REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
1.NOT REPORTABLE: NO
2.NOT OF INTEREST TO OTHER JUDGES: NO
3. REVISED : NO
In the matter between:
OLDiSTUDY4(PTY)LTD
And
SRE RENTALS (PTY) L TO
CASE NUMBER: 111486-2025
Applicant
(In the leave appeal application)
Respondent
(In the leave appeal application)
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In re:
SRE RENTALS (PTY) LTD Applicant
And
OLDiSTUDY4(PTY)LTD First Respondent
CUZEN RANDEREE DYSAI INC Second Respondent
BROLL AUCTION AND SALES (PTY) LTD Third Respondent
RIAZBADAT Fourth Respondent
Neutral Citation : Old iStudy4 (Pty) Ltd v SRE Rentals (Pty) Ltd (111486/2025)
[2026] ZAGPJHC ---- (27 February 2026)
Coram: Khaba AJ
Heard: 20 February 2026
Delivered: 27 February 2026 - This judgment was handed down electronically by
circulation to the parties' representatives by email, by being uploaded to CaseLines
and by release to SAFLI I. The date and time for hand-down is deemed to be 10:00
on 27 February 2026.
Summary: Application for leave to appeal - s 17(1 )(a)(i) of the Superior Courts Act
10 of 2013 - an applicant now faces a higher and a more stringent threshold - leave
to appeal refused.
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KHABAAJ:
JUDGMENT
APPLICATION FOR LEAVE TO APPEAL
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[1]. I shall refer to the parties as referred to in the original main application . This is
an application for leave to appeal against the whole of the judgment and order
that I granted on 29 January 2026 ("the order'? in the unopposed motion Court
in favour of the applicant SRE Rentals (Pty) Ltd ("SRE Rentals'? and the written
reasons handed down on 12 February 2026 ("the reasons'? jointly ("the
judgment'? . Having considered the matter, I ordered the second respondent
Cuzen Randeree Dysai Inc a law firm practising as such to pay the amount of R
11 850,000.00 currently held in its trust account , being the purchase for the
immovable property back to the applicant.
[2]. Aggrieved by this decision , on 30 January 2026, the first respondent requested
written reasons for the order in terms of Rule 49(1 )(c). Simultaneously with the
request for written reasons, the first respondent filed this application for leave to
appeal to the Full Bench of this Division alternatively the Supreme Court of
Appeal. The written reason were delivered on 12 February 2026. The written
reasons are comprehensive , and I stand by them as set out therein . The
applicant opposes this application for leave to appeal.
[3). The factual matrix of this matter is fully set out in my written reasons handed
down on 12 February 2026, \Nhich I do not intend to repeat In thi ::, judgment,
save to highlight the salient features relevant to this judgment. In summary , the
applicant and the first respondent concluded a written sale agreement ,
subsequently amended by an addendum , for the purchase of an immovable
property in Vereeniging for the total purchase price of R 11 850,000.00. The
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purchase price was paid in full by the applicant and was held in the second
respondent's trust account, the conveyancing attorneys appointed in terms of
the written sale agreement.
[4]. The second respondent confirmed that it holds the purchase price in a section
86 investment account. The second respondent requested a joint instruction
from the purchaser and the seller to release the purchase price and accrued
interest, failing which the second respondent, will continue to hold the funds in
trust to safeguard both parties rights and interests and it will continue to do so
until a Court orders the second respondent to release the funds to a particular
party.
[5]. The first respondent breached the sale agreement by failing to obtain the rates
clearance certificate a prerequisite to pass transfer of the property into the
applicant's name despite repeated demands and notices of breach.
[6]. The letters dated 22 August 2024; 11 March 2025 and 25 June 2025, the
applicant lawfully cancelled the written sale agreement due to the first
respondent's material breach. In the alternative, the first respondent repudiated
the written sale agreement, which repudiation has been accepted by the
applicant. The cancelation was communicated to all the parties.
