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IN THE LAND COURT OF SOUTH AFRICA
HELD AT RANDBURG
Case number: 2025 – 168480
Coram: Montzinger AJ
Heard: 06 May 2026
In the matter between:
MASOTHA HEZEKIA NGWENYA First Applicant
DUNGEZULA DANYELA NZIMA Second Applicant
ZAKHELE VILAKAZI Third Applicant
and
GROW AND MORE (PTY) LTD First Respondent
MARTHINUS HERMANUS STAPELBERG Second Respondent
VAN SCHALKWYK STAPELBERG Third Respondent
MINISTER OF THE DEPARTMENT OF LAND
REFORM AND RURAL DEVELOPMENT
Fourth Respondent
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LEAVE TO APPEAL JUDGMENT
(DELIVERED ELECTRONICALLY ON: 11 MAY 2026)
Montzinger AJ:
Introduction
[1] On 12 March 2026 I delivered judgment in the main application brought by
the three applicants against the first to third respondents. I will continue to refer
to the parties as I did the main judgment.
[2] In the main judgment
1 I confirmed, with variations, the rule nisi previously
granted, and made orders directed at restoring and protecting the applicants’
rights as occupiers under the Extension of Security of Tenure Act 62 of 1997
(“ESTA”). The relief related to four matters regarding (i) school bus access for the
children resident on the farm; (ii) restoration of access to potable water; (iii) the
right to repair and maintain the dilapidated mud structures in which the applicants
live; and (iv) the right to continue cropping and grazing on the demarcated areas
they have used for many years.
[3] The respondents now apply for leave to appeal against the whole of the
judgment and orders to the Supreme Court of Appeal, alternatively to a Full Court
of this Court. They have filed an extensive notice and detailed heads of argument.
The application is opposed.
[4] Before I turn to the merits of the application, a preliminary observation
about the form of the application is warranted. The notice of application for leave
1 Ngwenya and Others v Grow and More (Pty) Ltd and Others [2026] 2 All SA 397 (LCC)
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to appeal extends to some 93 paragraphs over 20 pages. The main judgment,
without its obligatory formal requirements, runs to approximately 39 pages and
101 paragraphs. The notice therefore approaches the judgment in length and
almost mirrors it in structure. I do not doubt that this exhaustive cataloguing of
asserted errors was intended to convey that the judgment is so comprehensively
flawed that the list of complaints could not responsibly be made shorter. The
impression it conveys to me is, with respect, the opposite.
[5] A notice that strives to track the judgment almost paragraph for paragraph,
advancing every conceivable complaint without distinguishing the main issues
from the peripheral, suggests not an abundance of meritorious grounds but rather
an inability to identify the discrete propositions on which the appeal must stand
or fall. The proper function of a notice of leave to appeal is to focus the mind of
the judge whose judgment is under attack on the discrete errors said to have
infected the order. Where, as here, the notice diffuses rather than focuses that
inquiry, it does not assist the court; if anything, it tends to confirm that the order
made does not lend itself to a clearly identified error.
[6] However, criticism of the format how a party presents the grounds on
which leave to appeal is sought, is not a basis to refuse leave. I am required to
consider the application dispassionately with reference to the facts and the law
2,
which I will do by first briefly stating the test for leave to appeal and then
evaluating the grounds on which reliance is placed, against that test.
The test for leave to appeal
2 Minister of Justice and Constitutional Development and Others v Southern Africa Litigation
Centre and Others [2016] ZASCA 17; 2016 (3) SA 317 (SCA);
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[7] Section 17(1) of the Superior Courts Act 3 provides that leave to appeal
may only be granted where the judge is of the opinion that (i) the appeal would
have a reasonable prospect of success, or (ii) there is some other compelling
reason why the appeal should be heard. The threshold is well-known and has
been restated in many decisions.
[8] In addition to the section 17 threshold our courts have also given guidance
on how to assess an application for leave to appeal in order to determine whether
the threshold has been met. In particular in what circumstance it can be said an
appeal has reasonable prospect of success and what the factors are that
constitutes a compelling reason
4. Ultimately, as I have already stated, a court
must assess the application dispassionately and with reference to the facts and
law. Also, a court considering an application for leave must be satisfied 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
5. There must be a sound, rational basis to conclude that
there is a reasonable prospect of success on appeal6.
