SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in
compliance with the law and SAFLII Policy
THE HIGH COURT OF SOUTH AFRICA
(NORTHERN CAPE DIVISION, KIMBERLEY)
Reportable/ Not Reportable
Case no: 990/2025
In the matter between:
ZECHA HOLDINGS (PTY) LTD 1st Applicant
MELISSA MARLENE JAPHTA 2nd Applicant
and
ZECHA JV ROSSTECH XEROX (PTY) LTD 1st Respondent
SEPHIRI ERNEST MOSALA 2nd Respondent
CHARLES ALFRED ROSSOUW 3rd Respondent
ROSSBURG INDUSTRIAL ENTERPRISES
(PTY) LTD t/a ROSSTECH XEROX 4th Respondent
2
FIRSTRAND BANK LTD t/a FNB BANK 5th Respondent
STANDARD BANK OF SOUTH AFRICA
LTD t/a STANDARD BANK 6th Respondent
Neutral citation: Zecha Holdings (Pty) Ltd and Another v Zecha JV Rosstech Xerox
(Pty) Ltd and Others (Leave to Appeal) (990/2025).
Coram: Tlaletsi JP.
Heard: 22 April 2026.
Delivered: 5 June 2026.
Summary: Application for leave to appeal – Section 17(1) of the Superior Courts Act
10 of 2013 – Whether the envisaged appeal has reasonable prospects of success –
Whether there is some other compelling reason why the appeal should be heard – None
established – Leave to appeal is refused.
ORDER
1. The application for leave to appeal is dismissed.
2. There is no order as to costs.
JUDGMENT: APPLICATION FOR LEAVE TO APPEAL.
Tlaletsi JP
[1] This matter concerns an application for leave to appeal to the Full Court of this
Division, alterna tively to the Supreme Court of Appeal, against the whole
3
judgment and order of this Court as handed down on 07 November 2025 .1 The
applicants contend that there are prospects of success in the envisaged appeal,
alternatively, that there are some other compelling reasons for the appeal to be
heard. The impugned order confirmed a rule nisi issued on 17 April 2025 by
Stanton J and is on the following terms:
“1. The third respondent [FirstRand Bank L td t/a FNB Bank] is ordered to forthwith
transfer the amount of R4 ,250 000,00 (Four Million Two Hundred and Fifty
Thousand Rand ), from the account held in its books by the First Respondent
[Zecha Holdings (Pty) Ltd ] under account number 6[...], into the account held by
the First Applicant [Zecha JV Rosstech Xerox (Pty) Ltd ] with the fourth respondent
[Standard Bank of South Africa Ltd t/a Standard Bank] under account number
3[...]; and
2. The first and second respondent s are ordered to pay the costs of this application
on party-and-party scale, jointly and severally with each other, the one paying the
other to be absolved pro tanto.”2
[2] The respondents do not participate in these proceedings. The factual matrix
underlying the matter is fully set out in the impugned judgment. It is therefore
unnecessary to burden this judgment with a repetition thereof.
[3] I first deal with the legal position governing applications for leave to appeal .
Section 17 (1)(a)-(c) of the Superior Courts Act 10 of 2013 (“the Act”) provides
that:
“(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 a reasonable prospect of success; or
1 See Zecha JV Rosstech Xerox (Pty) Ltd and Others v Zecha Holdings (Pty) Ltd and Others (990/2025)
[2025] ZANCHC 109 (7 November 2025).
2 Ibid.
4
(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 on 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 the case, the appeal would lead to a just and prompt resolution of the real
issues between the parties.”
[4] It is apparent from the foregoing that section 17(1)( a) of the Act prescribes the
threshold for leave to appeal. It provides two alternative bases upon which leave
may be granted, namely where the court is satisfied either that “the appeal would
have a reasonable prospect of success” or that “there is some other compelling
reason why the appeal should be heard, including conflicting judgments on the
matter under consideration”. The use of the disjunctive “or” makes it clear that
these requirements are alternative and not cumulative. Accordingly, an applicant
need not establish both grounds. It suffices if either is present, although reliance
may be placed on both where appropriate. 3 In the present matter, the applicants
rely on both reasonable prospects of success and in the alternative, the
existence of some other compelling reason why the appeal should be heard.
