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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case Number: 2026-078598
In the matter between:
JOHANNES MARISHANE 1st Applicant
JOEL TSHEGEDI MARISHANE 2nd Applicant
And
ELMOND KATISO THELEJANE Respondent
JUDGMENT
APPLICATION FOR LEAVE TO APPEAL
Mazibuko J
[1] The applicants seek leave to appeal to the Full Court of the High Court of South
Africa, Gauteng Division, Pretoria, alternatively to the Supreme Court of Appeal
Delete whichever is not applicable
REPORTABLE: YES / NO
OF INTEREST TO OTHER JUDGES: YES/NO
REVISED: YES/NO
19 June 2026
DATE SIGNATURE
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(the SCA), against the whole judgment and the order of this court delivered on
30 April 2026. This court ordered the matter enrolled as urgent, declared the
applicants’ notice of appeal against an eviction order obtained by default
judgment to be irregular , incompetent and of no force and effect in law, and
held that such notice does not suspend the operation and execution of the
eviction order granted on 5 February 2026 under case number 027041/2025.
The eviction order remained in full force and effect, save that the date of 1 April
2026 was substituted by 11 May 2026, and authorised and directed the Sheriff
of the High Court, assisted by the SAPS, to execute the warrant of ejectment
pursuant to the eviction order in the event the respondents fail or refuse to
vacate the property on or before 10 May 2026.
[2] The application for leave to appeal is opposed, and no cross -appeal has been
filed.
[3] I believe it is prudent to note that following the filing of the leave to appeal
application on 13 May 2026, the application was set down for hearing on 20
May 2026. On 18 May, the applicants stated that they were not ready to
proceed. On 19 May, a direct ive was issued that the application would be
determined on paper, and that, in the event the parties intended to file heads of
argument or written submissions, they could do so on or before 22 May. I now
turn to the application.
[4] Given that the relevant issues and reasons for the order were addressed in the
judgment, this court sees no need to set out the full grounds for leave to appeal.
The applicants appear to base their application for leave to appeal on the same
grounds as were debated at the hearing.
[5] The grounds for leave to appeal are set out in the applicants' application for
leave to appeal. In opposition, the respondent, in his written submissions, has
set out why the application ought not to succeed. The grounds of appeal are
submissions and contentions that this court misdirected itself on the legal
submissions and contentions that this court misdirected itself on the legal
framework and failed to consider relevant case law. The court was referred to
case law, including BE v NT and others (505/2025) [2026] ZASCA 25 (11 March
2026) (the “BE case”) and Lee v RAF and A.P and Another v Cohen and Others
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(Appeal) (A 216/2024; 21188/2023) [2025] ZAWCHC 66 (24 February 2025)
(“Cohen”).
[6] In MEC for Health, Eastern Cape v Mkhitha and Another, 1 the Supreme Court
of Appeal, held that: "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."
[7] Applying the test in Mkhitha and assessing the merits of the applicants' case,
including their grounds of appeal, the court found no grounds or compelling
factors that necessitated the hearing of the applicants' appeal.
[8] In my respectful view, the court correctly applied the law to the facts and , in
accordance with its finding as set out in the judgment , granted an order .
Consequently, the application for leave to appeal cannot succeed.
[9] For these reasons, the following order is hereby granted.
Order:
[9.1] The application for leave to appeal is dismissed.
______ ________
NGM MAZIBUKO
JUDGE OF THE HIGH COURT
This judgment was handed down electronically and circulated to the parties'
representatives by email.
1 (1221/2015) (2016) ZASCA 176 (25 November 2016).
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Papers filed on:
(The matter was considered on
paper)
4 May, 6 May and 18 May 2026 as
per CaseLines
Judgement delivered on: 19 June 2026
Counsel for the applicant:
Mr. J Marishane
Instructed by: Marishane Attorneys
Counsel for the respondent:
In person
Instructed by: