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REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, JOHANNESBURG

 

CASE NO: 38630/2021

 

REPORTABLE: /NO

OF INTEREST TO OTHER JUDGES: /NO

REVISED

17 November 2021

 

In the matter between:

 

CHARLOTTE MAXEKE ACADEMIC HOSPITAL                                 First Applicant

MAKHOSI NYEMBE                                                                              Second Applicant

 

And

 

T and M CANTEEN CC                                                                         Respondent

 

This judgment is delivered electronically by circulation to the parties' legal representatives by email, and uploaded on caselines electronic platform. The date of issue is deemed to be 17 November 2021.

 

LEAVE TO APPEAL: JUDGEMENT

 

Molahlehi J

 

[1]          This is an application for leave to appeal against the judgement of this court made on 14 September 2021. The court, in that judgment, ordered the applicant to restore the peaceful possession of the canteen, which is in the premises of the first applicant, Charlotte Maxeke Academic Hospital (the first respondent in the urgent application). In other words, the court granted the respondent, T and M Canteen CC (the applicant in the urgent application) mandamente van spolie.

 

[2]          The respondent, T and M Canteen CC, opposed the application.

 

[3]          It is now well established that the standard of reasonable prospects of success on appeal in an application for leave to appeal has been elevated to a higher standard by the provisions of the Superior Courts Act 10 of 2013 (the SC Act). In this respect, section 17 of the SC Act provides that leave to appeal may be granted in circumstances where the court believes that the appeal would have reasonable prospects of success or some other compelling reason why the appeal should be heard.

 

[4]          The applicants have raised several grounds of appeal, which appear in both the notice of leave to appeal and the supplementary grounds of appeal. The grounds of appeal are substantiated further in the oral submission made during the hearing.

 

[5]          I do not deem it necessary for this judgement to repeat every ground for leave to appeal stated in the applicants’ application as the same appears on the record. I need to point out also that the issues raised in this application are the same as those raised in response to the urgent application and the relief sought therein. In my view, those issues were fully ventilated and considered in that judgment.

 

[6]          In considering this application and applying the test for leave to appeal summarised above, I found that there are no prospects of success that the court of appeal would arrive at a decision different to that reached by this court. Thus the application stands to fail.

 

Order

 

[7]          In the premises, the applicants’ application for leave to appeal is dismissed with costs.

 

E Molahlehi

Judge of the High Court,

Gauteng Local Division,

Johannesburg

 

 

Representation:

For the Applicants: Adv FJ Nalane

Instructed by: Mogaswa and Associates Inc. Attorneys

For the Respondent: Adv B Bhabha

Instructed by: SALI Attorneys

Heard in: 10 November 2021

Delivered: 17 November 2021

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