3
IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
DELETE WHICHEVER IS NOT APPLICABLE (1) REPORTABLE: NO. (2) OF INTEREST TO OTHER JUDGES: NO. (3) REVISED. 2024-06-19 DATE SIGNATURE |
Case Number: 70305/2018
In the matter between:
SIBUSISO KOOS MASILELA First Applicant
ELIZABETH KGELESWANE MASILELA Second Applicant
THE CITY OF TSHWANE METROPOLITAN MUNICIPALITY Third Applicant
and
LINDI RONSY MASILELA First Respondent
GERALD MASILELA Second Respondent
This judgment was prepared and authored by the Judge whose name is reflected and is handed down electronically by circulation to the Parties/their legal representatives by email and by uploading it to the electronic file of this matter on CaseLines. The date for handing down is deemed to be 19 June 2024.
JUDGMENT: APPLICATION FOR LEAVE TO APPEAL
POTTERILL J
[1] The applicant is seeking leave to appeal against the judgment granted on 19 January 2024. The application is to be brought in terms of section 17 of Superior Courts Act 10 of 2013 which reads as follows:
“(1) Leave to appeal may only be given where the judge or judges concerned are 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.”
[2] The case law had made it clear that this section has by using the word “only” indicated a more stringent test for leave to appeal to be granted. This is supported by the word “would” versus “could” in this section.
[3] The application is seeking condonation because it wanted to obtain further documentation from the Municipality to strengthen its case. It is trite that such investigation should have been done before the matter was referred to and heard on oral evidence. No further evidence was obtained and no application is sought to adduce new evidence before a court of appeal.
[4] Even, if the court should grant condonation on the basis of the interests of justice, there is no rational and sound basis for doing so as there are no reasonable prospects of success.
The application for leave to appeal is dismissed with costs.
__________________
S. POTTERILL
JUDGE OF THE HIGH COURT
CASE NO: 70305/2018
HEARD ON: 18 June 2024
FOR THE APPLICANTS: MR. T. PILLAY
INSTRUCTED BY: Pillay Thesigan Inc.
FOR THE RESPONDENTS: MS. M. MAZIBUKO
INSTRUCTED BY: MaMyeni Mazibuko Attorneys
DATE OF JUDGMENT: 19 June 2024