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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
Case Number: 2024/035893
MJAJU JOSEPH MATHE Applicant
and
COMMISSION FOR CONCILIATION First Respondent
MEDIATION & ARBITRATION
PITSI MAITSHA Second Respondent
______________________________________________________________________
JUDGMENT ON APPLICATION FOR LEAVE TO APPEAL
______________________________________________________________________
READ AJ
Introduction
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: NO
______________ ___ _______
DATE SIGNATURE
06 February 2026
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[1] This judgment concerns an application for leave to appeal brought by the applicant
against the judgment and order of this Court handed down on 5 September 2025, in terms
of which the applicant ’s application for the rescissio n of an order made by Acting Ju dge
Moorcroft on 28 March 2024 was dismissed with costs. The applicant seeks leave to
appeal to the Full Court of this Division.
[2] The application for leave to appeal is opposed by the respondent s, who raise a
number of preliminary objections and submit that the application lacks merit on all grounds
advanced. The respondents have filed comprehensive heads of argument in opposition
to the application.
[3] The issues for determination are threefold: first, whether the application for leave to
appeal was brought within the time periods prescribed by the Rules; second, whether the
appeal would have any reasonable prospects of success; and third, whether the appeal
would have any practical effect or result. These issues will be addressed in turn.
Procedural history
[4] The procedural history of this matter is necessary for a proper understanding of the
present application. The applicant initially brought an urgent application before this Court
under case number 2024 -022536, seeking damages in the amount of R182 435.00 and
punitive damages in the amount of R250 000.00 against the respondents, arising from
alleged omission, fraud and misrepresentation by the second respondent.
[5] That urgent application was heard before Acting Judge Moorcroft on 28 March 2024.
The respondents opposed the application on the ground that the relief sought by the
applicant fell within the exclusive jurisdiction of the Labour Court, given that the applicant
had a pending matter in that forum. Acting Judge Moorcroft dismissed the application with
costs.
[6] Rather than appealing that dismissal through the ordinary appellate processes, the
applicant brought a fresh application, initially styled as a Rule 43 application but ,
applicant brought a fresh application, initially styled as a Rule 43 application but ,
subsequently, amended to proceed under Rule 42, seeking to rescind or vary the order of
Acting Judge Moorcroft. This application was allocated case number 2024-035893, which
is the matter presently before this Court.
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[7] The Rule 42 application came before me for hearing on 11 June 2025. In my judgment
delivered on 5 September 2025, I dismissed the application with costs, finding that the
applicant had failed to establish any of the grounds contemplated in Rule 42 that would
justify the rescission of the order.
[8] It is against that judgment that the applicant now seeks leave to appeal.
The preliminary objection: timing of the application
[9] The respondents raise a preliminary objection that the application for leave to appeal
was brought out of time. Rule 49 (1) (b) of the Uniform Rules of Court provides that when
leave to appeal is required and it has not been requested at the time of the judgment or
order, application for such leave shall be made and the grounds therefor shall be furnished
within fifteen days after the date of the order appealed against.
[10] The judgment in this matter was handed down on 5 September 2025. The
application for leave to appeal was served on the respondents on 16 October 2025, as it
appears from the CaseLines record s. The applicant has not brought any application for
condonation of the late filing, nor has any explanation been proffered for the delay. There
also appears to be confusion on the date stamps on the Notice of Appeal on Case Lines
which is 24 September 2025, however, the Court Online “NOTE” states that the document
was filed on 7 October 2025. When the applicant addressed me on this issue, it appeared
that he filed the document first with the Registrar in September 2025 and thereafter upon
the respondents on 16 October 2025.
[11] The proviso to Rule 49 (1) (b) permits the court to extend the prescribed time period
upon good cause shown. However, no such application has been made in the present
matter. The respondents submitted that the application is, accordingly, not ripe for hearing
and must be removed from the roll.
[12] I am mindful that the applicant is self -represented and that courts have, in
[12] I am mindful that the applicant is self -represented and that courts have, in
appropriate circumstances, shown some leniency towards litigants in person who fail to
comply strictly with procedural requirements. However, the failure to bring an application
timeously and the absence of any condonation application presents a significant
procedural hurdle. Nevertheless, given the importance of access to justice and the
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relatively short period of non-compliance, I am prepared to condone the late filing and to
consider the application on its merits. I caution, however, that this indulgence should not
be taken as licence for continued non-compliance with the Rules of Court.
The legal framework for leave to appeal
[13] Section 17 (1) of the Superior Courts Act 1 provides that leave to appeal may only
be given where the judge or judges concerned are of the opinion that the appeal would
have a reasonable prospect of success, or there is some other compelling reason why the
appeal should be heard, including conflicting judgments on the matter under
consideration.
