THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
Case No: 2026-065660
In the matter between:
YOLAN CHETTY N.O First Applicant
REVESHEN GOVENDER N.O Second Applicant
GOVINSAMY CHETTY CHETTY N.O Third Applicant
REGAL INN MIDRAND (PTY) LTD Fourth Applicant
COLAB SA (PTY) LTD Fifth Applicant
and
CITY OF JOHANNESBURG METROPOLITAN
MUNICIPALITY
First Respondent
CITY POWER JOHANNESBURG (SOC) LTD Second Respondent
(1) REPORTABLE: Yes☐/ No ☒
(2) OF INTEREST TO OTHER JUDGES: Yes☐ / No ☒
(3) REVISED: Yes ☒ / No ☐
Date: 07 May 2026
JUDGMENT: LEAVE TO APPEAL
DU PLESSIS J
Introduction
[1] The respondents in the main application sought leave to appeal against the
order dated 27 March 2026. For reasons that follow, I am not persuaded that another
court would reach a different conclusion on any of the issues raised in the application
for leave to appeal, or in the supplementary grounds filed on 8 April 2026 after reasons
were provided.
[2] The parties will be referred to as they are in the main application.
Background
[3] The urgent application was first served before Noko J on 20 March 2026, when
it was struck from the urgent roll to afford the respondents an opportunity to file papers.
It was thereafter re-enrolled before this court, and an (interim) order was granted on
27 March 2026 after the respondents had an opportunity to file an answering affidavit.
The procedural history is set out in the main judgment and need not be repeated here.
[4] On 27 March 2026, the respondents filed an application for leave to appeal
before I had an opportunity to provide reasons for the order, owing to an exceptionally
busy urgent court roll. Nonetheless, I provided the reasons on 8 April 2026 and
attempted to find a suitable date for all parties to hear the appeal the following week.
The respondents indicated that they had no availability that week.
[5] In parallel, the applicants brought a second urgent application under section
18(3). This followed the City’s argument that, by appealing, the order is suspended
and that they therefore do not need to reconnect the electricity as per the order. That
application served before Mia J in the urgent court during the recess. The parties are
still awaiting judgment in that matter. According to correspondence with the office of
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the acting Deputy Judge President, the delay appears to be the respondents’ failure
to file heads of argument. The relevance of this will become evident later.
[6] When a second attempt was made to set the matter down for hearing, the
respondents stated:
"In order to avoid the risk of parallel consideration of the same issues before two
Courts, we humbly propose that the Honourable Justice Maya [sic] first be afforded the
opportunity to deliver her ruling, and that the Respondents thereafter be permitted to
supplement their grounds of appeal as contemplated in the Rules. Only once this
process has been concluded would it be procedurally appropriate for the hearing of
the appeal to be entertained."
[7] The applicants disagreed with this approach.
[8] On 21 April 2026, I issued a directive setting the application for leave to appeal
down for hearing on 5 May 2026 at 09:00, in line with practice in this division. I directed
that any supplementary grounds for leave to appeal be filed by 29 April 2026 at 16:00,
that short heads of argument be filed by all parties by 4 May 2026 at 10:00, and that
the respondents file a notice of set down. The respondents failed to comply with those
directions. Instead, on 4 May 2026, they uploaded the supplementary grounds
(unsigned) and, on the same day, delivered an affidavit seeking condonation and a
postponement of the hearing. I refused the postponement for the reasons set out at
the end of the judgment.
[9] At the hearing on 5 May 2026, notwithstanding the earlier non-compliance, a
further indulgence was afforded to the respondents. They were permitted to file heads
of argument by 10:00 on 6 May 2026, with the applicants being afforded until 16:00
the same day to file supplementary heads. No heads were filed on behalf of the
respondents by 10:00. The only heads received were those filed on behalf of the
applicant, just before 16:00. Only thereafter did the respondents send their unedited
applicant, just before 16:00. Only thereafter did the respondents send their unedited
heads (which were ready in that form the previous day). Another set of (edited) heads
was emailed by the attorney at 21:17.
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[10] Those facts speak for themselves.
[11] The procedural background set out above is relevant for two reasons. First, the
suggestion that the leave application should await the finalisation of the section 18
proceedings is unsustainable: a section 17 application for leave to appeal and a
section 18 application serve distinct purposes and involve different enquiries. Second,
the respondents have been given repeated and reasonable opportunities to fully
advance their case, but they have not utilised them.
