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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
Case Number: 2022/056983
In the matter between:
In the matter between:
ZIQUBU SIKHOSIPHI First Applicant
ZIQUBU ZAMUKUHLE Second Applicant
RADEBE ETHEL Third Applicant
and
CITY OF JOHANNESBURG METROPOLITAN
MUNICIPALITY Respondent
JUDGMENT IN THE LEAVE TO APPEAL
NTHAMBELENI, AJ
Introduction
[1] This is an application for leave to appeal against the whole of my judgment and
orders granted on 5 December 2025. The applicants, Mr Ziqubu Sikhosiphi
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: NO
__25 March 2026
DATE SIGNATURE
2
(first applicant), Mr Ziqubu Zam ukuhle ( second applicant), and Ms Radebe
Ethel (third applicant), seek leave to appeal to the Full Bench of this Division,
alternatively, to the Supreme Court of Appeal.
[2] The respondent is the City of Johannesburg Metropolitan Municipality (the
City).
[3] The applicants were the respondents in the main application that served before
me on the urgent roll. In that application, the C ity sought an order discharging
an interim interdict that was granted by Victor J on 15 June 2012.
Factual Background
[4] This matter has a protracted history. On 9 May 2012, the Johannesburg
Magistrate's Court granted an eviction order against the applicants who then
launched rescission proceedings in the same court to rescind the order.
[5] Before the rescission proceedings could be finalised, the applicants
approached this Court on an urgent basis and obtained an interim interdict from
Victor J on 15 June 2012, which suspended the execution of the eviction order
pending the outcome of the rescission application.
[6] The rescission application was ultimately dismissed by the Magistrates' Court.
With the dismissal of the rescission application, the very foundation upon which
the interim interdict was granted fell away.
[7] Consequently, the respondent brought an urgent application before me to have
the interim interdict discharged, arguing that there was no longer any legal
basis for its continued existence.
The Judgment of 5 December 2025
[8] In my judgment delivered on 5 December 2025, I granted the following orders:
(a) The time periods, forms, and manner of service provided for in the
Uniform Rules of Court were dispensed with, and the matter was treated
as one of urgency in terms of Rule 6(12) of the Uniform Rules of Court.
3
(b) The late affidavit filed by the applicants was struck out for non- compliance
with the rules, the Notice of Motion, and the Practice Directives of this
Court.
(c) The interim interdict granted by Victor J on 15 June 2012 under case
number 2012/19433 was discharged and set aside.
(d) The respondent, with the assistance of the Sheriff, was authorised to
proceed with the execution of the eviction order granted by the
Johannesburg Magistrate's Court on 9 May 2012 (case number
185331/2011) within a period of 15 (fifteen) court days from the date of
the order.
(e) The respondent was ordered to provide alternative accommodation to the
applicants at the City of Johannesburg Region TEA at No 1[..], P[…] P[…] ,
O[…] E[…] , Soweto.
(f) Each party was ordered to pay its own costs.
Proceedings after the Judgement of 05 December 2025
[9] Subsequently after the judgement and order of 05 December 2025, an
application for leave to appeal was filed on 29 December 2025, a period of dies
non. This Court only became aware of the leave to appeal application on 03
March 2025, after correspondence from the Acting Deputy Judge President’s
(ADJP) office.
[10] Upon receipt of the email of the correspondence and on 05 March 2025, this
Court issued directives on the hearing dates and filing of the heads of argument
by both parties. Only one party, being the City complied with the directives. The
applicants did not comply and sought condonation for the late filing of their
heads. Their application was not opposed and was heard during the
commencement of the proceedings and was granted.
4
[11] Prior to the City being the applicant in the main action, brought an application
in terms of section 18(3) of the Superior Courts Act 1 on an urgent basis before
my brother Twala J, who ruled in favour of the City . However, this was not the
end of the matter.
[12] The applicants filed leave to appeal Twala J’s judgement to the F ull Bench of
this Division. The Full Bench ruled against the applicants , this judgment was
delivered on 13 March 2026 with the court concluding that the judgement of this
Court is unassailable and thus there are no prospects of success for the
applicants on their leave to appeal Judge Twala’s judgment. The full bench also
made remarks regarding the main judgment of this court and the prospects of
success on appeal.
Grounds for Appeal
[13] In their application for leave to appeal, the applicants state various grounds that
I do not intend to repeat in this judgement. However, this judgement will
demonstrate in clear terms the requirements to be met in an application for
leave to appeal as well as sufficient grounds that must be met to pass the test.
The test requires that sufficient grounds be established for leave to appeal to
be granted.
[14] The pertinent question, therefore, is whether the applicant has satisfied the test
for leave to appeal in this matter , based on the grounds as set out in their
application for leave to appeal. In order to answer that question, it is necessary
to consider the applicable test governing applications for leave to appeal.
Legal Principles governing Leave to Appeal
[15] Rule 49 of the Uniform Rules of Court dictates the form and procedure
applicable to applications for leave to appeal , while the substantive l egal
requirements are set out in section 17 of the Superior Court s Act. The Act
raised the threshold for the granting of leave to appeal . Leave may now only be
granted where there is a reasonable prospect that the appeal w ould succeed.
granted where there is a reasonable prospect that the appeal w ould succeed.
