Reportable: NO
Circulate to Judges: NO
Circulate to Magistrates: NO
Circulate to Regional Magistrates: NO
IN THE HIGH COURT OF SOUTH AFRICA
NORTH WEST PROVINCIAL DIVISION, MAHIKENG
Case No.: 2853/2022
In the matter between:
NEVILLE LESLIE JACOBS 1st Applicant
RAVANA SEWSUNKER JACOBS 2nd Applicant
and
THIZWILONDI JUSTICE MAMBURU Respondent
DIBETSO-BODIBE AJ
--------------------------
llPage
INTRODUCTION
[1] This is an application for leave to appeal against the judgment and
order of this Court handed down on 09 December 2024. ("the Order").
[2] The Court adjudicated upon the four Special Pleas by the Applicant
viz; the 1st Special Plea of Prescription, 2nd Special Plea of Lis Alibi
Pendens, 3rd Special Plea on Respondent's failure to serve the
Applicant with a Notice of Intention to Institute Legal Proceedings in
terms of Section 3 of Act 40 of 2002 and the 4th Special Plea of non
joinder and mis-joinder of the Minister of Justice and Constitutional
Development and another person.
[3] The second Special Plea of Lis alibi pendens was upheld and the 151,
3rd and 4th Special Pleas were dismissed. The Court further ordered
that the Plaintiff's Claim for defamation be stayed pending the
finalisation of the matter between the Parties by the Equality Court,
the Respondent to pay costs in respect of the 2nd Special Plea and
the Applicants to pay costs in respect of the 1 •1, 3rd and 4th Special
Pleas.
[4] The application for leave to appeal is opposed. Both Parties were
unrepresented and by agreement between the Parties, the leave to
appeal was to be adjudicated on papers submitted by the Parties.
GROUNDS OF APPEAL
[5] The relevant portions of the grounds of appeal sifted from a
somewhat rambling Notice of Application for leave to appeal are as
follows:
21Page
[5.1] The Court upheld the 2nd Special Plea. This automatically resulted in
the dismissal of Special Plea 1, 3 and 4. Since these Pleas are linked
to the stayed proceedings, the Applicants believe that the Court erred
in imposing cost orders against them.
[5.2] The Court failed to consider Applicants' reply to the Respondent's
heads of argument... The Special Plea of Prescription was
interrupted by Equality Court Case ... The Courts have held that an
aggrieved person can only claim for damages after there is a
judgment ...
[5.3] The applicants believe that the Court erred in its order regarding
costs ...
[5.4] The third Special Plea - Respondent's failure to serve the applicants
with a Notice of Intention of Legal Proceedings ...
[5.5] Regarding the fourth Special Plea, the Applicants contend that the
Court erred in dismissing the joinder of the Minister and T. Netshilindi
on the grounds of the second Plea (Lis alibi pendens)... The
Applicants argue that the finding of the Court is ambiguous in its
fundamental clarity since she upheld the second Special Plea of Lis
alibi pendens.
[5.6] The Applicants request that the Court upheld the 2nd Special Plea
and directed the Parties to the Court of first instance which is the
Equality Court, therefore, Special Plea 1, 3 and 4 should be held in
abeyance pending the final determination of the equality Court
case... Regarding Cost orders from Special Plea 1, 3 and 4, the
Applicants request that they be set aside or replaced with no order
as to costs.
3IPage
[6] The Respondent contended that "The Applicants raise a plethora of
grounds of appeal and therefore I will not deal with them individually
because of the prolixity thereof. Moreso, it is difficult to comprehend
the reasons or grounds upon which the Applicants rely for their
application for leave to appeal." Furthermore, the Respondent
contended as follows:
[6.1] After upholding the second Special Plea and dismissing the 1"1, 3rd
and 4th Special Pleas, it is submitted, the Court correctly exercised
its discretion by following the accepted principle that the successful
party should be awarded costs.
[6.2] The Applicants have not advanced any cogent reason why the Court
ought not to have departed from the accepted principle.
[6.3] Finally we submit that the Applicants have not passed the muster of
Section 17(1 )(a) of the Superior Courts Act.
[6.4] It is submitted that the application for leave to appeal be dismissed
with costs.
THE APPLICATION FOR LEAVE TO APPEAL
[7] On 30 November 2020, the Respondent instituted an action before
this Court for delictual damages based on the alleged defamation of
character against the Applicants. To this end, the Applicants raised
four Special Pleas against the Respondent as foresaid.
[8] On the other hand, the Applicants had instituted an application in the
High Court of Gauteng Division held at Pretoria sitting as the Equality
Court ("Equality Court") under case no. 90409/2019 against thirteen
41Page
respondents including the Respondent who is cited as the 11 th
respondent. This application is still pending before the Equality Court
hence the 2nd Special Plea of Lis alibi pendens was upheld in favour
of the Applicants.
