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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
Case Number: 48483/2021
In the matter between:
In the matter between:
JEREMIA ELCON NGWENYA Applicant
And
MATSHEDISO ROSELINE NKOSI First Respondent
CITY OF EKURHULENI METROPOLITAN
MUNICIPALITY Second Respondent
APPLICATION FOR LEAVE TO APPEAL: JUDGMENT
Introduction
[1] This is an application for leave to appeal by Jeremia Elcon Ngwenya (applicant)
against the eviction order of this court handed down on 5 May 2025. The
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: YES
(3) REVISED.
DATE SIGNATURE
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eviction order was granted against the applicant following on the eviction
application which was instituted in this court by Matshediso Roseline Nkosi (first
respondent). The applicant was the first respondent in the eviction application.
[2] The eviction order provided as follows:
“1. The First and Second Respondents, together with those occupying the
property by, through or under them, be evicted from the properly situated
at:
1[…] J[…] M[…] STREET
S[…]
KATLEHONG
and more fully described as:
ERF1[…] S[…] V[…]
EXTENSION 1 TOWNSHIP
(hereinafter referred to as "the property").
2. The First and Second Respondents, together with those occupying the
property by, through or under them is hereby ordered to vacate the property on
or before 5th OF JULY 2025.
3. In the event that the First and Second Respondents, together with those
occupying the property by, through or under them not vacate the property on the
date set out above, the Sheriff of the Court or his lawfully appointed Deputy be
authorised and directed to evict the First and Second Respondents, together with
those occupying the property by, through or under them in the terms contained in
this order and in the Notice of Motion, from the property.
4. The First Respondent is hereby directed to pay the costs of this application,
including the costs of the Applications in terms of Part A hereof and in terms of
Section 4(2) of the Prevention of illegal Eviction from and Unlawful Occupation of
Land Act.”
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[3] The applicant contends that the eviction order was erroneously made and is
accordingly seeking leave to appeal against the whole of the judgment and the
above order. This application for leave to appeal is opposed by the first and
second respondents.
Condonation application
[4] Before dealing with the leave to appeal, it is apposite for me to first consider the
applicant’s condonation application for the late filing of his application for leave
to appeal the eviction order. In this regard, the applicant contends that the
reasons for the delay are that after the order was granted, he looked for an
attorney who can help him as he was unrepresented during the hearing of the
eviction application.
[5] To this end, he stated that he was not employed for some period and as a result
he could not afford to get an attorney as many of them were looking for
exorbitant fees which he could not afford. Ultimately, he decided to bring this
application for leave to appeal in his personal capacity.
[6] It is trite that in all cases of time limitation, whether statutory or in terms of the
rules of court, the High Court has an inherent right to grant condonation where
principles of justice and fair play demand it and where the reasons for non-
compliance with the time limits have been explained to the satisfaction of the
court. The overriding consideration is that the matter rests in the judicial
discretion of the court, to be exercised with regard to all the circumstances of
the case.
[7] In my view, the applicant has provided a reasonable explanation which justifies
the granting of the condonation application by this Honourable Court . I now
proceed to deal with the merits of the application for leave to appeal.
Leave to appeal
[8] The grounds of leave to appeal are detailed in the notice of leave to appeal,
thus, there is no need to repeat the same in this judgment. An application for
leave to appeal is governed by Section 17(1) of the Superior Court Act 10 of
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2013, which stipulates that:
"(1) Leave to appeal may only be given where the judge or judges concerned are
of the opinion that-
(a) (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)
(a); and
(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."
[9]
The Supreme Court of Appeal in MEC for Health, Eastern Cape v Mkhitha and
Another held that section 17(1)(a) of the Superior Courts makes it clear 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.
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[10] The correct interpretation of section 17(1)(a)(i ) is therefore whether there are
reasonable prospects of success on appeal to be determined on a rational
basis.
2 In other words, there must exist a realistic chance of success on appeal
based on proper grounds. Lastly, it was held that the section requires a truly
reasonable prospect of success.
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[11] In the context of section 17(1)(a)(ii) of the Superior Courts Act, a "compelling
reason" for an appeal to be heard, includes conflicting judgments on the matter
under consideration, or other similar compelling circumstances that warrant a
1 [2016] ZASCA 176 at para 16.
2 See also Land and Agricultural Development Bank of South Africa and Another v Van den Berg and
Others [2022] 1 All SA 457 (FB) (8 November 2021).
3 See also MEC for Health, Eastern Cape v Mkhitha and Another Footnote 1 above at para 17.
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higher court's review. In Van Zyl N.O and Another v Cometa Trading (Pty) Ltd 4
the court held that:
“… . Compelling reasons include, among others, the involvement of substantial
public interest, an important question of law, differing judicial interpretations, or a
discrete issue of statutory interpretation with implications for future cases.”
[12] It was held that where it is proposed that compelling reasons exist the court is
required to consider the compelling reasons also in conjunction with the merits
of the appeal, which it was held remain often decisive.
5 In other words, in
considering whether compelling reasons exist that warrant appellate
interference, the court may grant leave on that basis, but not without due regard
to the merits.
Analysis
[13] After considering the legal principles which requires the consideration of the
reasonable prospects of success on appeal, it is my view that a court of Court
of Appeal acting reasonably would not come to a different conclusion, and that
the applicant has no reasonable chance of success on appeal.
[14] Having duly considered the submissions made by the applicant and the
respondents as well as the applicable legal principles, it is my view that the
threshold for section 17(1) has not been met and accordingly leave to appeal is
refused.
4 [2025] ZAWCHC 112 (17 March 2025) at para 15. See also Caratco (Pty) Ltd v Independent
Advisory (Pty) Ltd 2020 (5) SA 35 (SCA) (25 March 2020) at para 2.
5 Caratco (Pty) Ltd v Independent Advisory (Pty) Ltd 2020 (5) SA 35 (SCA) (25 March 2020) at para 2.
See also Van Zyl N.O and Another v Cometa Trading (Pty) Ltd at para 15.
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Order
[12] In the result, I make the following order:
1. The application for condonation of the late filing of the Application for Leave
to Appeal is granted.
2. Application for Leave to Appeal is dismissed with costs.
MD BOTSI-THULARE AJ
ACTING JUDGE OF THE HIGH COURT
JOHANNESBURG
APPEARANCES
For the applicant: Jeremia Elcon Ngwenya
Tel Number : 0818761191
For the respondents: Hammond Pole Attorneys
c/o Vermaak and Partners
3
rd Floor , 54 Bath Avenue, Rosebank
Email : LeandriVS@hammondpole.co.za
Date of Hearing: 30 January 2026
Date of Judgment: 25 February 2026