[14] Section 16 (2) (a) of the same Act provides that when at the hearing of an appeal
the issues are of such a nature that the decision sou ght will have no practical effect or
result, the appeal may be dismissed on this ground alone. Section 17 (1) (b) further
provides that leave to appeal may only be given where the decision sought on appeal
does not fall within the ambit of section 16 (2) (a).
[15] The test for reasonable prospects of success requires consideration of whether
there is a reasonable prospect that another court would come to a different conclusion.
The threshold is not high, but the applicant must demonstrate more than a mere possibility
of success. The prospects must be reasonable, which implies that there must be a sound,
rational basis for the conclusion that there are prospects of success on appeal.
Analysis of the Grounds of Appeal
Ground 1: Failure to consider material facts and evidence
[16] The applicant contends that Acting Ju dge Moorcroft openly admitted that he had
not read the papers and requested the respondent s to explain what the case was about,
1 Act 10 of 2013.
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and that this constituted a denial of the applicant ’s right to be heard under section 34 of
the Constitution.
[17] This ground of appeal is misconceived. The judgment against which leave to appeal
is sought is my judgment of 5 September 2025 dismissing the Rule 42 application, not the
judgment of Acting Ju dge Moorcroft of 28 March 2024. The order of Acting Ju dge
Moorcroft was never appealed and remains extant. The applicant cannot, in the context
of an application for leave to appeal against my judgment, seek to ventilate complaints
about the conduct of proceedings before Acting Judge Moorcroft. Such complaints would
have been appropriate grounds in an appeal against the order of Acting Judge Moorcroft,
which appeal was never pursued.
[18] In my judgment of 5 September 2025, I specifically addressed the a pplicant’s
complaint regarding the proceedings before Acting Judge Moorcroft and found that, even
accepting the applicant’s version of events, his complaint did not constitute a ground for
rescission under Rule 42. The applicant has not demonstrated any error in this reasoning.
There are accordingly no reasonable prospects of success on this ground.
Ground 2: Reliance on evidence not before court
[19] The applicant contends that the respondents never filed an answering affidavit in
the Rule 42 applicati on and that I nevertheless relied on such affidavit and treated it as
properly before Court. This ground requires careful consideration, as the applicant raises
it as a basis for his appeal.
[20] The respondents served their answering affidavit on 7 May 2024, as appears from
the documents on CaseLines and the papers before me. The answering affidavit was
deposed to by Mr Xolani Nduna, an Acting Director of the first respondent, and was duly
commissioned before a Commissioner of Oaths.
[21] Significantly, the applicant himself filed a replying affidavit dated 9 May 2024 in
response to the respondents ’ answering affidavit. In that replying affidavit, the applicant
response to the respondents ’ answering affidavit. In that replying affidavit, the applicant
engaged extensively with the contents of the respondents’ answering affidavit, responding
paragraph by paragraph to the allegations contained therein. The applicant cannot now
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be heard to say that no answering affidavit was filed when he himself filed a
comprehensive replying affidavit responding to that very answering affidavit.
[22] The applicant ought to have proceeded by way of Rule 30 prior to filing his replying
affidavit if he wished to rely on this point. In any event , notwithstanding, who allegedly
uploaded the affidavits onto CaseLines, this Court had a full set of papers upon which to
rely in the main application. The substance of the affidavit makes clear that it was filed in
response to the applicant ’s Rule 42 application, and the applicant treated it as such by
filing a replying affidavit.
[23] The applicant cannot, at this late stage, rely on the purported absence of an
answering affidavit when the record demonstrates that he received, engaged with, and
responded to that very affidavit. This ground of appeal is without merit and discloses no
reasonable prospects of success.
Ground 3: Mischaracterisation of the nature of rescission
[24] The applicant contends that I misconstrued his Rule 42 application as an
impermissible rehearing of the merits. He relies on the Constitutional Court judgment in
Zuma v Secretary of the Ju dicial Commission of Inquiry into State Capture , Corruption
and Fraud in the Public Sector Including Organs of State and Others 2 for the proposition
that rescission under Rule 42 (1) (a) is available where an order was erroneously granted,
including where proper procedure was not followed.
[25] I did not hold that the applicant’s application constituted an impermissible rehearing
of the merits. Rather, I found that the applicant ’s complaint, even if established, did not
constitute a ground for rescission within the meaning of Rule 42. The applicant’s essential
complaint was that Acting Ju dge Moorcroft did not read the papers before making his
order. I held that this complaint, assuming it had merit, would relate to the manner in which
order. I held that this complaint, assuming it had merit, would relate to the manner in which
the learned Acting Judge conducted the proceedings and exercised his judicial discretion,
and that such concerns would ordinarily be addressed through the appellate process
rather than by way of rescission.
