REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA,
(GAUTENG DIVISION, PRETORIA)
Case No: 40806/2018
Reportable: No
Of interest to other Judges: No
Revised: Yes
Date:
21 November 2025
SIGNATURE
In the matter between:
NTANGA NKUHLU INCORPORATED Plaintiff
and
INDEPENDENT DEVELOPMENT TRUST
1 st Defendant
TRUSTEES FOR THE TIME BEING OF THE INDEPENDENT 2 nd
Defendant
DEVELOPMENT TRUST
JUDGEMENT – APPLICATION FOR LEAVE TO APPEAL
_____________________________________________________________________________________________
MOOKI J
2
1 The plaintiff seeks leave to appeal , following the court’ s dismissal of the
plaintiff’s claim in trial proceedings.
2 These are the grounds of appeal:
2.1 The court considered issues that were not pleaded.
2.2 The court ought to have found for the plaintiff, once the plaintiff
proved the cession.
2.3 The Court inferred an amendment that was not sought.
2.4 The defendant pleaded agreements that were not disclosed.
2.5 The court ought to have rejected Ms Barnes’ evidence that the
agreement between the parties would have set-out the basis for
payment.
2.6 The defendant ought to have been found, at a minimum, liable for
invoice 2456.
2.7 The court erred in its finding that Ms Barnes and her staff were
diligent in searching for documents to support the making of
payments.
3 It was submitted that the defendant’s entire plea was premised on the
plaintiff having breached PROCSA, and that the defendant did not plead
that the claim was not ripe. Reference was made to the decision in Hippo
Quarries
1 that the burden shifted to the defendant once the plaintiff had
1 Hippo Quarries (Transvaal) (Pty) Ltd. v Eardley 1992 (1) SA 867 (AD)
3
established a cession. The ultimate submission on this point was that the
Court ought to have given judgement in favour of the plaintiff once the
cession was proven and that there was no need to prove the ripeness of the
claim.
4 The ripeness of the claim did not bear on whether a cession had been
established. The decision in Hippo Quarries does not apply. The court
accepted that a cession had been established. There was no evidence that
the defendant was obliged to pay only on a showing of the existence of the
cession. The plaintiff joined issue, in the trial, that certain information had
to have been presented before payment could be made. That is why the
plaintiff sought to lead evidence that Mr Mboya supplied the necessary
documents. The plaintiff would not have advanced such evidence if all that
was required was for the plaintiff to demonstrate the existence of a cession.
5 I am not persuaded that the court inferred an amendment as contended for.
The issue of whether payment could be paid was a live one in the trial. The
Court had to make a finding on the issue. Such a finding cannot be
construed as the court having inferred an amendment to pleadings. This
was an instance of the court making a finding based on evidence during
proceedings.
6 The defendant’s failure to dis close the agreements, together with the court
having accepted the existence of the cession, do not result in the plaintiff
having shown that nothing more was required for the defendant to pay on
the invoices. As indicated above, whether supporting documentation had
been made available was a key point of dispute during the trial.
4
7 The plaintiff joined issue that it was a requirement that certain information
be available before payment could be made. This is illustrated by the
plaintiff’s evidence that Mr Mboya had sent supporting documents, with the
result that the defendant became obliged to pay amounts reflected in the
invoices. The plaintiff tested Ms Barnes ’ evidence, seeking to demonstrate
that the defendant had been given supporting documentation. The plaintiff
may not, in this application, seek to advance a different case, namely that
Ms Barnes’ evidence on the need for information before payment could be
made was irrelevant. The plaintiff sought to rely on Mr Mboya’s e -mail that
supporting documentation had been made available. Ms Barnes gave
evidence to the contrary.
8 It is submitted on behalf of the plaintiff that the court ought to have
accepted the email of 19 February 2020, in which Mr Mboya wrote to Ms
Barnes concerning documents. The plaintiff submitted that Ms Barnes did
not communicate with Ms Mohlaudi, contrary to the recordal in Mr Mboya’s
e-mail. Mr Mboya, in the e-mail, recorded that he had couriered all
documents to the defendant and that Ms Mohlaudi would visit schools for
an inspection. The defendant did not admit the e-mail by Mr Mboya as
setting out statements of fact. The plaintiff did not call Mr Mboya to give
evidence. Ms Barnes gave evidence on what she did in seeking to obtain
supporting documents. There was no basis to disregard her evidence on
this score.
9 The defendant paid Mr Mboya for invoice 2456. This was after the plaintiff
issued summons and after the defendant had been notified of the existence
5
of the cession. Mr Abrahams submitted that Mr Mboya essentially
committed fraud in receiving the payment whilst being aware of the
cession. The plaintiff, in essence, sought the court to use its authority, in the
present proceedings, to recover funds which the plaintiff admits were
misappropriated by Mr Mboya. That would be an inappropriate use of the
authority of the court. The plaintiff ought to institute such measures as
provided for in the law to recover the amount.
10 I am not persuaded that the court should grant leave to appeal. The plaintiff
has not shown that the plaintiff has reasonable prospects of success. Mr
Abrahams submitted that leave be granted also on account of section
17(1)(a)(ii) of the Superior Courts Act 10 of 2013 (the Act). He submitted
that the application raises issues of sufficient public interest given the
purpose of pleadings and the requirement that courts adjudicate pleaded
disputes. I am similarly not persuaded that this application establishes a
compelling reason, as required in section 17(1)(a)(ii) of the Act , to grant
leave to appeal. I refer to the reasons stated in this judgement.
11 I make the following order:
(1) The application is dismissed.
(2) The plaintiff is ordered to pay costs.
O MOOKI
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
6
Counsel for the plaintiff: S Abrahams
Instructed by: Mr Ntanga Nkuhlu Inc.
Counsel for the defendant: N E Memela
Instructed by: Maphoso Mokoena Inc.
Date heard: 10 October
2025
Date of judgement: 21 November 2025