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IN THE HIGH COURT OF SOUTH AFRICA
(NORTHERN CAPE DIVISION, KIMBERLEY)
Case no: 3/2025
Reportable: YES / NO
Circulate to Judges: YES / NO
Circulate to Regional Magistrates: YES / NO
Circulate to Magistrates: YES / NO
In the matter between:
MABHEKANE TRADING CC Applicant
and
KOOPMANSFONTEIN COMMUNAL
PROPERTY ASSOCIATION First Respondent
UNIDENTIFIED MEMBERS OF THE
KOOPMANSFONTEIN COMMUNAL
PROPERTY ASSOCIATION Second Respondent
Coram: MAMOSEBO J
Heard: 10/09/2025.
Delivered: 31/10/2025.
Summary: Application for leave to appeal – Reliance on s 17(1)(a)(i) of the
Superior Courts Act 10 of 2013 – Whether the envisaged appeal has reasonable
prospects of success – Whether the interests of justice warrant granting leave –
Interim interdict initially granted but rule nisi discharged on the return date as
requirements for a final interdict were not met – There is no merit for the appeal
to be heard.
ORDER
1. The application for leave to appeal is dismissed with costs.
JUDGMENT: APPLICATION FOR LEAVE TO APPEAL
Mamosebo J
[1] On 07 January 2025 , Stanton J granted an interim interdict in favour of
the applicant, Mabhekane Trading CC, in the form of a rule nisi calling
upon the respondents, Koopmansfontein Communal Property
Association and its unidentified members, to show cause on the
specified return date why the interim interdict should not be made final.
[2] On the return day, 07 February 2025, the matter was argued and the
rule nisi issued out of this court on 07 January 2025 was discharged on
16 May 2025. The applicant seems to move from a premise that I ought
to have ordered it to issue summons on a specific day , failing which, the
respondent could approach the court for further relief. The argument is
that, the failure to issue such an order , rendered the adjudication of that
action moot, thereby shutting the door in the applicant’s face to have its
dispute adjudicated by a court.
[3] The applicant now seeks leave to appeal to the Full Court of the
Northern Cape Division , alternatively, to the Supreme Court of Appeal ,
against the whole of my order and judgment handed down on 16 May
2025. The applicant relies on section 17(1)( a)(i) of the Superior Courts
Act1 and submits that its application would have reasonable prospects of
success. The application is opposed only by the first respondent.
[4] This is what was contained in the Notice of Motion before Stanton J
when the interim relief was sought on an urgent basis:
‘Kindly take notice that the applicant intends to approach this
Honourable Court on Tuesday, 7 January 2025 at 14:00, or soon
thereafter as counsel for the applicant may be heard for an order in the
following terms:
1. That the applicant’s non -compliance with the form and service
prescribed in the Uniform Rules of Court is condoned and the
application is heard on an urgent basis.
2. That this order is returnable on 7 February 2025 to the unopposed
motion court roll.
3. That pending a further order in the action proceedings
contemplated by the applicant, a rule nisi is issued calling upon the
respondents to show cause, if any, on the return day, why the
order restraining and interdicting the respondents from unlawfully
evicting the applicant and threatening, intimidating and disturbing
the operations of the applicant at Portion […] (A portion of Portion
[…]) of the farm K[...]-B[...] W[...] Rd, Koopmansfontein
Sentrum/Filling Station/ (Farmhouse […], Koopmansfontein,
Northern Cape, 8391) should not be confirmed.
4. That order 3 serve as an interim interdict with immediate effect.
5. That the respondents are granted leave to anticipate the return
date for the purposes of discharging or varying the interim order on
not less than 24 hours’ notice of such application to the applicant.
6. That the first respondent and any other party opposing the granting
of the relief herein sought, pay the costs of this application on
taxed Scale C, the one paying the other to be absolved.’
1 10 of 2013.
It is important to note, contrary to the applicant’s submissions , that
Stanton J made no findings, the order was granted as drafted and as
sought by the applicant.
[5] It is trite that leave to appeal may only be given where the judge or
judges concerned are of the opinion that (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. 2 The operative word in the former
provision is ‘would’ which demands a measure of certainty that another
court will differ from the court whose judgment is sought to be appealed
against.3 Leave can also be granted where the interests of justice so
demand, as this may constitute a compelling reason for the appeal to be
heard.4
[6] In the first ground of appeal, Mr Mongala, for the applicant, submitted
that the Stanton J order, which he contends needs no interpretation,
called upon the respondents to show cause on the return date why they
should not be prevented from committing certain acts, including
intimidating and threatening the applicant, pending the determination of
their rights in the action proceedings. I disagree with this submission.
The order call ed upon the respondents to show cause, if any, why the
interim order should not be made final.
[7] Regard being had to the introductory sentence in order 3 in particular;
‘… pending a further order in the action proceedings contemplated by
the applicant’, a few issues become apparent. First, the order sought an
interim interdict to restore the status quo, pending action proceedings
that were in fact not pending as they had not yet been instituted.
Second, the same order also subjected the sought interim interdict to a
2 Section 17(1)( a) of the Superior Courts Act 10 of 2013. See also Caratco (Pty) Ltd v Independent
Advisory (Pty) Ltd 2020 (5) SA 35 (SCA) para 2.
Advisory (Pty) Ltd 2020 (5) SA 35 (SCA) para 2.
3 Mont Chevaux Trust v Goosen and Others (LCC 14R/2014) [2014] ZALCC 20 (03 November 2014);
2014 JDR 2325 (LCC) para 6.
4 Ramakatsa and Others v African National Congress and Another (724/2019) [2021] ZASCA 31 (31
March 2021) para 10.
rule nisi, calling upon the respondents to show cause why the interim
interdict should not be made final. The latter in essence is an order
seeking a final interdict. Accordingly, upon the return date of the rule
nisi, a clear right and not merely a prima facie right, had to be
established.
[8] The problem in the order sought is in the fact that, the granting of a final
interdict necessitates the establishment of the existence of a clear right;
which the applicant sought to establish in its contemplated action
proceedings only after the granting of a final interdict. That the applicant
failed to acknowledge and avoid this problem by inter alia , instituting
action proceedings with Part A (urgent , seeking to restore the status
quo) and Part B (normal , seeking the final determination of rights ),
cannot be imputed to this Court.
[9] In light of the above, the applicant’s reliance on Van Rooyen and
Another v Simms and Others 5 (“van Rooyen ”) is misplace d. I n Van
Rooyen, action proceedings were in fact pending before court at the
time when a final interdict , albeit couched as an interim interdict , was
sought.6 The judge was not called upon to grant an interdict awaiting
action proceedings that were in fact merely contemplated. Nonetheless
and most importantly, Windell J still refused to grant the order sought
and held that:
‘A court has a discretion in the granting of an interim interdict to be
exercised judicially, of which one of the factors is the applicant’s
prospects of success in the main action. Therefore, it would not be
competent to grant an interdict pendite lite in these circumstances, as
there is no point at which a court will determine the ultimate right . . . .
Consequently, the application for an interim interdict must fail.’7
5 (2022/9719) [2024] ZAGPJHC 1307 (27 December 2024).
6 Ibid paras 1, 3 and 7.
7 Ibid para 15.
[10] What is similar between Van Rooyen and the applicant’s case is that,
the applicant sought to have this Court grant a final interdict, without
determining the parties’ rights. Having established that the parties’ rights
would not be determined in the same proceedings and that the order
sought would not be pendite lite, the learned judge in Van Rooyen held
that:
‘In reality, the applicants are currently seeking a final interdict . There is
however a clear factual dispute between the parties regarding the terms
and breaches of the oral agreement, and the applicants have not
demonstrated a clear right.’8 (My emphasis.)
