Mashilo v Lemmer and Others (33669/2021) [2024] ZAGPPHC 329 (12 April 2024)

begin wrapper begin container begin header begin slogan-floater end slogan-floater - About SAFLII About SAFLII - Databases Databases - Search Search - Terms of Use Terms of Use - RSS Feeds RSS Feeds end header begin main begin center # South Africa: North Gauteng High Court, Pretoria South Africa: North Gauteng High Court, Pretoria You are here: SAFLII >> Databases >> South Africa: North Gauteng High Court, Pretoria >> 2024 >> [2024] ZAGPPHC 329 | Noteup | LawCite sino index ## Mashilo v Lemmer and Others (33669/2021) [2024] ZAGPPHC 329 (12 April 2024) Mashilo v Lemmer and Others (33669/2021) [2024] ZAGPPHC 329 (12 April 2024) Download original files PDF format RTF format make_database: source=/home/saflii//raw/ZAGPPHC/Data/2024_329.html sino date 12 April 2024 REPUBLIC OF SOUTH AFRICA IN THE HIGH COURT OF SOUTH AFRICA GAUTENG DIVISION, PRETORIA CASE NO: 33669/2021 (1)     REPORTABLE: Yes ☐ / No ☒ (2)     OF INTEREST TO OTHER JUDGES: Yes ☐ / No ☒ (3)     REVISED: Yes ☐ / No ☒ Date:   12 April 2024 WJ du Plessis In the matter between: FRIDAH MOSIMA MASHILO APPLICANT and JOHANN RICHARD LEMMER FIRST RESPONDENT ANNA MARIA ELIZABETH LEMMER SECOND RESPONDENT JAN HENDRIK MARX THIRD RESPONDENT STEPHAN FOURIE ATTORNEYS FOURTH RESPONDENT REGISTRAR OF DEEDS, SOUTH AFRICA FIFTH RESPONDENT THORNBROOK GOLF ESTATE PROPERTY OWNERS' ASSOCIATION SIXTH RESPONDENT THE CITY OF TSHWANE METROPOLITAN MUNICIPALITY SEVENTH RESPONDENT JUDGMENT DU PLESSIS AJ # Background Background [1] On 17 November 2023 I delivered judgment in the matter between the Applicant, Ms Mashilo, and the first to third Respondents, where, in essence, I stayed an eviction application (the counter application), referring the matter to trial as there is a material dispute of fact that cannot be resolved on the papers. The first to third Respondents are appealing the order. The parties will be referred to as they were in the application. # Leave to appeal Leave to appeal [2] In terms of the provisions of section 17(1) of the Superior Courts Act, [1] leave to appeal may only be granted when the appeal would have a reasonable prospect of success; or where there is some other compelling reason why the appeal should be heard. [3] The threshold to be met by an applicant for leave to appeal in terms of the provisions of section 17(1) of the Superior Courts Act was recently explained by the Supreme Court of Appeal in the matter of Ramakatsa v African National Congress [2] as follows: “ [10] Turning the focus to the relevant provisions of the Superior Courts Act, leave to appeal may only be granted where the judges concerned are of the opinion that the appeal would have a reasonable prospect of success or there are compelling reasons which exist why the appeal should be heard such as the interests of justice. This Court […] pointed out that if the court is unpersuaded that there are prospects of success, it must still enquire into whether there is a compelling reason to entertain the appeal. Compelling reason would of course include an important question of law or a discreet issue of public importance that will have an effect on future disputes. However, this Court correctly added that ‘but here too the merits remain vitally important and are often decisive’. I am mindful of the decisions at high court level debating whether the use of the word ‘would’ as opposed to ‘could’ possibly means that the threshold for granting the appeal has been raised. If a reasonable prospect of success is established, leave to appeal should be granted. Similarly, if there are some other compelling reasons why the appeal should be heard, leave to appeal should be granted. The test of reasonable prospects of success postulates a dispassionate decision based on the facts and the law that a court of appeal could reasonably arrive at a conclusion different to that of the trial court. In other words, the appellants in this matter need to convince this Court on proper grounds that they have prospects of success on appeal. Those prospects of success must not be remote, but there must exist a reasonable chance of succeeding. A sound rational basis for the conclusion that there are prospects of success must be shown to exist.” # Grounds for appeal Grounds for appeal [4] Having read the heads of argument and the authority sighted therein and having heard council on the points raised, I find that there are no reasonable prospects that another court would come to a different conclusion, nor is there a compelling reason why an appeal should follow. # Order Order [5] I, therefore, make the following order: 1. The application for leave to appeal is dismissed, with costs. wj du Plessis Acting Judge of the High Court Delivered:  This judgement is handed down electronically by uploading it to the electronic file of this matter on CaseLines. It will be sent to the parties/their legal representatives by email. Counsel for the Applicant: Ms C Spangenberg Instructed by: E Champion Attorneys Counsel for the 1 st , 2 nd and 3 rd respondent: Ms K Fitzroy Instructed by: Rianie Strijdom Attorney Date of the hearing: 13 March 2024 Date of judgment: 12 April 2024 [1] 10 of 2013. [2] [2021] ZASCA 31. sino noindex make_database footer start