Savannah Country Estate Homeowners Association v Zero Plus Trading 194 (Pty) Ltd and Others

Savannah Country Estate Homeowners Association (Savannah), a non-profit company, alleged that during 2005-2006 Zero Plus Trading 194 (Pty) Ltd (Zero Plus) established the Savannah Country Estate. In 2007, Zero Plus transferred Erf 445 to Savannah. On 24 April 2007, Savannah, allegedly unlawfully represented by Mr Mario Pretorius (Zero Plus' CEO), sold Erf 445 back to Zero Plus. Savannah claimed this sale was unlawful and in conflict with section 228 of the Companies Act 61 of 1973, as none of its 280 members received notification of the decision. After the sale, Erf 445 was re-zoned from 'special' to 'residential' and developed into 106 sectional title units. Zero Plus sold some units to third parties, including 32 units to the University of Pretoria for R24,053,200. A sectional title register was opened on 15 May 2009, a body corporate was established, and the property was transferred from the township register to a sectional title register. Savannah sought to declare the sale agreement unlawful and null and void, set aside the registration, and compel transfer back to itself.

• Whether special leave to appeal should be granted under section 16(1)(b) of the Superior Courts Act 10 of 2013
• The distinction between 'leave to appeal' and 'special leave to appeal' and the requirements for each
• Whether the applicant demonstrated any additional factor or criterion beyond reasonable prospects of success to justify the grant of special leave
• Whether the defence of impossibility of performance was correctly upheld by the courts below
• Whether Savannah could obtain the relief sought given the registration of the sectional title scheme and sales to third parties

The application for special leave to appeal was struck from the roll with costs awarded against the applicant (Savannah Country Estate Homeowners Association).

An applicant seeking special leave to appeal in terms of section 16(1)(b) of the Superior Courts Act 10 of 2013 against any decision of a Division on appeal must demonstrate not only reasonable prospects of success on appeal, but also some additional factor or criterion beyond the ordinary requirements for leave to appeal. The word 'special' in section 16(1)(b) denotes that some additional factor or criterion must play a part in the granting of special leave, such as matters of very great importance to the parties or great public importance. Where an applicant has already enjoyed a full appeal, this will normally weigh heavily against the grant of special leave. The Supreme Court of Appeal will not entertain an application for special leave to appeal where the applicant fails to demonstrate these additional requirements and where the proposed appeal lacks merit and has no reasonable prospects of success.

The Court observed that even if the judges who initially referred the matter for oral argument under section 17(2)(d) had granted special leave to appeal, the judges hearing the appeal are not precluded from considering whether they should actually be entertaining the appeal at all. The Court noted that Savannah had inexplicably failed to amend its particulars of claim despite having sufficient opportunity to do so, particularly after respondents raised special pleas pointing out the failure to join the body corporate, all owners of sectional title units, and mortgage bondholders. The Court commented that Savannah should have investigated whether amendment was necessary after the registration of the sectional plans and opening of the sectional title register. The Court observed that on the existing pleadings, Savannah would have been unable to secure any relief against any of the respondents even if the matter proceeded to trial on the merits.

This case clarifies the distinction between 'leave to appeal' and 'special leave to appeal' under the Superior Courts Act 10 of 2013. It confirms that an applicant seeking special leave to appeal under section 16(1)(b) against a decision of a full court must satisfy the Supreme Court of Appeal not only that there are reasonable prospects of success, but also demonstrate some additional factor or criterion such as matters of great public importance or exceptional importance to the parties. The judgment emphasizes that the fact that applicants have already enjoyed a full appeal will normally weigh heavily against the grant of special leave. It also demonstrates that courts will not grant postponements to enable applicants to reformulate applications for special leave where the underlying appeal lacks merit and has no reasonable prospects of success.