IN THE HIGH COURT OF SOUTH AFRICA,
FREE STATE DIVISION, BLOEMFONTEIN
In the matter between:
MAFUBE LOCAL MUNICIPALITY
JB SELEPYANE
(in her capacity as the duly appointed
Municipal Manager of Mafube Local Municipality)
T MOTSOENENG
(in his capacity as the duly
Appointed Executive Mayor of Mafube Local Municipality)
MEC CO-OPERATIVE GOVERNANCE
AND TRADITIONAL AFFAIRS
and
JERRY CAR BRANDING
Not Reportable
Case no: 4630/2025
FIRST APPLICANT
SECOND APPLICANT
THIRD APPLICANT
FOURTH APPLICANT
RESPONDENT
Neutral citation: Mafube Local Municipality and Others v Jerry Car Branding (Pty) Ltd
(4630/2025) [2026] ZAFSHC 38 (2 February 2026)
Coram: MOLITSOANE J
Heard: 28 November 2025
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Delivered: 2 February 2026
Summary: Leave to appeal - whether there are prospects of success on appeal
or there are other compelling reasons to grant leave to appeal - s 17( 1) of the Superior
Courts Act 10 of 2013 - principles restated.
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ORDER
The application for leave to appeal is dismissed with costs, such costs to include the costs
of counsel at scale B.
JUDGMENT
Molitsoane J
[1] This is an application for leave to appeal the judgment and order of De la Rey AJ,
delivered on 11 September 2025. The acting stint of De la Rey AJ having ended, I am
now seized with this application. The applicants in this application for leave to appeal are
the first to third, and fifth respondents in the main application.
[2] The judgment of this Court is assailed on a number of grounds. First, that the order
granted is not supported by a clear contractual right and was legally incompetent. Under
this heading, it is contended that clause 8 of the User Agreement provides that the
respondent would be entitled to pump out the effluent from the second dam and to
distribute it according to his preference. Importantly, a point is made that the interruption
of the first applicant's electricity supply to the Namahadi sewerage plant also interrupted
the electricity supply from the second dam, which is situated on the respondent's
premises to the respondent's irrigation system. But the court in its judgment held that the
'applicant made it clear that in its founding affidavit that its right to receive the treated
effluent is based on and has always been based on the user agreement'. The finding of
the court cannot be faulted in this regard.
[3] Importantly, it is contended that this Court did not take into account that clause 22
of the notarial deed of lease between the first applicant and the respondent provided that
the landowner would be responsible for any electricity costs to pump the water out of the
dam to irrigate his plants. This Court, in my view, correctly found that the notarial deed of
lease was void on the basis that it was never registered. The applicants do not attack this
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finding of voidness but contend that, notwithstanding this, the court still had to consider
the particulars pointing to the intention of the parties. I am unable to agree that the court
had to consider the terms of the instrument it had found to be pro non scripto. There is no
reason to find fault with the finding of the court.
[4] Second, that the legal requirements for an interdict had not been met. On this point,
it is contended on behalf of the applicants that the respondent had an alternative relief. It
is said that the respondent can merely engage Eskom and request them to provide
electricity to his premises, or alternatively if he has an existing Eskom service point, phone
a private technician to connect the electricity from the second dam to his premises on
such current system. This reasoning is, in my view, flawed. It does not take into account
the history of the relationship between the parties. The first respondent cannot abdicate
his constitutional obligations and expect the respondent to act in such a way that would
relieve it of its constitutional duties. The court held that the applicant's duty to ensure that
its sewerage system, including the two sewerage pumps referred to in the application
were maintained and kept operational had been reaffirmed numerous times in this Court.
[5] Third, the applicant raised the issue of not being in a position to pay Eskom for the
supply of the electricity due to its financial situation. That argument was correctly rejected.
I align myself with the reasoning of the court and nothing further needs be said. The
applicants persist with this argument and impermissibly tried to bolster their case by
attempting to introduce new evidence by way of attaching further new documents on the
application for leave to appeal. This conduct is unacceptable. The court further dealt with
the remainder of the grounds raised fully in its judgment and there is no need to rehash
them.
them.
[6] Applications for leave to appeal are regulated bys 17( 1) of the Superior Courts Act
10 of 2013. It reads as follows:
'(1) Leave to appeal may only be given where the judge or judges concerned are of the opinion
that-
(aJ(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)(aJ; and
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(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.'
[7] In Smith v S, 1 the Supreme Court of Appeal, relying on S v Mabena and Another,2
remarked:
'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.'
[8] I have carefully considered the judgment of the court as well as the submiss ions
of the parties. I am of the view that another court wou'ld not come to a different conclusion,
nor are there compelling reasons why an appeal should be heard by another court.
[9] I therefore, make the following order:
The application for leave to appeal is dismissed with costs, such costs to include the costs
of counsel at scale B.
1 Smith v S [2011] ZASCA 15; 2012 (1) SACR 567 SCA para 7.
P E )'JIOLITSOANE
JUDGE OF THE HIGH COURT
2 S v Mabena and Another [2006) ZASCA 178; [2007) 2 All SA 137 (SCA); 2007 (1) SACR 482 SCA para
22.
' •
Appearances
For the applicants:
Instructed by:
For the respondent:
Instructed by:
M Froneman
The State Attorney,
Bloemfontein
PC Ploos Van Amstel
Corne Boshoff
c/o Phatshoane Henny Inc.,
Bloemfontein.
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