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[2026] ZAGPJHC 965
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Joel v Ndlovu (2022/048748) [2026] ZAGPJHC 965 (26 August 2026)
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REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG LOCAL DIVISION
JOHANNESBURG
CASE NO: 2022/048748
DOH: 21 AUGUST 2026
(1)
REPORTABLE: YES / NO
(2)
OF INTEREST TO OTHER JUDGES: YES/NO
(3)
REVISED.
In
the matter between:
GOMOTSEGANG
DEPHNIE JOEL
Applicant
AND
CELIA
NDLOVU
Respondent
This
Judgment was handed down electronically and by circulation to the
parties’ legal representatives by way of email and
shall be
uploaded on caselines. The date for hand down is deemed to be on
26
August 2026.
JUDGMENT
MALI J
Introduction
[1] This is an
application by the applicants for leave to appeal to the Full Bench
of this Court, or alternatively to the
Supreme Court of Appeal,
against the whole of the judgment and order delivered by this Court
on 13 May 2026.
Applicable legal
principles
[2] The application
is governed by section 17 of the Superior Courts Act 10 of 2013 (“the
Act”), which provides
that leave to appeal may only be granted
where the court is 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;
(b)
the decision sought on appeal does not fall within the ambit of
section 16(2)(a); and
(c)
where the decision sought to be appealed does not dispose of all the
issues in the case, the appeal would lead to a just and
prompt
resolution of the real issues between the parties.
[3]
It is well established that the test for leave to appeal under the
Act is more stringent than that which applied under
the repealed
Supreme Court Act 59 of 1959. In
the
Mont Chevaux Trust (IT2012/28) v Tina Goosen and Others
[1]
,
the
court observed that the use of the word “would” in
section 17(1)(a)(i) signals a measure of certainty that another
court
will reach a different conclusion, in contrast to the earlier test
which required only a reasonable possibility of a different
outcome
(see
Van
Heerden v Cronwright and Others
[2]
.
[4]
This interpretation has been consistently affirmed in subsequent
decisions, including
Magashule
v Ramaphosa
and
Others;
[3]
Nedbank Ltd v Steyn NO
[4]
;
and
MEC
Health, Eastern Cape v Mkhita
[5]
.
In
Valley
of the Kings Thaba Motswere
[6]
Smith
J acknowledged the elevated standard but noted that a judge
considering an application for leave must still assess, objectively
and dispassionately, whether there are reasonable prospects that
another court may find merit in the losing party’s arguments.
[5]
Accordingly, an applicant for leave to appeal bears the onus of
demonstrating that the appeal would not might have reasonable
prospects of success on the facts or the law. In addition, Rule
49(1)(b) of the Uniform Rules of Court requires that the grounds
of
appeal be set out clearly and succinctly (
Songono
v Minister of Law and Order
[7]
;
Public Protector of South Africa v The Speaker of the National
Assembly and Others (8500/2022), Western Cape Division, 3 November
2022).
Grounds of appeal
[6] The applicant’s
complaint on appeal is that the respondent ought to have filed a
separate application for leave
to file a supplementary affidavit. It
is argued that, absent such an application, the applicant could not
be expected to rely on
the averments contained in the supplementary
affidavit when filing her answering affidavit.
[7]
In essence, the applicant contends that she was under no procedural
obligation either in fact or in law to file an answering
affidavit.
She relies on
Famous
Idea Trading 4 (Pty) Limited v Government Employees Medical Scheme
and Others
[8]
,
wherein the Constitutional Court confirmed (at para 42) that a notice
in terms of Rule 6(5)(d)(iii) is a procedural mechanism
available to
a respondent to raise a preliminary legal objection without engaging
the merits. The court noted that this is a potent
and cost-effective
tool, as it allows for the early disposal of unmeritorious
applications.
Analysis
[8] The reliance on
Famous Idea
is misplaced. In that matter, the Rule 53
record had not been filed, and the court was consequently unable to
consider the merits.
The present case is materially distinguishable.
Here, the applicant elected not to file an answering affidavit, even
though the
supplementary affidavit raised averments that went beyond
the founding papers. The point in limine under Rule 6(5)(d)(iii) was
argued together with the hearing of the merits as being dispositive
of the matter.
[9] Furthermore,
the applicant did not timeously enrol the preliminary point for
separate determination. She also did not
pursue the Rule 30
application she had enrolled. The respondent’s failure to apply
separately for condonation of the supplementary
affidavit did not, in
my view, vitiate the proceedings. The court retains a discretion to
manage its process, and in this instance,
it was appropriate to hear
the eviction application on the merits, particularly given that the
applicant’s conduct did not
evince a genuine and unequivocal
reliance on the procedural point from the outset.
[10] A respondent
who chooses not to file an answering affidavit does so at his or her
own peril. The applicant cannot now
seek to avoid the consequences of
that strategic choice by arguing that the supplementary affidavit
should have been struck out.
The court was entitled to have regard to
the full record before it, and the applicant has not shown that the
procedural irregularity
if any resulted in prejudice or a failure of
justice.
[11] I am
accordingly not persuaded that the applicant’s grounds of
appeal disclose any arguable error in the reasoning
or outcome of the
court a quo. The applicant has failed to identify a clear legal or
factual basis upon which another court would
reasonably arrive at a
different conclusion. The mere possibility of a different view is
insufficient under the elevated standard
of section 17.
[12] Nor has the
applicant established any “other compelling reason” why
the appeal should be heard. There is
no conflict of judgments on the
issues raised, nor is there any matter of public importance or
manifest injustice that would warrant
the attention of a higher
court.
Conclusion
[13] In the result,
I am satisfied that the applicant has failed to meet the threshold
set out in
section 17
of the
Superior Courts Act. None of the
grounds
advanced support the conclusion that there is a reasonable prospect
that another court would reach a different conclusion.
The
application for leave to appeal is therefore devoid of merit.
Order
1.
The
application for leave to appeal is dismissed with costs on the
attorney-and-client scale.
N.P MALI
JUDGE OF THE HIGH
COURT
Representatives
For the
applicant
: B Shull
Attorneys for
applicant
: Stabin Gross and Shull
For the
Respondent
:
G Holtmann
Attorneys for the
Respondent : Gordon Holtmann Attorneys
Hearing
date
: 21 August 2026
Delivery
date
: 26 August 2026
[1]
(LCC
14R/2014, 3 November 2014, at para 6)
[2]
1985
(2) SA 342
(T) at 343H)
[3]
(2021/23795)
[2021] ZAGPJHC 405 (13 September 2021)
[4]
2020
JDR 0754 (GJ)
[5]
(121/15)
[2016]
ZASCA
176
(25 November 2016)
[6]
(Pty)
Ltd [2016] ZAECGHC 137 (10 November 2016)
,
[7]
1996
(4) SA 384
[8]
[2022]
ZACC 22