SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in
compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO.: 033476/2023
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: [N]
(3) REVISED: [N]
(4) Signature:
Date:
In the matter between:
EFFIA PAULINA NGOASHENG Applicant
and
THE MASTER OF THE HIGH COURT, PRETORIA First Respondent
THE REGISTRAR OF DEEDS, PRETORIA Second Respondent
THE EXECUTOR, LATE ESTATE PAULINA NGOASHENG
013400/2021 Third Respondent
JUDGMENT
Kumalo J
[1]. The Applicant in this matter applied for leave to appeal the judgment of this
court, which was delivered on 05 June 2025.
[2]. The Applicant in the present application has sought to appeal essentially the
whole of the judgment handed down electronically on 05 June 2025.
[3]. The application concerned the immovable property bequeathed to Ms. Portia
Manthuseng Magagula because of the last will of Paulina Ngoasheng.
[4]. The third respondent has been appointed as the executor in the Estate Late of
Paulina Ngoasheng 013400/2021 . The third respondent, the Executor of the
Late Estate Paulina Ngoasheng, opposes the application.
[5]. The Applicant, inter alia, challenged the validity of the afore -said disposition on
the basis that Mr. Paul Ngoasheng (the Applicant's father) was the holder of the
occupational rights over property ERF 5[...] in Mamelodi Township.
[6]. After the death of Mr. P. Ngoasheng, the occupational rights to ERF 5[...] were
allegedly transferred to Mamabolo John Ngoasheng, the eldest eligible
occupational right holder, who died in 1991 . Mr. M.J. Ngoasheng’s first wife
passed away, which resulted in the surrender of property ERF 5[...] and the
acquisition of ERF 8[...].
[7]. This is, in essence, the basis for the “exchange” of the properties above. This
resulted in the transfer of the occupational rights from ERF 5[...] to ERF 8[...] to
Mr. M.J. Ngoasheng.
[8]. Mr. M.J. N goasheng was married in community of property to Paulina
Ngoasheng (herein after “the deceased”) at the time when he passed away.
[9]. Paulina Ngoasheng then , in 1991, made the application and acquired
Leasehold rights over ERF 8[...]. The Certificate of Registered Grant of
Leasehold confirms this.
[10]. Upon the death of Paulina Ngoasheng, Ms. Ngoasheng bequeathed in her will
ERF 8[...] to her daughter, Ms. Magagula. The Applicant alleges that the
property ought to have devolved as per the law of succession , and on this basis
that the will is invalid and, as a result, the Letters of Executorship should be
withdrawn. In response, Third Respondent submit ted that any alleged personal
right(s), which the remaining siblings of Mr. M.J. Ngoasheng may have acquired
in ERF 5[...] and/or ERF 8[...], do not override the real right, which Paulina
Ngoasheng acquired when the property was registered as a Grant of
Leasehold.
GROUNDS FOR APPEAL – ORDER OF 5 JUNE 2025:
[11]. The grounds for the appeal are based on the following findings of fact and
rulings of law: the Applicant contends that the court failed to develop customary
law in terms of Section 37 of the Constitution.
[12]. A system of inheritance that prioritizes the well -being of the family and
community, often emphasizing the perpetuation of the family line and the
responsibility of the heir to care for dependents , is a system rooted in tradition
and varies among different cultural groups, but generally involves the eldest
male relative inheriting the deceased's position and property, with the duty to
maintain the family. In terms of customary succession, therefore , there was
such an agreement.
[13]. It is alleged that the court erred by elevating customary law over common law
and Dutch law, and by considering the laws that existed at that time.
[14]. It is further contended that the court misdirected itself in effectively limiting itself
and ignoring the values of the Constitution.
[15]. The court erred further in considering the movement from the ERF 5[...] to ERF
8[...] and had misdirected itself in awarding costs against the applicant . The
court did not properly exercise its discretion in awarding costs, considering the
nature of the litigants and the proceedings.
CONDONATION OF THE APPLICATION FOR LEAVE TO APPEAL
[16]. The Respondent raised a point in limine concerning the fact that the Applicant’s
application for leave to appeal is late and no application for condonation was
served and/filed for the Court’s consideration.
[17]. An application for leave to appeal in the High Court of South Africa is governed
by Uniform Rule 49 and section 17 of the Superior Courts Act 10 of 2013. To
succeed, the Applicant must demonstrate a reasonable prospect of success on
appeal or that there is some other compelling reason why the appeal should be
heard.
[18]. Leave to appeal is governed by section 17(1) of the Superior Courts Act 10 of
2013. The section provides that: “(1) Leave to appeal may only be given where
the judge or judges concerned believe 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.