2 [2021] ZACC 28; 2021 (11) BCLR 1263 (CC).
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[26] The applicant has not demonstrated any error in this reasonin g. Rule 42 is not a
mechanism for challenging the substantive correctness of judicial decisions; it is designed
to address specific types of defects, namely orders granted in the absence of an affected
party, patent errors or omissions in the order itself, or mistakes common to the parties.
The applicant failed to establish any of these grounds.
[27] The reliance on the Zuma judgment is misplaced. That case concerned different
circumstances and does not assist the applicant in the present matter. There are no
reasonable prospects of success on this ground.
Ground 4: Failure to exercise Judicial discretion judicially
[28] The applicant contends that I failed to call for the transcripts of the proceedings
before Acting Ju dge Moorcroft and that I only gave the respondent s an opportunity to
address me on costs, thereby denying the applicant the opportunity to be heard. He further
contends that I failed to apply the Biowatch3 principle.
[29] At the hearing on 11 June 2025, both parties were afforded an opportunity to
address the Court. The applicant was present and represented himself. He was given full
opportunity to present his case and to respond to the submissions of counsel for the
respondents. The suggestion that he was denied the opportunity to be heard is simply not
borne out by the record.
[30] As regards the transcripts of the proceedings before Acting Judge Moorcroft, there
was no obligation on me to call for such transcripts. The applicant, who bore the onus of
establishing his case for rescission, could have obtained and filed such transcripts had he
considered them material to his application. He did not do so. A court is not required to
conduct investigations on behalf of litigants.
[31] The Biowatch principle, which concerns the allocation of costs in constitutional
litigation against the State, has no application in the present matter. The Rule 42
litigation against the State, has no application in the present matter. The Rule 42
application did not raise constitutional issues, and the respondents are not State organs
in the relevant sense. Costs followed the result in the ordinary course, and there was no
3 Biowatch Trust v Registrar Genetic Resources and Others [2009] ZACC 14; 2009 (6) SA 232 (CC) ; 2009 (10) BCLR
1014 (CC).
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basis for departing from that principle. There are no reasonable prospects of succes s on
this ground.
Ground 5: Errors of Law
[32] The applicant contends that I erroneously stated that the urgent court may deal with
matters as it deems fit, and that this misconstrues the nature of urgency management,
which is administrative and does not displace the duty to ensure a fair hearing.
[33] The observation in my judgment that the urgent court may deal with its roll as it
deems fit was made in the context of explaining the broad procedural flexibility that exists
in the urgent court. It was not intended to suggest, and does not suggest, that the duty to
afford parties a fair hearing is displaced. The applicant reads far more into this observation
than is warranted.
[34] The applicant further contends that I erred in holding that his complaint did not
constitute a patent error or omission under Rule 42 (1) (b). I dealt fully with this issue in
my judgment, explaining that a patent error within the meaning of Rule 42 refers to an
error as a result of which the judgment granted does not reflect the intention of the judicial
officer, and that the error must be apparent from the face of the record and relate to the
expression of the court’s intention rather than to the substantive reasoning underlying the
decision. The applicant ’s complaint did not fall within this category. There are no
reasonable prospects of success on this ground.
The question of practical effect
[35] The respondents submit that even if the applicant were to succeed in an appeal
against my judgment, such success would have no practical effect because the underlying
order of Acting Judge Moorcroft, which dismissed the applicant’s main application on the
ground of jurisdiction, remains extant and has never been appealed.
[36] Based on the foregoing there is no need to make a finding on this submission.
Conclusion
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[39] For the reasons set out above, I am not persuaded that the applicant has
demonstrated reasonable prospects of success on any of the grounds advanced. The
grounds of appeal are either misconceived, factually incorrect, or directed at the wrong
judgment.
[41] No compelling reason has been advanced why leave to appeal should nonetheless
be granted. The matter does not raise any novel or complex questions of law, nor are
there conflicting judgments that require resolution by an appellate court.
[42] I am sympathetic to the applicant’s position as a self-represented litigant, and I have
endeavoured to give due consideration to all the grounds he has raised. However,
sympathy for a litigant’s circumstances cannot justify the grant of leave to appeal where
no reasonable prospects of success exist.
Order
[43] In the result, I make the following order:
1. The application for leave to appeal is dismissed.
2. The applicant shall pay the respondents’ costs of this application.
_______________________
C READ
ACTING JUDGE OF THE HIGH COURT
JOHANNESBURG
Date of Hearing: 29 January 2026
Date of Judgment: 06 February 2026
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Appearances:
For the Applicant: Self-Represented
For the Respondents: Adv N Matidza
Instructed by: MJS Inc