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[2022] ZAGPPHC 307
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Road Accident Fund v Auditor-General of South Africa (Leave to Appeal) (1452/2022) [2022] ZAGPPHC 307 (4 May 2022)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION PRETORIA)
CASE
NO:1452/2022
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
REVISED
04
MAY 2022
In
the matter between:
THE
ROAD ACCIDENT
FUND
APPLICANT
And
THE
AUDITOR-GENERAL OF SOUTH-AFRICA
RESPONDENT
This
judgment is issued by the Judge whose name is reflected herein and is
submitted electronically to the parties/their legal representatives
by email. The judgment is further uploaded to the electronic file of
this matter on Caselines by the Judge or his/her secretary.
The date
of this judgment is deemed to be 04 MAY 2022.
APPLICATION
FOR LEAVE TO APPEAL JUDGMENT
COLLIS
J
INTRODUCTION
[1]
This is an application for leave to appeal against the judgment and
order I made on 24 February 2022. The order of the court
reads as
follows:
“
Consequently,
the application falls to be dismissed with costs to be reserved.”
[2]
The application is premised on the grounds as listed in the
Application for Leave to Appeal dated 17 March 2022.
LEGAL
PRINCIPLES
[3]
Section 17 of the Superior Court’s Act provides as follows:
[1]
(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;
(b) the decision
sought to appeal does not fall within the ambit of section 16(2)(a);
and
(c) 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.
[4]
In the present instance
the Applicant seeks
leave to appeal relying on section 17(1)(a)(i) and (ii); i.e. that
the “…
an appeal would
have a reasonable prospect of success
”
and also that “there is some other compelling reason that the
appeal should be heard, including conflicting judgments
on the matter
under consideration.”
[5]
As to the test to be applied by a court in considering an application
for leave to appeal, Bertelsmann J in The Mont Chevaux
Trust v Tina
Goosen & 18 Others 2014 JDR 2325 (LCC) at para 6 stated the
following:
‘
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 Cronwright & 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.’
[6]
‘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.’
[2]
[7]
In
Fair-Trade Independent Tobacco Association v President of the
Republic of South Africa and Another
[3]
the Full Court of this Division observed that:
“
As
such, in considering the application for leave to appeal it is
crucial for this Court to remain cognizant of the higher threshold
that needs to be met before leave to appeal may be granted. There
must exist more than just a mere possibility that another court,
the
SCA in this instance, will, not might, find differently on both facts
and law. It is against this background that we consider
the most
pivotal grounds of appeal.”
[8]
The applicant and the respondent on request by this court had filed
written Heads of Argument in order to facilitate the virtual
hearing
of the matter.
[9]
Having read the papers and having carefully heard counsel I come to
the conclusion that there is a reasonable prospect that
another court
would come to a different conclusion on the order of the court.
ORDER
[10]
Consequently I make the following order:
10.1 The applicant is
granted leave to appeal to the Supreme Court of Appeal;
10.2 Costs, including
costs of two counsel, to be costs in the appeal.
C.COLLIS
JUDGE
OF THE HIGH
Appearances
Counsel
for the Applicant
: Adv. J.A Motepe SC & Adv. M.D Stubbs
Attorney
for the Applicant
: Malatji & Co Attorneys
Counsel
for the Respondent : Adv. P. Pretorious
SC & Adv R. Tshetlo
Attorney
for the Respondent : Fairbridges
Wertheim Becker Attorneys
Date
of Hearing
: 21 April 2022
Date
of Judgment
: 04 May 2022
Judgment
transmitted electronically.
[1]
Act
10 of 2013
[2]
S
v Smith
2012 (1) SACR 567
(SCA) at para 7.
[3]
Case
no: 21688/2020 [2020] ZAGPPHC 311 (24 July 2020) at [6].