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[2023] ZAFSHC 35
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C.L v N.V.V (1575/2021) [2023] ZAFSHC 35 (16 February 2023)
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IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case no: 1575/2021
Reportable: YES/NO
Of Interest to other
Judges: YES/NO
Circulate
to Magistrates: YES/NO
In
the matter between:
C
[....] L
[....]
Applicant
and
N
[....] V [....] V [....]
1
Respondent
BEFORE:
CHESIWE, J
DATE
RECEIVED:
11
NOVEMBER 2022
DATE
RESERVED:
27 JANUARY
2023, this upon receipt of the written heads of arguments on 20 &
27 January 2023 respectively.
DELIVERED
ON:
16 FEBRUARY 2023
JUDGMENT
IN RESPEST OF THE APPLICATION FOR LEAVE TO APPEAL
[1]
The Applicant seeks leave to appeal to the Full Bench of this
Division against the
whole of the judgment and orders granted on 21
October 2022. The application is opposed by the Respondent.
[2]
The grounds of this application for leave to appeal are listed in the
application
for leave to appeal and will therefore no be repeated
herein.
[3]
The Applicant contends that it has good prospects of success on
appeal. The Respondent
contends that the application is fatally
flawed and that the Applicant did not make out a case in terms of
section 17
of the
Superior Courts Act 10 of 2013
.
[4]
In terms of the provisions of
section 17(1)
of the Superior Court’s
Act 10 of 2013 (as amended) leave to appeal may only be granted if
the judge concerned is of the
opinion that:
1.
The appeal would have a reasonable prospects of success or if
there is some compelling reasons why leave should be granted;
2.
The decision sought on appeal does not fall within the ambit
of
s16(2)(a)
of the Act;
3.
Where the decision sought to be appealed does not dispose of
all the issues in the case, the appeal would lead to a just and
prompt
resolution of the real issues between the parties.
[5]
In
Matoto
v Free State Gambling and Liqour Authority and Others
[1]
the Court said the following:
“
There can be no
doubt that the bar for granting leave to appeal has been raised.
Previously, the test was whether there was a reasonable
prospect that
another court might come to a different conclusion. Now, the use of
the word ‘would’ indicates a measure
of certainty that
another court will differ from the court whose judgment is sought to
be appealed against.”
[6]
In
S
v Smith
[2]
the court dealt with the question of what constitutes reasonable
prospects of success as follows:
“
What the test
of reasonable prospects of success postulates is a dispassionate
decision, based on the facts and the law, that a
court of appeal
could reasonably arrive at a conclusion different to that of the
trial Court. In order to succeed, therefore, the
appellant must
convince this court on proper grounds that he has prospects of
success on appeal and that those prospects are not
remote, but have a
realistic chance of succeeding. More is required to be established
than that there is a mere possibility of
success, that the case is
arguable on appeal or that the case cannot be categorised as
hopeless. There must, in other words, be
a sound, rational basis for
the conclusion that there are prospects of success on appeal.”
[7]
In
MEC
for Health, Eastern Cape v Mkhitha and Another
[3]
the court held as follows:
“
[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 Court 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 sound, rational basis to
conclude that there is a reasonable prospect of success on appeal.”
[8]
The applicant relies on several grounds of appeal as mentioned in the
leave to appeal
application with the main assertion that the appeal
would have a reasonable prospect of success. Most of the grounds
sought to
be relied upon are essentially a rehash of the case as set
out in the pleadings and fully argued and dealt with in my judgment.
[9]
In the main application this court was called upon to adjudicate upon
following issue:
“
Whether it is
in the minor child’s best interest that primary care, and
residence should be awarded to the Respondent and
that the Applicant
is to be awarded contact
.”
[10]
The issues raised in these grounds, entail a revisit to the seriously
contended issues
in which the Applicant contends that there is
prospects of success. In an application for leave to appeal, the
Applicant is not
precluded to revisit the issues provided that the
court is satisfied that there is a reasonable prospect that the
factual matrix
would receive a different interpretation by another
court.
[11]
Based on the submissions of the Applicant and those of the
Respondent, indeed, the bar
has been raised for granting leave to
appeal against the judgment of a high court. As the matter involves a
minor child and in
the interest of justice, I see no reason not to
grant the application.
[12]
I am therefore of the considered view that the application is with
merit and that another
court may come to a different conclusion.
[13]
I accordingly make the following order:
1.
The application for leave to appeal to the Full Bench of this Court
is therefore
granted.
2.
Costs of the application to be costs in the appeal.
S.
CHESIWE, J
On
behalf of the Applicant:
Mr E Visser/Mrs C van Dyk
Instructed
by:
Etienne Visser Attorneys
BLOEMFONTEIN
On
behalf of the Respondent:
Adv. J van Rooyen
Instructed
by:
McIntyre & van der Post Attorneys
BLOEMFONTEIN
[1]
(4629/2015)
[2017] ZAFSHC 80
(8 June 2017)
[2]
2012(1) SACR 567 (SCA) par [7]
[3]
(1221/2015[2015] ZASCA 176(25 November 2016)