[5] Where the applicant demonstrates either that the appeal would have a
reasonable prospect of success or that there is a compelling reason for the
appeal to be heard, leave to appeal should be granted. Section 17(1)(b) and ( c)
constitutes contingent jurisdictional requirements, which are triggered only where
the nature of the decision sought to be appealed so requires. Section 17(1)( b)
operates in conjunction with section 16(2)( a), which permits the dismissal of an
appeal where the decision sought would have no practical effect or result .
Section 17(1)(c), in turn, applies only where the decision sought to be appealed
Section 17(1)(c), in turn, applies only where the decision sought to be appealed
does not dispose of all the issues in the case , thereby requiring consideration of
whether an appeal would lead to a just and prompt resolution of the real issues
3 Smartpurse Solutions (Pty) Ltd (applicant for leave) v FirstRand Bank, In re: FirstRand Bank Ltd v Smart
purse Solutions (Pty) Ltd [2025] 1 All SA 552 (GJ) para 7.
5
between the parties . In Smartpurse Solutions (Pty) Ltd (applica nt for leave) v
FirstRand Bank, In re: FirstRand Bank Ltd v Smart purse Solutions (Pty) Ltd 4, the
court, having found that the applicant had based its application for leave solely
on the contention that the envisaged appeal had reasonable prospects of
success, held as follows:
“If the applicant demonstrates that the appeal would have a reasonable prospect of
success (and the requirements in section 17(1)(b) and (c) are also met), the court must
grant the leave that is sought. The exercise of the power to grant leave is then not in the
court’s discretion.”5 (Footnote omitted)
[6] In Caratco (Pty) Ltd v Independent Advisory (Pty) Ltd 6, the applicant for leave to
appeal advanced the grounds that the contemplated appeal enjoyed reasonable
prospects of success and that other compelling reasons existed for it to be heard.
The application was thus premised on both section 17(1)(a)(i) and (ii) of the Act.
The Supreme Court of Appeal ( “SCA”) made the following instructive
observations:
“In order to be granted leave to appeal in terms of s 17(1) (a)(i) and s 17(1) (a)(ii) of the
Superior Courts Act an applicant for leave must satisfy the court that the appeal would
have a reasonable prospect of success or that there is some other compelling reason
why the appeal should be heard. If the court is unpersuaded of the prospects of success,
it must still enquire into whether there is a compelling reason to entertain the appeal. A
compelling reason includes an important question of law or a discrete issue of public
importance that will have an effect on future disputes. But here too, the merits remain
vitally important and are often decisive. Caratco must satisfy this court that it has met
this threshold.”
4 [2025] 1 All SA 552 (GJ), para 11.
5 See also para 9.
6 2020 (5) SA 35 (SCA) para 2.
6
[7] In Ramakatsa and Others v African National Congress and Another7, the SCA
further made the following insightful observations:
“Turning the focus to the relevant provisions of the Superior Courts Act (the SC Act),
leave to appeal may only be granted where the judges concerned are of the opinion that
the appeal would have a reasonable prospect of success or there are compelling
reasons which exist why the appeal should be heard such as the interests of justice.
This Court in Caratco, concerning the provisions of s 17(1) (a)(ii) of the SC Act pointed
out that if the court is unpersuaded that there are prospects of success, it must still
enquire into whether there is a compelling reason to entertain the appeal. Compelling
reason would of course include an important question of law or a discreet issue of public
importance that will have an effect on future disputes. However, this Court correctly
added that ‘but here too the merits remain vitally important and are often decisive’. I am
mindful of the decisions at high court level debating whether the use of the word ‘would’
as opposed to ‘could’ possibly means that the threshold for granting the appeal has been
raised. If a reasonable prospect of success is established, leave to appeal should be
granted. Similarly, if there are some other compelling reasons why the appeal should be
heard, leave to appeal should be granted. 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.”
conclusion that there are prospects of success must be shown to exist.”
[8] It appears from the foregoing that an applicant for leave to appeal must satisfy
this Court that the envisaged appeal enjoys a reasonable prospect of success or
that there exists some other compelling reason why the appeal should be heard.
