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[2026] ZAGPPHC 857
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Sepheka and Another v Denge and Others (Leave to Appeal) (2025/237917) [2026] ZAGPPHC 857 (30 July 2026)
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IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE
NUMBER: 2025/237917
DATE: 29 JULY 2026
(1)
REPORTABLE: YES/NO
(2)
OF INTEREST TO OTHERS JUDGES: YES/NO
(3)
REVISED
.....
DATE 30 July 2026
SIGNATURE
In
the matter between:
EPHRAIM
SEPHEKA
First Applicant
KHULEKILE
SEPHEKA
Second Applicant
and
THE
PRETORIA NORTH REGIONAL
COURT
MAGISTRATE
(ELIZABETH
DENGE)
First Respondent
INEZ
FERREIRA
Second Respondent
IF
PROPERTY SOLUTIONS (PTY)
LTD
Third Respondent
This order is made an
Order of Court by the Judge whose name is reflected herein, duly
stamped by the Registrar of the Court and
is submitted electronically
to the Parties/their legal representatives by e-mail. This
Order is further uploaded to the electronic
file of this matter on
Case Lines by the Judge or his/her secretary. The date of this
Order is deemed to be 30 July 2026.
JUDGMENT:
APPLICATION FOR LEAVE TO APPEAL
DU
PLESSIS AJ:
Introduction
[1]
On 26 May 2026 I delivered judgment in a review brought under
section
22
of the
Superior Courts Act 10 of 2013
. I set aside the costs order
made by the First Respondent on 7 November 2025 in case number
GP/PTANORTH/RC/910/2025, substituted
an order that each party bear
its own costs, set aside the citation of the Second Respondent in her
personal capacity, and ordered
the Third Respondent to pay the costs
of the review.
[2]
The Second and Third Respondents seek leave to appeal to the Full
Court of this Division,
alternatively to the Supreme Court of Appeal,
against the whole of that judgment. They advance six grounds. The
Applicants oppose.
[3]
For the reasons that follow, I have concluded that two of the grounds
— those
concerning the distinction between appeal and review,
and the characterisation of the First Respondent’s conduct as a
gross
irregularity — meet the threshold in
section 17(1)(a)
,
and that there is in addition a compelling reason for those questions
to be considered by another court. I grant leave, limited
to those
questions and to the consequential question of remedy. On the
remaining grounds I am not persuaded that the threshold
is met, and I
refuse leave.
The
test
[4]
Section 17(1)(a)
of the
Superior Courts Act permits
leave to appeal
to be given only where the judge 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, including
conflicting judgments on the matter under
consideration.
[5]
The threshold is a demanding one. The use of “
would
”
rather than “
might
” connotes a measure of
certainty that another court will differ (
The Mont Chevaux Trust v
Tina Goosen
(LCC14R/2014, 3 November 2014) para 6). More is
required than that the case is arguable or not hopeless: there must
be a sound,
rational basis for concluding that there is a reasonable
prospect of success (
Smith v S
[2011] ZASCA 15
para 7;
MEC
for Health, Eastern Cape v Mkhitha
[2016] ZASCA 176
paras 16–17).
[6]
Success on appeal means an appeal court coming to a different order,
not merely to
a different view on a point of reasoning; an appeal
lies against the order, not the reasons (
Administrator, Cape v
Ntshwaqela
1990 (1) SA 705
(A) at 715). The enquiry is
accordingly whether, correcting any error the Second and Third
Respondents identify, another court
would or reasonably might be led
to an order different from the one I made. I must guard both against
defending my judgment and
against granting leave merely to avoid the
discomfort of reconsidering it. The opinion required by
section
17(2)(a)
is to be formed on the statutory test alone.
The
scope of the grounds
[7]
Two preliminary observations are necessary about the compass of the
application.
[8]
First, the fifth ground as pleaded in the notice of application for
leave to appeal
is confined to the contention that the substitution
of the costs order was effected under
section 8(1)(c)(ii)
of PAJA and
that this was the wrong source of power. In their heads of argument
the Second and Third Respondents advance a materially
different
contention — that substitution was in any event impermissible
on the merits, because the requirements for a substitution
order
identified in
Trencon Construction (Pty) Ltd v Industrial
Development Corporation
2015 (5) SA 245
(CC) were not
established. That contention does not appear in the notice. Grounds
for leave to appeal must be set out specifically,
and an applicant is
ordinarily confined to the grounds pleaded; heads of argument may
develop a pleaded ground but may not introduce
a new one (
Songono
v Minister of Law and Order
1996 (4) SA 384
(E);
Xayimpi v
Chairman, Judge White Commission
[2006] ZAECHC 22).
To the extent
that the Trencon argument is advanced as a free-standing attack on
the competence of substitution, it is not properly
before me. It is,
however, subsumed within the question of remedy on which I grant
leave below, and the Full Court will be able
to consider the
appropriateness of substitution in the round.
