IN THE HIGH COURT OF SOUTH AFRICA GAUTENG LOCAL DIVISION, JOHANNESBURG (1) (2) (3) Date: REPORTABLE: NO OF INTEREST TO OTHER JUDGES: NO REVISED: 24 August 2021 Signature: ____________________ CASE NO: 21601/2020 In the matter between: IZANDLA PROPERTY FUND PLAINTIFF/RESPONDENT and AFRO ARCHITECTURAL CC SERGE NZEMBELA FIRST DEFENDANT/APPLICANT SECOND DEFENDANT/APPLICANT Coram: Majavu AJ Heard: 13 AUGUST 2021 Delivered: 24 AUGUST 2021 – This judgment was handed down electronically by circulation to the parties' representatives by email, by being uploaded to the CaseLines digital system of the GLD and by release to SAFLII. The date and time for hand-down is deemed to be 14h00 on 24 AUGUST 2021 Summary: Application for leave to appeal against judgment handed down on 31 May 2021, no reasonable prospects that another court would arrive at a 2 different conclusion, neither are there any compelling reasons for the appeal to be allowed, application dismissed with costs on attorney and client scale, including costs consequent upon the employment of counsel. ORDER (a) Application for leave to appeal is dismissed with costs, on an attorney and own client scale, including costs consequent upon the employment of counsel. ____________________________________________________________ Majavu AJ Introduction [1] This is an opposed application for leave to appeal against my judgement handed down on 31 May 2021. [2] The grounds of appeal can be summarized as follows: 2.1 I erred in reducing the substantive defences raised, to technical quibbles, overly formalistic contentions. 2.2 I erred again in stating that the defendant had failed to state the true nature of its defence. 3 2.3 the It was asserted, quite condescendingly, that I failed to consider relevance of the fact that the lease upon which the plaintiff/respondent relies was purportedly only concluded 15 July 2019 and allegedly made retrospective to 1 March 2019. It is suggested that it is improbable, if not ridiculous (sic) to suggest that the defendants/applicants were in occupation of the premises form 1 March 2019 until 15 July 2019 without any agreement. 2.4 I erred by reading the word “landlord out of context”. 2.5 I failed to question the reliability or credibility of Ms Bisschoff with regard to the remainder of her affidavit, given the what is regarded as an earlier false statement. 2.6 I omitted to summarize the evidence or in the alternative, I misstated the version of the defendants/applicants. 2.7 I erred in deciding the true contractual basis of the dispute simply on the papers without due consideration of the countervailing version of the defendants/applicants 2.8 I erred by raising the bar too high for summary judgement proceedings to the extent that I found that the defendants do not raise a triable issue or bona fide defence; and lastly 2.9 That the amount awarded is different to the one actually claimed. 4 [3] I do not intend to traverse the grounds in the order and manner in which they were raised, however, I will deal with the thrust and general import thereof and weigh that against the applicable test. [4] A useful starting point is section 17(1) of the Superior Courts Act 10 of 2013 which states that: (1) leave to appeal may only be given where the judge or judges concerned are of the opinion that- (a) (i) the appeal would have a reasonable prospect of success; or (ii) there is some other compelling reason why the appeal should be heard, including conflicting judgements on the matter under consideration,…” [5] Principally, the above is the applicable framework or lens through which any application for leave to appeal must be assessed. [6] This court approved, what one can refer to as a more stricter approach lens, when adjudicating an application for leave to appeal: This was in the matter of the Acting National Director of Public Prosecution v Democratic Alliance (Society for the protection of our Constitution and Amicus Curiae) 1: 1 2016 JD R1211 (GP at page 13 5 The Superior Courts Act has raised the bar for granting leave to appeal in the Mount Chevaux (IT 2012/28) v Tina Goosen & 18 others, Bertelsmann J held as follow(s): “ it is clear that the threshold for granting leave to appeal against the judgement of the High Court has been raised in the new act. The former test where leave to appeal should be granted was a reasonable prospect that another co