In order to succeed, the applicant must show on proper grounds that the
prospects of success are realistic and not remote. Something more than a mere
possibility of success, or that the case is arguable on appeal, or that it is not
7 (724/2019) [2021] ZASCA 31 (31 March 2021) ; [2021] JOL 49993 (SCA) para 10 ; See also S v Smith
2012 (1) SACR 567 (SCA) para 7.
7
hopeless, is required. There must, in other words, be a sound and rational basis
for concluding that reasonable prospects of success exist. Alternatively, an
applicant may succeed by demonstrating compelling reasons why the appeal
should be heard in the interests of justice. Such compelling reasons may include
an important question of law or a discrete issue of public importance with
implications for future disputes.8
[9] It is considered necessary at this juncture, prior to outlining the grounds of appeal
advanced by the applicant s, to recapitulate the effect and essence of the
impugned order. The effect of the impugned order is that of a restitutionary
interdict. It directs First National Bank (“ the third respondent in the main
application”) to forthwith transfer the amount stipulated therein from the account
held in its books in the name of Zecha Holdings (Pty) Ltd to the account of Zecha
JV Rosstech Xerox (Pty) Ltd (“Zecha JV”) held with Standard Bank. The monies
concerned were those of Zecha JV.
[10] Several grounds have been raised to support the application for leave to appeal.
These grounds , when considered, go beyond the limited issues the parties on
their own agreed were the only issues to be determined by the Court.
Furthermore, s ome of the grounds relate to new matters which were neither
raised nor argued in the main application. In Mokweni and Others v Plaatjies and
Others9, the court observed:
“Undoubtedly, raising an entirely new issue for the first time on appeal is something to
be frowned on. This is because, it is well settled that appellate courts do not decide any
issue that was not raised in the court a quo. The upshot of this is that a party cannot
raise an issue on appeal that was not raised in the court a quo unless it is a pure
question of law. Hence, a party must seek leave of the appellate court to introduce a
new issue on appeal.”
8 S v Smith 2012 (1) SACR 567 (SCA) para 7.
9 [2023] JOL 61490 (WCC) para 17.
8
[11] In Barkhuizen v Napier 10, the Constitutional Court made the following apposite
observations:
“The mere fact that a point of law is raised for the first time on appeal is not in itself
sufficient reason for refusing to consider it. If the point is covered by the pleadings, and if
its consideration on appeal involves no unfairness to the other party against whom it is
directed, this Court may in the exercise of its discretion consider the point. Unfairness
may arise where, for example, a party would not have agreed on material facts, or on
only those facts stated in the agreed statement of facts had the party been aware that
there were other legal issues involved. It would similarly be unfair to the other party if the
law point and all its ramifications were not canvassed and investigated at trial.”
[12] In Supaluck Investments (Pty) Ltd v Valuations Appeals Board: City of
Johannesburg and Another (Leave to Appeal)11, the Court pertinently stated:
“In paragraph 7 of its notice of appeal, the Applicant contends that there are other
compelling grounds to entertain the appeal in that the matter involves the interpretation
of sections 51, 52, 73 and 75 of the Rates Act and that the matter raises novel points of
law, which have not previously been decided and which are of significant importance to
the public and finally that it is in the interest of justice that the leave be granted. I
disagree. This matter does not raise any novel points of law.
It seems to me that the interpretation issue was raised for the first time on appeal. This
ground I will not entertain in the absence of the reasons why the court should deal with
the new issue on appeal.” (Emphasis added)
[13] It has also been observed that one of the enduring tenets of judicial adjudication
is that courts are enjoined to decide only the issues placed before them by the
10 2007 (5) SA 323 (CC) para 39.
11 [2024] JOL 64643 (GJ) paras 16-17.
9
litigants.12 That principle was aptly explained in Fischer and Another v Ramahlele
and Others13 in the following terms:
“Turning then to the nature of civil litigation in our adversarial system, it is for the parties,
either in the pleadings or affidavits (which serve the function of both pleadings and
evidence), to set out and define the nature of their dispute, and it is f or the court to
adjudicate upon those issues. That is so even where the dispute involves an issue
pertaining to the basic human rights guaranteed by our Constitution, for '(i)t is
impermissible for a party to rely on a constitutional c omplaint that was not pleaded'.
