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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA,
GAUTENG DIVISION, JOHANNESBURG
CASE NO: 2023-042317
In the application for leave to appeal by
DAVIES, MICHELLE LOUISE APPLICANT
And
MOMSEN, ALICE AGNES JOYCE RESPONDENT
In re the application by
MOMSEN, ALICE AGNES JOYCE APPLICANT
And
DAVIES, MICHELLE LOUISE FIRST RESPONDENT
THE REMAINING FURTHER UNLAWFUL
OCCUPIERS OF UNIT 2[…] , J[… ] L[…] , B[… ]
ROAD, E[…] , EDENVALE
SECOND RESPONDENT
EKURHULENI METROPOLITAN
MUNICIPALITY
THIRD RESPONDENT
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
DATE SIGNATURE
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JUDGMENT
MOORCROFT AJ:
Summary
Application for leave to appeal – section 17(1)(a)(i) and (ii) of the Superior Courts Act -
reasonable prospect of success or some other compelling reason why the appeal
should be heard
Application to lead new evidence – dismissed
Application for leave to appeal out of time – not condoned
Order
[1] In this matter I make the following order:
IT IS ORDERED THAT:
1. The application to lead new evidence is dismissed;
2. The late delivery of the application for leave to appeal is not condoned;
3. The application for leave to appeal is dismissed;
4. The first respondent (applicant in application for leave to appeal) is ordered to
pay the costs of the application on the scale as between attorney and own client.
5. The Registrar is requested to furnish a copy of the application on Case Lines
together with this order and the judgment to the Legal Practice Council (LPC),
and the National Prosecuting Authority (NPA).
[2] The reasons for the order follow below.
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[3] This is an application by the 1st respondent for leave to appeal against a decision1
handed down by me on 22 October 2025 in the opposed motion court . I refer to the
parties as they were referred to in the decision of October 2025.
[4] Section 17(1)(a)(i) and (ii) of the Superior Courts Act 10 of 2013 provides that
leave to appeal may only be given where the judge or judges concerned are 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. The requirement that leave
must be obtained serves the purpose of a gatekeeper and ensures that valuable judicial
resources are not wasted.
2
[5] An appeal lies against the decision of the court and not against the reasons for
the decision.3
[6] In Ramakatsa and others v African National Congress and another 4 Dlodlo JA
summarised the authorities as follows:
“[10] .. The test of reasonable prospects of success postulates a
dispassionate decision based on the facts and the law that a court of
appeal could reasonably arrive at a conclusion different to that of the trial
court. In other words, the appellants in this matter need to convince this
Court on proper grounds that they have prospects of success on appeal.
Those prospects of success must not be remote, but there must exist a
reasonable chance of succeeding. A sound rational basis for the
conclusion that there are prospects of success must be shown to exist.”
[7] In terms of rule 49(1)(b) , application for leave to appeal must be made within
fifteen days after the date of the order appealed against . T he court may, upon good
cause shown, extend the period.
[8] The application for leave to appeal
5 was served on the applicant’s attorneys by
Sheriff on 18 November 2025. The applicant argues that it was delivered out of time as
1 Section 16 (1) (a) of the Superior Courts Act.
2 Dexgroup (Pty) Ltd v Trustco Group International (Pty) Ltd 2013 (6) SA 520 SCA para 24.
2 Dexgroup (Pty) Ltd v Trustco Group International (Pty) Ltd 2013 (6) SA 520 SCA para 24.
3 Medox v Commissioner, South African Revenue Service 2015 (6) SA 310 (SCA) para 10
and Tecmed Africa (Pty) Ltd v Minister of Health and Another [2012] All SA 149 (SCA) para
17.
4 Ramakatsa and others v African National Congress and another [2021] JOL 49993 (SCA),
also reported as Ramakatsa v ANC 2021 ZASCA 31.
5 Caselines 31-1.
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more than 15 court days had elapsed since the date of the judgment.
[9] There is a dispute about whether the application was delivered to the Registrar
within 15 court days. The Acting Chief Registrar advises as follows:6
Good day
We have gone through the electronic court file in this matter and
regarding case no: 2023-042317:
1. The Leave to Appeal application was submitted by the Applicant
(Michelle Davis) on 18 November 2025. Such Application was
processed and accepted by the Registrar’s Office on 21 November
2025.