Test for leave to appeal
[12] Applications for leave to appeal are governed by the provisions of section 17 of
the Superior Courts Act 10 of 2013. Section 17(1) provides as follows:
"(1) Leave to appeal may only be given where the judge or judges concerned are of
the opinion that:
(a) (i) the appeal would have reasonable prospect of success; or
(ii) there is some other compelling reason why the appeal should be heard, including
conflicting judgments on the matter under consideration;
(b) The decision sought to appeal does not fall within the ambit of section 16(2)(a);
and
(c) Where the decision sought to be appealed does not dispose of all the issues
in case, the appeal would lead to a just and prompt resolution of the real issues
between the parties."
[13] In MEC for Health, Eastern Cape v Mkhitha 1 the test was clarified:
"Once again it is necessary to say that leave to appeal, especially to this court, must
not be granted unless there truly is a reasonable prospect of success. Section 17(1)(a)
of the Superior Courts Act 10 of 2013 makes it clear that leave to appeal may only be
given where the judge concerned is of the opinion that the appeal would have a
reasonable prospect of success , or there is some other compelling reason why it
should be heard.
1 [2016] ZASCA 176 paras 16 – 17.
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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."
[14] Therefore, leave to appeal should be refused unless there is a truly reasonable
prospect of success, supported by a sound and rational basis in the facts and the law.
Anything less than such a realistic chance of success, whether it is an arguable case
or a mere possibility, does not meet the statutory threshold.
The notice of motion and the order of Noko J
[15] One ground for appeal is that this Court erred in treating the later notice of
motion as an amended notice of motion rather than a second notice of motion, and
further erred in hearing the matter after it had been struck from the urgent roll by Noko
J. Neither point gives rise to reasonable prospects of success.
[16] The record shows that the notice of motion dated 21 March 2026 did not
introduce any substantively new relief. The prayers for restoration, interdictory relief,
the rendering of an account, the process for debating the account, and interim
payment arrangements were already set out in the earlier notice of motion dated 19
March 2026. In other words, the later notice altered the enrolment date and related
timelines for the filing of pleadings, not the substantive relief sought.
[17] In those circumstances, whether the second notice is described as an
“amended” notice of motion, a second notice of motion or as a notice re-enrolling the
same application is immaterial. The substance of the case remained unchanged. The
respondents were fully aware of the relief sought and had the opportunity to address
it. The date change was for the respondent's benefit.
[18] The order of Noko J does not assist the applicants for leave. A striking from the
[18] The order of Noko J does not assist the applicants for leave. A striking from the
urgent roll is not a determination on the merits. It simply means, in this case, that the
matter was not ripe for hearing in that court at that time. Once the respondents were
afforded an opportunity to file their papers, and the matter was re-enrolled on proper
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notice, there was no procedural bar to its being heard by another judge in the urgent
court. I deal extensively with this in my judgment. There is no reasonable prospect that
another court would interfere with the conclusion that the matter was properly before
this Court.
Alleged change of cause of action
[19] The next ground is that this Court altered the applicants’ cause of action by
granting restoration and interdictory relief, after the applicants’ counsel in the urgent
application correctly admitted that the mandament van spolie could not be upheld
based on the facts. This argument is not supported by the evidence.
[20] The founding affidavit expressly advanced two related grounds for relief: first,
spoliation, and second, interim and mandatory interdictory relief arising from the billing
dispute, the applicants’ asserted right to continued electricity supply pending lawful
resolution of that dispute, and the lack of proper notice before disconnection. The latter
ground was not devised at the hearing. It was pleaded from the outset and directly tied
to the relief claimed in the notice of motion.
[21] The acknowledgement that the mandament van spolie was unavailable does
not have the effect of extinguishing the rest of the case. The restoration and
interdictory relief had their own distinct pleaded basis. This Court did not create a new
cause of action on its own initiative. It decided the case based on the pleadings.
[22] The applicants' reliance on authority for leave to introduce a new and unpleaded
cause of action is therefore misplaced, and no other court would reach a different
conclusion.
Restoration and interim interdictory relief
[23] The respondents also contend that no proper factual or legal basis existed for
the restoration of the electricity supply and the interim interdict against further credit-
control steps. This submission fails when the founding papers and the judgment are
read together.
