Summary of Judgment

1. Introduction

This judgment concerns an application for leave to appeal brought in terms of Rule 49(1) of the Uniform Rules of the High Court, read with section 17(1) of the Superior Courts Act 10 of 2013. The application was directed against an earlier eviction order granted under the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (the PIE Act).

The applicant for leave to appeal was Ms Hlengiwe Happiness Shabalala, who had been the first respondent in the main eviction application. The respondent in the leave to appeal proceedings was Calc 9 (Pty) Ltd, which had been the successful party in obtaining the eviction order in the main application. The City of Johannesburg did not enter an appearance in the leave to appeal proceedings and was not called upon to provide reports.

Procedurally, the court had granted the eviction order on 21 September 2025. Ms Shabalala thereafter sought leave to appeal, filing late. Because she appeared in person in the leave to appeal proceedings (after being refused legal aid and pro bono assistance), and because the respondent consented to late filing in order to allow finalisation of the matter, the court granted condonation for the late filing.

The dispute at the leave to appeal stage did not concern the substantive merits of the eviction in the sense of ownership, unlawful occupation, or the applicability of PIE. Instead, the applicant advanced procedural grounds aimed at aspects of the earlier judgment relating to litigation conduct and evidentiary presentation.

2. Material Facts

It was undisputed in the leave to appeal proceedings, as framed by the court, that the applicant’s grounds did not challenge the substantive findings in the eviction matter relating to ownership, unlawful occupation, or the applicability of PIE. The focus was instead on two procedural complaints concerning the contents of the earlier judgment.

Chronologically, the relevant events and circumstances relied upon by the court were the following. The eviction order was granted on 21 September 2025. At the eviction hearing, despite the absence of filed written heads of argument, the applicant (then respondent in the eviction) was represented by counsel, who made oral submissions that were recorded and considered by the court. The applicant’s counsel at that hearing conceded that the applicant was an unlawful occupier, and sought a period of six months to enable the applicant to save money and obtain alternative accommodation.

In relation to the evidentiary material considered in the eviction application, the court recorded that the applicant had made allegations about her adult son being unemployed and financially dependent on her. However, there was no confirmatory affidavit from the son to substantiate those assertions. The court treated the allegations as vague and unsubstantiated to that extent, while still accepting (on the approach it described as applying the Plascon-Evans rule) that the applicant experienced financial distress and feared homelessness.

At the leave to appeal stage, the applicant sought to attribute the procedural and evidentiary shortcomings to her former legal representatives and attempted to introduce new evidence, namely a confirmatory affidavit from her son (Mazwamahle Shabalala). The court did not take this new affidavit into account because it did not form part of the record when the eviction application was heard and determined, at which time the applicant was legally represented.

3. Legal Issues

The central legal question was whether the applicant satisfied the statutory threshold for leave to appeal under section 17(1) of the Superior Courts Act 10 of 2013, namely whether the appeal would have a reasonable prospect of success (or whether another compelling reason existed for the appeal to be heard, as contemplated in section 17(1)).

More specifically, the court was required to determine whether either of the two procedural complaints amounted to a material misdirection affecting the eviction order, such that another court would probably reach a different conclusion. The first complaint concerned the court’s reference to a failure to file heads of argument and a joint practice note. The second concerned the court’s treatment of the absence of a confirmatory affidavit from the applicant’s adult son, including whether an adverse inference was improperly drawn.

The dispute therefore principally concerned the application of legal principles to the procedural and evidentiary facts (including the significance of non-compliance with procedural requirements, and the evidentiary consequences of unconfirmed third-party allegations in motion proceedings), assessed through the lens of the leave to appeal threshold rather than a re-determination of the eviction merits.

Although the applicant also raised (in substance, if not as a formal ground) the concern that eviction would render her homeless, the court treated the leave to appeal application as not raising a new constitutional issue and as not alleging that the section 26-related enquiry required by PIE had been absent or misconceived in the eviction judgment.

4. Court’s Reasoning

The court approached the application through the framework of section 17(1) of the Superior Courts Act, emphasising that the standard for leave to appeal is stringent. It reiterated that reasonable prospects of success require more than a possibility that another court might differ; there must be a sound, rational basis for concluding that another court would probably do so. The court further indicated that leave to appeal is not intended to give litigants a further opportunity to re-argue matters.

On the first ground (failure to file heads of argument and a joint practice note), the court reasoned that this complaint was misconceived because the earlier judgment did not rest the eviction outcome on that procedural omission. The reference to non-compliance was not treated as a dispositive finding against the applicant and therefore did not constitute a ground relevant to the operative decision. The court also relied on the fact that the applicant had been represented by counsel at the eviction hearing and had made oral submissions, which the court expressly recorded and considered; accordingly, the court found no basis to suggest that the applicant had been denied a hearing or that the matter had not been properly ventilated.

In addressing the applicant’s reliance on attorney default, the court applied the general principle that litigants are ordinarily bound by the conduct of their legal representatives, subject to limits assessed on a case-by-case basis. It cited authority for the proposition that attorney negligence does not automatically entitle a party to an indulgence and that the administration of justice and finality may require parties to be held to the conduct of those representing them. The court further reasoned that the eviction order had been granted after a substantive PIE enquiry, not because of procedural default, and held that there was no reasonable prospect that another court would treat the reference to missing heads as a material misdirection warranting interference.

