Summary of Judgment

1. Introduction

The proceedings were an application for leave to cross-appeal against a judgment and order previously granted on 2 June 2023. The matter was heard in the High Court of South Africa, Gauteng Division, Pretoria.

The parties were Hosea Madime Nkogatse as the applicant and the National Director of Public Prosecutions as the respondent. The judgment under summary was delivered by Collis J on 21 November 2023, following a hearing on 17 November 2023.

Procedurally, the application for leave to cross-appeal was premised on the grounds set out in the applicant’s cross-appeal dated 5 July 2023. Prior to the hearing, the court requested short heads of argument; only the applicant complied. On the hearing date, the respondent did not appear.

The general subject-matter of the dispute concerned the applicant’s underlying claim for damages, which turned on whether there had been one or two prosecutions and whether the prosecution(s) were malicious. The leave-to-appeal proceedings focused on whether the threshold in section 17 of the Superior Courts Act 10 of 2013 was met.

2. Material Facts

It was common cause in the leave-to-appeal judgment that the applicant’s underlying damages claim was framed around the proposition that there were two prosecutions, and that these prosecutions were malicious, giving rise to a claim for damages.

The court recorded that it had, in the earlier decision of 2 June 2023, found against the applicant on the issue of the number of prosecutions. In particular, the earlier judgment held that only one prosecution ensued, notwithstanding that the applicant’s initial conviction and sentence were set aside on review and the matter was remitted to the trial court for the trial to start de novo.

As a matter relevant to the hearing of the leave application, the court noted that it had requested short heads of argument in anticipation of the hearing. The applicant filed heads of argument (including supplementary heads), while the respondent did not, and the respondent was not present at the hearing.

3. Legal Issues

The central legal question was whether the applicant satisfied the statutory threshold for leave to appeal under section 17(1) of the Superior Courts Act 10 of 2013, in particular whether the appeal would have a reasonable prospect of success as contemplated in section 17(1)(a)(i).

This was primarily a question concerning the application of a statutory standard (the raised threshold for leave to appeal) to the case as presented in the papers and submissions. It required an evaluative determination as to whether there existed a sound, rational basis for concluding that another court would come to a different conclusion on the contested findings.

Although the merits of the underlying dispute concerned whether there was one or two prosecutions and whether any prosecution was malicious, the question before the court in this ruling was confined to whether those issues had sufficient prospects on appeal to warrant leave to appeal.

4. Court’s Reasoning

The court approached the application by setting out the governing statutory test in section 17(1) of the Superior Courts Act 10 of 2013, emphasising that leave may only be granted where the court is of the opinion that the appeal would have a reasonable prospect of success, or there is some other compelling reason, and subject to additional statutory requirements.

The court identified that the applicant relied specifically on section 17(1)(a)(i), namely the contention that the appeal would have reasonable prospects of success. In developing the applicable standard, the court relied on authority explaining that the threshold for leave to appeal under the Superior Courts Act is higher than under the prior test. In particular, the court referred to the interpretation that the use of the word “would” indicates a measure of certainty that another court will differ, rather than the earlier notion that another court might differ.

The court further adopted the formulation that an applicant must demonstrate more than a mere possibility of success or that the matter is arguable. Instead, there must be a realistic chance of success and a sound, rational basis for the conclusion that prospects exist.

Against this framework, the court identified as the “crisp issues” in the underlying dispute whether there was one or two prosecutions and whether such prosecution(s) were malicious, as these issues underpinned the applicant’s damages claim. The court reiterated its earlier finding that one prosecution ensued, notwithstanding the review setting aside the initial conviction and sentence and remittal for a trial de novo.

Having considered the papers and submissions, the court concluded that there was a reasonable prospect that another court would come to a different conclusion on the order made, thereby satisfying the standard in section 17(1)(a)(i). On that basis, leave to appeal was granted to the Full Court.

5. Outcome and Relief

The court granted leave to appeal to the Full Court of the Gauteng Division.

The court ordered that the leave to appeal was granted with costs in the appeal.

Cases Cited

The Mont Chevaux Trust v Tina Goosen & 18 Others 2014 JDR 2325 (LCC)

Van Heerden v Cronwright & Others 1985 (2) SA 342 (T)

S v Smith 2012 (1) SACR 567 (SCA)

Fair-Trade Independent Tobacco Association v President of the Republic of South Africa and Another, Case no: 21688/2020 [2020] ZAGPPHC 311 (24 July 2020)

Legislation Cited

Superior Courts Act 10 of 2013, section 17(1)

Superior Courts Act 10 of 2013, section 16(2)(a)

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The court held that, applying section 17(1)(a)(i) of the Superior Courts Act 10 of 2013 and the authorities on the heightened threshold for leave to appeal, the applicant established that there was a reasonable prospect that another court would reach a different conclusion on the relevant order.

Accordingly, leave to appeal to the Full Court was granted, with an order that the costs be costs in the appeal.

LEGAL PRINCIPLES

The judgment applied the principle that leave to appeal under section 17 of the Superior Courts Act 10 of 2013 is subject to a heightened threshold in comparison to the pre-Act position. The statutory formulation, particularly the use of “would”, was treated as requiring more than the possibility that another court might differ, and as indicating a greater level of persuasion that another court will differ.

The court applied the principle that an applicant for leave to appeal must show that prospects of success are not remote and that there is a realistic chance of success, grounded in a sound, rational basis, and not merely that the case is arguable or not hopeless.

Within the leave-to-appeal context, the court treated the question whether an appeal would have reasonable prospects of success as requiring an evaluative assessment based on the papers and submissions, and concluded that this standard was met on the facts and issues identified in the underlying dispute (including the characterization of the matter as involving one versus two prosecutions and the associated malicious prosecution damages claim).