the rule nisi. It would be quite ludicrous to hold that a
director, or a company acting through its directors, is not an interested party when it
comes to deciding whether it and/or they have the right to be heard on the return day of
the rule nisi.’ (Emphasis added)
[18]. It was for all of the aforegoing reasons that I had dismissed, with costs,
the respondent’s Rule 7(1) point in limine. I was satisfied, as envisaged by rule
7(1), that the applicants’ legal representatives are authorised to act herein on
behalf of the applicants.
Order
[19]. In the circumstances, the following order is made:
(1) The respondent’s application for leave to appeal succeeds.
(2) The respondent is granted leave to appeal to the Full Court of this
Division.
(3) The costs of this application for leave to appeal shall be costs in the
appeal.
________________________ ____
L R ADAMS
Judge of the High Court
Gauteng Division, Johannesburg

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HEARD ON: 30 October 2025 – ‘virtually’ as a
videoconference on Microsoft Teams
JUDGMENT DATE: 31 October 2025 – Judgment handed
down electronically
FOR THE APPLICANTS: S Mahlangu
INSTRUCTED BY: Mdyesha Ndema Attorneys Inc,
Fourways, Randburg
FOR THE RESPONDENT: T Mpumlwana
INSTRUCTED BY: T Mpumlwana & Associates,
Morningside, Durban