IN THE HIGH COURT OF SOUTH AFRICA,
MPUMALANGA DIVISION (MIDDELBURG LOCAL SEAT)
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: NO
18 SEPTEMBER 2026
DATE
In the application between:
SIGNATURE
WATERZONE (PTY) LTD
LIDDLE CORNELIUS PETRUS
And
NTIMENGJABULANEJOHANNES
CASE NUMBER: 4669/2024
And
CASE NUMBER: 5911/2024
FIRST APPLICANT
SECOND RESPONDENT
RESPONDENT
2
In re:
NTIMENG JABULANE JOHANNES APPLICANT
And
WATERZONE (PTY) LTD FIRST RESPONDENT
LIDDLE CORNELIUS PETRUS SECOND RESPONDENT
DEPARTMENT OF TRADE AND INDUSTRY THIRD RESPONDENT
RUZINHA SHAH FOURTH RESPONDENT
________________________________________________________________
JUDGMENT
________________________________________________________________
FOURIE AJ
INTRODUCTION:
[1] The current application is an application for leave to appeal premised on
Section 16(1)(a)(i) read with Section 17(2)(a) of the Superior Courts Act,
10 of 2013.
[2] The Applicant seeks leave to appeal against paragraphs 4, 5, and 6 of the
Order handed down by this Court on 17 June 2026.
[3] The application for leave to appeal is opposed.
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[4] The Applicant has, in very vague terms, set out in more than 15 pages the
premise on which the current application. Although certain paragraphs
might resemble grounds of appeal, certain other paragraphs seem merely
to expand upon the grounds of appeal, and it needs to be stated that the
Notice of Application for Leave to Appeal as drawn by the Applicant
seems to have be en drawn as much with the grounds of appeal as with
argument on why the grounds of appeal ought to succeed.
[5] Applications for leave to appeal are not designed for a rehearing of a
matter, and are generally for crisp issues canvassed before the Court a
quo, which is already aware of all the underlying facts and issues between
the respective parties, and are not designed for a re -trial or to raise
arguments and issues that were not previously before the Court.
APPLICABLE LEGAL PRINCIPLES:
[6] In the matter of Janson1 the Court held as follows, which is restated for
purposes of convenience and legal clarity, as:
‘[10] The formulation for the test to be applied in applications for leave to appeal has
been accepted and applied by our Courts in multiple judgments.2
[11] In the matter of JACOBS3 the full Court held as at paragraph 29 thereof that it
seems that Section 17(1) of the Act construed as a whole is a qualification of the
principles laid down in Sweni v Minister of Law and Order of the Republic of
1 Janson v Ebundu – Leave to Appeal (5767/2023) [2025] ZAMPMBHC 122 (29 September 2025).
2 Four Wheel Drive Assessory Distributors CC v Rethan N.O. 2019 (3) SA 451 (SCA) at para 34; Pretoria Society
of Advocates & Others v Nthai 2020 (1) 267 (LP) at para 5; Vrystaat Munisipale Pensioen Fonds v The Pension
Funds Adjudicator 2019 JDR 0211 (FB) at para 4; Visagie N.O. v MTN Group Limited 2013 JDR 2853 (GSJ)
at para 3.
3 Jacobs v Beacon Island Shareblock unreported (WCC Case Number A258/2018 dated 6 February 2019 .
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South Africa4 assessed in the context of subsequent gloss afforded in decisions
such as S v Western Areas Ltd 5 and Philan -Ma-Afrika v Mailulu 6. In these
decisions it was held that what is of paramount importance in deciding whether
a judgment is appealable is the interest of justice.
[12] In the matter of Caratco (Pty) Ltd v Independent Advisory (Pty) Ltd 7 the Court
stated that:
“If the Court is unpersuaded of the prospects of success, it must still enquire
whether there is a compelling reason to entertain the appeal. A compelling
reason includes any important question of law or a discreet issue of public
importance that will hav e an effect on future disputes. But here too, the
merits remain vitally important and are often decisive.”
[13] Post the amendment of the Act and the caselaw flowing thereafter, and for
purposes of the current Judgment, it is deserving to merely restate that the
position has significantly changed and it ought to be accepted that a general
prospect of success or the belief that some or other Court might for some or
other reason find differently than the Court a quo is not satisfactory for Leave
to Appeal to be granted. Courts are unfortunately flooded with matters, and to
unnecessarily proceed with matters with a view that a litigant might on a
different day encounter a different Judge that might feel different and hold a
different view on the case of a litigant is quite simply not enough. Leave to
Appeal proceedings exist to weed out patent errors that occur when Judgments
are handed down and to ensure that justice is ultimately done. Leave to Appeal
ought not to be regarded as merely for the taking, especially where the matter
might at first glance seem to be of a technical nature.
4 Sweni v Minister of Law & Order of the Republic of South Africa 1993 (1) SA523 (A) .
5 S v Western Area Ltd 2005 (5) SA 214 (SAC).
6 Philan-Ma-Afrika v Mailulu 2010 (2) SA 573 (SCA)
6 Philan-Ma-Afrika v Mailulu 2010 (2) SA 573 (SCA)
7 Caratco (Pty) Ltd v Independent Advisory (Pty) Ltd 2020 (5) SA 35 (SCA) at paragraph 2 .
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[14] It unfortunately occurs ever so often that litigants try to persuade the Court,
when an Application for Leave to Appeal is heard, that the technical nature of a
matter is deserving of a re -evaluation of the matter by a different Court,
seemingly in an attempt to have the Judge who de alt with the matter initially
doubt his Order, and in the hopes of phrasing their argument before a different
Judge or Judges differently to find ultimate favour with them or simply to delay
the inevitable finalisation of the matter.
