REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
LIMPOPO DIVISION, POLOKWANE
(1)
(2)
(3)
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OF IN TE RE ST TO THE JUDGES: ¥€:&/N O
R EVISED.
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DA TE 12 No vemb er 2025 SIGNATUR E ......................... .
In the m atter between:
MATLI LESIBA LUCAS
SEKOBONYANEABELSONNYBOY
MOTLHAKE PHILLIP
-and-
INTERNATIONAL PENTECOST HOLINESS
CHURCH (THABAZIMBI BRANCH)
MINISTER OF POLICE
CASE NUMBER: 3124/2025
1sr APPLICANT 11sr RESPONDENT
IN MAIN APPLI C ATION
2ND APPLICANT / 2 No RESPONDENT
IN MAIN APPLICATION
3RD APPLICANT / 3R o RESPONDENT
IN MAIN APPLICATION
1sr RESPONDENT / APPLI C ANT IN
MAIN APPLI C ATION
2N D RESPONDE N T
2
STATION COMMANDER (THABAZIMBI POLICE
STATION
3RD RESPONDENT
FREDERICK LEONARD MODISE 4TH RESPONDENT
Delivered
Date heard
Coram
BRESLER AJ:
Introduction:
12 November 2025
This judgment was handed down electronically by circulation to
the parties' legal representatives by e-mail. The date and time
for hand down of the judgment is deemed to be 12 November
2025 at 10:00 am.
5 November 2025
Bresler AJ
JUDGMENT
(LEAVE TO APPEAL)
[1] The Applicants (1 st to 3rd Respondents in the Main Application) applies for Leave to
Appeal against the judgment and order handed down by this Court on the 25th of
September 2025 (and consequently the revised judgment handed down on the 2nd
of October 2025) in terms whereof the 1 st Respondent (Applicant in the Main
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Application)'s spoliation application was granted with ancillary relief. The grounds
as per the Application for Leave to Appeal are briefly the following:
1.1 The Court erred in finding that the deponent to the Founding affidavit had
the requisite authority to represent the 1 st Respondent having
acknowledged that there are factions within the 1 st Respondent and that the
factions respectively contest the authority of individuals premised on this
internal conflict.
1.2 The Court erred in failing to appreciate that this dispute between the factions
are /is pendens and the spoliation application cannot be determined until
such time as the prevailing dispute has been resolved.
1.3 The Court consequently erred in finding that the P 1 Respondent was in
peaceful and undisturbed possession having regard to this prevailing
dispute.
[2] During the hearing of the matter, counsel for the Applicants also argued that it was
not the Applicants that spoliated the 1st Respondent - it was the SAPS . The Court
thus erroneously accepted that the Applicants are to blame for the course of events.
This aspect will be addressed herein after.
Applicable legal principles:
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[3] An application for leave to appeal is governed by section 17(1) of the Superior
Courts Act, Act 10 of 2013 which provides:
'17 Leave to appeal
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
(ii) there is some other compelling reason why the appeal should be heard including
conflicting judgments on the matter under consideration,
(b) the decision sought on appeal does not fall within the ambit of section 16 (2) (a),
and
(c) where the decision sought to be appealed does not dispose of all the issues in
the case, the appeal would lead to a just and prompt resolution of the real issues
between the parties.'
[4] In MEC Health, Eastern Cape v Mkhitha1 the Supreme Court of Appeal said the
following (reference to other authorities omitted):
'[16] Once again it is necessary to say that leave to appeal, especially to this
court, must not be granted unless there truly is a reasonable prospect of
success. Section 17(1 )(a) of the Superior Courts Act 10 of 2013 makes it clear
1 MEC Health, Eastern Cape v Mkhitha (1221/15) [2016] ZASCA 176 (25 November 2016 )
5
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; or there
is some other compelling reason why it should be heard.
[17] An applicant for leave to appeal must convince the court on proper
grounds that there is a reasonable prospect or realistic chance of success on
appeal. A mere possibility of success, an arguable case or one that is not
hopeless, is not enough. There must be a sound, rational basis to conclude
that there is a reasonable prospect of success on appeal. "
[5] As to the finding that the deponent to the Founding affidavit has the required
authority to represent the 1 st Respondent, I already provided substantial reasons in
my ex tempore judgment as to why this objection was not upheld. It is common
cause that there are factions in the 1 st Respondent. This does not mean that neither
one of the factions can prevail themselves of the remedy of spoliation in
circumstances such as transpired in casu. I therefore specifically found that having
regard to the merits of this matter, I have no doubt that the deponent represented
the faction that was spoliated.
[6] As previously stated, the Applicant argued at length that the papers before court
clearly showed that it was not the Applicants that spoliated the 1 st Respondent but
rather the SAPS. First and foremost, it bears mention that this was not raised as a
ground of appeal in the Application for Leave to Appeal. It therefore need not be
considered as a formal ground of appeal. The Court merely entertained the
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argument on the basis that counsel submitted that this may constitute a compelling
reason why the appeal should be heard.
[7] Even if I am wrong not to formally entertain this issue, I am of the view that it does
not predicate any prospect of success on appeal, nor does it constitute a compelling
reason for the appeal to be heard. Parties must stand and fall by what was submitted
in their affidavits filed on record. The Applicants, by implication, admitted that they
were the instrumental in taking the keys from the representative of the 1 st
Respondent. It might have been with the assistance of the SAPS , but it was at their
behest that possession was given to them.
[8] Leave to appeal can consequently not be granted as the Court is not convinced that
the appeal has a reasonable prospect of success, nor is there any compelling
reason for the appeal to be heard.
Order:
[9] In the result the following order is made:
9.1 Leave to appeal is refused with costs including costs to counsel on
Scale B.
APPEARANCES:
FOR THE APPLICANTS
INSTRUCTED BY
FOR THE 1 ST RESPONDENT
INSTRUCTED BY
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M BRESLER AJ
ACTING JUDGE OF THE HIGH COURT ,
LIMPOPO DIVISION, POLOKWANE
Adv KJ Selala
NC Ramahuma Attorneys
Polokwane
info@mphoramahuma@gmail.com
jeffreys@k1selala.co.za
Adv. Z Zakwe
Maselesele L Attorneys
Thohoyandou
info@ma seleseleinc.co.za
adv.zakwe@gmail.com