REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
CASE NO: 2023-007716
DATE: 28 NOVEMBER 2025
In the matter between:
GOOLAM YOUSUF MAHOMED N O First Applicant
YUSUF SURTEE N O Second Applicant
ABDOOL RAHMAN ISMAIL LAHER N O Third Applicant
MOHAMMED ALI YUSUF SEEDAT N O Fourth Applicant
and
H E SALEH A AZIZ MOHAMMED AL-AL SHAIK N O First Respondent
FAISAL HAMAD AHMED MOALLA N O Second Respondent
ABDAILAH F AL-LHEEDAN N O Third Respondent
MOHAMMED ABDULWAHED A. ALARIFI N O Fourth Respondent
FAHAD FALEH MEGWAL AL OTAIBI N O Fifth Respondent
Neutral Citation: Mahomed N O and Others v Al-Al Shaik N O and Others
(2023/007716) [2025] ZAGPJHC --- (28 November 2025)
Coram: Adams J
Heard on: 28 November 2024 – ‘virtually’ as a videoconference on Microsoft
Teams.
(1) NOT REPORTABLE
(2) NOT OF INTEREST TO OTHER JUDGES
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Delivered: 28 November 2025 – This judgment was handed down
electronically by circulation to the parties' representatives by email,
by being uploaded to CaseLines and by release to SAFLII. The date
and time for hand -down is deemed to be 1 2:00 on 28 November
2025.
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 –
Another compelling reason for leave to appeal to be granted (s 17(1)(a)(ii)) – the
decision sought to be appealed against involves an important question of law –
Leave to appeal granted to the Full Court of the Gauteng Division of the High
Court.
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ORDER
(1) The respondents are granted leave to appeal to the High Court of this
Division.
(2) The cost of this application for leave to appeal shall be costs in the appeal.
JUDGMENT [APPLICATIONS FOR LEAVE TO APPEAL]
Adams J:
[1]. I shall refer to the parties as referred to in the original opposed application
by the first to the fourth applicants for an order terminating the King Fahad Islamic
Centre Trust (‘King Fahad Trust’ or simply ‘the Trust’ ) and for related ancillary
relief. In that opposed application, the first to fifth respondents preferred a
counter-application against the applicants for relief relating to the administration
of the Trust and for orders compelling the applicants to produce documentation
relating to the administration of the Trust.
[2]. On 24 March 2025 I handed down a written judgment and an order in terms
of which most of the relief sought by the applicants in the main application was
granted with costs. Importantly, an order was granted for the termination of the
Trust, as I also ordered the redistribution of the trust assets. The first to fifth
respondents’ counterapplication was dismissed with costs.
[3]. The first to fifth respondents apply for leave to appeal to the Supreme
Court of Appeal of South Africa , alternatively, to the Full Cour t of this Division,
against the whole of the aforementioned judgment and order, including the order
for costs. The respondents contend that I erred in granting the aforesaid order
and that I should instead have dismissed the applicants’ application with costs
and that the counter application ought to have been granted also with costs.
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[4]. In a nutshell the respondents’ case in this application for leave to appeal
is that I erred in finding that the applicants had satisfied the jurisdictional test
under s 13 of the Trust Property Control Act 57 of 1988 (TPCA). I ought to have
found, so the contention on behalf of the respondents goes, that ‘the impasse
between the Trustees relied upon by the Court was the result of conduct
attributable to the applicants themselves, and not to any inherent defect in the
joint governance provisions of the Trust ’. Accordingly, so the argument is
concluded, the court a quo should have found that the jurisdictional requirements
under s 13 of the TPCA were not satisfied.
[5]. The respondents also contend that I erred in applying the test in Plascon-
Evans and that there was a dispute of fact as regards the breakdown of the Trust
and the hampering of its objects. Moreover, so it is submitted on behalf of the
respondents, the court a quo erred in granting relief ‘which outsources the final
determination of a material financial obligation – namely, the amount to be paid
by the Houghton Muslim Jamaat Trust to the Saudi Arabian Government – to an
independent umpire, without affording the respondents any procedural
safeguards or meaningful access to judicial recourse’.
