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IN THE LAND CLAIMS COURT OF SOUTH AFRICA

HELD AT MTHATHA

BEFORE: BAM JP

Decided: 04 May 2010

Date of Hearing: 26 March 2010.

Case Number: LCC66/07

In the matter between:

MONWABISI MORRIS NJEMLA Applicant

and

KING SABATA DALINDYEBO MUNICIPALITY Respondent

APPLICATION FOR LEAVE TO APPEAL

JUDGMENT

1. This is an application for leave to appeal to the Supreme Court of Appeal against my Judgment in which I granted an application by the present respondent for the rescission of a costs order in an earlier matter between the parties.

2. Essentially, the application for leave to appeal is based on two grounds. The first is that I erred in dealing with the application for rescission in terms of the common law whereas the request for it was initially based on the provisions of Section.35(11) of the Restitution of Land Rights Act 22 of 1994 read with rule 64 of the Land Claims Court which was later abandoned.

3. The second ground is that I erred in finding that I had misconceived and misconstrued the jurisdictional base upon which I had earlier granted the costs order in favour of the present applicant.

4. The application for leave to appeal is vigorously apposed by the respondent and both of these grounds are contested including additional anticipated grounds not pleaded.

5. The well established test whether leave to appeal should be granted is a reasonable prospect of success on appeal and has been referred to repeatedly through the years. The trial Judge is faced with no easy task and must exercise his power judicially.

“The mere possibility that another Court might come to a different conclusion is not sufficient to justify the grant of leave to appeal.”¹

6. In respect of the first ground, it was set out in the Judgment for rescission that I was satisfied that there was ample authority that the court may assume its inherent jurisdiction to rescind in the interests of justice. It was there stated that it would be manifestly inequitable and not in the interests of justice to implement the costs order given the disingenuous manner in which the present applicant had pleaded its case in the earlier matter.

7. In respect of the second ground, the costs order, together with the interim interdict that was granted, was based entirely in the belief that the land upon which there was development was under claim in terms of the Restitution of Land Rights Act 22 of 1994. However, the present applicant, himself, swore in an affidavit filed subsequently that the land concerned was not the subject of a claim.

8. In these circumstances, I have no doubt that there is no reasonable prospect that the Supreme Court of Appeal might uphold the appeal for which leave is sought.

9. Order:

The application for leave to appeal to the Supreme Court of Appeal is accordingly dismissed with costs.

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F C Bam JP Land Claims Court

For Applicant: For Respondents

M. Tshiki A M da Silva

Tshiki & Sons Mnqandi Inc

Applicant’s Attorneys Respondent’s Attorneys

Umthatha Umthatha

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