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IN THE HIGH COURT OF SOUTH AFRICA,
GAUTENG DIVISION, JOHANNESBURG
Case No: 012815/2024
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: NO
19 December 2025
In the application between:
NEW MODEL PROJECTS (PTY)LTD APPLICANT
And
LEVENBRO CENTRE (PTY) LTD FIRST RESPONDENT
SHERIFF OF THE COURT SECOND RESPONDENT
THE REGISTRAR OF DEEDS THIRD RESPONDENT
JUDGMENT
NHARMURAVATE AJ
INTRODUCTION
[1] The Applicant seeks leave to appeal against the judgment dates the 25
th of
April 2025 likewise the Respondent also seeks a cross appeal against this
honourable courts judgement in its entirety.
[2] Both parties have accordingly filed their respective applications for leave to
appeal, with the Applicant challenging the findings and orders made on 25 April
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2025, and the Respondent seeking to contest certain aspects of the judgment
through a cross-appeal. The applications were argued before this court, and the
present judgment addresses the merits of both the main and cross applications
for leave to appeal.
[3] Both the leave to appeal and the cross -appeal were contested by the
respective parties; for ease of reference, the parties will retain their original
designations as in the main application.
THE LEAVE TO APPEAL
[4] In terms of section 17 (1)(a)(i) and section 17(1)(a)(ii) of the Superior Courts
Act 10 of 2013 directs that , leave to appeal may only be granted where the
Judge or Judges concerned believe that: “(a) The appeal would have a
reasonable prospect of success, or there is some other compelling reason why
the appeal should be heard, including if there are conflicting judgments under
consideration.”
[5] The term ‘would’ as used in section 17 of the Superior Courts Act 10 of 2012,
subsection 17(1)(a)(i), the been determined by courts to establish a stricter
threshold under the Act when compared to the corresponding provisions of the
now-repealed Supreme Court Act 59 of 1959
1.
[6] In MEC Health, Eastern Cape v Mkhitha the test for section 17 (1) (a) (i) was
set out as follows: “An applicant for leave to appeal must convince the court on
proper grounds that there is a reasonable prospect or realistic chance of
1 The Mont Chevaux Trust (IT2012/28) v Tina Goosen &18 Others, Bertelsmann J held as follow: "It is clear
that the threshold for granting leave to appeal against a judgement of a High Court has been raised in the new
Act. The former test whether leave to appeal should be granted was a reasonable prospect that another court
might come to a different conclusion, see Van Heerden v Cronwright &Others 1985 (2) 342 (T) at 343H. The
use of the word "would" in the new statute indicates a measure of certainty that another court will differ from
the court whose judgement is sought to be appealed against.
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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 appeal2”.
[7] This indicates that the threshold for granting leave to appeal is not only more
demanding, but also places a greater onus on the Applicant to demonstrate that
the appeal is not merely arguable, but has a real and substantial prospect of
success. The courts have emphasized that this higher standard serves to filter
out unmeritorious appeals at an early stage, thereby promoting judicial
efficiency and certainty in litigation outcomes.
[8] The Applicant’s sole grounds for seeking leave to appeal rely on the unreported
case of Chetty Cameran versus Erf 3[ …] Southcrest CC (case number
2018/15109), dated June 23, 2019. This judgment was not introduced or even
referenced, nor was the Alienation of Land Act mentioned by the applicant
during the main proceedings.
[9] The application submitted by the Applicant in the opposed motion was based
on a distinct set of facts and sought a different relief . Moreover, no assertions
were advanced that would meet the criteria established under the Alienation of
Land Act, nor did they fulfil the requirements necessary to justify the relief or
orders requested.
[10] The matter which was before this Court concerned an application to compel the
first respondent to transfer ownership of property as it had been fully paid for by
the Applicant. This was the primary issue under consideration. Mr Moreriwa
Counsel for the A pplicant argued that the present case was analogous to the
Chetty judgment, asserting that the Court erred in not adopt ing the same as its
finding created a precedent for this division. Miss Gordon for the F irst
Respondent opposed the leave to appeal sought as she highlighted that the
2 2016 ZASCA 176 para 17
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Chetty judgment was based on a very different set of circumstances as those
which were before this court . She further argued that it was not foreseeable
how another court will come to a different finding.
