IN THE HIGH COURT OF SOUTH AFRICA
FREE STATE DIVISION, BLOEMFONTEIN
In the matter between:
ABLON CONSTRUCTION CC
[Registration No. 1996/020922/23]
and
MONESA PROJECTS (PTY) LTD
[Registration No. 2025/560708/07]
IN RE:
MONESA PROJECTS (PTY) LTD
(Registration No. 2025/560708/07]
and
ABLON CONSTRUCTION CC
[Registration No. 1996/020922/23]
JUWI CONSTRUCTION ZA
(Registration No. 2023/976064/07]
Not reportable
Case no: 2025-216771
APPLICANT
FIRST RESPONDENT
APPLICANT
FIRST RESPONDENT
SECOND RESPONDENT
Neutral citation: Ab/on Construction CC v Monesa Projects (Pty) Ltd; Monesa
Projects (Ply) Ltd v Ab/on Construction CC and Another (2025-216771) [2026]
ZAFSHC 115 (23 March 2026)
Coram: VANZYL J
Heard: Disposed of without oral argument in terms of s 19(a) of
the Superior Courts Act 10 of 2013.
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Delivered: This judgment was handed down electronically by circulation to
the parties' representatives by e-mail and released to SAFLI I. The date and time for
hand-down is deemed to be 14h15 on 23 March 2025.
Summary: Leave to appeal - grounds for granting leave - findings of
urgency - breach of contract and ordering specific performance - leave granted.
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ORDER
1 Leave to appeal is granted to the applicant (Ablon Construction CC) to appeal
to the Full Court of this Division against the whole of the judgment and order issued
under the abovementioned case number on 19 January 2026.
2 The costs of the application for leave to appeal are costs in the appeal.
JUDGMENT
Van Zyl J
[1] This is an application for leave to appeal against the order I made and the
judgment I delivered in an urgent application in which the applicant was the first
respondent and the first respondent was the applicant.
[2] In addition to the condonation I granted for the application to be heard on an
urgent basis, I made the following substantive order:
'2. The first respondent's purported termination of the subcontract agreement on 16
October 2025 is declared invalid.
3. The first respondent shall comply with its obligations under and in terms of the
subcontract agreement.
4. The first respondent shall do all things necessary to allow the applicant to comply with
its obligations under and in terms of the subcontract agreement including:
4.1 notifying all on-site security personnel to reinstate the applicant's access and
possession of the premises; and
4.2 preventing any of the first respondent's agents from impeding the applicant's
undisturbed access to, use and possession of the premises; and
4.3 preventing any of the first respondent's employees, agents or representatives from
preventing the applicant from continuing the subcontract works in terms of the subcontract
agreement.
5. The costs of the application are to be paid by the first respondent, including the costs
of counsel on scale C.'
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[3] I will henceforth refer to the parties as cited in the present application.
Legal principles re leave to appeal:
[4] Section 17(1)(a) of the Superior Courts Act 10 of 2013 ('the Act'), determines
as follows:
'(1) Leave to appeal may only be given where the judge or judges concerned are of the
opinion that -
(aJ(i) the appeal would have a reasonable prospect of success; or
(ii) if there is some other compelling reason why the appeal should be heard,
including conflicting in judgments on the matter under consideration . . . '(My emphasis.)
[5] In Acting National Director of Public Prosecutions and Others v Democratic
Alliance In Re Democratic Alliance v Acting National Director of Public Prosecutions
and Others (19577/09) [2016] ZAGPPHZ 489 (24 June 2016) para 25, the court
held that the Act has raised the bar for granting leave to appeal and in this regard it
referred to the judgment of The Mont Chevaux Trust (IT 2012/28) v Tina Goosen
and 18 Others 2014 JDR 2325 (LCC), where the following was stated:
'It is clear that the threshold for granting leave to appeal against a judgment of a High Court
has been raised in the new Act. The former test whether leave to appeal should be granted
was a reasonable prospect that another court might come to a different conclusion,
see Van Heerden v Cronwright & Others 1985 (2) SA 342 (T) at 343H. The use of the word
"would'' in the new statute indicates a measure of certainty that another court will differ from
the court whose judgment is sought to be appealed against.' (My emphasis.)
See also Rohde v S [2019] ZASCA 193; 2020 (1) SACR 329 (SCA) para 8 and Fair
Trade Independent Tobacco Association v President of the Republic of South Africa
and Another (21688/2020) [2020] ZAGPPHC 311 (24 July 2020) para 4.
[6] In Municipality of Thabazimbi v Badenhorst (66933/2011) [2024] ZAGPPHC
195 (26 February 2024) paras 9-10, the court also dealt with the more stringent test
for an application for leave to appeal and held, inter a/ia, as follows:
for an application for leave to appeal and held, inter a/ia, as follows:
'[9] .. . A possibility and discretion were therefore, in the words of the legislation and
consciously so, amended to a mandatory obligatory requirement that leave may not be
granted if there is no reasonable prospect that the appeal will succeed. It must be a
reasonable prospect of success; not that another Court may hold another view.
[1 OJ The Court a quo may not allow for one party to be unnecessarily put through the trauma
and costs and delay of an appeal ... '
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Notice of application for leave to appeal:
[7] The applicant's notice of application for leave to appeal sets out the grounds
upon which the application is based in considerate detail. I do no intend to repeat
same herein and will only refer to the crux of the respective grounds:
(a) The court erred in enrolling the matter as an urgent application. It failed to
apply the requirement of whether the first respondent had shown that the absence
of hearing the application on the expedited time period and basis as it had advanced
its case, would have deprived it of adequate redress in due course.
(b) The first respondent delayed unnecessarily in the launching of the application.
In this regard the court erred in discarding the applicant's evidence as to the
purpose of the discussions held between the parties after the removal from the roll
of the spoliation proceedings and before the urgent application was launched.
(c) The court erred in finding that the first respondent had not breached the terms
of the subcontract agreement. In this regard th·e court erred in its interpretation of
clause 6.3.1 of the subcontract agreement.
(d) The court erred in exercising its discretion in favour of ordering specific
performance, especially considering that the trust relationship between the parties
had already broken down.
(e) The court erred in not considering the fact that the subcontract had to be
completed by 30 March 2026. In this regard the court failed to consider that by
ordering specific performance, there was insufficient time for such performance to
materialise. The court further erred in not having regard to the question whether the
first respondent would be able and capable of performing the work considering that
the applicant took over many of the employees of the first respondent.
[8] I have duly considered the aforesaid grounds of the application for leave to
appeal, also in conjunction with the oral arguments which were presented to me on
appeal, also in conjunction with the oral arguments which were presented to me on
behalf of the parties during the hearing of the urgent application.
[9] When so considered I conclude that there is a reason.able prospect that
another court would come to a different conclusion and that leave to appeal should
therefore be granted.
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Costs:
[10) There is no reason why the usual order pertairning to the costs of an application
for leave to appeal should not be issued in the present matter.
Order:
[11] The following order is made:
1 Leave to appeal is granted to the applicant (Ablon Construction CC) to appeal
to the Full Court of this Division against the whole of the judgment and order issued
under the abovementioned case number on 19 January 2026.
2 The costs of the application for leave to appeal are costs in the appeal.
C. VANZYL
JUDGE OF THE HIGH COURT
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Heads of argument:
For the applicant: S Grabler SC
Instructed by: Kramer Weihmann Inc., Bloemfontein
For the first respondent: S Martin
Instructed by: Symington & de Kok Attorneys, Bloemfontein.