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[2026] ZAGPPHC 178
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MNTK Enterprise (Pty) Ltd and Others v Bahurutshe Boo Manyana Traditional Community and Another (Leave to Appeal) (2025-178337) [2026] ZAGPPHC 178 (9 March 2026)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
Case
Number: 2025-178337
(1)
REPORTABLE: NO
(2) OF
INTEREST TO OTHER JUDGES: NO
(3)
REVISED: YES
DATE: 09/03/2026
SIGNATURE
In
the application for leave to appeal of:
MNTK
ENTERPRISE
(PTY) LTD
First
Applicant
SYMPHONY
OF LIGHT (PTY)
LTD
Second
Applicant
INSPIRED
TRADE AND INVEST (PTY) LTD
Third
Applicant
BEHIND
THE GOLD DOOR (PTY) LTD
Fourth
Applicant
MR
MOSHOESHOE
Fifth Applicant
and
BAHURUTSHE
BOO MANYANA
First
Respondent
TRADITIONAL
COMMUNITY
BOO
MANYANA
CHROME
(PTY)
LTD
Second Respondent
In
re
the
urgent application
of:
BAHURUTSHE
BOO MANYANA
TRADITIONAL
COMMUNITY
First
Applicant
BOO
MANYANA CHROME
(PTY)
LTD
Second
Applicant
and
MNTK
ENTERPRISE (PTY) LTD
First
Respondent
SYMPHONY
OF LIGHT (PTY) LTD
Second
Respondent
INSPIRED
TRADE AND INVEST (PTY) LTD
Third
Respondent
BEHIND
THE GOLD DOOR (PTY) LTD
Fourth
Respondent
MR
MOSHOESHOE
Fifth Respondent
MINISTER:
THE DEPARTMENT OF MINERAL
Sixth
Respondent
RESOURCES
AND ENERGY N.O.
MINISTER
OF
POLICE
Seventh
Respondent
NATIONAL
POLICE
COMMISSIONER
Eighth
Respondent
Delivered:
This judgment was prepared and authored by the Judge whose name is
reflected and is handed down electronically by circulation
to the
parties/their legal representatives by email and by uploading it to
the electronic file of this matter on Caselines. The
judgment is
deemed to have been handed down on 9 March 2026.
JUDGMENT:
APPLICATION FOR LEAVE TO APPEAL
MENTZ
AJ
Introduction
[1]
This is an
application for leave to appeal against an order granted on 19
November 2025 in the urgent court in terms whereof the
respondents
were interdicted from unlawfully
conducting
commercial mining activities
from what is
referred to as
"the
MNTK site",
an
open pit mine situated on the Farm Strydfontein
12 JP,
Zeerust,
North
West Province,
consisting of
Portion
1
and the Remaining
Extent
(collectively
referred to as
'the
Farm’).
[2]
I refer to the
parties herein as referred to in the main application,
and to the
first to fifth respondents (who are the applicants in this
application for leave to appeal) collectively as
'the
respondents'.
Respondents'
grounds for leave to appeal
[3]
The grounds
upon which the application for leave to appeal is based can be
summarised as follows:
(i)
that the court
erred in finding that the matter was urgent;
(ii)
that the court
erred in dismissing the respondents' application to strike out
material alleged to be new and raised for the first
time in the
replying affidavit filed in support of the application to re-open the
case;
(iii)
that there was
an incorrect recordal of facts regarding two earlier applications in
the Mahikeng High Court. This, according to
the
respondents,
has bearing on
the issue of the first applicant's
standing;
(iv)
that the court
erred in finding that the first applicant
had
locus
standi;
(v)
that the court
erred in making a finding with regards to ownership of the Remaining
Extent with reference to previous court orders;
(vi)
that the court
erred in finding that respondents did not challenge the allegations
in respect of
illegal mining as set out in paragraphs
43 -
48 of the
founding affidavit, thereby suggesting a degree of culpability on the
part of the MNTK applicants;
(vii)
that the court
erred by finding that the respondents were relying on semantics when
they placed the first applicant's ownership
in dispute;
(viii)
that the court
erred in not finding that the applicants ought to have amended their
notice of motion.
[4]
Counsel for
the respondents primarily argued the issue of the first applicant's
standing, specifically with reference to the disputes
raised about
ownership.
[5]
The
application for leave to appeal in essence raises the same issues
that were argued before me. They have all been dealt with
in my
judgment
save
for an issue that was raised by the court, namely the practical
effect of an appeal.
General
principles applicable
[6]
It
is well established that section 17(1) of the Superior Courts Act has
raised the threshold for leave to appeal as the use of
the word
"would"
indicates
a measure of certainty that another Court will differ from the Court
whose judgment is sought to be appealed against.
[1]
[7]
Leave
to appeal should not be granted unless there is truly a reasonable
prospect of success. A mere possibility of success is not
enough, and
the conclusion that there is a reasonable prospect of success on
appeal must be rooted in a sound, rational basis.
[2]
[8]
It
is further trite that it is the order that is appealed
against
and
not the reasons for a judgment.
[3]
Therefore,
even if an applicant's criticisms of a judgment are well-founded,
it
would
not
justify
the
granting
of
leave
to
appeal
in
the absence of a realistic prospect of the order being altered on
appeal.