[7]. On 11 July 2025, the applicant launched the main application. The main
application sought an order directing the second respondent to repay the
purchase price held in the second respondent's trust account to the applicant.
[6). The app11cat1on was aury served upon all the respondents. The first respondent
filed its notice of intention to oppose the main application, which notice was
served upon the applicant's attorneys on 14 August 2025. I interpose here to
mention that both parties agreed to exchange pleadings in by email. The
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second respondent did not oppose the main application . The third respondent
filed a notice to abide. The fourth respondent did not oppose the main
application. Critically, the first respondent failed to deliver an answering affidavit
to the main application despite having more than five months to do so.
[9]. The main application was enrolled by the applicant's attorneys for hearing on
29 January 2026 on the unopposed motion Court roll. The notice of set down
was duly served on all the respondents by email.
[1 O]. On 28 January 2026, a day before the hearing of the applicant's main
application in the unopposed motion Court. The first respondent launched its
own postponement application, which was also set down for hearing on 29
January 2026 in the unopposed motion Court roll. The first respondent in its
notice of motion sought an order for the postponement of the applicant's main
application sine die alternatively the removal of the applicant's main application
from the unopposed motion Court to the opposed motion Court roll.
[11 ]. The grounds advanced by the first respondent in its postponement application
was the alleged existence of a statutory moratorium under section 133 of the
Companies Act 71 of 2008, arising from the business rescue application
launched against the first respondent on 23 December 2025 at the Durban High
Court under case number: 2025-249571 . A preliminary contention that the
relief sought against the second respondent was legally incompetent.
[12). The applicant delivered its notice of intention to oppose the first respondent's
postponement application and filed an answering affidavit and its
comprehensive neaas of arguments.
[13]. The first respondent failed to file its replying affidavit to address the applicant's
answering affidavit and failed to file any heads of arguments in support of its
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own application for postponement. As a result, the substantive arguments and
written submissions before Court were those of the applicant. In the absence of
any substantive legal and factual challenge from the first respondent's side, the
Court was compelled to decide the matter on the papers and arguments as
presented by the applicant.
[14]. The postponement application was brought at the proverbial eleventh hour, a
day before the hearing of the main application, despite the first respondent
having been aware of the set of the applicant's main application since 13
January 2026 in the unopposed motion Court. The first respondent's
explanation is that it was awaiting the outcome of the business rescue
application filed on 23 December 2025 at the Durban High Court under case
number: 2025-249571 . The business rescue application post- dated the
applicant's main application which was set down several weeks. The first
respondent could have taken steps earlier to either file its opposition or apply
for a postponement.
[15]. The first respondent's primary argument was that the business rescue
application triggered a moratorium under section 133 of the Companies Act,
which prohibits legal proceedings against a company in relation to any property
belonging to the company , or lawfully in its possession.
[16]. This argument was fundamentally misconceived and lacked any prospects of
success for the following reasons, as generally cogently argued Mr. Koralia,
counsel who appeared for the applicant. The sale agreement had been lawfully
cancelled due to the first respondent's breach. Upon cancellation, the first
respondent's right to the purchase price held in second respondent's trust
account ended . The fund s in the sec o nd roepondent 'G tru ot o c;count were no t
property "belonging to" or lawfully in the possession of' the first respondent.
The second respondent hold such funds in a fiduciary capacity, akin to trustee,
The second respondent hold such funds in a fiduciary capacity, akin to trustee,
for the party ultimately entitled to them. Following, the cancelation , the
entitlement reverted to the applicant. The first respondent's postponement
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application conspicuously failed to engage with that the fact of cancellation, a
fatal omission that undermined the first respondent's entire case.
[17]. The second respondent's secondary argument is that a claim for payment must
lie against the principal debtor, the first respondent and not its agent, the
second respondent ignored the practical reality and the nature of the relief
sought. The applicant is not seeking to "attach " the property of the first
respondent. It is seeking the return of its own money currently held in the
second respondent's trust account, whose mandate to retain those funds had
terminated with the cancellation of the underlying sale agreement. An order
directing the stakeholder to release the funds is a competent and common form
of relief in such circumstances, especially where , as in this matter the
stakeholder (second respondent) has expressly indicated that it requires a
Court Order to release the funds held in trust.
