REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG
Case Number: 2026-111753
In the matter between:
KABITSANE LETSIE Applicant
AND
NATIONAL HOUSING FINANCE CORPORAT ION Respondent
JUDGMENT: APPLICATION FOR LEAVE TO APPEAL
FURMAN Al
INTRODUCTION
[1] T his is an application by the respondents for leave to appeal against the judgm ent and order
granted by this Court on 28 May 2026.
[2] The judgment concerned Part A of an urgent application. The relief granted was interim in
nature and was expressly made operative pending the final determination of Part B, b eing the
review proceedings. The costs of Part A were reserved for determination in Part B.
[3] The respondents seek leave to appeal on three broad grounds. First, they contend that this
Court misdirected itself in relation t o the juri sdictional enquiry and in its treatment of Famous
Idea Trading 4 (Pty) Ltd t/a Dely Road Courier Pharmacy v Government Employees Medical
Scheme and Others. Secondly, they contend that this Court failed properly to apply the test for
interim interdictory relief, particularly the requirement that the applicant demonstrate reasonable
prospects of success in the review. Thirdly, they contend that paragraph 4 of the order, which
restrained the permanent filling of the position of General Manager: Programme Management
pending Part B, was not relief sought in the notice of motion and ought not to have been granted.
[4] The threshold for leave to appeal is set by section 17(1)( a) of the Superior Courts Act 10 of
2013. Leave may be granted only where the Court is of the opinion that the appeal would have
a reasonable prospect of success, or that there is some other compelling reason why the appeal
should be heard.
[5] Before considering the merits of the grounds advanced, it is necessary to consider whether
the order is appealable. The order granted by this Court is not final in effect. It does not dispose
of Part B. It does not finally determine the lawfulness of the impugned decision. It does not finally
determine whether the applicant was lawfully appointed to, or lawfully removed from, the position
of General Manager: Programme Management.
of General Manager: Programme Management.
[6] The order preserves the position pending the determination of Part B. It is in substance and
form, interim and preservatory. The review court remains at large to determine the merits of the
review and the ultimate lawfulness of the impugned decision. Nothing in the judgm ent precludes
the respondents from advancing those points fully in Part B.
[7] The respondents' application for leave to a ppeal proceeds, in material respects, from a
misconception of the judgment. The Court did not d ecline to consider jurisdiction. It considered
the respondents' juri sdictional objection at the outset and was satisfied, on the applicant's pleaded
case and for purposes of Part A, that the applicant had established a prima facie basis upon which
this Court's review/l egality jurisdiction was engaged.
[8] The Court was alive to the respondents' reliance on Famous Idea. It accepted that a court
whose review jurisdiction is contested must consider that issue before granting relief. That is
what the Court did. Famous Idea does not, however, require a court, in urgent Part A proceedings
for interim and preservatory relief, to determine finally and conclusively every juri sdictional
question that may arise in the review. It requires the Court to consider whether its review
jurisdiction is properly engaged before exercising powers that depend upon that jurisdiction. That
enquiry was undertaken. On the pleaded case, and on the material then before the Court, the
applicant had established at least a prima facie basis for contending that the impugned decision
involved the exercise of public power by an organ of state and was susceptible to review under
PAJA and/or the principle of legality. Whether that contention ultimately succeeds is a matter for
Part B, on the full record.
[9] In reaching that conclusion, the Court had regard to the pleaded case and to the manner in
which the respondents themselves justified the impugned decision by reference to statutory and
constituti onal obligations. The dispute could therefore not simply be dismissed, at the Part A
stage, as an ordinary employment dispute incapable of engaging this Court's review/l egality
jurisdiction.
[10] In my view, the jurisdictional complaint does not render the order appealable. The order is
interim and preservatory. A final juri sdictional determination, adverse to the applicant, may yet
be made in Part B once the record and the full review papers are before the Court. The interim
order does not foreclose that enquiry. In any event, even if the order were appealable, I am not
persuaded that the respondents enjoy reasonable prospects of success on the juri sdictional
ground.
[1 1] The second ground concerns the requirements for interim interdictory relief. The respondents
contend that this Court failed to apply the standard articulated in Economic Freedom Fighters v
Gordhan. I do not agree.