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[24] The founding affidavit alleged, among other things, that the applicants have had
electricity at the property for a long time, that a genuine billing dispute exists, and that
they have continued to make payments. It also stated that they tried to resolve the
issue through the municipality’s procedures and that no proper pre-disconnection or
termination notice was given (which, on its own, renders the disconnection unlawful).
They also highlighted the commercial harm that the disconnection would cause and
the lack of a suitable alternative remedy.
[25] The allegations specifically speak to the requirements for interim interdictory
relief. They also support the mandatory relief to restore supply while the dispute is
properly resolved. This Court’s decision that restoration and interim protection were
appropriate was based on the pleaded case and evidence.
[26] The judgment addresses the municipality’s power to implement credit control
measures but indicates that this power must be exercised in compliance with its
statutory and by-law obligations. No persuasive submissions have been made to
conclude that another court would overturn those findings.
Statement and debatement / account-rendering process
[27] During oral argument, much emphasis was placed on the idea that the
statement-and-debatement process ordered by this Court could occur only if it
followed the procedures in the municipality’s credit-control policy. This view cannot be
accepted. The policy is not a binding norm of general application, as legislation is.
Rather, it is an internal tool designed to fulfil the municipality’s statutory duties under
the Local Government: Municipal Systems Act
2 (“Systems Act”) and related laws. The
court does not “implement” policy. A court’s role is to apply the Constitution and law,
including the municipality’s statutory obligation to provide accurate and accessible
accounts under section 95 of the Systems Act, and to develop effective interim
accounts under section 95 of the Systems Act, and to develop effective interim
remedies if those obligations are not met. The absence of a
statement-and-debatement mechanism similar to the ordered remedy does not restrict
the court’s power to require an organ of state to properly account when it alone
possesses the necessary information for the other party to protect its rights.
2 32 of 2000.
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[28] For the purposes of this leave application, the question is whether there is a
reasonable prospect that another court would conclude that this Court lacked the
power to direct a structured process requiring the municipality to render a proper
account and to engage the applicants in identifying and debating the disputed
components of that account.
[29] In my view, there is no such prospect. Section 95 of the Systems Act obliges a
municipality to provide accessible and accurate accounts and to furnish proper
information to consumers. The judgment already sets out the prolonged failure to
provide a coherent account, which lay at the heart of the dispute in this matter. The
process directed by this Court was expressly interim and confined to the peculiar facts
of this matter. It did not purport to amend the municipality’s policy, prescribe a
universally applicable procedure, or finally determine the parties’ rights. Accordingly,
this ground does not establish reasonable prospects of success. Nor does it furnish a
compelling reason to entertain an appeal against a competent interim order.
No genuine dispute, no utilisation of internal remedies
[30] The respondents dispute that a proper billing dispute was raised and contend
that the applicants in the urgent application approached the Court prematurely, without
exhausting internal remedies. The judgment already addressed that contention in
detail.
[31] The founding papers documented prolonged engagement with the municipality
over several years, including formal queries, reference numbers, meetings,
exchanges with municipal officials and attorneys, and repeated requests for a proper
reconciliation. The applicants alleged that these attempts produced no effective
resolution, despite repeated acknowledgement of a dispute. In the circumstances of
this case, as set out in the judgment, the applicants had done what could reasonably
be expected of them, with no proper account or resolution. There is no reasonable
be expected of them, with no proper account or resolution. There is no reasonable
prospect that another court would find that the urgent application was premature on
that basis, whether framed as a question of internal-remedy exhaustion or of urgency.
In any event, a decision to hear the matter as one of urgency is a discretionary
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procedural decision, which ordinarily does not, on its own, found a competent ground
of appeal.
The R300 000 payment and the interim payment regime
[32] The respondents also challenge the order requiring payment of R300 000 into
the applicants’ attorneys’ trust account, contending that the amount was arbitrary or
inconsistent with the papers. That criticism overlooks the basis for the order.
[33] As explained in the judgment, the amount of R300 000 was not chosen
arbitrarily by the Court. It was based on the applicants’ own tender, coupled with their
undertaking to continue paying current undisputed charges pending the accounting
process. The higher figures relied on by the respondents were not established on the
papers as objectively undisputed amounts and were expressly addressed in the
judgment.