The former, more lenient test – namely, whether there was a mere possibility of
1 10 of 2013 (“the Act”).
5
another court coming to a different conclusion, no longer applies. This position
accords correctly with the submission made by counsel for the respondent.
[16] The proper requirement now is that there must be a sound, rational basis for
the conclusion that there are prospects of success on appeal. This is the higher
test that the respondent must satisfy to persuade this court.
[17] The test for granting leave to appeal is governed by section 17(1)(a) of the Act.
Leave to appeal may only be granted where the judge is 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, such as conflicting
judgments on the matter under consideration.
[18] Regarding the prospects of success, the Supreme Court of Appeal in S v
Smith
2the held that the prospects must not be remote but must have a realistic
chance of succeeding. An applicant must now convince the court that there is a
sound, rational basis for the conclusion that there are prospects of success on
appeal.
[19] As set out in Mont Chevaux Trust v Goosen,
3 mere disappointment in the
outcome or a belief that the court was wrong is insufficient. There must be a
realistic chance of success, not merely an arguable case.
Evaluation of the Grounds of Appeal
[20] It is trite law that the purpose of an appeal is not to re- argue the matter afresh,
but to establish proper grounds based on the above stated test and the law for
the leave to appeal. This court appreciates that the counsel for the applicants
was placed in an unenviable position of arguing the issues that the court has
already decided.
[21] Although counsel advanced the grounds well, this C ourt is not persuaded that
they establish a basis for leave to appeal . On the facts before the court a quo,
the matter was correctly found to be urgent. The interim interdict granted by my
Sister Victor J was , by its very nature, a temporary measure, operative only
Sister Victor J was , by its very nature, a temporary measure, operative only
2 [2011] ZASCA 15; 2012 (1) SACR 567 (SCA).
3 2014 JDR 2325 (LCC).
6
pending the finalisation of the rescission proceedings. It functioned merely as a
safeguard, contingent upon the existence of those pending proceedings. As
stated in Herbstein & Van Winsen, 4 an interim interdict lapses once the main
proceedings to which it is ancillary have been concluded. In this instance, t he
rescission application has since been dismissed. There is no evidence before
this Court that an appeal against that dismissal has been noted, nor that the
rescission application has otherwise been revived. In the absence of any
pending proceedings to sustain it, the interdict cannot survive. Accordingly, this
ground has no reasonable prospect of success.
[22] Once those proceedings were finalised, the legal basis underpinning the
interdict fell away. Any continued suspension of the eviction order would have
left the respondent in a state of legal uncertainty regarding its rights under the
valid Magistrate's Court order. Thus, this C ourt was satisfied that such
uncertainty and attendant prejudice constituted sufficient urgency to warrant
dispensing with the ordinary time periods.
[23] The order of the Magistrate's Court of 9 May 2012 remains enforceable. The
applicants have not provided any new facts or legal basis to justify its continued
suspension. The provision of alternative accommodation by the respondent is a
significant factor that mitigates the harshness of the eviction and demonstrates
that the City has considered its constitutional and statutory obligations. The
execution of a valid court order cannot be indefinitely postponed on the mere
speculation that an appeal might be launched. An appeal against the dismissal
of the rescission application does not automatically suspend the operation of
that dismissal, nor does it revive the lapsed interdict.
[24] Counsel for the applicants o n the appeal contended that the Court erred in
striking out the applicants’ affidavit in the main matter. It was submitted that the
striking out the applicants’ affidavit in the main matter. It was submitted that the
Court ought not have been “ hamstrung by its own rules” , and that a more
generous approach should have been adopted to condone the non-compliance
with the Rules in the interest s of justice, with reliance placed on section 173 of
the Constitution.
4 Cilliers et al Herbstein & Van Winsen: The Civil Practice of the High Courts of South Africa 5th
ed (Juta 2009).
7
[25] Once again, the reasons for striking out the affidavits are comprehensively set
out in my main judgement. In short, the applicants ’ answering affidavit was filed
out of time, without any accompanying application for condonation, and in
flagrant disregard of the time periods set out in the respondent’s notice of
motion and this Court’s Practice Directives. The Rules of Court exist to ensure
the orderly and fair conduct of litigation. A litigant in default cannot simply file
papers at i ts convenience and expect the court to accept them, particularly in
urgent proceedings where adherence to timelines is critical. In the
circumstances, this ground of appeal bears no reasonable prospect of success.
No court will countenance, under the guise of the interest s of justice, a clear
abuse of its own rules.
[26] It is important to at this juncture to refer to the argument advanced by counsel
for the respondent in this appeal. Counsel submitted that , following the initial
hearing of the main application in the urgent court , there was a lapse of a two
day during which the applicants had more than sufficient opportunity to file a
substantive condonation application. This they failed to do. Counsel for the
applicants could not meaningfully address this deficiency on the case of the
respondents. It is thus clear that, on any interpretation, the decision to strike out
the affidavit was correct and valid in law.
