Unknown Occupiers of the Immovable Properties at Chief Albert Luthuli Extension 6 Daveyton also known as Mooderfontein Farm 76 IR 28 and Another v City of Ekurhuleni Metropolitan Municipality and Another (8433/2020) [2023] ZAGPJHC 324 (14 April 2023)

IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, JOHANNESBURG)

REPUBLIC OF SOUTH AFRICA

CASE NO: 8433/2020

In the matter between:

UNLAWFUL INDIVIDUALS OCCUPYING Applicant

THE PROPERTY DESCRIBED AS CHIEF ALBERT

LUTHULI, EXTENSION 6 DAVEYTON ALSO KNOWN

AS MOODERFONTEIN FARM 76 IR 28

ALL THOSE APPEARING IN THE LIST ATTACHED Second Applicant

TO THE APPLICATION FOR LEAVE TO APPEAL

MARKED AS ANNEXURE “A”

And

CITY OF EKURHULENI METROPOLITAN First Respondent

CITY OF EKURHULENI POLICE METROPOLITAN Second Respondent

DEPARTMENT (“Daveyton”)

SOUTH AFRICAN POLICE SERVICES Third Respondent

Neutral Citation: The Unknown Occupiers of the Immovable Properties at Chief Albert Luthuli Extension 6 Daveyton also known as Mooderfontein Farm 76 IR 28 v City of Ekurhuleni Metropolitan Municipality (Case No: 8433/2020) [2023] ZAGPJHC 324 (14 April 2023)

Delivered: By transmission to the parties via email and uploading onto Case Lines

the Judgment is deemed to be delivered. The date for hand-down is deemed to be

14 April 2023

JUDGMENT

(Leave to Appeal Application)

SENYATSI J:

[1] This is an application for maybe leave to appeal the judgment granted on 11 October 2021 which was followed by reasons provided on 18th October 2022.

[2] The grounds for leave to appeal the judgment have been fully set out in the notice of application and will not be repeated in this judgment.

[3] The requirement and the test for granting leave to appeal are regulated by section 17(1)(a) of the Superior Courts Act No. 10 of 2013 which states as follows:

“(1) Leave to appeal may only be given where the judge or judges concerned are 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.”

[4] In Mont Chevaux Trust v Goosen and Others¹ Bertelsman J interpreted the test as follows:

“It is clear that the threshold for granting leave to appeal against a judgment of a High Court has been raised in the new Act. The former test whether leave to appeal should be granted was a reasonable prospect that another court might come to a different conclusion…The use of the word ‘would’ in the new statute indicates a measure of certainty that another court will differ from the court whose judgment is sought to be appealed against.”

[5] In Acting National Director of Public Prosecutions and Others v Democratic Alliance: In re: Democratic Alliance v Acting National Director of Public Prosecutions² the court acknowledged the test by Bestertsman J.

[6] In Mothule Inc Attorneys v The Law Society of the Northern Provinces and Another³, the Supreme Court of Appeal stated as follows regarding the trial court’s liberal approach on granting leave to appeal:

“It is important to mention my dissatisfaction with the court a quo’s granting of leave to appeal to this court. The test is simply whether there are any reasonably prospects of success in an appeal. It is not whether a litigant has an arguable case or mere possible of success.”

[7] Having considered the grounds of appeal and the heads of arguments by both counsel, I am not persuaded that the requirements of section 17(1) (a) of the Act have been met. I am also not convinced that there is a compelling reason to grant the application for leave to appeal. There is therefore no prospect that the appeal would succeed.

[8] Accordingly, the application for leave to appeal must fail.

ORDER

[9] The following order is issued:

(a) The application for leave to appeal is dismissed with costs.

ML SENYATSI

JUDGE OF THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, JOHANNESBURG

DATE JUDGMENT RESERVED: 17 November 2022

DATE JUDGMENT DELIVERED: 14 April 2023

APPEARANCES

For the Applicants: Seboko Attorneys

Instructed by: Lawyers for Black People (NPC) SA

Counsel for the First Respondent: Adv E Sithole

Instructed by: Majang Inc Attorneys