Seale and another v City of Johannesburg Metropolitan Municipality and others (Leave to Appeal)

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Du Plessis AJ
• Judgment Date: 08 September 2023
• Citation: 2023 JDR 3547 (GP)
• Hearing Date: 08 September 2023
• Docket Number: 2023-078684
• Court: Gauteng Division, Pretoria

Du Plessis AJ:

[1]

The Respondents filed an application for leave to appeal against a judgment [1] in favour of the Applicants in an urgent application in this court for, among other things, the restoration of dwellings and an interdict against the unlawful eviction of the Applicants. The parties will be referred to as they were in the urgent application for ease of reference.

Summary of the Judgment

[2]

The Applicants brought the urgent application after the Respondents demolished their homes and structures. The Respondents insist that they were not evicting the Applicants but merely executing a 2017 order from the High Court, Johannesburg, interdicting “unknown occupiers” from “invading and taking possession of the property” and “invading and erecting houses/structures on the said property”. I found, in essence, that the 2017 order cannot be used, as the order does not bind the Applicants since they are not part of the “unknown occupiers” in 2017, and that such an order used indefinitely amounts to a decree and not a court order, as stated line with various judgments referred to. Where the order is used to demolish unoccupied structures, it is against s 26(3) of the Constitution.

[3]

I was satisfied that on the evidence before the court, it is not only unoccupied structures that were demolished but also occupied structures, amounting to eviction.

[4]

The Respondents seek leave to appeal against the judgment on various grounds, namely the finding that the Applicants were evicted; rejecting the contention that the Respondents were merely enforcing the 2017 order; not finding that the matter is res judicata; not finding that the issues are lis pendens given that there are other cases dealing with the same community; not finding that the conduct of the Applicants was

2023 JDR 3547 p3

Du Plessis AJ

contemptuous of the 2017 order; not postponing a finding of unconstitutionality; not finding that the Applicants should first challenge the 2017 order; ordering an R1 500 payment to restore the demolished shacks; granting the final interdicts that bar them from executing the 2017 order; and awarding punitive costs.

The law of leave to appeal

[5]

Section 17(1)(a) of the Superior Courts Act 10 of 2013 (“the Act”) provides that leave to appeal may be granted where the judge concerned is of the opinion that:

i.

the appeal would have a reasonable prospect of success in that another court would come to a different conclusion (section 17(1)(a)(i)); or

ii.

there is some other compelling reason why the appeal should be heard (section 17(1)(a)(ii)).

[6]

In MEC for Health, Eastern Cape v Mkhitha, [2] it was held

“[16]

Once again it is necessary to say that leave to appeal, especially to this court, must not be granted unless there truly is a reasonable prospect of success. Section 17(1)(a) of the Superior Courts Act 10 of 2013 makes it clear that leave to appeal may only be given where the judge concerned is of the opinion that the appeal would have a reasonable prospect of success; or there is some other compelling reason why it should be heard.

[17]

An applicant for leave to appeal must convince the court on proper grounds that there is a reasonable prospect or realistic chance of success on appeal. A mere possibility of success, an arguable case or one that is not hopeless, is not enough. There must be a sound, rational basis to conclude that there is a reasonable prospect of success on appeal.”

[7]

The question is thus whether another court would come to a different conclusion, requiring more than a mere possibility, namely, a sense of certainty...