About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2023
>>
[2023] ZAGPPHC 142
|
|
Legal Practitioners Indemnity Insurance Fund NPC v Mkansi [2023] ZAGPPHC 142; 61050/2021 (22 February 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION
,
PRETORIA)
Case
No:61050/2021
REPORT
ABLE: NO
OF
INTERESTTO OTHER JUDGES: NO
REVISED:
NO
22
February 2023
In
the application between
:
LEGAL
PRACTITIONER'S
INDEMNITY
INSURANCE
Appl
ic
ant
FUND
NPC
and
MATIMBA
NOEL
MKANSI
Respondent
In
re
:
In
the application
between
:
MATIMBA
NOEL
MKANSI
Applicant
and
LEGAL
PRACTITIONER'S INDEMNITY INSURANCE
Respondent
FUND
NPC
JUDGMENT
KHWINANA
AJ:
INTRODUCTION
[1]
This is an
application for leave to appeal to the Supreme Court of Appeal
alternatively
the
full bench of
the above honourable court against my judgment granted on this the
24
th
day of May 2022
.
[2]
Section 17(1) of the
Superior Courts Act
,
Act 10 of 2013
("the
Superior
Courts Act")
,
regulates
applications for leave to appeal and provides:
'(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
judgments on
the
matter
under consideration
.
[3]
The
test
in
an
application for
leave
to
appeal
prior to the Superior Courts Act was whether there
were
reasonable
prospects
that
another
court
may come
to
a
different conclusion
.
Section
17(1)
[1]
has
raised
the
test
,
as
Bertelsmann J
,
correctly
pointed out
in
The
Mont
Chevaux
Trust
v
Tina
Goosen
&
18
Others
2014 JDR 2325 (LCC)
at
para
:
'It
is
clear
that
the
threshold
for granting leave
to
appeal
against a judgment
of
a High
Court has been raised in the new Act
.
The
former
test whether leave to appeal should be granted
was
a
reasonable prospect that another
court
might
come to a different
conclusion,
see
Van
Heerden v Cornwright
&
Others
1985
(2) SA
342
(T)
at
343H
.
The use
of the word
"
would
"
in the
new statute indicates a measure of
certainty
that
another
court
will
differ from the
court
whose
judgment is sought to be appealed against.
'
[4]
The Supreme Court of
Appeal in
MEC
Health
,
Eastern
Cape
v
Mkhitha
(1221/15)
[2016] ZASCA 176
(25 November 2016)
said
the
following
about section
17(1)(a) of
the
Superior
Courts
Act:
“
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
s
uccess
on
appeal.
”
[5)
The applicant's
leave
to appeal is
on my judgment
,
save
to say the reasons
have been given in my judgment.
[6]
Order:
The
draft order
,
as
amended,
marked
"X"
is made
an
order
of
court.
In
the result:
1.
Leave to appeal is
refused
.
2.
Each Party is to pay
their own costs
.
E.N.B.
KHWINANA
ACTING
JUDGE
OF
THE
HIGH
COURT
GAUTENG
DIVISION,
PRETORIA
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Case
No: 61050/2021
In
the matter between:-
LEGAL
PRACTICIONERS
FIDELITY
FUND
APPELLANT
and
MKANSI
RESPONDENT
Order
(a)
Leave to Appeal
is
dismissed
.
(b)
Each party is to pay
their own costs
.
REGISTRAR
DELIVERED
:
This judgment
was prepared and authored by the judge whose name
is
reflected
and
is handed down electronically
by
circulation to
the parties/their legal representation by email and by uploading it
to the
electronic
file of this
matter on
caselines
.
The Date for
hand down is deemed to be 21 February
2023
.
APPEARANCES:
For
the applicant in the application for leave
to
appea
l
Adv
Heyns SC
For
the
respondent in the application for leave to appea
l
Adv
PG LOUW
[1]
Commissioner
of Inland Revenue v Tuck
1989 (4) SA 888
(T) at 890