[18]. The granting of a postponement would have caused significant prejudice to the
applicant, who had been out of substantial sum of money for years due to the
first respondent' breach and who has not followed due process throughout. The
funds remain secure in the second respondent's trust account. The first
respondent would suffer no prejudice from the refusal of the postponement
application, as it failed to advance any substantive opposition to the main
application despite ample opportunity.
[19]. A critical factor in the decision was the first respondent's failure to file an
answering affidavit in the main application. A party cannot in good faith, seek to
move a matter to the opposed motion Court, when it has not filed no papers in
opposition. The first respondent's counsel attempt to do so, was an abuse of
Court pro c ess. The firs t r espond e nt h ad s inoq A'-491.tlilt 2025 to oxploin Ito breach
of the contract or why the cancellation was invalid. The first respondent's
of the contract or why the cancellation was invalid. The first respondent's
silence on the merits in the main application, while seeking an indefinite delay,
weighed heavily against granting the indulgence sought.
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[20]. The points raised by counsel for the first respondent were unmeritorious an.d
appeared dilatory. The main application was properly enrolled for hearing in the
unopposed motion Court on 29 January 2026. The first respondent's counsel
failed to file heads of arguments on merits in the postponement application ,
despite the Practice Directives, left the Court with no substantive counter
argument to consider. A Court cannot countenance a strategy of avoiding
merits hearing by raising weak procedural points at the eleventh hour.
[21]. On undisputed facts presented by the applicant, which the first respondent
choose not to contest, the applicant provided its facts. The first respondent
failed to establish any grounds for the indulgence of a postponement. Its
application was late, its explanation unsatisfactory, and its prospects of success
on the purported defences were nil.
[22]. On the merits of the main application, which were unopposed on the papers,
the applicant presented a clear, cogent, and undisputed case. The applicant
demonstrated that a valid agreement existed; full compliance with its
obligations ; a material breach by the first respondent; a lawful cancellation of
the written sale agreement and a consequent entitlement to the return of the
purchase price held in the second respondent's trust account. No defence
having been raised in the main application and the papers establishing the
applicant's clear right to the relief sought.
[23]. The first respondent raised some eight grounds of appeal. Stated broadly, the
first respondent, first contended that the Court erred alternatively misdirected
itself by failing to adjudicate upon the first respondent's application for
postponement. Second, the first respondent contended that this Court erred by
9ra ntin9 the ord e r so,..9 ht by the a ppli cant. Thi r d , the fl r~t re~p ondent
contended that this Court erred by granting an order on the unopposed roll,
contended that this Court erred by granting an order on the unopposed roll,
whilst not only the applicant's application was opposed, but whilst the first
respondent's application for postponement was opposed. Fourth, it was
submitted that this Court erred by having found that service of the applicant's
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notice of set down was perfected alternately by not having found that such
service was imperfect, in circumstances where the applicant's notice of set
down of the application was not served on the first respondent's care of
address (being the elected address for service). Fifth, it was submitted that this
Court erred by having granted an order as against the first respondent, despite
the first respondent being subject to a live business rescue application in the
Durban High Court under case number: 2025-249571 . Sixth, the first
respondent contend that this Court erred by having granted an order contrary to
the moratorium provided to the first respondent by statute. Seven, it was
submitted that this Court erred by having granted an order to the detriment of
the first respondent's creditors alternatively having granted an order that
creates a preference to creditors. Lastly, it was submitted that the Court erred in
granting the order as sought by the applicant, in circumstances where no order
or finding has been made as regards the cancellation , if any, of the sale of the
property.
[24]. The first respondent contended that this application for leave to appeal raises
several issues, and there are, with respect compelling reasons why leave to
appeal should be granted. The first respondent contended the reasons
compelling the granting of the leave to appeal, and for the appeal to be heard,
are that the order in question closes the Court's doors to the first respondent to
ventilate fully the issue between the parties,. and that the order contravenes the
business rescue moratorium provided by statute to the first respondent.
[25]. The first respondent contended the failure to adjudicate the postponement
application, this submission is without merit. I heard full arguments on the
postponement application. In my written reasons, I dealt extensively with the
application from paragraphs 22 to 33, analysing the legal principles, the
application from paragraphs 22 to 33, analysing the legal principles, the
lateness of the application, the unsatisfactory explanation, and the lack of
prospects of success. The refusal of the postponement application was a
necessary precursor to granting the order in the main application. It is axiomatic
that the order I granted is a refusal of the postponement. There is no ambiguity
or omission in this regard.
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[26). The first respondent further contended that there are reasonable prospects of
success, and that there are compelling reasons why leave to appeal should be
granted. During argument, emphasis was placed on these compelling reasons.
[27). Nothing new has been raised by the first respondent in this application for leave
to appeal. In my written reasons, I have dealt with most, if not all of the issues
raised by the first respondent in this application for leave to appeal and it is not
necessary for me to repeat those in full. Suffice to restate what I have already
said in the paragraphs above.
[28). The traditional test in deciding whether leave to appeal should be granted was
whether there is a reasonable prospect that another Court can come to a
different conclusion to that reached by me in my judgment. This approach has
now been codified in s 17(1 )(a)(i) of the Superior Courts Act 10 of 2013, which
came into operation on the 23rd of August 2013. Leave to appeal may only be
granted where a Court is of the opinion that the appeal would have reasonable
prospects of success, which prospects of success are not too remote. A sound
rational basis for the conclusion that there are prospects of success must be
shown to exist.
[29). An application for leave to appeal faces a higher threshold than under the
repealed Supreme Court Act. Leave to appeal may only be given where a judge
concerned is of the opinion that the appeal would have a reasonable prospect
of success. The test is simply whether there are any reasonable prospects of
success in the appeal. It is not whether a litigant has arguable case or a mere
possibility of success.
[30). It is trite that if a Court is unpersuaded of the prospects of success, it must still
a n9uir e into \Nh e the r the re i~ ~omp e llin9 reaoon to o nto rta in tho a ppool.
However, the merits remain vitally important and are often decisive. In
considering the existence of compelling reasons as envisaged by s 17(1 )(a)(ii)
considering the existence of compelling reasons as envisaged by s 17(1 )(a)(ii)
of the Act, I am also not persuaded that such reasons exist in this matter, when
considering in the context of prospects of success on the merits.
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[31]. In Ramakatsa and Others v African National Congress and Another 1, the SCA
held that the test of reasonable prospects of success postulates 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. These
prospects of success must not be remote, but there must exist a reasonable
chance of succeeding. An applicant who applies for leave to appeal must show
that there is a sound and rational basis for the conclusion that there are
prospects of success.
[32]. The ratio in Ramakatsa simply followed S v Smith 2012 ( 1) SACR 567 (SCA),
[2011] ZASCA 15, in which Plasket AJA (Cloete JA and Maya JA concurring),
held as follows at para 7:
'What the test of reasonable prospects of success postulates is a
dispassionate decision, based on the facts and the law that the 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.In Mont Chevaux
Trust v Tina Goosen2, the Land Claims Court held (in an obiter dictum) that
the wording of this subsection raised the bar of the test that now has to be
applied to the merits of the proposed appeal before leave should be granted. I
agree with that view, which has also now been endorsed by the SCA in an
unreported judgment in Notshokovu v S3. In that matter the SCA remarked
1 Ramakat sa and Others v African National Congress and Another (724/2019) [2021] ZASCA 31 (31
March 2021 );
March 2021 );