[9] With regards to what may be regard as “compelling reasons” our courts
have found that it may include considerations of substantial public importance,
3 Act 10 of 2013.
4 Minister of Justice and Constitutional Development and Others v Southern Africa Litigation
Centre and Others [2016] ZASCA 17; 2016 (3) SA 317 (SCA); Ramakatsa v African National
Congress (Case no 724/2019); Caratco (Pty) Ltd v Independent Advisory (Pty) Ltd 2020 (5) SA
35 (SCA)
5 The Mont Chevaux Trust (IT 2012/28) v Tina Goosen and 18 Others (LCC 14R/2014,
unreported, 3 November 2014).
6 MEC for Health, Eastern Cape v Mkhitha [2016] ZASCA 176 referring to S v Smith 2012 (1)
SACR 567 (SCA) para 7 ; Ramakatsa supra at para 10. See also Minister of Justice and
SACR 567 (SCA) para 7 ; Ramakatsa supra at para 10. See also Minister of Justice and
Constitutional Development and Others v Southern African Litigation Centre and Others [2016]
ZASCA 17; 2016 (3) SA 317 (SCA).
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an unsettled question of law, conflicting case law, or a discrete issue of statutory
interpretation with implications for future cases. Yet even where such reasons are
advanced, the merits of the proposed appeal remain often decisive.
7
[10] It is against the stated framework that I must consider whether the
application meet the threshold for leave to appeal to be granted.
The Van Oudtshoorn affidavit
[11] I begin where, on a fair reading of the application, the analysis must begin.
The respondents have placed at the centre of their attack on the main judgment
the proposition that no clear right was established in respect of any of the four
heads of relief, and that the application was riddled with material disputes of fact
incapable of resolution on the papers. The difficulty for the respondents, and it is
a difficulty that runs through every ground of appeal they have raised, is that they
themselves filed, in support of their opposition, the affidavit of Mr Louis van
Rheede Van Oudtshoorn. That affidavit independently confirms the rights that
were in issue.
[12] Mr Van Oudtshoorn is the son of the late Mr Schalk Willem Cilliers van
Rheede van Oudtshoorn, who was the previous owner of Kolwani farm before its
sale in 2014 to Klein Vrystaat Boerdery and, in due course, to the first respondent.
Mr Van Oudtshoorn lived on the farm and farmed there with his father. He has no
interest in the present dispute. The respondents tendered his evidence not the
applicants.
7 Caratco supra
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[13] The statements made in the Van Oudtshoorn affidavit, on which the
respondents themselves relied, are in effect, the four corners of the relief that I
granted. Whatever criticisms may be levelled at the reasoning by which the order
was reached, the basis of the order is the very evidence that the respondents
themselves elected to put before the Court. They cannot now, in their application
for leave to appeal, argue that the rights so confirmed were never established.
They placed Mr Van Oudtshoorn’s evidence on the record because they regarded
him as a credible witness and t he Court also accepted his evidence that
corroborated the applicants’ case.
[14] I observed in the main judgment
8 that the Van Oudtshoorn affidavit is
“particularly compelling because Mr van Oudtshoorn has no interest in the current
dispute”. Nothing the respondents say in the application for leave to appeal
weakens that observation. They do not suggest that Mr van Oudtshoorn was
untruthful. They do not seek to repudiate his version. They cannot. He was their
witness.
[15] The consequence is significant for the test that must now be applied. The
respondents’ own evidence having confirmed the applicants’ pre-existing rights,
and the respondents being successors in title bound to those rights by section 24
of ESTA,
9 it is exceedingly difficult to see on what factual or legal foundation an
appellate court could disturb the order. The order does no more than restore and
protect what the respondents’ own witness confirmed had always existed.
8 at para [59]
9 Section 24 of ESTA
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The grounds of appeal
[16] I turn now to address the grounds of appeal. I do so succinctly, in
deference to the principle that an application for leave to appeal is not an
opportunity to re-argue the merits, and because the analysis of the impact of the
Van Oudtshoorn affidavit above has already largely answered them.
