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IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
Case No: 2025-119931
In the matter between:
LERATO ELIZABETH LEHOKO First Applicant
DUMANI MADALANE Second Applicant
and
THANDAZWA KETILE First Respondent
LARA LOUISE EVANS KAY Second Respondent
MINISTER OF POLICE Third Respondent
STATION COMMANDER,
HILLBROW POLICE STATION Fourth Respondent
SHERIFF OF THE HIGH COURT,
JOHANNESBURG CENTRAL Fifth Respondent
In re:
THANDAZWA KETILE First Applicant
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED.
Date of hearing:
…………..…………............. 1 June 2026
SIGNATURE DATE OF JUDGMENT
22 June 2026
LARA LOUISE EVANS KAY Second Applicant
and
LERATO ELIZABETH LEHOKO First Respondent
DUMANI MADALANE Second Respondent
MINISTER OF POLICE Third Respondent
STATION COMMANDER,
HILLBROW POLICE STATION Fourth Respondent
SHERIFF OF THE HIGH COURT,
JOHANNESBURG CENTRAL Fifth Respondent
_____________________________________________________________________
JUDGMENT IN RE APPLICATION FOR LEAVE TO APPEAL
_____________________________________________________________________
DE LIMA JORGE, AJ
AD CONDONATION
[1] The First and Second Applicants in this application for leave to appeal, being the
First and Second Respondents in the main application in the court a quo ,
delivered their application for leave to appeal on 29 March 2026.
[2] The Applicants have incorporated a prayer for condonation for the late filing of
their application in the application for leave to appeal.
[3] The basis for the condonation, as set out in the notice of leave to appeal, is that
the Applicants requested reasons for the judgment through the registrar;
however, same was only provided on 5 March 2026, resulting in the Applicants
being unable to deliver their application within the prescribed time period.
[4] The request for written reasons by the Applicants was made on 26 August 2025
and transmitted to the office of the appeals registrar. As no response was
received, a follow-up email was thereafter sent by the attorney of record for the
Applicants to my registrar on 6 October 2025. The said request for written
reasons was received by me on 6 October 2025.
[5] Written reasons were accordingly prepared and uploaded to CaseLines on 28
October 2025.
[6] The Applicants addressed further correspondence to my registrar on 14 January
2026 and 5 March 2026 and, according to the Applicants, received same on the
latter date.
[7] In terms of Rule 49(1)(b) of the Uniform Rules of Court, an applicant is required
to institute an application for leave to appeal within 15 days from the date on
which the written reasons are provided.
[8] Having regard to the above timeline, the Applicants’ application for leave to
appeal was served 105 days after the written reasons were provided and
uploaded to CaseLines and, at best for the Applicants, 17 days from when the
Applicants were provided with the reasons, namely 5 March 2026, i.e. 2 days
after the lapse of the 15-day period.
[9] Whenever a party to litigation fails to comply with any of the Rules or time
periods contained therein, the Court may condone such failure upon application
by the defaulting party
1. Condonation is not there for the mere taking. In Du
Plooy v Anwes Motors (Edms) Bpk 1984 (4) SA 213 (O) at 216H –217D, the Court
concluded that the subrule (Rule 27(3)) requires “good cause” to be shown. The
Court has a wide discretion
2, which must be exercised with due regard to the
merits of the matter as a whole. This applies to all applications brought under
the subrule 3. What may differ is the degree of assurance required that there is
indeed a defence, which may vary from case to case. The applicant should
1 Rule 27 Extension of time and removal of bar and condonation
2 Smith NO v Brummer NO 1954 (3) SA 352 (O) at 358A
2 Smith NO v Brummer NO 1954 (3) SA 352 (O) at 358A
3 Gumede v Road Accident Fund 2007 (6) SA 304 (C) at 307C–308A
satisfy the Court on oath [my emphasis] that he has a bona fide defence or that
his action is clearly not ill-founded, as the case may be.
[10] An applicant seeking relief under this Rule must show good cause. The Court will
refuse to grant the application where there has been a reckless or intentional
disregard of the Rules of Court, or where the Court is convinced that the
applicant does not seriously intend to proceed. The application must be bona
fide and not made with the intention of delaying the opposing party’s claim
4.