2 Mont Chevaux Trust v Tina Goosen, LCC 14R/20 14 (unreported ).
3 Notshokovu v S, case no: 157/2015 [2016] ZASCA 112 (7 September 2016).
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that an appellant now faces a higher and a more stringent threshold, in terms
of the Superior Court Act 10 of 2013 compared to that under the provisions of
the repealed Supreme Court Act 59 of 1959. The applicable legal principle as
enunciated in Mont Chevaux has also now been endorsed by the Full Court of
the Gauteng Division of the High Court in Pretoria in Acting National Director
of Public Prosecutions and Others v Democratic Alliance In Re: Democratic
Alliance v Acting National Director of Public Prosecutions and Others". The
word "would" in section 17 (1)(a)(i) of the Superior Courts Act No: 10 of 2013
has been held to denote "a measure of certainty that another court will differ
from the court whose judgment is sought to be appealed against and that the
test for leave to appeal to be successful is more stringent than the traditional
test." In Notshokovn v S5 the Supreme Court of Appeal held as follows on the
test " ... an appellant, on the other hand faces a higher and stringent threshold
in terms of the Act compared to the provisions of the repealed Supreme Court
Act 59 of 1959."
In MEG for Health Eastern Cape v Mkhintha and Anothe~. Schippers AJA
provided the following guidance on the test:
"[16] Once again it is necessary to say that leave to appeal, especially to this
court, must not be granted unless there truly is a reasonable prospect of
success. Section 17 (1)(a) of the Supreme Courts Act 10 of 2013 makes it that
leave to appeal may only be given where the judge concerned is of the opinion
that the appeal would have a reasonable prospect of success; or there is some
other compelling reason why it should be heard.
[17] An applicant for leave to appeal must convince the court on proper grounds
that there is a reasonable prospect or realistic chance of success on appeal. A
Alliance v Acting National Director of Public Prosecutions and Others (19577/09) [2016] ZAGPPHC
489 (24 June 2016).
5 Notshokovu v S (157/15) {2016] ZASCA 112 (7 September 2016)
489 (24 June 2016).
5 Notshokovu v S (157/15) {2016] ZASCA 112 (7 September 2016)
6 MEG for Health, Eastern Cape v Mkhitha and Another (1221/2015) [2016] ZASCA 176 (25
November 2016).
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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 appeal."
[33]. I am not persuaded that the issues raised by the first respondent in this
application for leave to appeal are issues in respect of which another Court is
likely to reach conclusions different to those reached by me. I am therefore of
the view that there are no reasonable prospects of another Court making
factual findings and coming to legal conclusions at variance with my factual
findings and legal conclusions. The first respondent has failed to demonstrate
that another Court would reach a different decision and that the first respondent
should be granted leave to appeal. In light of the all the circumstances alluded
above, it is my view that the first respondent has not presented and facts
demonstrating that it has any prospects of success; therefore, it would not
serve any interest of justice to grant leave to appeal to the first respondent.
[34]. Having considered the papers filed on record and the submissions made by
the parties, it follows that the application for leave to appeal, must therefore fail.
There is no reason to deviate from the normal principle that costs follow the
result. I am not persuaded that a punitive costs order is warranted , as sought by
the applicant. Considering the issues and complexities which arise in this
application , costs of counsel on scale B is warranted.
Order
[35]. In the circumstances, the following order is made:
1) The first respondent's application for leave to appeal is dismissed with
cost s ino ludins coat s o f counsel c;,n ~~~19 e
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Appearances:
KHABAAJ
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION, JOHANNESBURG
Counsel for the Applicant in the Leave to Appeal : Adv. AJ Gevers
Mooney Ford Attorneys
0313049881
sarahr@mfp.co.za
Instructed by:
Tel:
Email:
Counsel for the Respondent in the Leave to Appeal: Adv. M Karolia
Instructed by:
Tel:
Email:
Date of Hearing:
Date of Judgment:
ARM Inc Attorneys
011 025 1437
zaeem@armlaw.co .za
20 February 2026
27 February 2026
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