[12] The judgment considered the prima facie merits of the applicant's case. It referred to the
applicant's reliance on Oudekraal Estates (Pty) Ltd v City of Cape Town and MEC for Health,
Eastern Cape v Kirland Investments (Pty) Ltd. It considered the fact that the applicant had
occupied the position of General M anager: Programme Management for an extended period,
performed the functions associated with that office, received the remuneration attached thereto
and participated at executive level. It also considered that the respondents' own correspondence
included references to the applicant's "demotion" and reassignment to her previous position.
[13] The Court concluded that the applicant had established a prima facie right, albeit one open
to some doubt. That is the conventional standard applicable to interim interdictory relief. The
Court did not purport to decide the review finally. It considered whether the applicant had shown
sufficient prospects at the interim stage to justify preservation of the status quo pending Part B.
I remain of the view that the applicant did so.
[14] The respondents' criticism is in truth a disagreement with the weight attached to the material
before the Court and with the exercise of the Court's discretion. That does not, without more,
establish reasonable prospects that another court would interfere with an interim discretionary
order.
[15] The third ground concerns paragraph 4 of the order, which restrains the respondents from
permanently filling the position of General Manager: Programme Management pending the final
determination of Part B.
[16] Paragraph 4 is ancillary to the interim relief granted. Its purpose is to preserve the efficacy
of Part B. If the post were permanently filled before the review is determined, the review relief
may be rendered substantially less effective or practically difficult to implement. The restraint is
temporary. It operates only pending Part B. It does not determine who must permanently occupy
the position and it does not prevent the respondents from advancing all their arguments in the
review.
[17] That conclusion is reinforced by the factual history placed before the Court. On the
applicant's pleaded case, she had initially performed the functions of General Manager:
Programme Management in an acting capacity for a period before her permanent appointment.
The respondents were therefore not strangers to the position being occupied or managed on an
acting or temporary basis. Paragraph 4 of the order does not compel the respondents to appoint
the applicant permanently, nor does it prevent them from making appropriate temporary
administrative arrangements pending Part B. It merely restrains the permanent filling of the
position so that the review relief, if ultimately granted, is not rendered hollow or practically
incapable of effective implementation.
[18] The respondents' complaint also overlooks that the notice of motion sought further and/or
alternative relief. Paragraph 4 was not a determination of a new or unpleaded dispute. It was
alternative relief. Paragraph 4 was not a determination of a new or unpleaded dispute. It was
directed at preserving the subject matter of Part Band preventing the review relief from being
rendered nugatory. The position of General Manager: Programme Management, the applicant's
alleged demotion, her status, remuneration and the consequences of the continued
implementation of the impugned decision were squarely before the Court.
[19] In granting interim relief, the Court exercises a discretion as to the form of the order,
provided the relief remains tethered to the pleaded case and does not occasion procedural
unfairness. Paragraph 4 falls within that discretion. It is temporary, preservatory and logically
connected to the relief sought in Part A. It does not finally confer the position on the applicant,
nor does it finally deprive the respondents of the power to fill the position after Part B has been
determined.
[20] The respondents have also not shown any compelling reason why the appeal should be
heard. The matter is still to proceed to Part B, where the substantive issues can be determined
on a fuller record. An appeal at this stage would fragment the proceedings and delay the
determination of the review. The interests of justice do not favour an immediate appeal against
an interim order whose purpose is to preserve the position pending that determination.
[21] I accordingly find that the order is not appealable. In any event, and even if it were
appealable, I am not satisfied that the respondents have shown reasonable prospects of success
or any other compelling reason for the appeal to be heard.
[22] The application for leave to appeal must therefore fail.
ORDER
[23) The following order is made:
f leave to appeal is dismissed.
application for leave to appeal are reserved for determination in Part B.
FURMAN Al
Acting Judge of the High Court
Appearances
On behalf of the Applicant:
Instructed by:
On behalf of the Respondent:
Instructed by:
Date of hearing:
Date of Judgement:
MUSATONDWA MUSANDIWA
TRACEY LOMAX ATTORNEYS
M MANALA
MAKHUBELA ATTORNEYS
04 June 2026
05 June 2026