No
practical effect
[9]
Section
16(2)(a) of the Superior Court Act states:
"(2)(a)(i)
When at the
hearing of an appeal the issues are of such a nature that the
decision sought will have no practical effect or result,
the appeal
may be dismissed on this ground alone.
(ii)
Save under exceptional circumstances, the question whether the
decision would have no practical effect or result is to be determined
without reference to any consideration of costs."
[10]
The
reason why leave to appeal is first required before a matter goes on
appeal, is to relieve appeal courts of their workload.
Appeals should
therefore only be heard where there would be a real, practical effect
or result flowing from a judgment of a court
of appeal.
[4]
[11]
Upon inquiring
from counsel for the respondents what the
practical
effect of an
appeal would be, he submitted that it would be the removal of adverse
findings against the respondents and the reversal
of the costs order.
In my view, the removal of adverse factual findings and the
reconsideration of costs, without more,
do not
constitute
the
kind of concrete
or substantive
relief
contemplated
by section 16(2)(a) as meeting the requirement that the decision
sought on appeal must have a practical effect.
[12]
The
respondents' underlying legal position would remain unchanged
irrespective of the outcome of an appeal. Even if successful,
an
appeal would neither entitle them to commence mining, nor confer any
substantive relief. In the absence of any practical effect,
the mere
reconsideration of costs cannot justify the granting of leave to
appeal unless exceptional circumstances
exist,
[5]
which they do not in this matter.
[13]
Considering
the above, I am of the view that the application for leave to appeal
should fail on the basis of section 16(2)(a) alone.
I nevertheless
briefly address the primary ground for leave to appeal relied on by
the respondents' counsel in argument.
The
first applicant's ownership and standing
[14]
The principal
complaint advanced by the respondents was that the first applicant
lacked standing on the basis that its ownership
of the Farm was
disputed. It was contended that, absent proof of ownership, the first
applicant could not establish the requisite
locus
standi
to
have launched the proceedings.
[15]
Counsel for
the respondents advanced the same technical arguments
concerning the
first applicant's ownership as those raised in the main application,
including alleged discrepancies between the
spelling of the first
applicant's name on the title deed and its citation in these
proceedings. He also again referred to the issue
regarding the
Upgrading of Land Tenure Act 112 of 1991 and the assertion that there
was never a proper conversion into ownership,
and that this could
lead to a potential conflict between the first applicant and a
different community.
[16]
Registered
ownership should not be conflated with legal standing, particularly
in environmental matters where the legislature has
widened standing
beyond ownership of land.
[6]
[17]
I have dealt
extensively
in
the judgment with the issue of standing, the applicable authorities,
and the basis upon which the first applicant established
such an
interest. Even if ownership was genuinely disputed, that fact would
not be dispositive of the first applicant's standing,
nor would it
affect the order ultimately granted.
[18]
The
respondents' counsel further contended that the Rule 35(12) notice
remained
unresolved due to the applicants' failure to provide the information
sought. The applicants' counsel submitted that the
attached title
deeds were the only documents available. As standing was determined
by reference to the first applicant's
interest and
not ownership
alone, the
documents
sought under
Rule
35(12)
and (14) were not relied upon, and any different view on appeal would
not affect the order made.
[19]
In these
circumstances, there is no reasonable prospect that another court
would differ on the issue of the first applicant's standing.
Other
grounds of appeal
[20]
Having
considered my judgment and the heads of argument, I am satisfied that
the remaining grounds
of appeal
raise no novel or important
points of law,
nor any issue of public interest or conflicting authority requiring
consideration by a court of appeal.
Conclusion
[21]
In light of
the higher threshold in section 17(1), I am not persuaded that
another court would reach a different conclusion. In
my view, there
is no reasonable prospect of success, nor any compelling reason to
hear an appeal. The application for leave to
appeal must therefore
fail.
ORDER
Accordingly,
I make the following order:
1.
The application for leave to appeal is dismissed with costs, such
costs to include the cost of two counsel on Scale C.
S
MENTZ
ACTING
JUDGE OF THE HIGH COURT
GAUTENG
DIVISION, PRETORIA
For
the Applicants:
G
Rome SC
(Respondents
in the application for leave to appeal)
R
Makoanyana
Instructed
by:
Thomson
Wilks Incorporated Attorneys
For
the First to Fifth Respondents:
G
I Hulley SC
(Applicants
in the application for leave to appeal)
B
Ford
Instructed
by:
Vhonani
Nemakanga Incorporated Attorneys
Date
of hearing:
16
February 2026
[1]
Mont
Chevaux
Trust
v Goosen
2014
JDR 2325 (LCC) at para 6
[2]
MEC
for Health, Eastern Cape v Mkhitha
2016
JDR 2214 (SCA) at paras 16 and 17
[3]
Tavakoli
and Another v Bantry Hills (Pty) Ltd
2019
(3) SA 163
(SCA) at para 3;
Lebea
v Menye and Another
2023
(3) BCLR 257
(CC) at para 29
[4]
Premier,
Provinsie Mpumalanga v Groblersdalse Stadsraad
1998
(2) SA 1136
(SCA)
at
1141
[5]
Mukanda
v South African Legal Practice Council
2021
(4) SA 292
(GP) at para 9
[6]
Section
32
of the
National Environmental Management Act 107 of 1998