[11] In High Tech Transformers (Pty) Ltd v Lombard (2012) 33 ILJ 919 (LC) the
importance of a reasonable and acceptable explanation for a delay was
emphasised at para 25 of the judgment:
‘[25] . . . Condonation is not merely for the asking as was duly pointed out by the
court in NUMSA & another v Hillside Aluminium [2005] ZALC 25; [2005] 6 BLLR
601 (LC):
“[12] Additionally, there should be an acceptable explanation tendered in
respect of each period of delay. Condonation is not there simply for the asking.
Applications for condonation are not a mere formality. The onus rests on the
applicant to satisfy the court of the existence of good cause and this requires a
full, acceptable and ultimately reasonable explanation. … Nevertheless, to do
justice to the aims of the legislation, parties seeking condonation for non -
compliance are obliged to set out full explanations for each and every delay
throughout the process. … ”’
[12] At no point did the Applicants file an affidavit setting out, under oath, the
reasons for the late filing of the application for leave to appeal or demonstrating
good cause.
[13] All submissions in support of condonation were made by counsel for the
Applicants from the bar. This, in effect, amounts to “leading evidence from the
bar. ” When questioned as to why no supporting affidavit had been deposed to by
4 Erasmus, supra, RS 7, 2018, D1-323.
the Applicants, the only explanation advanced was that the Applicants were
entitled to proceed in this manner in the interests of justice.
[14] Furthermore, when asked whether the Applicants’ legal representatives had
checked CaseLines to ascertain whether the reasons had been uploaded, it was
indicated that the Applicants were of the view that the reasons would be
provided by my registrar. On this basis, they did not consider it necessary to
check CaseLines to determine whether the reasons had, in fact, been uploaded.
[15] This is untenable in light of the submission by counsel for the Respondent that
CaseLines automatically issued an email notification on 28 October 2025 to all
parties invited to the matter. The notification stated: “This email has been sent
on behalf of the Office of the Chief Justice to notify you that a change has
occurred in section 077-1 in case [Urgent Application] Thandazwa Ketile v. Lerato
Elizabeth Lehoko #2025 -119931. ” It was through this notification that the
Respondents became aware of the reasons for the order granted.
[16] Save for the above, no further explanation has been provided for the late filing of
the application for leave to appeal, including for the period within the 15 -day
timeframe from 5 March 2026 to 29 March 2026.
[17] An applicant should also show that he would have reasonable prospects of
success in the process for which he seeks condonation to proceed with (in the
present matter that would be that there are prospects that the court which will
entertain the appeal would come to another conclusion). In this regard the
following principle was stated in Democratic Alliance v President of the
Republic of South Africa (21424/2020) [2020] ZAGPPHC 326 (29 July 2020) para
5:
‘[5] This dictum serves to emphasis a vital point: Leave to appeal is not simply for
the taking. A balance between the rights of the party which was successful
before the court a quo and the rights of the losing party seeking leave to appeal
before the court a quo and the rights of the losing party seeking leave to appeal
need to be established so that the absence of a realistic chance of succeeding
on appeal dictates that the balance must be struck in favour of the party which
was initially successful. ’
[18] Taking into account the extent of the Applicants’ failure to comply with Uniform
Rule 49(1)(b), their explanation does not approach compliance with the test laid
down in the Rule and the applicable authorities.
[19] However, ex abundanti cautela , the sole remaining issue is whether the
Applicant’s prospects of success on appeal are sufficiently strong —or at least
viable—so as to justify, to some extent, overlooking the Applicant’s failure to
adequately explain the delay.
AD MERITS OF THE APPLICATION THE LEAVE TO APPEAL
[20] The Applicants seek leave to appeal to the Full Court against the whole judgment
and order dated 7 August 2025 and the reasons provided on 28 October 2025, on
five grounds.
[21] On 17 May 2024 the Honourable Madam Justice Crutchfield J confirmed the
validity of the notarial servitude, ordered registration, compelled access, and
awarded attorney-client costs.
[22] The Applicants instituted an application for leave to appeal the Honourable
Madam Justice Crutchfield J’s judgment and orders and which application for
leave to appeal was dismissed on 16 October 2024. The Applicants thereafter on
3 April 2025 petitioned the Supreme Court of Appeal.
[23] The Supreme Court of Appeal dismissed the application for leave to the appeal
instituted by the Applicants in respect of the whole judgment and order of the
Honourable Madam Justice Crutchfield. The order by the Supreme Court of
Appeal is dated 7 August 2026, and communicated to the parties on or about 23
August 2025.