[27] Counsel for the applicants referred this C ourt to authorit ies regarding the
applicants’ constitutional rights regarding their eviction. It is important to
indicate that the applicants are unlawful occupiers of property owned by the
respondent. They have no constitutional right ranking above that of the lawful
owner of the property, being the respondent. The case authorities that this court
has been referred to are clearly distinguishable as clear day light and pitch
black darkness of the night.
black darkness of the night.
[28] The court a quo was fully cognisant of the constitutional rights implicated in
eviction proceedings, notwithstanding that the proceedings before it were not,
strictly speaking, eviction proceedings. In particular, the Court was mindful of
the right of access to adequate housing enshrined in section 26 of the
Constitution. It is precisely for this reason that this Court, in its order of 5
December 2025, mero motu inserted paragraph 5, requiring the respondent to
8
provide the applicants with alternative accommodation prior to the execution of
the eviction. This ensured that the order would be execut ed in a manner that is
just and equitable, consistent with the principles articulated in Occupiers of
Erven 87 & 88 Berea v De Wet N.O. .5 The applicants’ argument that the C ourt
ignored their constitutional rights is therefore baseless and factually incorrect.
On the contrary, the Court took active steps to safeguard those rights by
making and order for the provision of alternative accommodation a precondition
for eviction. Accordingly, this ground of appeal has no reasonable prospect of
success.
[29] During submissions , I p osed a hypothetical question to counsel for the
applicants concerning the time period afforded for their eviction, namely the 15
(fifteen) days stipulated in the 05 December order. I enquired what alternative
time frame s, if any, could be suggested as reasonable in the circumstances.
Counsel for the applicants was unable to propose any alternative period and
did not meaningfully challenge the reasonableness of the 15- day period. Nor
was any submission advanced as to what time frame would be suitable and
appropriate for the applicants’ relocation from the property.
[30] Counsel for the respondent submitted that the 15 (fifteen) day period can not
constitute a viable ground for leave to appeal . Having regard to the urgency of
the matter and the facts before the Court, he contended that this period was
more than sufficient to enable the applicants to vacate the premises. He further
pointed out that this issue had previously been ventilated before Judge Twala,
where it was clear that the applicants had been afforded 6 (six) weeks to vacate
the City’s premises, yet still regarded that period as inadequate.
[31] Counsel for the applicants advanced a further argument that , notwithstanding
their disqualification due to their income, the respondent bore a duty to ensure
their disqualification due to their income, the respondent bore a duty to ensure
that the alternative accommodation provided would be suitable for 9 (nine)
persons. This argument is misplaced. There is no evidence that the respondent
has proposed or provided accommodation that is inadequate. Any conclusion
as to inadequacy is therefore speculative and unfounded. As correctly
submitted by counsel for the respondent , the applicants ought to be first
5 [2017] ZACC 18; 2017 (8) BCLR 1015 (CC); 2017 (5) SA 346 (CC).
9
provided with the alternative accommodation before its suitability can be
assessed. In the absence of such provision, there is no basis upon which to
contend that the accommodation is or will be inadequate.
Conclusion on the Prospects of Success
[32] Having considered the grounds of appeal advanced by the applicants, I am not
persuaded that there is any reasonable prospect that another court would arrive
at a different conclusion. The main judgment was based on straightforward
application of legal principles to the facts , the antecedent proceedings had
been finalised, the foundation for the interim interdict had fallen away , and the
applicants failed to comply with the R ules of C ourt. Importantly, the order was
crafted in a just and equitable manner, including the provision for alternative
accommodation for the applicants.
[33] There are no conflicting judgments on the matter that would necessitate the
attention of a higher court, nor are there any other compelling reasons why an
appeal should be entertained.
[34] Another ground for leave to appeal was the failure to comply with the directive
to file supplementary heads of arguments. This point was correctly argued by
counsel of the respondent regarding the directives that I issued regarding the
heads of arguments with the previous counsel in this matter. It is a fact that the
directive that this court issued was not complied with and instead a letter was
written by the attorneys of the applicants to abridge the time frames that were
set by this court with regards t o the heads of arguments. The Counsel for the
respondent read the letters on record indicating a clear non- compliance by the
applicants. Despite that non- compliance, the heads of arguments were read
and considered by this court. Therefore, that ground is ill conceived and cannot
stand as a proper ground of appeal.
[35] Accordingly, the question posed earlier in this judgment – whether the
[35] Accordingly, the question posed earlier in this judgment – whether the
applicants have satisfied the test for leave to appeal on the grounds advanced
is answered in the negative. The applicants have thus failed to meet the
requisite threshold.
10
Order
[36] In the premises, I make the following order:
1. The application for leave to appeal is dismissed, with costs in scale C; such
costs include the costs of Counsel.
___________________________
R.R NTHAMBELENI
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION, JOHANNESBURG
APPEARANCES
For the Applicant: Adv L Modise
Instructed by: Mabuza Attorneys
For the Respondent: Mr S Magagula
Instructed by: Finger Attorneys
Date of Hearing: 16 March 2026
Date Delivered: 25 March 2026