Hyde Park Gardens (Pty) Ltd ta Shell Hyde Park Gardens v City of Johannesburg Metropolitan Municipality and Others (5802/2021) [2025] ZAGPJHC 1048 (20 October 2025)

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: South Gauteng High Court, Johannesburg South Africa: South Gauteng High Court, Johannesburg You are here: SAFLII >> Databases >> South Africa: South Gauteng High Court, Johannesburg >> 2025 >> [2025] ZAGPJHC 1048 | Noteup | LawCite sino index ## Hyde Park Gardens (Pty) Ltd ta Shell Hyde Park Gardens v City of Johannesburg Metropolitan Municipality and Others (5802/2021) [2025] ZAGPJHC 1048 (20 October 2025) Hyde Park Gardens (Pty) Ltd ta Shell Hyde Park Gardens v City of Johannesburg Metropolitan Municipality and Others (5802/2021) [2025] ZAGPJHC 1048 (20 October 2025) Download original files PDF format RTF format make_database: source=/home/saflii//raw/ZAGPJHC/Data/2025_1048.html sino date 20 October 2025 REPUBLIC OF SOUTH AFRICA IN THE HIGH COURT OF SOUTH AFRICA GAUTENG DIVISION, JOHANNESBURG CASE NO: 5802/2021 (1)  REPORTABLE: NO (2)  OF INTEREST TO OTHER JUDGES: NO (3)  REVISED: NO 20 October 2025 In the matter between: HYDE PARK GARDENS (PTY) LTD Applicant t/a SHELL HYDE PARK GARDENS and CITY OF JOHANNESBURG First Respondent METROPOLITAN MUNICIPALITY THE MUNICIPAL MANAGER: CITY OF JOHANNESBURG Second Respondent THE EXECUTIVE MAYOR: CITY OF JOHANNESBURG Third Respondent MS NICOLE DAS NEVES: CITY OF JOHANNESBURG Fourth Respondent LEGAL DEPARTMENT BVELELA First Respondent JUDGMENT Delivered: 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 e-mail and by uploading it to the electronic file of this matter on CaseLines. The date for hand-down is deemed to be10h00 on 20 October  2025. MALUNGANA AJ [1]  This is an application for leave to appeal against the judgment and order of this   Court, in terms of which I dismissed with costs the applicant’s application to declare         the respondents to be in contempt of court order of Yacoob J, handed down on 8       July 2020. It appears from the record that the notice of application for leave to appeal       was filed a while ago in June 2023, and for unknown reasons it was only brought to my attention in the month of hearing. [2]  Nonetheless, the application is opposed by the respondents, and their submissions will be dealt with in the context of the evaluation hereinunder. [3]  The grounds of appeal are set out in the notice of application for leave to appeal, and are summarised as follows: (a)  The Court failed to consider that the first respondent was saddled with the duty to rebut non-compliance with the order of Yacoob J, and has failed to do so. (b)  The Court erred in failing to consider the remedies to address the prejudice of the applicant caused by non-compliance with the order, even in the event of there being no criminal standard contempt, and without which the applicant was left without recourse because of the City’s failure to provide the correct account. (c)   The Court erred in awarding costs against the applicant in circumstances where   the City had furnished the incorrect account after the launch of contempt of court proceedings. (d)  The Court had failed to consider dolus eventualis for purposes of the wilfulness requirement in the contempt context. (e)  The Court erred in failing to consider the fact that it was common cause that the City had, in breach of Yacoob J’s order, terminated the services of the applicant, and by failing to furnish the account timeously. (f)    The Court failed to consider the reserved costs of the prior proceedings before Yacoob J, despite same having been argued. [4]  The test for granting leave to appeal has been laid down in S v Kruger 2014 (1) SACR 647 (SCA). What has to be considered in deciding whether leave to appeal should be granted is whether there is a reasonable prospect of success. The test of reasonable prospect of success postulates a dispassionate decision, based on facts and the law, that a court of appeal could reasonably arrive at a conclusion different to that of the trial court in order to succeed. There must a sound, rational basis for the conclusion that there are prospects of success on appeal. [5]  In Ramakatsa and others v African National Congress and another (724/2019)[2021] ZASCA 31 (31 March 2021), para [10] [also reported at [2021] JOL 49993 (SCA), it was said that: “ Turning the focus to the relevant provisions of the Superior Courts Act (the SC 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 interest of justice. This Court in Caratco, concerning the provisions of s 17(1)(a)(ii) of the SC Act pointed out that if the court is unpersuaded that there are prospects of success, it must still enquire into whether there is compelling reason to entertain the appeal. Compelling reason would of course include an important question of law or 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.” [6]  Having regard to the application of the test to the facts of this matter, I am not persuaded that there are reasonable prospects of another court coming to a different conclusion. More so, if one has regards to the test laid down for contempt  in Fakie   No v CCll Systems (Pty) Ltd 2006 (4) (SCA), also quoted in the impugned judgment. “ (b)     The test for when disobedience of a civil order constitutes contempt has come to be stated as whether the breach was committed ‘deliberately and mala fide. A deliberate disregard is not enough, since the non-complier may genuinely, albert constitutes the contempt. In such a case, a good faith avoids the infraction. Even refusal to comply that is objectively unreasonable may bona fide (though unreasonableness could avoid evidence lack of good faith).” [7]  It was submitted  on behalf of the applicant that this Court ought to have considered other remedies in the form of a declaratory order for the applicant, if it was not persuaded to find for the applicant in respect of its main relief for  contempt of Yacoob J’s order. Counsel for the respondents, however countered this argument by submitting that if the applicant was not happy with the account  submitted by the City it should have invoked the provisions of paragraph 5 of Yakoob J’ order, which entitles  the parties to  debate the accounts in the event of inaccuracies. Although the account was submitted in the midst of the contempt of court proceedings, the applicant ought not to have persisted with the application. I am in agreement with this argument. It was indeed futile to persist with contempt of court proceeding  against    the respondents after receipt of the statement account from the City of Johannesburg. It was  apparent from an ordinary reading of the  answering affidavit   that the City has given a reasonable explanation for its delay in furnishing the statement of account and other relevant supporting papers. [8]  Having regard to the above, and after reflecting dispassionately upon the grounds of appeal set out in the notice of application for leave to appeal, I am of the view that the threshold for section 17(1) of the SC Act has not been met by the applicant. Therefore leave to appeal is refused. Order: [9]  It is ordered that: (a)  The application for leave to appeal is dismissed with costs, at scale A. MALUNGANA PH Acting Judge of the High Court GAUTENG DIVISION, JOHANNESBURG Heard on               14 October 2025 Delivered on          20 October 2025 APPEARANCES For the Applicant                                  : Adv. Jacoob Alli Instructed by                                        : SLH Inc For the Respondent                             : Adv. Samantha Jackson Instructed by                                        : Moodie & Robertson sino noindex make_database footer start