[24] In Acting National Director of Public Prosecutions v Democratic Alliance In
Re Democratic Alliance v Acting National Director of Public
Prosecutions (19577/09) [2016] ZAGPPHZ 489 (24 June 2016), the court held (at
paragraph 25 of the judgment) that the Act has raised the bar for granting leave to
appeal and in this regard, referred to The Mont Chevaux Trust (IT 2012/28) v
Tina Goosen and 18 Others 2014 JDR 2325 (LCC), where the following was
stated:
‘It is clear that the threshold for granting leave to appeal against a judgment
of a High Court has been raised in the new Act. The former test whether leave to
appeal should be granted was a reasonable prospect that another court might
come to a different conclusion, see Van Heerden v Cronwright & Others 1985
(2) SA 342 (T) at 343H. The use of the word "would" in the new statute
indicates a measure of certainty that another court will differ from the court
whose judgment is sought to be appealed against. ’5
[25] In Municipality of Thabazimbi v Badenhorst (66933/2011) [2024] ZAGPPHC 195
(26 February 2024) paras 9 – 10 the court also dealt with the more stringent test
for an application for leave to appeal and held, inter alia, as follows:
‘[9] … A possibility and discretion were therefore, in the words of the legislation
and consciously so, amended to a mandatory obligatory requirement that leave
may not be granted if there is no reasonable prospect that the appeal will
succeed. It must be a reasonable prospect of success; not that another Court
may hold another view.
[10] The Court a quo may not allow for one party to be unnecessarily put through
the trauma and costs and delay of an appeal. … ”
[26] In MEC Health, Eastern Cape v Mkhitha (1221/2015) [2016] ZASCA 176 (25
November 2016) the Supreme Court of Appeal held:
"[17] … 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. "’
5 See also Rohde v S 2020 (1) SACR 329 (SCA) para 8 and Fair-Trade Independent Tobacco Association
v President of the Republic of South Africa and Another (21688/2020) [2020] ZAGPPHC 311 (24 July
2020) para 4.
[27] In considering whether there is some other compelling reason why the proposed
appeal should be heard, as provided for in section 17(1)(a)(ii) of the Act, an
important question of law or a discrete issue of public importance that will have
an effect on future disputes may constitute such a compelling reason.
[28] I do not intend repeating all the grounds of the proposed appeal, as these
already form part of the record.
[29] In relation to the first ground, namely that the Court erred in proceeding despite
pending proceedings and a petition to the Supreme Court of Appeal in respect to
the order granted by the Honourable Madam Justice Crutchfield under case
number 2023 – 018412:
[29.1] as indicated above, the Supreme Court of Appeal dismissed the
application for leave to the appeal instituted by the Applicants in respect
of the whole judgment and order of the Honourable Madam Justice
Crutchfield dated 3 April 2025;
[29.2] it is important to note that the order by the Supreme Court of Appeal is
dated 7 August 2026, being the same day the urgent application was
heard;
[29.3] at the time of delivering this application for leave to appeal , on 29 March
2026, the Applicants were fully aware of the aforementioned fact;
[29.4] the import thereof accordingly renders th is ground for leave to appeal
moot. However, counsel for the Applicants contended that , because on
7 August 2026 the parties were not aware of the outcome of the
Supreme Court of Appeal’s decision this ground stands;
[29.5] even if there is any merit in the above contention , the following bears
refence: the independence of spoliation proceedings from the
determination of underlying rights is firmly established. In Ngqukumba v
Minister of Safety and Security 2014 (5) SA 112 (CC) at para 10, the
Constitutional Court reiterated that the mandament van spolie is
concerned with the restoration of possession, irrespective of competing
claims to rights;
concerned with the restoration of possession, irrespective of competing
claims to rights;
[29.6] likewise, in Tswelopele Non -Profit Organisation v City of Tshwane
Metropolitan Municipality 2007 (6) SA 511 (SCA) at para 24 , it was
confirmed that the remedy is not concerned with the merits of the
underlying dispute , but with the restoration of unlawfully deprived
possession;
[29.7] the first ground of appeal further losses sight of the contents of
paragraphs [38] to [40] of my reasons, and more specifically that the SCA
has held in National Sorghum Breweries v International Liquor
Distributors (Pty) Ltd [2000] ZASCA 159; 2001 2 SA 232 (SCA) that for
res judicata to apply, it is not sufficient that claims share similar
elements; the court must compare each claim in its entirety and ensure
that the same parties, as well as the same essential issues of fact or law,
were previously determined. In this matter, the cause of action is based
on new acts of unlawful obstruction arising in July 2025, which were not
contemplated in the earlier order of 17 May 2024 by Her Ladyship Justice
Crutchfield. The relief sought is therefore based on fresh deprivation and
not enforcement of the prior order. Furthermore, it was conceded by the
Applicants that the order of 17 May 2024 did not address the servitude
on the western boundary of Erf 9 […] or the northeastern boundary of Erf
9[…]; and
[29.8] it follows that the existence of pending appeal proceedings relating to
the validity or scope of the servitude could not preclude the Court from
determining whether a new act of spoliation had occurred. There was
accordingly no misdirection in proceeding with the matter, and no risk of
conflicting orders arises where the relief is confined to restoration of
possession.