There are cases where the parties may expand those issues by the way in whic h they
conduct the proceedings. There may also be instances where the court may mero motu
raise a question of law that emerges fully from the evidence and is necessary for the
decision of the case. That is subject to the proviso that no prejudice will be caused to
any party by its being decided. Beyond that it is for the parties to identify the dispute and
for the court to determine that dispute and that dispute alone.”
[14] It bears emphasis that the parties before this Court agreed that the issues that
the Court had to determine were threefold, namely:
14.1 whether Japhta, as the sole director of Zecha JV , had, as a matter of fact,
on 16 April 2025, the authority to transact on account number 3[...] held at
Standard Bank;
14.2 whether Japhta is the holder of 51% of the issued share capital in Zecha
JV and
14.3 what an appropriate order would be in relation to costs.14
[15] In his address at the hearing of the application for leave to appeal , Mr Mongala,
appearing on behalf of the applicants, submitted that there are , in essence, two
fundamental issues that f orm the foundational basis of this application . The first
12 MEC, Department of Education, Eastern Cape v Komani School & Office Suppliers CC 2022 (3) SA
361 (SCA) para 53.
361 (SCA) para 53.
13 2014 (4) SA 614 (SCA) para 13; see also National Director of Public Prosecutions v Zuma 2009 (2) SA
277 (SCA) para 15.
14 Zecha JV Rosstech Xerox (Pty) Ltd and Others v Zecha Holdings (Pty) Ltd and Others (990/2025)
[2025] ZANCHC 109 (7 November 2025) para 27.
10
issue is the right of the applicants in the impugned judgment ( being the first to
fourth respondents in casu) to launch the application that ultimately resulted in
the impugned order . This submission is premised on the contention that this
Court erred in accepting that Mr Sephiri Mosala held 51% of the shareholding in
Zecha JV , and that Mr Charles Rossouw held the remaining 49% therein. He
contended that the Court erred in holding that Mr Mosala remained the holder of
the 51% shareholding in Zecha JV , relying on Annexures AR2 and AR3 , which
purported to be share certificates issued on behalf of the first respondent.
[16] The second central issue, according to Mr Mon gala, concerns whether Japhta
had the requisite authority to transact on the account of Zecha JV. The
contention in this regard is that this Court erred or materially misdirected itself in
concluding that Japhta lacked authority to transact on the current account, on the
basis that it misinterpreted annexure MJ13, which Japhta contended constituted
a mandate to the bank authorising her to exercise signing powers on the bank
account from which she transacted on 16 April 2025. I d eal with the two central
issues in turn.
[17] The validity of the share certificates is challenged on the basis that they d o not
comply with section 51(1)( b) of the Companies Act 71 of 2008 in that each
certificate was signed by only one person instead of two. The validity of the share
certificates reflecting that the shareholding of the first respondent consisted of
51% and 49% for Mr Mosala and Mr Rossouw, respectively, is an issue that was
never raised in the main application. In opposition, the applicants had presented
their case on the basis that the certificates were vali d. Their only contention was
that those certificates were later overtaken by subsequent events in that Mr
Mosala later sold his 51% shareholding to Ms Japhta for a R100 -00
consideration or purchase price. To this effect , they relied on a disputed Share
consideration or purchase price. To this effect , they relied on a disputed Share
Sale Agreement purportedly concluded between Ms Japhta and Mr Mosala. It is
a fact that from the inception and registration of Zecha JV , Mr Mosala and
Rossouw held 51% and 49% shareholding, respectively.
11
[18] It is interesting to note that in t he alleged “Share Sale Agr eement”, it is
acknowledged that the seller, who is Mr Mosala, “is the registered and beneficial
owner of 51% ordinary shares in Zecha JV Rosstech Xerox in terms of the
Companies Act of 200 8 as amended”. Ms Japhta ’s averment in the Answering
Affidavit is that she is the one who entered into the aforesaid agreemen t and that
she signed it. She cannot now claim that Mr Mosala was not a 51% shareholder
in Zecha JV.
