IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, EAST LONDON CIRCUIT COURT)
CASE NO: EL516/2025
In the matter between:
RICARDO WALTERS Applicant
And
BUFFALO METROPOLITAN MUNICIPALITY 1st Respondent
THE MUNICIPAL MANAGER:
BUFFALO CITY METROPOLITAN
MUNICIPALITY 2nd Respondent
JUDGMENT
ON APPLICATION FOR LEAVE TO APPEAL
Zono AJ:
Introduction
[1] This is an application for leave to appeal judgment delivered on 10 th
June 2025. In its application for leave to appeal the applicant sets out
its grounds as follows:
“1.1 This Honourable Court found that as a result of the opposition
raised by the Respo ndents, that a dispute of fact is present on the
versions proffered by the parties.
1.2. This Honourable Court misdirected itself, with all due respect,
in accepting the version of the Respondents that the purported
notice was delivered in accordance with the by-laws. This
Honourable Court failed to take into consideration that the by-
laws read with the Municipal Systems Act prescribes a specific
manner of service of the notice before accepting a notice had
been delivered.
1.3. Section 115(1) of the Municipal Systems Act clearly states
that–
Any notice or other document that is served on a person in
terms of this Act or by a municipality in terms of any other
legislation is regarded as having been served, when …
1.4. The Respondents did not rely on any provision as governed by
the Municipal Systems Act and as such, the Respondents failed
to prove compliance with the provisions of the Municipal
Systems Act, and by failing to do so, failed to show delivery of
the notice.
1.5. This Honourable Court incorrectly found that this constitutes a
“dispute of fact”, but rather ought to have found that there is a
legal issue for determination, in that the validity of
Section 14(4)(c) is placed in question as it is in direct conflict
with the Respondents very own by law and it is in conflict with
Section 115(1) of the Municipal Systems Act.
1.6. Furthermore, this Honourable Court has recently ruled in the
matter of Babalwa Ntwanambi v Buffalo City Municipality and
Another1 that Yande Engineering did not have the necessary
authority to deliver notices.
1.7. This Honourable Court also found in the Judgment of
Ntwanambi that the notice, itself, did not contain the requisite
required information to constitute a proper notice.
1.8. As a result, this Honourable Court ought to have accepted the
version of the Applicant in that the Respondents have failed to show
compliance with the Electricity Supply By-Laws read with
the Municipal Systems Act”.
Legal Principle
[2] An application for leave to appeal is governed by Section 17(1) of the
Superior Court Act which provides as follows:
“(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
(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.”
[3] In Smith v S 1 Plasket AJA (as he then was) held that:
“7. What the test of reasonable prospects of success postulates is 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. 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.”2
1 Smith v S 2012 (1) SACR 567 (SCA) Para 7.
1 Smith v S 2012 (1) SACR 567 (SCA) Para 7.
2 S v Mabena & Another 2007 (1) SACR 482 (SCA) Para 22.
[4] These sentiments were shared by Schippers AJA (as he then was) in
Mkhitha3 where the following was said:
“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] During the hearing of this application, Ms Ntsepe, Counsel for the
respondent, upon enquiry, submitted that her instructions are that,
the electricity supply was reconnected to the applicant’s house. Mr Du
Plessis submitted that he had no instructions to that effect and
promised to take instructions. Parties were humbly requested to
furnish this court with their respective written submissions in this
regard, especially in so far as it affects the applicabilit y of section 17
(1) (b) read with section 16(2)(a) of the Superior Courts Act 10 of
2013. Both parties failed to file the requested written submissions and
no reason or explanation has been furnished to this court for such
failure.
[6] For the sake o f completion, Section 16(2)(a) of the Superior Courts
Act provides thus:
“(a) when at the hearing of an appeal the issues are of such a nature that
the decision sought will have no practical effect or result, the appeal
may be dismissed on this ground alone.”
In the light of the undisputed submission of Ms Ntsepe, Counsel for
the respondent, that the applicant’s electricity supply was reinstated
3 MEC for Health, Eastern Cape v Mkhitha and another (1225) [2016] ZASCA 176 (25 November 2016)
Para 17.
or reconnected, I find nothing to arrive at a conclusion that the
decision herein and on appeal will have any practical result. I have not
been directed to the nature of practical result that would follow or
flow from a successful order of appeal, notwi thstanding that I
requested written submissions in this regard. This application can,
accordingly, not succeed on this ground alone. It is therefore not
necessary to consider any other ground set out in the applicant’s
application for leave to appeal.
[7] I, therefore, come to a conclusion that there is no reasonable, realistic
chance of success on appeal. Accordingly, this application must fail
with costs.
[8] In the result the following order is made:
1. Application for leave to appeal is dismissed with costs.
________________________________
A.S ZONO
JUDGE OF THE HIGH COURT (ACTING)
APPEARANCES:
Attorney for the Applicant : Mr Du Plessis
Instructed by : NJ Du Plessis & Associates Inc.
14 Athlone Crescent
Selbone
East London
Tel: 043 740 0424
E-mail:nico@tdplaw.co.za
Ref: N. Du Plessis/ UA0272
Counsel for the 1st and 2nd
Respondent/ : Adv. Ntsepe
Instructed by : Malusi and Company
87 Tacoma Street
Berea
East London
Tel: 043 722 9316
E-mail:admin@malusiec.co.za
Ref: Ms Nongogo/BCMM1/00027
Date heard : 22nd September 2025
Date Delivered: : 09th December 2025