Accordingly, the first ground of appeal is without merit.
[30] The second ground, that the Court failed properly to consider the existing order
of 2023 and registered real rights, similarly rests on a misapprehension of the
law:
[30.1] it is trite that spoliation proceedings do not determine or affect
underlying proprietary rights;
[30.2] in Eskom Holdings SOC Ltd v Masinda 2019 (5) SA 386 (SCA) the
Supreme Court of Appeal held that that the mandament operates
Supreme Court of Appeal held that that the mandament operates
irrespective of the merits of the dispute, and that possession must be
restored even if the respondent believes that they are legally entitled to
act as they did. This principle was reaffirmed in Bon Quelle (Edms) Bpk
v Munisipaliteit van Otavi 1989 (1) SA 508 (A) at 514 –515, where the
Court held that even quasi-possession of a servitude right is protectable
without determining the validity of the right itself;
[30.3] the Applicants’ reliance on the Deeds Registries Act, SPLUMA, or alleged
effects on property value is therefore misplaced, as those
considerations are legally irrelevant to the spoliation enquiry; and
[30.4] as pointed out by Counsel for the First and Second Respondents, t he
Court a quo correctly confined itself to restoration of access and did not
purport to vary or interfere with any registered real rights . I agree with
this submission.
Accordingly, the second ground of appeal is without merit.
[31] The third ground for leave to appeal concerning an alleged procedural irregularity
based on documents being signed by a candidate legal practitioner, does not
disclose a valid basis for appeal.
[31.1] counsel for the Respondent submitted that it was not averred in the
answering papers to the spoliation application that the notice of motion
was signed by a candidate attorney and was , as such, irregular. This
constitutes new evidence to which the Respondents could not reply;
[31.2] the Supreme Court of Appel has reiterated that it is a well -established
principle that , in considering on appeal whether a judgment appealed
from is right or wrong, the appeal court considers the judgment based on
the facts in existence at the time the judgment was given
6;
[31.3] during the spoliation application, the Respondents w ere not confronted
with the c ontention that the notice of motion constituted an irregular
step whether by way of a Rule 30 notice, a point in limine, or otherwise;
[31.4] counsel for the Applicants ’ response to the above was confined to the
proposition that the Court a quo ought to have raised the irregularity
mero motu. This proposition is untenable, inter alia, because the notice
of motion contains a signature for the First and Second Respondents’
attorneys without specifying the name or designation of the signatory . It
attorneys without specifying the name or designation of the signatory . It
would therefore have been impossible for the Court to identify the
alleged irregularity without it being formally raised by the Applicants;
6 Bechan and Another v SARS Customs Investigations Unit and Others (1196/2022) [2024] ZASCA 20 (5
March 2024) and Weber-Stephen Products Co v Alrite Engineering (Pty) Ltd 1992 (2) SA 469 (A) at
507C-D.
[31.5] further reliance on Section 18(1) and section 4(2) of the Right of
Appearance in Courts Act 62 of 1995 does not assist the Applicants, as a
notice of motion is not a pleading and, in any event, Act 62 of 1995 has
been repealed;
[31.6] it is well established that not every procedural irregularity vitiates
proceedings; only those that cause prejudice or affect the fairness of the
process are material. In Trans -African Insurance Co Ltd v
Maluleka 1956 (2) SA 273 (A) at 278 E-G, the Appellate Division held that
"in the absence of prejudice to interfere with the expeditious and, if
possible, inexpensive decision of cases on their real merits" . The
principal that formal defects should not be permitted to override the
substance of litigation where no prejudice is shown has been reiterated
by our courts in numerous cases since then. Furthermore, motion
proceedings are founded upon affidavits, not pleadings, and the
evidential material placed before the Court was properly deposed to by
the First and Second Respondents; and
[31.7] the alleged irregularity is therefore at best technical and does not affect
the correctness of the order.