[6]. As regards their counter-application, the respondents contend that I erred
in my finding that same was moot. The relief in the counter-application related to
the conduct of the Trust. It entailed the setting aside of decisions made by the
applicants and required them to account for decisions taken by them regarding
the management of the Trust.
[7]. Nothing new has been raised by the respondents in their application for
leave to appeal. In my original judgment of 24 March 2025, I have dealt with most,
if not all of the issues raised by the respondents in their application for leave to
appeal and it is not necessary for me to repeat those in full. Suffice to restate the
appeal and it is not necessary for me to repeat those in full. Suffice to restate the
conclusion I reached in my said judgment which is that: (a) The Deed of Trust of
the King Fahad Islamic Centre Trust provides that the Saudi Arabian Trustees
were to cooperate and work jointly with the South African Trustees with a view to
attaining the objects of the Trust; (b) This provision has as a consequence that
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the construction of the Masjid and the Islamic Centre could not be completed, as
contemplated by the Deed of Trust and its main objects; (c) This consequence
could not possibly have been contemplated or foreseen by the founder of the
Trust; and (d) This pr ovision clearly, in the circumstances described above,
hampers, nay completely defeats the achievement of the objects of the founder,
notably the construction and the completion of the Masjid and the Islamic Centre
and the day -to-day running of the Masjid and the Centre, in addition to it
prejudicing the interests of the beneficiaries, namely members of the Islamic
community in South Africa.
[8]. 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 23rd of August 2013, and which provides that leave to
appeal may only be given where the judges concerned are of the opinion that ‘the
appeal would have a reasonable prospect of success’.
[9]. 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
‘would’ 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.
[10]. 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:
concurring), held as follows at para 7:
1 Ramakatsa and Others v African National Congress and Another (724/2019) [2021] ZASCA 31 (31 March
2021);
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‘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 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 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.’
[11]. In Mont Chevaux Trust v Tina Goosen2, 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 i n 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 Courts Act 10 of 2013 compared to that under the provisions
of the repealed Supreme Court Act 59 of 1959. The applicable legal p rinciple 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.
[12]. I am persuaded that the issues raised by the respondents in their
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 therefore conclude
that there are reasonable prospects of another court making factual findings and
that there are reasonable prospects of another court making factual findings and
coming to legal conclusions at variance with my factual findings and legal
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).
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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conclusions. The appeal, therefore, in my view, does have a reasonable prospect
of success.
[13]. Moreover, I am of the view that there is another compelling reason why
the appeal should be heard, as envisaged by s 17(1)(a)(ii) of the Superior Courts
Act, and that relates to the fact that the issues implicated in this matter are novel
insofar as they relate to the termination of a Trust on the basis of s 13 of the
TPCA. Put another way, the decision sought to be appealed against involves an
important question of law.
[14]. Leave to appeal should therefore be granted. And in that regard, I do not
believe that the complexity of the legal issues raised in this matter is such that I
should grant leave to appeal to the Supreme Court of Appeal.
Order
[15]. In the circumstances, the following order is made:
(1) The respondents are granted leave to appeal to the Full Court of this
Division.
(2) The cost 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: 28 November 2025
JUDGMENT DATE: 28 November 2025 – handed down
electronically
FOR THE FIRST, SECOND, THIRD AND
FOURTH APPLICANTS: R Bhana SC and S Mohammed
INSTRUCTED BY: Koor Attorneys,
Houghton Estate, Johannesburg
FOR THE FIRST TO THE FIFTH
RESPONDENTS: N Redman SC and A Vorster
INSTRUCTED BY: Shaheem Samsodien Attorneys,
Sandown, Sandton