[34] The payment direction was therefore a temporary and pragmatic measure, as
urgent court measures often are, intended to balance the parties’ positions while the
account was to be debated. It did not finally determine the indebtedness between the
parties. No reasonable prospect of success has been shown.
Conclusion on the leave to appeal
[35] The respondents have therefore failed to establish that there is a reasonable
prospect of success, nor any other compelling reason for the appeal to be heard.
[36] Several paragraphs of the order are plainly interim and interlocutory, including
the interdictory relief and the interim payment arrangements. The respondents have
not demonstrated why, in the interests of justice, those interim features should
nonetheless warrant appellate intervention at this stage.
[37] Moreover, no genuine risk of “conflicting judgments" has been demonstrated in
the ongoing section 18 proceedings. A section 18 application concerns execution while
an appeal is pending, whereas a section 17 application addresses whether an appeal
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should be granted at all. These inquiries are distinct. The existence of one does not
delay the court's obligation to decide the other.
Postponement
[38] The respondents’ heads of argument, filed out of time on 6 May 2026, have
also been considered as far as the postponement is concerned. They repeat, in slightly
different form, the grounds already canvassed in the affidavit in support of condonation
and postponement of 4 May 2026. They placed reliance on general principles
governing postponements, alleged prejudice if the matter proceeded on the allocated
date, and expressed concern about so-called “conflicting judgments” in light of the
pending section 18 application before Mia J. They do not, however, advance any lucid
explanation for the failure to comply with this Court’s directive of 21 April 2026.
[39] The chronology bears repetition. The court requested that the matter be set
down for a hearing in the first week of the term (providing the parties with 3 dates), but
the respondents were unavailable all week. On 21 April 2026, this Court directed that
(a) any supplements to the application for leave to appeal be filed by 29 April 2026 at
16:00; (b) short heads of argument by all parties be filed by 4 May 2026 at 10:00; and
(c) the respondents file a notice of set down. That afforded the respondents a full two
weeks to prepare and file heads. They elected did not do so. Instead, on the very day
heads were due, they filed an affidavit seeking condonation (for the late filing of the
supplementary grounds for leave to appeal) and a postponement, without explaining
why the two-week period in the directive could not reasonably have been met.
[40] The respondents’ stance, namely to file an application for leave to appeal, to
resist the setting down of that application on the dates first proposed in mid-April, and
then to seek to postpone the eventual hearing because they have chosen not to
comply with clear directions, gives rise to a legitimate concern that the litigation is
comply with clear directions, gives rise to a legitimate concern that the litigation is
being managed in a manner inconsistent with their obligation, as an organ of state, to
litigate responsibly.
3 It is neither fair to the applicants, who are entitled to the timely
3 Section 195 of the Constitution states: (1) Public administration must be governed by the democratic values and
principles enshrined in the Constitution, including the following principles:
(a) A high standard of professional ethics must be promoted and maintained.
(b) Efficient, economic and effective use of resources must be promoted.
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finalisation of the leave application, nor conducive to the efficient functioning of the
urgent court (which includes leave to appeal, which is also treated urgently) to permit
an application for leave to appeal to pend indefinitely on such grounds.
[41] Applying the principles of postponements, the respondents have not provided
a compelling justification supported by a full and frank explanation. On the contrary,
any prejudice from further delay would fall mainly on the applicants, while any
prejudice to the respondents is self -created. The application for postponement was
therefore refused at the hearing, and the matter proceeded on the merits of the leave
to appeal.
Costs
[42] There is no reason to depart from the general principle that costs should follow
the result. In light of the history set out above, including the respondents’ failure to
comply with clear directions, the eleventh -hour postponement application on vague
and questionable grounds, and the resulting unnecessary procedural skirmishing, it is
appropriate that the respondents be ordered to pay the applicants’ costs on the
party-and-party scale C as provided for in rule 67A
Order
[43] For these reasons, the following order is made:
1. The application for leave to appeal is dismissed, with costs to be taxed on
scale C.
______________
WJ du Plessis
Judge of the High Court, Gauteng Division,
Johannesburg
Date of hearing:
5 May 2026
Date of order:
7 May 2026
For the applicant:
WKC Pretsch instructed by Harkison
Mungal Inc
For the respondent:
E Sithole instructed by SSM Attorneys Inc