Ground 1: Water obligations under ESTA and the Constitution
[17] The respondents contend that I erred in finding that they bear a positive
statutory and constitutional obligation to provide water to the applicants, that I
misapplied Mshengu
10 and misconstrued ESTA, and that I impermissibly
extended a vertical state obligation horizontally onto a private landowner. They
say my finding creates legal uncertainty and has wide precedential effect.
[18] The premise of this ground is mistaken. I did not find that the first
respondent was obliged to install water infrastructure for the applicants, or that
fault on its part was irrelevant in the abstract, or that constitutional duties resting
on the State had been extended horizontally. What I found in the main
judgment
11, was rather narrower and rested on facts that are common cause . I
found that the applicants had pre-existing access to water from a borehole on the
farm; that the respondents acquired the farm with the borehole in operation; that
the borehole subsequently became inoperable while under the respondents’
control; that the respondents took no meaningful steps to restore that access; and
10 Mshengu and Others v Msunduzi Local Municipality and Others [2019] ZAKZPHC 52; [2019]
4 All SA 469 (KZP).
11 at paragraphs [69] to [78]
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that, in the result, the applicants now draw drinking water from a source they
share with livestock.
[19] These findings sit comfortably within section 6(2)(e) of ESTA , i.e. the right
“not to be denied or deprived of access to water” , read with section 24 of ESTA,
which binds the respondents as successors in title. They sit equally comfortably
within Daniels12, which confirms that the rights of ESTA occupiers are enforceable
horizontally and that the protective duties they generate are not exclusively
negative. The respondents’ disagreement with the result is not the same thing as
a sound, rational basis for thinking that another court would alter it. Nothing in the
notice or heads of argument identifies a discrete legal proposition with which a
Full Court or the Supreme Court of Appeal could plausibly take issue, given the
facts.
[20] Again, I have to point out that the applicants’ pre-existing right of access
to water is the very fact confirmed by Mr Van Oudtshoorn. Even if I were wrong
as the respondents contend, an appellate court would still be confronted with the
unchallenged evidence that there was a borehole and that the applicants and
their families used it. To roll back the order would be to leave the applicants
drinking from an animal trough while the respondents, who control the
infrastructure, are absolved of any duty of restoration of the access to water. No
appellate court is likely to take that course.
Ground 2: Final interdict requirements
12 Daniels v Scribante and Another 2017 (4) SA 341 (CC); 2017 (8) BCLR 949 (CC).
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[21] The second ground is that the requirements for final interdictory relief were
not met.
[22] The clear right point fails for the reasons given above. Each right is
confirmed in the Van Oudtshoorn affidavit and by the respondents’ own
concessions. The water right does not lie exclusively against the State . ESTA
places direct duties on landowners not to deprive occupiers of access they
previously enjoyed. The disputes of fact were addressed in the main judgment
13.
They were either not disputes at all, or were disputes of degree only, or did not
affect the outcome. As to harm, the daily reality of children walking long distances
on dark farm and public roads to reach school, families drawing water alongside
livestock, and dwellings deteriorating in circumstances where the applicants are
forbidden to do repairs, is harm of the most concrete kind. As to alternative
remedies, the respondents’ proposals are unilaterally revocable and create no
enforceable rights for the applicants. None constitutes an alternative remedy in
any meaningful sense.
Ground 3: Failure to apply the Plascon-Evans rule
[23] The third ground is that I failed to apply the rule in Plascon-Evans
14. This
complaint is misconceived. I expressly applied the rule. I stated in the main
judgment15, that the alleged disputes did not render the matter incapable of
determination on the papers, that the respondents’ version was assumed to be
correct where genuine and material, and that the matter was ultimately decided
13 at paragraphs [35] to [41]
14 Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A) at 634E–635C.
15 at paragraph [41]
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on the common cause facts together with the respondents’ own version. That is
precisely what Plascon-Evans requires.
[24] The respondents’ quarrel is not, in truth, with the rule but with the result.
They invite an appellate court to re-weigh the papers and reach a different
conclusion on the facts. That is not the function of an appellate court, and it is not
a proper basis for leave to appeal. Where, as here, the determinative facts are
confirmed by the respondents’ own witness, the application of Plascon-Evans
could only have produced one outcome.
