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IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
Case No: 37766/2020
REPORTABLE: No
OF INTEREST TO OTHER JUDGES: No
REVISED:
DATE 13 March 2026
SIGNATURE
In the matter between
MXOLISI ZONDO
(Identity Number: 7[...])
First Applicant
THANDEKA BRIDGETTE ZONDO
(Identity Number: 8[...])
Second Applicant
and
SB GUARANTEE COMPANY (RF) (PTY) LTD
(Registration Number: 2006/0216576/07)
Respondent
These reasons are prepared and authored by the Judge whose name is reflected
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as such 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
Case Lines. The date for handing down is deemed to be 13 March 2026.
LEAVE TO APPEAL
RETIEF J
INTRODUCTION
[1] Procedurally this is a fascinating matter and the reasons for making that
statement and, how it relates to the outcome of this application for leave to appeal
will become apparent. This Court dealt with the application for leave on the papers
and after concise heads of argument were called for and filed.
[2] To commence, o n the 25 June 2025 this Court handed down clarified
reasons. The reasons for such clarification is dealt with in paragraph [9] of the
reasons to which deference is given . In the preceding paragraphs, in particular,
from paragraph [5] onwards, this Court dealt with the purpose rule 49(1)(c) after it
was notified that the Applicants filed a notice requesting reasons . The Applicants’
request was found to be misplaced triggering reasons to clarify. It is to be restated
that the Applicants after serving the request for reasons filed and an application for
leave to appeal [initial leave to appeal].
[3] Notwithstanding, the reasons which, inter alia, gave a concise explanation
of the importance complying with Court directives did not seem to fall on fertile
ground in that the Applicants thereafter still did not comply with the directive s of
this Court concerning appeals . They, yet again, simply uploaded an amended
application for leave dated the 28 August 2025 . This Court again unaware it had
occurred.
[4] In fact it took the Applicants attorney record 5 (five) months after the
amended leave to appeal was uploaded to file a compliance statement as per the
directives. In consequence yet again, further delay as my office only received
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confirmation of the amended leave to appeal from the appeals Registrar on the 23
January 2026.
[5] As a result of the same procedural modus used by the Applicants ,
notwithstanding being forewarned that such modus constitutes non -compliance of
the directives, the Applicants forged ahead. I t therefore came as no surprise that
the Respondents raised certain preliminary issues . These reasons will be dealt
with before considering the merits of the leave to appeal, if applicable.
PRELIMINARY ISSUES
[6] Most of the preliminary complaints arise as a result of the procedural steps
taken by the Applicants , certain of which the Respondents argue render the initial
and amended leave to appeal defective. The Applicants’ Counsel did not venture
to deal with any procedural issues nor were supplementary heads of argument
filed to deal with the preliminary issues raised in written argument.
[7] To explain, the Applicants , after the judgment was handed down and
reasons given in the record at the date of the hearing, the 24 August 2024, filed
the initial leave to appeal 150 days after the order . The Applicants in the initial
leave application requested condonation on the basis that the initial application
was merely filed to stay a writ of execution and that, in so far necessary , they seek
condonation as they await a response to the reason request. The initial leave
application was simply uploaded and they, as of right , indicated that they reserve
the right to supplement their initial leave application.
[8] This Court in paragraph s [3]-[9] of the reasons dealt with why the reason
request was misplaced . This being a clear message that leave , as referred to in
rule 49(1)(b) to extended the 15 (fifteen) day pre -emptory timeline , applied and
that any assumed right to proceed and to amend simply did not follow. The
Applicants having received the reasons and being aware of the basis upon which
Applicants having received the reasons and being aware of the basis upon which
they were provided by this Court none the less as of right filed an amended notice.
No leave based on good cause was sought or set out and as stated, the
amended leave application was uploaded absent compliance of the directives.
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[9] This is the reason why the R espondents refer red to the amended leave
application as the “purported amended notice” and why they still persisted with the
argument that the Applicants needed to seek condonation . Failure to do so they
argued, meant that this application should be non-suited.
[10] Furthermore, the Respondents also raised the point that the amended leave
application was not signed by the Applicants nor by their attorney of record but,
pointed out that it was signed by Adv Peter William Makhambeni . Adv Peter
William Makhambeni cited himself as “Counsel for the Applicants .” Other than his
name, no further particulars were given to the Respondents . No physical address,
no contact number nor an email address for communication nor service purposes
was provided.
[11] The Respondent’s confusion was amplified by the fact that it was SS
Msondo attorneys who came on record when the Applicants entered an
appearance to defend has not withdrawn by notice . This too , must be considered
against the procedural fact that the First Applicant , in person, filed concise heads
of argument dealing with the summary judgment application and rule 49 declarator
relief, he also drafted and signed both rule 49 request for reasons and signed the
initial leave application.
[12] Having regard to all the papers filed, having regard to the statement
compliance uploaded by Molteno Sibusiso attorneys and coming on record, it is
understandable that the Respondents were unsure why Adv Peter William
Makhambeni signed the amended leave application. Furthermore , that if he was a
referral advocate then the amended leave application ha d not been signed by the
Applicants nor by their attorneys of record and , as such defective. No amended
leave application before Court.
[13] The argument raised by the Respondent that a defective amended leave
application comes into focus. The focus is compounded by the fact that Adv Peter
application comes into focus. The focus is compounded by the fact that Adv Peter
William Makhambeni failed to inform this Court , as did the First Applicant in the
initial leave to appeal, which Court the Applicants seek leave to appeal to .
Whether the Full Court of this Division or to the Supreme Court of Appeal [SCA].
The Applicants Counsel’s heads of argument is silent.
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[14] Over and above the lack of condonation argument, the defective argument
regarding the amended leave application, the Respondent argues that the
formulation of the grounds raised in the amended notice fail to comply with uniform
rule 49(1)(b) in that the Applicants attack the reasons rather than succinctly in
unambiguous terms so as to enable the Court and the Respondent to be properly
informed of the case the Applicants seek to make out. This argument however, is
not as compelling and the others in that from a reading of the initial leave
application with the amended leave application , the nub of complaints raised
remained constant no matter how they were redraft by Adv Peter William
Makhambeni.
[15] This Applicants’ Counsel in written argument who was not Morris SC nor
Adv Peter William Makhambeni distilled it as being the manner in which the Court
exercised its discretion regarding the refusal of a postponement and, declaring the
immovable property executable in light of the facts that were before it and the
importance of the right to housing in our Constitutional democracy. This too can be
distilled from the initial leave application too.
[16] Considering the arguments and all the procedural steps taken by the
Applicants culminated with their failure to disturb this Court’s interpretation of rule
49(1)(c) nor to adhere to it, the Applicants failed to show good cause why the time
periods referred to in rule 49(1)(b) do not apply alternatively, that if it did apply as
reasoned, why they should be extended having regard to all the circumstances
which transpired. In the premises, the application for leave to appeal based on the
initial and the amended leave must fail.
[17] Furthermore this Court finds that the amended leave application is defective
as argued having regard to all the papers filed and as such, it cannot stand. No
leave based on the amended application for leave is properly brought before this
leave based on the amended application for leave is properly brought before this
Court. The necessity to deal with the grounds of the appeal as raised in the initial
leave application not triggered for lack of compliance.
[18] However, even if this Court is wrong, considering the nub of the grounds as
raised by the Applicants Counsel, this Court after reconsidering the typed record
and its clarification reasons is satisfied that it exercised its discretion judicially .
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This Court considered all the evidence filled by both parties , it heard the
submissions made by Counsel for both parties, it considered the pleadings and the
filed heads of argument, it stood the matter down after refusing the postponement
to allow the Applicants to attend Court to make further submissions . The
Applicants elected not to attend.
[19] This Court reaffirms that the postponement before it was not the first
brought on similar grounds, and that a postponement is an indulgence which is
sought and is not automatically granted nor is it of right. Therefore if refused, as it
was the merits of the application would be traversed. A litigant cannot craft a
postponement by only appointing Counsel to argue a postponement and then
bemoan it was not heard simply because if elected not to attend Court when it was
called to attend and to make submissions on the merits (judgment and rule 49A
declarator) to be adjudicated.
[20] Considering all that arguments preliminary and otherwise, this Court is of
the opinion that the appeal will not have a reasonable prospect of success and
that the Applicants have failed to meet the threshold of section 17 (1) of the
Superior Courts Act 10 of 2013.
[21] There is no reason why the costs should not follow the result.
[22] The application for leave to appeal must fail.
The following order:
1. The application for leave to appeal is refused.
2. The First and Second Applicants are jointly and severally liable for the
Respondents costs, Counsels fees taxed on scale B.
L.A RETIEF
Judge of the High Court
Gauteng Division
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Attorney for the Applicants: Molteno Sibusiso Inc
Email: Sibusiso@moltenoinc.co.za
Tell: (082) 266 9710
Attorney for the Respondent: Vezi de Beer Inc
Email: porscha@vezidebeer.co.za
Tell: (012) 361 5640
Knowledge of date for application for leave to appeal: 23 January 2026
Date Heads of Argument were delivered: 05 March 2026
Date Judgment is delivered: 13 March 2026
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