[19] In dealing with this aspect , the impugned judgment at paragraphs 29, 30 and 31
reads:
“Japhta relies on the Share Sale Agreement for her contention that at the time when she
made the monetary transfers, she was the majority shareholder of Zecha JV, having
purchased Mosala’s 51% interest. Mosala disputes that he concluded the alleged Share
Sale Agreement. He disputes his signature on the document and submits that if it is
indeed his signature, it must have been taken from a separate contract and added to the
alleged Share Sale Agreement.
The court is then faced with diametrically opposed versions of the parties. On the face of
it, what appears to be Mosala’s signature and those of witnesses to the document (the
alleged Share Sale Agreement) is in the document. In the disputed Share Sale
Agreement, Ernest Mosala is reflected as the ‘Seller’ and Japhta is reflected as the
‘Buyer’. The significance and relevance of the document in this application is considered
hereunder.
It is common cause that the Share Certificate of Zecha JV dated 11 February 2022
(annexure AR2) reflects that Mosala is the owner of 51% Ordinary Shares. Similarly, the
Share Certificate issued to C Rossouw, also dated 11 February 2022, reflects the latter
as the owner of 49% of the Ordinary Shares in Zecha JV. These appear to be the only
Share Certificates issued by Zecha JV. There is no other official document produced to
show that Japhta had become a shareholder of Zecha JV. The only official document
show that Japhta had become a shareholder of Zecha JV. The only official document
produced indicates that she was registered as a Director of Zecha JV. In the absence of
12
any official document, it must be accepted that, for all intents and purposes, Japhta had
not been a shareholder of Zecha JV. Zecha JV has legal personality, and the only proof
of its shareholders is reflected in the documents provided by Zecha itself, and the
records held by the entity responsible for the registration of companies, the CIPC. If
indeed there was any valid Share Sale Agreement between Mosala and Japhta, the
official records of Zecha JV were never changed to reflect the purported changes. On
this aspect alone, it must be found that Mosala was a 51% shareholder of Zecha JV and
not Japhta.”
[20] There was no evidence presented or submissions made to challenge the validity
of the shareholding certificates. It is opportunistic to now contend that the Court
erred in accepting the undisputed version of the respondents. The decision that
Mr Mosala was a shareholder was not solely based on the share certificate. The
factual position, as well as the records of the Companies and Intellectual
Property C ommission ( CIPC), also evidenced that Mr Mosala was a 51%
shareholder of Zecha JV.
[21] On the second issue regarding whether Ms Japhta held the authority to transact
on the banking account of Zecha JV , the impugned judgment deals with this
aspect from paragraphs 34 to 38 as follows:
“The mandate given to Standard Bank on who had the authority to make transactions on
the account on behalf of Zecha JV is contained in annexure AR4 to the replying affidavit.
The aforementioned annexure is an application to open a current account for Zecha JV
submitted on 12 May 2022. The related persons in the application are C Rossouw and
Mosala. The instruction is that the two are to sign jointly for the validity of the
transactions on the account. It is notable that this application (to open a Business
Account) is preceded by the alleged Share Sale Agreement between Japhta and
Mosala. However, in the aforesaid application made on 12 May 2022, Japhta’s
particulars do not appear.
particulars do not appear.
Annexure MJ13 is a document that Japhta contends is a mandate to the bank to afford
her signing authority in the aforementioned bank account from which she transacted on
13
16 April 2025. The objective facts found on this document, however, support the
applicants’ version. The document is dated 29 January 2024, and was submitted to open
a ‘Moneymarket Call Account -Investment’ as an additional account for Zecha JV.
Notably, Fouché is included together with Japhta as signatories to this additional
account. The latter is also reflected as the director of Zecha JV. Both Japhta and Fouché
have appended their signatures to the document. Furthermore, just like as reflected in
Annexure AR4, which relates to the current account of Zecha JV, both Mosala and C
Rossouw are reflected as shareholders. Notably, at the time when the additional
‘Moneymarket Call Account – Investment’ was opened in the name of Zecha JV, the
shareholding and respective percentage interests of Mosala and C. Rossouw in Zecha
JV, as reflected on Annexure MJ13, remained unchanged from what appears on
Annexure AR4. The mandate to the bank is for Japhta and Mosala to sign jointly for the
transactions on this additional account.
