IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case No: 2024-097438
In the matter between:
ANDRE THEODORE HOLTZHAUSEN Applicant
and
NOLUNTU NELISSA BAM Respondent
JUDGMENT ON LEAVE TO APPEAL
Mfenyana J
[1] The applicant (the first respondent in the main application) seeks leave to
appeal against the whole judgment and orders of this court, handed down on
21 February 2025. Leave to appeal is sought to the Supreme Court of Appeal,
alternatively the Full Court of this Division.
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: NO
SIGNATURE DATE:
[2] In its order, this court directed that the order of the magistrates’ court be stayed,
pending the institution of an application for rescission by the applicant, on the
basis that the magistrates’ court order was granted without first obtaining the
consent of the Judge President of the Gauteng Division, in which the
respondent, a sitting judge, serves, as required by section 47 of the Superior
Courts Act.
[3] The respondent (applicant in the main application) has opposed the application
and contends that there is no reasonable prospect of another court finding
differently. The second to twelfth respondents are not parties in this application.
[4] Incorporated in the leave to appeal is also an application for condonation for
the late filing of the leave to appeal. The application for condonation is not
opposed. A litigant who seeks condonation must provide a full and satisfactory
explanation for the non-compliance and satisfy the court that good cause exists
for granting condonation.
[5] In making a determination, the court will consider the degree of lateness, the
explanation provided for the delay, prospects of success, the importance of the
matter and any prejudice that may ensue.
[6] In the present application, the delay is not inordinate, having been filed only
two days out of time. The applicant has provided a comprehensive explanation
for the non-compliance. There can be no doubt that the matter is of significance
to the parties. It follows that condonation should be granted.
[7] In the notice of appeal, the applicant raises numerous grounds of appeal. I do
not intend to traverse all these grounds, nor do I consider it necessary to do so,
given the submissions made on behalf of the applicant at the hearing of this
application, that the main issue is whether section 47(1) requires the consent
of the Judge President when relief is sought against a separate juristic entity in
which a judge has a financial interest. That is the essence of the application.
[8] The applicant contends that it would be an unjustifiable obstacle placed in the
path of a litigant who wishes to litigate against a juristic person to require them
to know who its shareholders or members are. Furthermore, the applicant avers
that requiring a litigant to do so would offend against the very principle of
separate juristic personality.
[9] A further issue raised is whether, notwithstanding that the respondent was
joined to the proceedings at her request, and did not require the Judge
President’s permission to do so, it was still required of the applicant to obtain
such permission, and whether the order placing the body corporate under
administration has a negative effect on the respondent.
[10] The applicant fur ther contends that the matter is of public importance, and
requires clarification by the Supreme Court of Appeal.
[11] For the respondent, it was argued that a litigant is obliged to obtain the consent
of the head of court where a judge is an interested party in the proceedings.
The fact that the judge was joined to the proceedings that had already
commenced does not change the nature of the proceedings, which remain
proceedings against a judge and require the permission of the Judge President,
the respondent further argues.
[12] Section 17 (1) of the Superior Courts Act 10 of 2013 states:
17(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
(ii) there is some other compelling reason why the appeal should be heard,
including conflicting judgments on the matter under consideration;…
[13] On the facts of this matter, I am of the view that the applicant’s contention raises
important questions of law which may require the attention of a higher court.
There is therefore a compelling reason why the appeal should be entertained.
Given that the parties had initially requested that the matter be adjudicated by
a judge from another Division, which was granted by the Judge President, it is
prudent that leave to appeal be granted to the Supreme Court of Appeal.
Order
[14] Consequently, the following order is made:
a. Condonation for the late filing of the application for leave to appeal is
granted.
b. Leave to appeal is granted to the Supreme Court of Appeal.
c. Costs shall be costs in the appeal.
__________ __
S MFENYANA
Judge of the High Court
Date of hearing: 25 January 2026
Date of judgment: 2 June 2026
This judgment was handed down electronically by circulation to the parties’
representatives by email and by uploading the judgment onto Caselines. The date of
handing down the judgment is deemed to be 2 June 2026.
Appearances
For the applicant
Counsel: SW Davies
Instructed by: Loock Du Pisanie Inc.
For the respondent:
Counsel: SL Shangisa SC with S Kunene
Instructed by: Hlapane Attorneys Inc.