[9]
Second, the Second and Third Respondents observe in a footnote that
the judgment attributes
the ground of bias to
section 22(1)(a)
of the
Superior Courts Act, whereas
bias appears in
section 22(1)(b)
and
section 22(1)(a)
concerns the absence of jurisdiction. The
observation is correct and I record the correction. Counsel rightly
does not advance
it as a ground of appeal, and nothing turns on it.
Grounds
on which leave is refused
Ground
1 — the application of PAJA
[10] I
accept, as I accepted in argument, that the
Promotion of
Administrative Justice Act 3 of 2000
has no application to the
adjudicative conduct of a judicial officer. The definition of
“
administrative action
” in
section 1
excludes the
judicial functions of a judicial officer of a court referred to in
section 166 of the Constitution, and a Regional
Magistrate disposing
of costs in opposed proceedings exercises such a function (see
Minister of Police v Nobumba N.O.
(1585/2022) [2023] ZAECQBHC
11 para 9). My references to sections 5(3), 6(2)(a)(iii) and
8(1)(c)(ii) of that Act were misplaced,
and I record without
reservation that they were wrong.
[11] I
record, further, that I accept the force of the submission, founded
on
Mphahlele v First National Bank of South Africa Ltd
[1999] ZACC 1
;
1999
(2) SA 667
(CC) para 12, that a judicial officer’s reasons are
those contained in her judgment, that she may not supplement them ex
post facto, and that no adverse inference properly falls to be drawn
from her election to abide. To the extent that my judgment
drew such
an inference, I do not seek to defend it.
[12] It
does not follow that leave should be granted on this ground. Ground
1, standing alone, is
an attack on the legal framework rather than on
the order. Whether the concession of these errors is capable of
producing a different
order depends not on Ground 1 but on whether,
once PAJA and the abiding inference are set aside, there remains a
sustainable finding
of a reviewable defect resting on the face of the
judgment and on section 22 and the common law. That is the very
question raised
by Grounds 2 and 3, on which I grant leave. Ground 1
is therefore not an independent basis for leave: it succeeds on the
law but
achieves nothing on its own, and its true significance is as
a component of the question I address under Grounds 2 and 3. Leave
on
Ground 1 as a discrete ground is refused.
Ground
4 — the successful party and the court correcting itself
[13] I
did not decide the review on the footing that the First Respondent
was correcting her own earlier
decision, or that the Third Respondent
was not the successful party. The judgment records expressly that it
was not necessary to
decide whether that consideration alone would
have warranted interference. The consideration bore upon the content
of the substituted
order, not upon whether the costs order was liable
to be set aside. An appeal court differing from me on this point
would not,
on that account alone, be led to a different order on the
setting-aside; it would at most revisit the shape of the substituted
order, which is a matter falling within the remedy question on which
I grant leave. Leave on Ground 4 as a discrete ground is refused.
Ground
6 — the Rule 53 record
[14] The
complaint that the review was determined without the record does not,
in my view, meet the
threshold, for three reasons, each sufficient.
The obligation to despatch the record under Rule 53(1)(b) rests on
the decision-maker,
not the applicant; the Second and Third
Respondents neither applied to compel it nor sought a postponement to
procure it, and raised
its absence only in argument. The review was
confined to a question apparent
ex facie
a reasoned written
judgment which was before me, the substantive outcome being accepted
and not in issue. And
Democratic Alliance v Acting National
Director of Public Prosecutions
2012 (3) SA 486
(SCA), and
Helen
Suzman Foundation v Judicial Service Commission
2018 (4) SA 1
(CC), concern the importance of the record where it is withheld from
a litigant who seeks it; neither compels the conclusion that
a review
confined to the four corners of a written judgment must fail for want
of a transcript that no party sought to procure.
I record, however,
that the adequacy of the material before me to sustain an inference
as to what the First Respondent did or did
not consider is bound up
with the merits of Grounds 2 and 3, and to that extent the point
remains live on the appeal I am about
to permit. Leave on Ground 6 as
a discrete ground is refused.
Grounds
on which leave is granted
Grounds
2 and 3 — appeal or review, and gross irregularity
[15]
These grounds, taken together, put in issue whether the defect I
identified — an unexplained
differential treatment of the costs
of the parties’ respective points
in limine
— is a
reviewable irregularity within
section 22(1)(c)
of the
Superior
Courts Act, or
is at most a misdirection in the exercise of a
discretion, which is the province of appeal. I remain of the view I
expressed in
the judgment. But I am persuaded that the contrary view
enjoys a reasonable prospect of success, for the following reasons.
[16] The
Second and Third Respondents rely on authority, which lends real
support to their characterisation.
In
Sidumo v Rustenburg Platinum
Mines
Ltd
2008 (2) SA 24
(CC) para 265 the Constitutional Court,
drawing on
Ellis v Morgan
1909 TS 576
and
Goldfields
Investment Ltd v City Council of Johannesburg
1938 TPD 551
, held
that the crucial enquiry in a gross-irregularity complaint is whether
the conduct complained of prevented a fair trial of
the issues, that
the complaint must be directed at the method and not the result, and
that the reasoning of the decision-maker
must not be confused with
the conduct of the proceedings. In
Nobumba
a Full Court held,
on facts not far removed from the present, that a complaint founded
on error in a magistrate’s exercise
of function takes issue
with the result and not the method and so sounds in appeal, not
review. I did not have these authorities
before me. Another court,
with them before it, might reasonably conclude that a complaint about
the absence of recorded reasoning
on a collateral question of costs
is a complaint about reasoning, and therefore about result, rather
than about the conduct of
the proceedings.