[11] Accordingly, it is incomprehensible how the applicant expected the court
to grant final interdict ory relief without considering whether the
requirements for a final interdict were met or not. The court would be in
a position to do so by considering the papers before it and the argument
presented. The main judgment has considered the relevant authorities
pertaining to interim and final interdicts and the applicant did not satisfy
the requirements for the rule nisi to be confirmed. Having made the
determinations in the main judgment does not shut the court’s doors
against the applicant because it may seek this Court ’s leave to appeal,
as it has done, or petition the Supreme Court of Appeal (SCA) having
received this judgment. The applicant simply has to do so on grounds
that bear reasonable prospects of success.
[12] Further, the applicant seems to have focused on the court’s reasoning
as a basis for attacking the judgment and to seek leave. In South
African Reserve Bank v Khumalo and Another9 the SCA cautioned:
‘An appeal lies against an order that is made by a court and not against
its reasons for making the order. It follows that on appeal a respondent
is entitled to support the order on any relevant ground and is not
8 Ibid para 16.
9 2010 (5) SA 449 (SCA) para 4.
confined to supporting it only for the reasons given by the court below.
In this court the respondent did not seek to support the order on any
ground other than that, given by the court below, which was that the
regulation under which it was made did not conform to the authorising
statute and was thus invalid, subject to one subsidiary issue that I will
come to. This means that the principal issue on which the appeal turns
is whether the full bench was correct in its conclusion on the invalidity of
reg 22C(1) for the reasons that it gave. If the respondent fails on that
issue and on the subsidiary issue that I referred to, then the order that it
made falls to be set aside, and the challenge to the validity of the order
falls to be dismissed. The remainder of the notice of motion did no more
than foreshadow a review application that was yet to be brought and
need not concern us.’
What was before me was whether the first respondent has shown
cause, as called upon, for the rule to be confirmed or discharged in line
with order 5 of the Stanton J order. The interdictory relief was before
me. The action still to be brought was not before me and was not and
need not concern me.
[13] I therefore find that the grounds of appeal are without merit, and the
appeal would have no reasonable prospects of success. The applicant
has neither shown any compelling reason nor argued that the interests
of justice demand that the appeal be heard.
[14] The applicant claims that I misdiagnosed what was before me. The
Constitutional Court in Vodacom (Pty) Ltd v Makate and Another 10
issued the following warning:
‘Justice and, indeed, the court processes are not about perfection;
courts are not to be held “to some abstract standard of perfection”.’11
10 (CCT 51/24) [2025] ZACC 13; 2025 (10) BCLR 1174 (CC) (31 July 2025).
11 Ibid para 43.
. . .
‘Of critical importance is that “there is no duty on a judge in giving . . .
reasons to deal with every argument presented by counsel in support of
[their] case”. I say of “critical importance” because some litigants may
find this statement of the law attractive for nitpickingly arguing that a
court’s judgment failed to deal with this or that point and that, therefore,
there was a breach of the right to a fair hearing. Let them be warned
that they will not succeed. That is not what this statement of the law is
about. It is about the substance of a judgment viewed holistically. So
viewed, does the judgment tell a reasonable, if not discerning, reader
that there was compliance with the duty of proper consideration? In that
regard, it is enough if the judgment identifies the issues that were vital to
the determination of the matter and then shows how they were
determined. One or two issues may not necessarily be critical for that
holistic look at the substance of the judgment.’12
[15] I have carefully considered the Notice of Application for leave to appeal
and the grounds listed therein where the applicant contends that
another court would find the existence of reasonable prospects of
success and compelling reasons for the appeal to be heard. I have also
considered both the written and oral submissions by counsel. I am
unpersuaded by the applicant’s submissions. There are, in my view, no
cognisable prospects of success nor compelling reasons that warrant
the attention of the Full Court of this Division or the Supreme Court of
Appeal. In the result, the application for leave to appeal must fail. There
is no reason why costs should not follow the result.
ORDER
1. The application for leave to appeal is dismissed with costs.
_____________
12 Ibid para 57.
MAMOSEBO J
JUDGE OF THE HIGH COURT
NORTHERN CAPE DIVISION, KIMBERLEY
Appearances
For the applicant: Adv J Mongala
Instructed by: Chande Booysen Attorneys
For the first respondent: Mr C Kgotlagomang
Instructed by: Towell & Groenwaldt Attorneys