The inescapable conclusion is that, when Japhta transferred the money from account
number 3[...], she did not have the necessary signing powers on the account. For her to
acquire such powers, she needed the mandated signatories to authorise the Bank to
allow her to be able to access and transact on the account. She also required the
authority of the signatories, namely, C Rossouw and Mosala, for her to remove Fouché
as a signatory to the transactions on the account.
There is a further reason why Japhta could not legally transfer money from the account
as she did. Section 75(3) of the Companies Act provides that:
‘If a person is the only director of a company, but does not hold all of the beneficial
interests of all of the issued securities of the company, that person may not-
(a) approve or enter into any agreement in which the person or a related person has a
personal financial interest; or
personal financial interest; or
(b) as a director, determine any other matter in which the person or a related person
has a personal financial interest,
unless the agreement or determination is approved by an ordinary resolution of the
shareholders after the director has disclosed the nature and extent of that interest to the
shareholders.’
14
It is common cause that she has a familial relationship with Monchusie, which makes the
latter a ‘related person ’ for purposes of section 75(3). Similarly, the purported
Acknowledgement of Debt and Settlement Agreement Japhta submits the R4 000 000
payment was made with regards to, would be an ‘agreement’ for purposes of section
75(3). Japhta did not obtain the consent of the shareholders to conclude an
Acknowledgement of Debt and Settlement Agreement with Monchusie. Therefore, her
actions contravened the provisions of section 75(3) of the Companies Act.”
[22] The other grounds of appeal relate to the removal of Ms Japhta as a director of
Zecha JV. At paragraph 3 3 of the impugned judgment, it is made clear that the
legality of the removal of Ms Japhta as a director of Zecha JV has no bearing on
these proceedings. The removal of Ms Japhta occurred by a resolution taken at a
meeting held on 17 April 2025 and the application is based on the activities of Ms
Japhta on 16 April 2025 , when her directorship of Zecha JV was not an issue.
Her activities related to the transfer of monies when she was not an authorised
signatory to the relevant bank account of Zecha JV and furthermore in
contravention of section 75(3) of the Companies Act. At the time, Messrs Mosala
and Ro ssouw remained the only registered shareholders of Zecha JV. All the
grounds of appeal relating to this aspect are therefore not relevant . The legality
of her removal as a director of Zecha JV is an issue to be decided in appropriate
proceedings should she so wish.
[23] It is not necessary to burden this judgment with analysing the rest of the grounds
of appeal. They relate to evidential matters that have been fully discussed in the
impugned judgment. Some of the so -called grounds of appeal are new matters
which are being raised for the first time in this application. This appears to have
been an attempt to introduce the issues that served in the application b efore
been an attempt to introduce the issues that served in the application b efore
Mamosebo J which the parties had agreed beforehand that they should not be
part of the issues for determination in this matter.
15
[24] Ultimately, it is trite that an appeal lies against the order and not the reasons for
the order.15 This Court is not persuaded that the envisaged appeal would have a
reasonable prospect of success or that there is some other compelling reason
why the appeal should be heard. Accordingly, the application for leave to appeal
to the Full Court of this Division, alternatively the Supreme Court of Appeal, falls
to be dismissed. There should be no order as to costs since the respondent s did
not participate in these proceedings.
[25] In the result, the following order is made:
1. The application for leave to appeal is dismissed.
2. There is no order as to costs.
LP TLALETSI
JUDGE PRESIDENT
NORTHERN CAPE DIVISION
Appearances
For the Applicants: Adv. J.K Mongala
Instructed by: Justin Pillay & Associates, Kimberley
15 See Department of Transport and Others v Tasima (Pty) Limited; Tasima (Pty) Limited and Others v
Road Traffic Management Corporation and Others [2018] ZACC 21 (CC); 2018 (9) BCLR 1067 (CC) para
80; see also International Trade Administration Commission v SCAW South Africa (Pty) Ltd and Others
[2010] ZACC 6 (CC); 2010 (5) BCLR 457 (CC); 2012 (4) SA 618 (CC) para 71.