[15] This Court is of the belief that Leave to Appeal ought to be reserved for when
the Court is, with a degree of certainty, convinced that a different Court will
come to a different conclusion in respect of the legal questions that have been
posed by a litigant. Although I accept the bar ought not to be set unreasonably
high, an order of this nature is not simply designed to cater for speculation.
[16] The aforesaid is crucial, specifically under circumstances where a litigant does
not rely on the second portion of the Act, being the portion dealing with some
or other compelling reason why Leave to Appeal ought to be granted. Under
certain circumstances , it might very well be important for an abstract legal
principle or matters dealing with the general public interest to be tested on
appeal in order for the legal position to be properly tested and captured. “
EVALUATION OF GROUNDS FOR LEAVE TO APPEAL:
[7] The essence of the Applicant’s application for leave to appeal is that the
Court a quo was too strict in applying relevant principles relating to
Motion Court proceedings.
[8] During argument, it crystallised that the essence of the Applicant’s leave
to appeal centred on the Court a quo's interpretation of the purported
defence raised by the Applicant in respect of rectification of the mutual
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separation agreement. The Applicants contend that the Court applied too
rigid a test and, in essence, found that the Respondent needed to prove
rectification to succeed, rather than merely alleging the existence of a
defence. This is perhaps the first stumbling block for the Applicant as the
court expressly highlighted the fact that the threshold is something less
than proving ultimate rectification, the difficulty being, for the Applicant,
that, to evaluate the merits of the defence, it can simply never be enough
to make an unsubstantiated allegation in the hope that the court accepts
same. When litigants deal sparingly with information at their disposal and
don’t place all the information at their disposal before a court, they do so
at their own peril.
[9] In the Judgment of the Court a quo , the Court dealt specifically with
matters such as Wightman, Plascon-Evans, Stellenbosch Farmers Winery,
and Soffiantini8.
[10] All of the principles enunciated in the aforesaid matters, highlight that the
raising of a defence needs to be:
[10.1] Real
[10.2] Bona fide; and
[10.3] Enough must be stated by a Respondent to enable the Court to
conduct a preliminary examination to ascertain whether denials
are not fictitious, intended merely to delay the hearing.
8 Wightman t/a JW Construction V Headfour (Pty) Ltd and Another 2008 (3) SA 371 (SCA) at 13 .
Plascon-Evans Paints (TVL) Ltd. v Van Riebeck Paints (Pty) Ltd. (53/84) [1984] ZASCA 51; [1984] 2 All SA
366 (A); 1984 (3) SA 623; 1984 (3) SA 620 (21 May 1984)
Stellenbosch Farmers' Winery Group Ltd. and Another v Martell & Cie SA and Others (427/01) [2002] ZASCA
98; 2003 (1) SA 11 (SCA) (6 September 2002).
Soffiantini V Mould 1956 (4) SA 160 (E).
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[11] The Court was not satisfied initially that the purported defence by the
Applicant was raised bona fide nor, under the principles of Soffiantini,
that the Respondent provided enough evidence for the Court to be able to
ascertain whether the denials were not fictitious or aimed at delay.
[12] The fact of the matter is simply that the rectification the Applicant seeks
is not the correction of a small misnomer or an insignificant term of an
agreement. The rectification intends to alter the agreement in question in
totality. The Court remains of the view that, given the facts of this specific
matter, the threshold was not met, and a different court would not find
otherwise.
[13] Given the nature of the engagement between the parties and the
underlying facts leading into the relationship and ultimate termination of
same in part or in full, this Court simply cannot regard the purported
defence of the Applicant as in good faith or honestly to satisfy whether a
different Court will firstly evaluate whether the attempted defence is a
bona fide dispute.
[14] The Court initially found that the Applicant failed to adduce sufficient
information to support the allegation that the mutual separation agreement
stands to be rectified, and that the purported defence as prayed for was
not sufficiently substantiated.
[15] In certain circumstances, vague or even bald denials would be acceptable
to be regarded as sufficient to constitute a bona fide and real dispute. The
nature of the current matter, the allegations made, the manner in which
the Respondents had been dealt with and the actions of the Applicant
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themselves are indicative that in the current matter something more was
required of the Applicant than what was advanced in opposition to the
claim confronting the Applicant. Having considered again the
submissions made by the respective parties, the Court remains
unpersuaded that a different Court would come to a different conclusion
than the Court a quo.
[16] The Court is further not persuaded that the Applicants have identified a
compelling reason within the contemplation of Section 17(1)(a)(ii). The
matter does not raise a novel or unsettled principle requiring appellant
determination.
[17] The Court is similarly not persuaded that a different Court ought to
evaluate the matter as prayed for by the Applicant.
ORDER:
[18] Under these circumstances and f or all the reasons I have stated , the
following Order is made:
[18.1] The application for leave to appeal is dismissed.
[18.2] The Applicant shall pay the Respondent’s costs, including the
costs of two Counsel, where so employed, on a party-and-party
Scale B in respect of the more senior of the Counsel and Scale
A in respect of the more junior of the two Counsel.
HFFOURIEAJ
ACTING JUDGE OF HIGH COURT, MIDDELBURG
Counsel for the Applicant:
Instructed by:
Counsel for the Respondent s:
Instructed by:
Judgment reserved on:
Date of delivery :
Adv Mahon SC together with
Adv Laughland
Brand Mullers Incorporated
Adv Mosoma together with
Adv Mohlake
SMS Attorneys
2 September 2026
18 September 2026
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