[9] I agree with the Respondent that the application for leave to appeal
is prolix and difficult to comprehend and from the onset failed to pass
the muster of Section 17(1 )(a) of the Superior Courts Act 10 of 2013
("the Superior Courts Act").
[1 O] Moreover, the Applicants have clouded the application with issues
before the Equality Court which have not been adjudicated upon by
this Court.
[11] Furthermore, the application for leave to appeal is not crafted in terms
of the law, substantive or procedural.
[12] From the relevant portions of the grounds alluded to above, I am of
the view that, the issue of costs seems to go to the heart of the
Applicants' leave to appeal wherein a proposal is made to the Court
to suspend and/or set aside costs in respect of the 1"1, 3rd and 4th
Special Plea.
[13] The Applicants contended that the application is in terms of Section
17(1) of the Superior Courts Acts and Rule 49 of the Uniform Rules
of Court, that the appeal would have a reasonable prospects of
success since it is in the public interest and goes to the center of the
Constitution Section 28 where Children's rights are protected, that
there exist compelling reasons why the application for leave to appeal
should be granted.
-------------------------
SI Page
[14] However, gleaning from the application itself, it was pleaded without
specificity, making it difficult if not impossible to apply the test under
17(1 )(a)(i) or (ii) of the Superior Courts Act.
[15] Leave to appeal may only be granted where the appeal would have
a reasonable prospect of success or there are compelling reasons
why the appeal should be heard such as interest of justice.
[16] Prospects of success must not be remote and there must exist a
reasonable chance of succeeding. The Superior Courts Act raised
the threshold for the granting of leave to appeal, so that leave may
now only be granted if there is a reasonable prospect that the appeal
will succeed.
[17] The possibility of another court holding different view no longer forms
part of the test. There must be a sound, rational basis for the
conclusion that there are prospects of success on appeal.
[18] "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 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. " 1
[19] An application for leave to appeal is further in terms of Rule 49 of the
Uniform Rules of Court. Rule 49(1)(b) provides that when leave to
appeal is required ... application for such leave shall be made and the
grounds thereof shall be furnished.
1 MEC for Health, Eastern Cape v Mkhitha (1221/2015) ZASCA 176 (25 November 2016) at para [17]
6IPage
[20] " the grounds of appeal required under Rule 49(1) must ...
clearly and succinctly set out in clear and unambiguous terms
so as to enable the Court and the Respondent to be fully and
properly informed of the case which the Applicant seeks to
make out and which the Respondent is to meet in opposing the
application for leave to appeal ... "2
[21] The applicants' grounds of appeal are so vaguely formulated as to
be of little or no assistance in meaningfully defining the bases of the
intended appeal. No attempt is made to identify the factual findings
which the Applicant seeks to challenge on appeal nor the findings of
law. To say the least, these grounds of appeal are incomprehensible.
[22] There are various issues raised by the Applicants in the notice of
leave to appeal and in the heads of argument that have no relation
to the issues under the Special Pleas and the findings in that regard.
CONCLUSION
[23] It is trite that a court on appeal should not interfere with the trial
judge's finding on primary facts unless it is satisfied that the trial court
was plainly wrong.
[24] " Leave to appeal is not simply for the taking. A balance
between the rights of the party which was successful before the
court a qua and the rights of the loosing party seeking leave to
appeal need to be established so that the balance of a realistic
2 Phiri v Phiri and Others (39223/2011) [206] ZAGPPHC 341 (14 March 2016) at para [12]
71Page
chance of succeeding on appeal dictates that the balance must
be struck in favour of the party which was initially successful. "3
(25] The judgment and order of this Court was based on the adjudication
of the four Special Pleas by the Applicants and as such not disposing
of the case. In fact the order upholding the second special Plea of Lis
alibi pendens attest to that.
[26] In the premises, and after careful consideration of th e Applicants
grounds for leave to appeal and the submissions made, there is
nothing that persuades me that this appeal would have a reasonable
prospects of success. The application for leave to appeal against the
judgment and order of this Court cannot be sustained and stands to
be refused.
ORDER
[27] The application. for leave to appeal the judgment and order of this
Court of 09 December 2024 is dismissed with costs.
O.Y DI~ -BODIBE
ACJING JUDGE OF THE HIGH COURT
/
· NORTH WEST DIVISION, MAHIKENG
3 Democratic Alliance v President of the Republic of South Africa and Others (21424/2020) [2020] ZAGPPHC
326 (26 July 2020) at para [4]
8 IP age
Delivered: This judgment is prepared and authored by the Judge whose name
is reflected and is handed down electronically by circulation to the Parties or
their legal representatives by email and by release to SAFLII
DATE OF HEARING: 31 October 2025
DATE OF JUDGMENT: 02 April 2026
APPEARANCES
FOR THE APPLICANTS: Self Represented
FOR THE RESPONDEND: Self Represented
9IPage