[19]. In the matter of M.S.H v J.S.H - Application for Leave to Appeal (8470/2021)
[2023] ZAWCHC 345 (14 September 2023) , the Court held in paragraph 4
thereof that –
“[4] Prior to the Act coming into force, the test in an application for leave to
appeal was whether there were reasonable prospects that another court may
come to a different conclusion. Much debate has ensued as to whether s 17(1)
imposes a more stringent and onerous test before leave to appeal can be
granted. I am of the view that it is now authoritatively established that the
position remains that if there is a reasonable prospect of success, leave to
appeal should be granted. The different views and findings in this regard, in my
view, essentially are now moot in light of the finding in Ramakatsa and Others v
African National Congress and Another.”
[20]. In the Ramakatsa [2021] JOL 49993 (SCA) March 2021 matter in interpreting
the section, the SCA held at paragraph 10 thereof 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 conclude different from 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.
[21]. Uniform Rule 49 governs Civil appeals from the High Court, more specifically ,
subsection 49(b) states the following;
“(b) When leave to appeal is required, it may , on a statement of the grounds
therefore, be requested at the time of the judgment or order. When leave to
appeal is required and it has not been requested at the time of the judgment or
order, application for such leave shall be made and the grounds therefor shall
be furnished within 15 days after the date of the order appealed against:
Provided that when the reasons or the full reasons for the court’s order are
given on a later date than the date of the order, such application may be made
within 15 days after such later date: Provided further that the court may, upon
good cause shown, extend the aforementioned periods of 15 days.”
[22]. The judgment was handed down electronically on 5 June 2025. The application
for leave to appeal, dated 13 August 2025 , was served on the Third
Respondent on 14 August 2025, approximately 49 days after the judgment was
handed down, the dies having expired on 27 June 2025.
[23]. The Applicant is 34 days late in launching the present application, with no
explanation. The Applicant has n either addressed the condonation of the late
filing of the leave to appeal at all, nor is there any request for condonation for
the Court to consider.
[24]. It is trite that condonation is not there for the taking , and any such request is to
be made on application, where no such application is served before the Court
for its consideration.
[25]. Rule 27 of the Uniform Rules of Court deals with condonation of the
noncompliance with the Rules and time periods in respect thereof and states
the following:-
“(1) …
(2) …
(3) The court may, on good cause shown, condone any non -compliance with
these Rules.”
[26]. In the matter of Smith, N.O. vs Brummer, N.O. and another, the Brink J, dealing
with what constitutes good cause, said the following:
“In an Application for removal of bar, the Court has a wide discretion which it will
exercise in accordance with the circumstances of each case. The tendency of
the Court is to grant such an application where: (a) the applicant has given a
reasonable explanation of his delay; (b) the application is bona fide and not
made with the object of delaying the opposite party’s claim; (c) there has not
been a reckless or intentional disregard of the Rules of Court; (d) the applicant’s
action is clearly not ill -founded, and (e) any prejudice caused to the opposite
party could be compensated for by an appropriate order as to costs; The
absence of one or more of these circumstances might result in the application
being refused”. 1
[27]. In the matter of Ford v Groenewald 1977 (4) SA 225 (TPD), Nestadt J in
summary said the following about what constitutes good cause:
“Where application is made in terms of Rule of Court 27 for the removal of bar,
the Applicant who approaches the Court for such indulgence must give a
reasonable explanation under Oath for his ignoring the Rule of Court and his
affidavit must show a bona fide defence: the defence need not be set out in
detail. It is sufficient if it is set out shortly.”
[28]. Although the above dicta dealt with applications for removal of a bar, I am of the
view that they are equally applicable to applications for condonation for failure
to comply with time limits. In the present instance , the applicant has set out no
facts regarding the delay; thus, there is simply no application/explanation before
the Court for the Court to consider.
[29]. In light of the fact that there is no application for condonation for the late filing of
the application for leave to appeal for this court to consider, the Respondent’s
point in limine is upheld.
[30]. The following order is made:
1. The Applicant’s application for leave to appeal is dismissed; and
2. The Applicant is ordered to pay the costs of this application on a party and
party scale “B”.
1 Smith NO v Brummer NO 1954 (3) SA 352 (O) at 357H - 358C High Court motion Procedure: A
Practical Guide: Joffe, Neukircher, Fourie, Haupt at 1 – 39. 3.12.
MP Kumalo
Judge of the High Court, Pretoria
Delivered: This judgment is handed down electronically by uploading it to the electronic file
of this matter on CaseLines.
For the applicant: Adv MC Lestoalo III
Instructed by: LA Mmela Attorneys
For the third respondent: Adv CB Ellis
Instructed by: Gildenhuys Malatji Inc