[17]
There is, in addition, a tension within the judgment which the Second
and Third Respondents are
entitled to have examined. The judgment
found, on the one hand, that the First Respondent furnished a reason
for the one costs
order she made on the points
in limine
, and,
on the other, that the judgment discloses no exercise of a judicial
discretion in respect of the costs of the Third Respondent’s
points. The judgment also accepted that it was open to a presiding
officer to award costs against one party on a dismissed point
while
refraining from doing so in respect of another — that is, that
the disposition fell within a range of permissible alternatives
(see
Naylor v Jansen
2007 (1) SA 16
(SCA) para 21 on the nature of
the discretion as one in the narrow sense). It is reasonably arguable
that a disposition falling
within the range of permissible
alternatives cannot at the same time be one in respect of which no
judicial discretion was exercised
at all, and that a presiding
officer commits no irregularity, still less a gross one, by not
recording her reasons for declining
to make an order she was not
obliged to make. Whether the differential treatment was an aberration
requiring explanation, or the
orthodox absorption of the costs of
dismissed interlocutory points into the costs of the result, is a
question on which another
court might reasonably reach a conclusion
different from mine.
[18] I
have not overlooked that these grounds are directed at findings I
continue to regard as correct.
But
section 17
does not ask whether I
adhere to my judgment; it asks whether another court would reasonably
be persuaded to differ, to the point
of a different order. If Grounds
2 and 3 succeed, the review fails and the First Respondent’s
costs order revives. That is
a different order, and the prospect of
it is, in my view, a reasonable one rather than a fanciful one.
[19]
There is the further consideration contemplated by
section
17(1)(a)(ii).
The proper characterisation of an unexplained or
differential costs disposition by a lower court — as a
reviewable gross
irregularity or an appealable misdirection —
is a question of some general importance to the review practice, and
the decision
in
Nobumba
may be said to pull against the
approach reflected in my judgment. The existence of potentially
conflicting approaches is, on the
statute’s own terms, a
compelling reason for the question to be considered by another court,
independent of the prospects
on the merits.
The
consequential question of remedy
[20] If
the finding of a reviewable defect is disturbed, the remedy falls
away with it. If it is not,
a question remains as to whether the
appropriate remedy was substitution rather than remittal, and whether
the substituted order
— that each party bear its own costs —
was the appropriate exercise of the discretion, given the acceptance
in the
judgment that a range of outcomes was permissible. Although
the source of the substitution power was wrongly identified in PAJA,
the power to substitute exists on a
section 22
review under the
court’s inherent jurisdiction (section 173 of the
Constitution), informed by the considerations in
Trencon
.
Because the remedy stands or falls with, and is analytically
entangled with, Grounds 2 and 3, I consider it appropriate that the
question of remedy travel with those grounds on appeal, and I grant
leave accordingly.
The
forum
[21]
Given that the questions on which leave is granted include the
reconciliation of the approach
in the judgment with that in
Nobumba
and
Sidumo
, and are of some general importance, the
appropriate forum is the Full Court of this Division.
Costs
[22]
Where an application for leave to appeal is granted, the costs of the
application are ordinarily
costs in the appeal, and I see no reason
to depart from that course. The Applicants’ opposition, though
unsuccessful on the
grounds on which leave is granted, was not
unreasonable, and the fairest order is that the costs of the
application be costs in
the appeal.
Order
[23] In
the result, I make the following order:
1.
Leave to appeal to the Full Court of this Division is granted,
limited to:
1.1
the question whether the conduct of the First Respondent in respect
of the costs
treatment of the parties’ respective points in
limine constituted a reviewable irregularity within
section 22(1)(c)
of the
Superior Courts Act 10 of 2013
, alternatively bias within
section 22(1)(b)
, or whether it was at most a misdirection in the
exercise of a discretion cognisable only on appeal (Grounds 2 and 3);
and
1.2
in the event that the finding of a reviewable defect is upheld, the
question
whether the appropriate remedy was the substitution effected
by this Court, and whether the substituted order was appropriate (the
question of remedy, and Ground 5 to the extent pleaded).
2.
Leave to appeal on the remaining grounds (Grounds 1, 4 and 6, as
discrete grounds)
is refused.
3.
The costs of the application for leave to appeal shall be costs in
the appeal.
DU
PLESSIS AJ
ACTING
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
Date
of hearing: 29 July 2026
Date
of judgment: 30 July 2026
APPEARANCES
For the Applicants:
Adv E Sepheka
Instructed by:
Mahlakoane Attorneys, Pretoria
For the 2nd & 3rd
Respondents:
Adv R A Britz
Instructed by:
BFJ Van Zyl Attorneys, Pretoria
For the 1st Respondent:
No appearance