2. There was no Leave to Appeal which was submitted/uploaded onto
Court Online on 11 November 2025.
3. The Court Online email notification bearing CRM number: 0002314
was manipulated to reflect the date of 11 November 2025. Attached
is the correct and original email notification which was auto generated
by the system and sent to the email address l[… ]
4. The attached document shows that the date and time when the
Leave to Appeal was submitted or uploaded onto Court Online was
18 November 2025.
[10] The 1
st respondent is adamant that the application was filed on the 11 th. She
relies on an email notification 7 reflecting the date of 18 November 2025 referred to by
the Registrar in paragraph 3 of the email quoted above. The Registrar believes that this
email was manipulated.
[11] Allegations of manipulation of court records and correspondence are serious
issues and ought to be investigated by the authorities. For reasons set out in my
judgment of 22 October 2022 I requested that the matter be referred to the authorities
to investigate the allegations that forged court courts have been produced and I make
such an order in this matter as well. Both the first respondent and the applicant agreed
that such an order be made and that the matter be investigated.
6 Caselines 01-1.
7 Caselines 01-13.
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[12] The 1st respondent did not apply for condonation of the late application for leave
to appeal that was, on any possible version, only delivered to the applicant on 18
November 2025. I do not condone the late delivery but I also deal with the merits as a
refusal to condone the late delivery of an application for leave to appeal does not
constitute a refusal of leave to appeal.8
[13] In the initial application the respondents initially relied on a number of defences,.
Those were
13.1 A forgery purporting to be an order of court dated 7 February 2018.
13.2 Compliance with a demand for rental on 10 February 2020.
13.3 A second forgery purporting to be a court order dated 16 November
2022.
13.4 A ruling by the community services ombud in terms that did not entitle
the 1
st respondent to occupation – it merely provided for the garnishing of
rental paid by the 1st respondent in respect of the property in order to pay
amounts due to the body corporate.
[14] Together with the application for leave to appeal t he 1st respondent also sought
leave to file a further affidavit presenting new evidence that she stated 9 was given to
her attorney (who no longer represented her when the matter was argued) but ignored.
The new evidence consists of emails that the 1
st respondent claims are evidence of a
new written lease that the applicant had not objected to and therefore a new contract
came into existence on the basis that the failure to object amounted to tacit consent.
[15] No case is made out 10 for allowing new evidence on appeal. The 1st respondent
8 National Union of Metalworkers of South Africa v Jumbo Products CC 1996 (4) SA 735 (A).
9 Caselines 31-4.
10 See Gumbo NO v Spruyt 2020 JDR 1761 (GP) para 12 and Rail Commuters Action Group
and Others v Transnet Ltd t/a Metrorail and Others 2005 (2) SA 359 (CC) paras 36 and 37.
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does not say how it came to be that she initially gave the information (or some of it) to
her attorney, then failed to attach it to the papers in this application, and has “now found
evidence that I was unable to attach to my initial defence of the matter as the time
frames to submit new evidence has passed.”
[16] I therefore dismiss the application for leave to adduce new evidence. The first
respondent has failed to make out a case for leave to appeal to be granted and the
application is dismissed.
[17] The agreement between the parties provided for attorney and client costs and
there is no reason not to uphold the agreement in this respect.
[18] .
[19] For these reasons I make the order set out above.
_____________
MOORCROFT AJ
ACTING JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION
JOHANNESBURG
Electronically submitted
Delivered: This judgement was prepared and authored by the Acting 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 date of the judgment is deemed to be 16 FEBRUARY 2026
APPEARANCE FOR THE APPLICANT
(RESPONDENT IN APPLICATION FOR
LEAVE TO APPEAL):
J E MANNERING
INSTRUCTED BY: BMV ATTORNEYS
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APPEARANCE FOR THE FIRST RESPONDENT
(APPLICANT IN APPLICATION FOR LEAVE TO
APPEAL):
FIRST RESPONDENT IN
PERSON
INSTRUCTED BY: -
DATE OF ARGUMENT: 30 JANUARY 2026
DATE OF JUDGMENT: 16 FEBRUARY 2026
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