Accordingly, the third ground of appeal is without merit.
[32] The fourth ground, relating to an alleged failure to consider the rights of third
parties and a purported non-joinder, is likewise unsustainable:
[32.1] this fourth ground suffers the same fate as the third ground, namely that
it was not averred in the answering papers to the spoliation application;
[32.2] the test for joinder is whether a party has a direct and substantial
interest in the order sought: United Watch & Diamond Co v Disa Hotels
1972 (4) SA 409 (C) 415F . A direct and substantial interest is one that
may be prejudicially affected by the judgment. In the present matter, the
order granted was limited to the removal of unlawful obstructions and
the restoration of access; it did not alter any registered servitude or
impose obligations on third parties;
impose obligations on third parties;
[31.3] in Henri Viljoen (Pty) Ltd v Awerbuch Brothers 1953 (2) SA 151 (O) at
169–170, it was emphasised that a financial or indirect interest is
insufficient to found a case of non-joinder. The respondents have failed
to demonstrate any direct and substantial interest on the part of the
alleged third parties that required their joinder; and
[32.4] finally I accept and agree with the submissions by counsel for the First
and Second Respondents that: the Applicants have failed to provide any
detail as to how the court a quo varied and or shifted the servitude and
which in turn would affect the third parties. The order was limited to the
spoliation application and the removal of the obstructions , on the
northeastern boundary of ERF 9 […] and the western boundary of ERF
9[…], which affect the First and Second Respondent’s use of the
servitude.
This ground is therefore devoid of merit.
[33] The fifth ground, concerning an alleged discrepancy between the servitude and
the terms of the order, similarly fails to meet the threshold required for purposes
of granting the leave to appeal:
[33.1] the Applicants do not identify the alleged discrepancy with any
particularity, nor do they demonstrate how it renders the order
unworkable or incorrect in law; and
[33.2] if the discrepancy refers to a clerical or typographical error, it is well
established that clerical or typographical errors may be corrected under
Rule 42 of the Uniform Rules of Court and do not constitute a basis for
appellate interference. In Firestone South Africa (Pty) Ltd v Genticuro
AG 1977 (4) SA 298 (A) at 306F–H, the Court held that a court retains the
inherent power to clarify or correct its own order where necessary . The
alleged discrepancy, even if established, would not affect the central
finding that the Applicants unlawfully obstructed access and that the
First and Second Respondents demonstrated entitlement to the relief
granted.
[34] The Applicants’ grounds seek to introduce defences directed at the validity or
scope of the servitude rather than the act of dispossession. As consistently held,
such considerations are irrelevant to spoliation proceedings. In Van Eck v Etna
Stores 1947 (2) SA 984 (A) at 998 (A) and reaffirmed in Ngqukumba v Minister of
Safety and Security 2014 (5) SA 112 (CC) , the Court emphasised that no one is
Safety and Security 2014 (5) SA 112 (CC) , the Court emphasised that no one is
entitled to take the law into their own hands, and that even a person with a valid
claim must approach the courts for relief. The Applicant s’ conduct, on their own
version, involved the erection of structures that interfered with access, and this
constitutes precisely the form of self -help that the mandament is designed to
prevent.
[35] The factual findings underpinning the order are not susceptible to attack on
appeal. There is no basis upon which another court would interfere with these
findings.
[36] In the result, the Applicants have failed to demonstrate any misdirection of fact
or law, nor have they shown that there is a reasonable prospect that another
court would arrive at a different conclusion. On the contrary, the grounds
advanced are legally misconceived and fail to engage with the established
principles governing the mandament van spolie.
[37] There is accordingly no basis for granting the application for condonation for the
late filing of the application for leave to appeal and, the application for leave to
appeal.
[38] There is no reason why costs should not follow the outcome . In view of the
totality of the factors to be considered in terms of Uniform Rule 67(A)(3)(b) , as
well as the facts and circumstances of the present matter, I agree with the
submission by counsel for the Respondents that the appropriate scale of
counsel’s fees be scale B.
Order:
[39] The following order is made:
The application for condonation and, consequently, the application for leave to appeal
are dismissed with costs, including costs of counsel on scale B.
____________________
DE LIMA JORGE AJ
Acting Judge of the High Court,
Gauteng Division, Johannesburg