On the second ground (absence of a confirmatory affidavit), the court reasoned from the nature of motion proceedings, namely that they “stand or fall” on the affidavits. It treated confirmatory affidavits as serving an important evidentiary function where assertions are made about third parties’ circumstances. The court’s reasoning distinguished between rejecting the applicant’s version and treating parts of it as insufficiently supported: it stated that it did not reject the applicant’s version outright, but found that the allegations about the adult son’s unemployment and dependency were vague and unsubstantiated without confirmation.

The court further reasoned that, even accepting that the applicant experienced financial distress and feared homelessness, the eviction order was not granted solely because of the missing confirmatory affidavit. Instead, the court considered that the totality of the evidence did not establish that eviction would render the household destitute or homeless, and it noted that at the eviction hearing the applicant’s counsel had sought a six-month period to relocate. It also observed, in context, that more than six months had passed since the hearing.

When the applicant attempted to introduce a confirmatory affidavit from her son during the leave to appeal proceedings, the court refused to consider it on the basis that it did not form part of the original record. The court relied on the principle that an appeal court decides the matter on the record as it stands, and it treated attempts to remedy evidentiary deficiencies at the leave to appeal stage as not assisting the applicant.

In dealing with the applicant’s homelessness allegations raised in the leave to appeal proceedings, the court emphasised that the eviction judgment had applied the constitutional and statutory enquiry mandated by PIE and had considered the personal circumstances presented. The court stated that the leave to appeal application did not raise a new constitutional issue and did not contend that the section 26 enquiry had been absent or misconceived, and it indicated that it stood by the reasoning in the eviction judgment.

The court also made an evaluative judgment about finality and prejudice, reasoning that granting leave to appeal on the advanced bases would undermine finality and impose further prejudice on a property owner kept out of the use and enjoyment of its property for a considerable period.

5. Outcome and Relief

The court granted condonation for the late filing of the application for leave to appeal, on the basis described in the judgment (including the respondent’s consent and the stated prejudice associated with delay in finalising the proceedings).

On the merits of the leave to appeal application, the court held that both procedural grounds lacked merit and that the application did not meet the section 17(1) threshold for leave to appeal, because the grounds did not establish reasonable prospects that another court would interfere with the eviction order.

The text provided does not set out a discrete costs order in express terms for the leave to appeal proceedings.

Cases Cited

S v Smith 2012 (1) SACR 567 (SCA)

Mont Chevaux Trust (IT 2012/28) v Tina Goosen and 18 Others (Land Claims Court, case number LCC14R/2014, 3 November 2014) (unreported)

Saloojee and Another NNO v Minister of Community Development 1965 (2) SA 135 (A)

Webster and Another v Santam Insurance Company Ltd 1977 (2) SA 874 (A)

Grootboom v National Prosecuting Authority and Another 2014 (2) SA 68 (CC)

Ferris and Another v FirstRand Bank Ltd 2014 (3) SA 39 (CC)

Wightman t/a JW Construction v Headfour (Pty) Ltd 2008 (3) SA 371 (SCA)

Resnick v Government of RSA 2014 (2) SA 337 (WCC)

Luanga v Perthpark 2019 (3) SA 214 (WCC)

Legislation Cited

Superior Courts Act 10 of 2013, section 17(1)

Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998

Constitution of the Republic of South Africa, 1996 (Act 108 of 1996), section 26

Rules of Court Cited

Uniform Rules of the High Court, Rule 49(1)

Consolidated Practice Directives 1/2024, Practice Directive 25.1.2

Held

The court held that the applicant’s complaint regarding the absence of filed heads of argument and a joint practice note did not constitute a material misdirection affecting the eviction order, particularly because the applicant was represented by counsel at the eviction hearing and oral submissions were made and considered, and because the eviction order was not granted due to procedural default.

The court held that the complaint relating to the absence of a confirmatory affidavit from the applicant’s adult son did not establish an appealable misdirection, because motion proceedings require admissible evidence on affidavit, confirmatory affidavits are significant where third-party circumstances are alleged, and the eviction determination was made on the evidence as a whole rather than solely on that omission.

The court held that attempts to introduce further evidence at the leave to appeal stage did not assist, as appellate adjudication proceeds on the record, and the application did not satisfy the threshold requirements in section 17(1) of the Superior Courts Act.

LEGAL PRINCIPLES

The judgment applied the principle that leave to appeal under section 17(1) of the Superior Courts Act 10 of 2013 requires a stringent showing of reasonable prospects of success, meaning a sound, rational basis to conclude that another court would probably reach a different conclusion, rather than a mere possibility of a different outcome.

The judgment applied the principle that, generally, litigants are bound by the conduct of their legal representatives, and that attorney negligence does not automatically justify procedural indulgence; the question is assessed on the facts, with due regard to the administration of justice and the need for finality.

The judgment applied the principle that motion proceedings stand or fall on the affidavits, and that parties must place material facts before the court by admissible evidence. It treated confirmatory affidavits as materially important where allegations are made about third parties’ circumstances, and treated unconfirmed allegations as potentially vague or insufficiently substantiated.

The judgment applied the principle that appellate processes proceed on the record as it stands, and that attempts to supplement the evidentiary record at the leave to appeal stage do not ordinarily cure deficiencies in the case presented when judgment was granted.

The judgment proceeded on the basis that eviction matters implicate section 26 of the Constitution and the statutory enquiry under PIE requiring a determination of whether eviction is just and equitable, and it treated the leave to appeal application as not establishing that the prior PIE enquiry had been absent or misconceived.