[11] It is my view that, despite the A pplicants’ reliance on the Chetty Cameran
judgment, it is important to note that the factual matrix and legal issues in that
case differ materially from those presented before this court. References to
judgments not raised during the initial proceedings cannot retrospectively cure
deficiencies in the applicant’s case or introduce arguments that were not
previously advanced. Furthermore, the Alienation of Land Act was neither
pleaded nor relied upon in the notice of motion filed, which further distinguishes
the present matter from Chetty Cameran and undermines the A pplicant’s basis
for seeking leave to appeal.
[12] Several distinguishing factors exist; for instance, in the Chetty judgment, the
contract itself was not contested, and the attorney’s account into which the
money was deposited was acknowledged. It was also undisputed that the
respondent in that case had paid the applicant an amount of 300,000. These
are just a few examples and not an exhaustive list. When questioned about
these differences, the applicant's counsel could not provide a clear response
and continually referred the court back to its previous judgment, appearing
quite evasive.
[13] It is my view that, another court will not come to a different finding leave to
appeal should be refused. The Applicant has failed to demonstrate that there is
a sound, rational basis upon which another court would come to a different
conclusion. The arguments advanced do not raise any new issues that could
alter the substantive findings of this court, nor do they show any compelling
reason, as contemplated in section 17(1)(a)(ii), to warrant the granting of leave
to appeal. In the circumstances, the application for leave to appeal stands to be
dismissed.
THE CROSS APPEAL
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[14] The First Respondent has presented several grounds suggesting that another
court may reach a conclusion different from that of this court. In considering the
relief sought by the applicants, and with reference to section 17 of the Superior
Courts Act —which stipulates that leave to appeal should only be granted if
there is a reasonable prospect that another court will arrive at a different
finding—this principle has been carefully evaluated.
[15] Upon thorough consideration of the submissions made in respect of the cross
appeal, the arguments presented by the First Respondent were carefully
scrutinised against the statutory requirements of section 17 of the Superior
Courts Act. The First Respondent’s grounds for cross appeal, while detailed,
did not sufficiently demonstrate that another court would likely reach an
alternative conclusion on the substantive merits of the case. This court remains
unconvinced that the factual or legal distinctions highlighted could influence a
different outcome, except insofar as the point in limine of prescription was
concerned.
[16] The Supreme Court of Appeal determined in Notshokovu v S
3 that appellants
are subject to a more rigorous threshold under the Act when compared to the
criteria set forth in the now -repealed Supreme Court Act 59 of 1959. In S v
Smith4, Plasket AJA stated that it is insufficient merely to demonstrate a
possibility of success, argue that the case is debatable on appeal, or suggest
that the case is not entirely without merit; rather, a sound and rational basis
must exist for concluding that there are prospects of success on appeal. This
interpretation was affirmed by the Supreme Court of Appeal in Four Wheel
Drive Accessory Distributors CC v Rattan NO.
5
[17] After considering both the application for leave to appeal and the cross appeal,
it remains apparent that neither the A pplicants nor the F irst Respondent have
3 2016 ZASCA 112 para 2
4 2012 (1) SACR (SCA)para 7
3 2016 ZASCA 112 para 2
4 2012 (1) SACR (SCA)para 7
5 Four Wheel Drive Accessory Distributors CC v Rattan NO 2019 (3) SA 451 (SCA) para 34.
Page 6 of 7
demonstrated sufficient grounds to satisfy the requirements set out in section
17 of the Superior Courts Act. The threshold for granting leave to appeal
demands more than mere dissatisfaction with the court’s findings; it requires a
clear indication that another court would arrive at a different conclusion based
on sound, substantive reasons. Both parties have failed to present arguments
or evidence that would warrant such a departure from the judgment handed
down by this court.
[18] The sole issue this court i s prepared to grant leave to appeal on concerns the
point in limine of prescription, which was not addressed in the judgment
delivered. There are substantial grounds for granting leave to appeal on the
raised point in limine regarding prescription. Another court may reason
differently in consideration thereof which in my view can be dealt with by the full
bench of this above honourable court.
CONCLUSION
[19] In conclusion, the following order is made :
1. The Application for leave to appeal is dismissed .
2. The Respondent’s cross appeal is allowed only with respect to the
preliminary issue of prescription.
3. Costs to be costs in the appeal.
NHARMURAVATE, AJ
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
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For the Applicant : Adv I Mureriwa
Instructed by. : Messrs Machingura Inc Attorneys
For the First Respondent: Adv C Gordon
Instructed by. : MDT Attorneys
Date of Hearing : 16 September 2025
Date of Judgment: 19 December 2025