Ground 4: Improper reliance on replying affidavits
[25] The fourth ground is that I erred in relying on material allegations made for
the first time in reply. It is not clear I that I did so. The applicants made their case
in the founding papers; the replying affidavits responded to matters raised in
answer. To the extent that any matter ventilated in reply assumed greater
prominence at the hearing, this was because the respondents had themselves
placed it in issue. There is no reasonable prospect that an appellate court would
set aside the order on this ground.
Other points specific to each head of relief
[26] The notice of leave to appeal proceeds, after the four general grounds, to
a series of complaints arranged under the headings school bus, water, housing
and grazing. I have considered each of them. They largely repeat the four general
grounds in different language, and they are answered by the same
considerations. Two specific complaints, however, deserve a brief word.
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[27] First, in relation to housing, the respondents say the order is too wide and
may be read as applying eternally to any structure now or in the future. That
objection is, with respect, an overreading of the order. Paragraph 6 of the order
interdicts interference with the rebuilding or repairing of “ their existing dwellings
on the same footprints of the current structures, to the extent reasonably
necessary to ensure the habitability and safety of those dwellings”, and limits the
materials to be used. The order is limited and tied to the existing footprint.
Whatever an appellate court might say about the precise wording, no appellate
court could reasonably refuse to recognise the right, given Mr Van Oudtshoorn’s
confirmation that permission to repair the mud structures had always existed.
[28] Secondly, in relation to the school bus, the respondents protest that the
alternative arrangements they offered should have been accepted. As I held in
the main judgment, those alternatives are unilaterally revocable and provide no
security for the vulnerable school children. There is no realistic prospect of an
appellate court regarding offers that may be withdrawn at will as adequate
substantial redress.
No compelling reason exists
[29] The respondents argue, in the alternative, that compelling reasons exist
for leave to be granted because the principal judgment has wide precedential
effect and ought to be considered by the Supreme Court of Appeal. I do not agree.
[30] The main judgment is fact-specific. It applies established principles and
the protective scheme of ESTA to a particular factual matrix in which the prior
owner’s evidence confirmed the rights asserted. It does not lay down a new rule
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of general application. It does not depart from existing authority. The legal
questions identified by the respondents, whether ESTA imposes any positive duty
on a landowner, whether section 6(2)(e) is purely negative, whether the State’s
constitutional duty extends horizontally, are addressed in Daniels and Mshengu,
which I followed. They are not novel, and they are not unsettled to a degree that
calls for appellate intervention on these particular facts.
[31] In any event, even where compelling reasons are postulated, the merits of
the proposed appeal remain the dominant consideration. For the reasons already
given, the merits do not favour the respondents.
An appeal lies against the order, not the reasons
[32] There is one further consideration that, in my view, places this matter
beyond the reach of leave to appeal. Standing back from the detail, the
application is in substance an attack on the reasoning of the judgment rather than
on the order. Where an appellate court might, on its own analysis, arrive at the
same order on different reasoning, leave to appeal will ordinarily be refused,
however attractive the alternative reasoning might be.
[33] On a conspectus of the grounds advanced, this is precisely such a case.
The respondents quarrel with how the rights were characterised, with how the
duty in section 6(2)(e) was articulated, with how Daniels was applied, with the
framing of the constructive eviction analysis, and with the manner in which
Plascon-Evans was deployed. They do not, and cannot, argue away the
underlying facts on which they themselves relied. An appellate court, working
from those same facts, would on any reasonable view be driven to make an order
that protects the applicants' access to water, recognises the school bus
arrangement , allows the applicants to repair the existing mud structures so as to
render them habitable, and confirm the demarcated grazing rights described by
Mr Van Oudtshoorn. The reasoning may be expressed differently. The conclusion
will be the same.
Conclusion and order
[34] In these circumstances, leave to appeal is not warranted and must be
refused. In respect of costs, I follow the general approach of this Court that costs
are not awarded against the unsuccessful party in matters of this nature. I see no
reason to depart from that approach.
[35] In the result, the following order is made:
1. The application for leave to appeal is refused.
2. Each party to pay their own costs.
Appearances:
Counsel for applicants:
Attorneys for applicants:
Attorney for respondents:
Counsel for respondents:
Acting Judge of the Land Court
Adv B Lukhele, A Dlamini
Ledwaba Mazwai
Cox & Partners Inc Attorneys
Adv G Van der Walt SC
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